[Congressional Record Volume 140, Number 147 (Tuesday, November 29, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: November 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
     REGULATION OF ANIMAL FATS AND VEGETABLE OIL UNDER OPA 90: WILL 
                          COMMONSENSE PREVAIL?

                                 ______


                          HON. THOMAS W. EWING

                              of illinois

                    in the house of representatives

                       Tuesday, November 29, 1994

  Mr. EWING. Mr. Speaker, as we close this session, I plan to introduce 
legislation first thing in the new 104th Congress to require 
differentiation for animal fats and vegetable oils under the Oil 
Pollution Act of 1990. By way of background I wanted to let the members 
of the House know the status of the regulation of animal fats and 
vegetable oils under that statute, which has precipitated the need to 
pursue this clarifying legislation. This law, known as OPA 90, was 
enacted in response to catastrophic petroleum oil spills (e.g., Exxon 
Valdez spill) to reduce the risk of, improve the response to, and 
minimize the impact of those spills. However, due to the overly broad 
definition of oil, OPA 90 applies not only to toxic oils (e.g., 
petroleum oil), but also to non-toxic agricultural products such as 
animal fats and vegetable oils. As a result, these non-toxic substances 
used to make foodstuffs and other consumer products are unfortunately 
swept up in the same broad definition as petroleum and other toxic 
oils.
  Lacking clear congressional direction on differentiation, 
implementing agencies, such as the Environmental Protection Agency and 
the Coast Guard, are issuing rules that regulate animal fats and 
vegetable oils to the same degree as toxic oils, while ignoring the 
unique non-toxic nature of these agricultural products. Although these 
agencies have classified them with non-petroleum oils under the various 
interim and final rules for spill response, a long list of toxic oils 
are still included in this same non-petroleum category. There is no 
reason why non-toxic animal fats and vegetable oils must be in the same 
category as toxic oils.
  This year, Representative Jill Long and I together with others have 
introduced and supported legislation to insure that both of these 
objectives are accomplished. This legislation does not change the 
underlying principles of OPA 90; it would only require agencies to 
differentiate animal fats and vegetable oils from other oils. I want to 
commend her for beginning this initiative. I know that many of the 
Members of this body joined in letters to Secretary Pena and 
Administrator Browner on this subject. Further, this measure was passed 
by the House twice this Congress as part of H.R. 4422 and H.R. 4852. In 
addition, the Senate passed virtually the same measure once in the form 
of S. 2559.
  Although final legislation cannot be completed in the time remaining 
in this Congress, I want to assure all Members that I will be working 
to clarify this unintended consequence of the Oil Pollution Act when we 
reconvene in the 104th Congress. To this end I am appending to my 
remarks a more detailed fact sheet which examines this entire matter in 
depth. This issue should be made a priority as we work to eliminate the 
unnecessary and costly regulatory burdens placed on U.S. business that 
do not add any additional measure of protection to the environment or 
the health and safety of our citizens.
  The scientific data collected to date indicate that animal fats and 
vegetable oils industry has an excellent spill history for these 
products. Specifically, these products account for less than one half 
of one percent of all oil spills in the U.S., which are mostly less 
than 1,000 gallons each. This excellent spill record together with 
their non-toxic characteristics justifies a differentiation from toxic 
oils. In making these remarks, I want to be clear that the animal fats 
and vegetable oils industry is not seeking to be exempt from oil spill 
response requirements, but is merely seeking two simple objectives in 
these OPA 90 rules.
  First, they want a separate category for animal fats and vegetable 
oils so consumers can easily recognize that these oils are not harmful 
like other toxic chemicals. This is as much for scientific differences 
in the oils as it is for marketing reasons. Market perception being 
what it is, this is understandable. This is to ensure that consumers 
are not misled into believing that these products are harmful to use in 
their everyday life.
  Second, they want response requirements that recognize the different 
characteristics of animal fats and vegetable oils within that separate 
category. A separate category without separate response requirements is 
nothing more than a hollow gesture. There is more flexibility available 
under the nationwide guidelines in the National Contingency Plan to 
respond to a spill of non-toxic animal fats and vegetable oils than 
there is for toxic oils like petroleum. EPA, the Coast Guard, and other 
agencies should more fully and clearly spell out the additional 
appropriate options available under the NCP in the regulations 
themselves so that no doubt exists as to the availability of these 
options.
  Further, all spills whether petroleum or animal fats and vegetable 
oils are unfortunate and can have some similar environmental impacts. 
But in many respects they are very different in the way they affect the 
environment. Thus, the response to all spills does not have to be the 
same. Non-toxic animal fats and vegetable oils by their very nature do 
not have the same total environmental impact as a toxic oil, and it 
makes sense then that the response does not have to be the same. 
Scientists both within and outside the Government agree on the 
differences in toxicity and other characteristics among the various 
oils, it does not take any rocket science to come to that conclusion; 
it is just plain common sense. These are the same products used in 
households everyday consumed by ordinary Americans in the normal course 
of living.
  So the hope is that these agencies will exercise this same common 
sense and have rules that reflect these differences. EPA has issued a 
notice for comment to address criticisms of its final rule buy the 
timing of the regulatory process is such that no relief is possible 
before the final rule actually takes effect. It is most regrettable 
that the agencies will not exercise their discretion in the case of 
spill response rules to reserve judgment on animal fats and vegetable 
oils until all the facts are fully considered. Thus has been done in 
the case of other rules and should be done in this case also.
  For these reasons, I will be pursuing legislation to require 
differentiation for animal fats and vegetable oils under OPA 90 in the 
104th Congress with the hope that common sense will prevail.

