Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program.
Back in April, we alerted readers to Congress delaying the requirement for farm oil spill prevention plans (find post here). The US EPA had set a deadline of May 10, 2013 for all farms to have their Oil Spill Prevention, Control, and Countermeasure (SPCC) Plans in place. However, Congress delayed EPA’s ability to enforce the regulation until September 26, 2013, under an amendment to H.R. 933. While this delay in enforcement may cause some farmers to think twice about preparing or amending an SPCC plan, a recent Ohio Court of Appeals decision shows how costly fuel spills can be and highlights the importance of good fuel management practices on the farm.
In Ohio Environmental Protection Agency v. Lowry, a 250-gallon fuel tank in Jefferson Township had rusted through and completely drained 250 gallons of fuel oil that had been filled just a few days before. The Jefferson Township Fire Department received a call about a fuel odor coming from the property where the fuel tank was located and a “visible sheen” was evident on a local waterway. The fire department contacted the Ohio Environmental Protection Agency (OEPA) because the spill was over 50 gallons. OEPA sent a response team to assess the damage and work with the property owner to remedy the situation. OEPA informed the property owner that he should obtain a contractor to clean up the fuel and that if he failed to do so, OEPA would secure a contractor and bill the property owner for the costs as authorized by Ohio law in Ohio Revised Code Section 3745.12.
The property owner failed to obtain a contractor for the clean up. OEPA hired Environmental Enterprises, Inc. to perform the work and presented the property owner with the bill for $15, 855.92. The matter proceeded to court, where the property owner argued that because petroleum spills are exempt from chargeable cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the court should interpret Ohio’s law similarly and exempt him from cleanup liability. The trial court did not agree.
The Court of Appeals also disagreed with the property owner, stating that even if fuel oil is considered a hazardous substance for purposes of the federal CERCLA, the federal law “does not control the determination” of whether a spill posed a risk to the environment requiring emergency action under Ohio law. According to Ohio Revised Code Section 3745.12, any person responsible for the unauthorized spill, release, or discharge of material into or upon the environment “that requires emergency action to protect the public health or safety or the environment,” is liable to OEPA for costs incurred in the cleanup. Ohio law focuses on when emergency action is required as opposed to CERCLA’s approach of defining types of hazardous waste cleanups allowed as chargeable cleanup costs.
The lesson from the Lowry case is that even though the US EPA cannot currently enforce the requirement for SPCC plans, farmers should take fuel management seriously. OEPA has the authority to respond to a fuel spill and require a property owner to pay for the cleanup, which can be costly. Though not now required by federal law, farmers should take all precautions when managing fuel and minimize the risks of a fuel spill.
Read full case here.