Requirement for Differentiation between Animal Fats and Vegetable Oils 
                and Other Oils under Certain Regulations


                                summary

       Congress has enacted two principal statutes that address 
     the discharge of ``oil'' into the nation's waters--FWPCA and 
     OPA 90. Due to the statutes' broad definition of oil and 
     lacking clear Congressional direction on differentiation, 
     regulatory agencies generally have proposed or issued rules 
     that will regulate animal fats and vegetable oils to the same 
     degree as toxic oils (e.g., petroleum oils) without regard 
     for the significant differences between them, in spite of 
     scientific and other data justifying differentiation. These 
     statutes, however, give the agencies broad regulatory 
     discretion so that differentiation can be accomplished 
     without compromising any of the objectives or principles of 
     the statutes. As these rules will impose costly, 
     inappropriate, and often counterproductive requirements, the 
     animal fat and vegetable oil industry has been working 
     towards the development of regulations that differentiate 
     animal fat and vegetable oils from toxic oils to avoid the 
     imposition of costly requirements intended for petroleum-
     based and other oils that are inappropriate for animal fats 
     and vegetable oils.
       Thus, a legislative change is needed to provide direction 
     to regulatory agencies by requiring them to differentiate 
     between non-toxic animal fats and vegetable oils, on the one 
     hand, and all other oils, including toxic petroleum and non-
     petroleum oils, on the other hand, when promulgating oil 
     pollution prevention and response regulations. This can be 
     done without an amendment to these statutes that would change 
     or alter the principles contained in them. In particular, 
     agencies (1) should provide a category for animal fats and 
     vegetable oils separate and apart from all other oils and (2) 
     should differentiate these oils from other oils based on a 
     recognition of their distinct properties.


                               background

       On August 18, 1990, the U.S. Congress, in direct response 
     to several catastrophic U.S. petroleum oil spills, including 
     the EXXON VALDEZ spill, enacted the Oil Pollution Act of 1990 
     (OPA 90) to reduce the risk of oil spills, improve facility 
     and vessel oil spill response capabilities, and minimize the 
     impact of oil spills on the environment. In enacting OPA 90, 
     Congress amended the Federal Water Pollution Control Act to 
     impose certain requirements on the owners and operators of 
     vessels carrying ``oil'' and on facilities posing a risk of 
     ``substantial harm'' harm or significant and substantial 
     harm'' to the environment, including requiring owners and 
     operators to prepare and submit response plans to various 
     federal agencies by February 18, 1993, for review and 
     approval, or stop handling oil. Other requirements affecting 
     the handling and transportation of oil were also enacted.
       Although petroleum oil has been the focus of Congress' 
     attention during the enactment of OPA 90, the law's 
     applicability was not limited to petroleum oil and, as a 
     result, it applies to all oils, including animal fats and 
     vegetable oils. Since enactment, various federal agencies 
     have issued proposed or interim final rules implementing OPA 
     90 requirements (which include FWPCA provisions). The 
     principal federal agencies and what they are responsible for 
     regulating are as follows:
       U.S. Coast Guard (USCG): vessels and marine-transportation-
     related (MTR) onshore facilities including any piping or 
     structures used for the transfer of oil to or from a vessel.
       DOT Research and Special Programs Administration (RSPA): 
     tank trucks and railroad tank cars carrying oil.
       U.S. Environmental Protection Agency: larage non-
     transportation-related onshore facilities handling, storing, 
     or transferring oil; and, the National Contingency Plan 
     (NCP).
       DOI Minerals Management Service (MMS): Offshore 
     facilities,including any facility on or over U.S. navigable 
     waters.
       National Oceanic and Atmospheric Administration (NOAA): 
     natural resource damage assessment (NRDA) regulations.
       Federal natural resource trustees having an interest in 
     these rules include the Departments of Agriculture, Commerce, 
     and Interior.


                                 issue

       The animal fat and vegetable oil industry handles, ships, 
     and stores over 25 billion pounds of animal fats and 
     vegetable oils annually in the United States. These 
     agricultural substances are essential components of food 
     products produced in the United States. Industry is concerned 
     that some of the regulations being developed will regulate 
     animal fats and vegetable oils to the same degree or in the 
     same manner as petroleum oils, in spite of information 
     collected to date that suggests that different or less 
     stringent regulations are appropriate. For example, a June 
     28, 1993 report by ENVIRON Corporation, ``Environmental 
     Effects of Releases of Animal Fats and Vegetable Oils to 
     Waterways'' and an associated Aqua Survey, Inc. study on the 
     aquatic toxicity of petroleum oil and of animal facts and 
     vegetable oils found that, unlike petroleum oils, the 
     presence of animal fats and vegetable oils in the environment 
     does not cause significant or substantial harm. That study 
     reached the following conclusions with respect to the effects 
     of potential discharges of animal fats and vegetable oils:

       They are non-toxic to the environment.
       They are essential components to human and wildlife diets.
       They are readily biodegradable.
       They are not persistent in the environment.
       They have a high Biological Oxygen Demand (BOD), which 
     could result in oxygen deprivation where there is a large 
     spill in a confined body of water that has low flow and 
     dilution.
       They can coat aquatic biota and foul wildlife (e.g., 
     matting of fur or feathers, which may lead to hypothermia).
       The animal fat and vegetable oil industry continues to seek 
     data regarding the impact of animal fats and vegetable oils 
     on the environment that will offer new insights to the 
     appropriate regulation of these materials. On the basis of 
     scientific data available to date, however, the only 
     potential environmental harm that may result from spills of 
     these products is the result of potential physical effects of 
     spills of liquids in large quantities. Those potential 
     physical effects consist of (1) the fouling of aquatic biota 
     and wildlife that are exposed to the liquid products in high 
     concentrations; and, (2) the potential oxygen deprivation 
     from the biodegradation of high concentrations of liquid 
     substances in confined and slow-flowing bodies of water. 
     Fouling is not an issue, however, in the case of substances 
     that are solids or congeal in the temperature conditions of 
     the natural environment.
       Moreover, the likelihood that an animal fat or vegetable 
     oil spill of such magnitude will occur is extremely small. 
     The industry's spill prevention efforts have resulted in an 
     excellent environmental record for these products. For 
     example, a review of the data recorded and compiled by the 
     Coast Guard reveals that, from 1986 to 1992, animal fats and 
     vegetable oils together accounted for only about 0.4 percent 
     of the oil spill incidents in and around U.S. waters (both in 
     terms of incidents and their volume). Less than half of those 
     spills were in water. Further, these spills were generally 
     very small. Only 13 of those spills were greater than 1,000 
     gallons. Put another way, only about 0.02 percent of all oil 
     spill incidents in and around U.S. waters over the last seven 
     years were spills of animal fats or vegetable oils greater 
     than 1,000 gallons.
       Furthermore, equipment and techniques used to respond to 
     petroleum oil spills often will aggravate rather than 
     mitigate the environmental impact if used for animal fats and 
     vegetable oils. Attempts to remove the small quantities of 
     animal fats and vegetable oils present in a typical spill 
     would in most cases cause more environmental harm than would 
     the presence of those products in the environment alone. For 
     example, in comments filed on RSPA Docket Nos. HM-214 and PC-
     1, dated June 3, 1993, the Department of Interior recommended 
     the establishment of response plan requirements for animal 
     fats and vegetable oils comparable to those for the other 
     oils. This recommendation was based on anecdotal data derived 
     from a discharge of butter from a U.S. government warehouse 
     into Shoal Creek, Maryland. DOT conceded, however, that the 
     principal adverse environmental effects of the Shoal Creek 
     incident were caused by the removal efforts themselves.
       In addition to the differences noted above between animal 
     fats and vegetable oils and petroleum oils, the animal fat 
     and vegetable oil industry is significantly different from 
     the petroleum industry in other ways warranting disparate 
     regulatory treatment. For example, there are notable 
     differences in the vessel characteristics and transfer 
     operations involving animal fats and vegetable oils and those 
     involving petroleum oils. Vessels carrying petroleum oils can 
     exceed 500,000 deadweight tons (the EXXON VALDEZ was over 
     213,000 deadweight tons). In contrast, vegetable oils 
     typically are carried on small parcel tankers ranging from 
     30,000 to 45,000 deadweight tons. Further, differences exist 
     in the size of the tanks carrying these two kinds of 
     products. Large tankers carrying petroleum oil may have 10 
     large center tanks and about 15 wing tanks with individual 
     tank capacities reaching approximately 592,000 tons or 
     177,500,000 gallons of oil. Parcel tankers carrying vegetable 
     oil typically have about 30 to 35 cargo tanks that range from 
     1,000 to 3,500 tons capacity each. With regard to transfer 
     operations, the typical amount of vegetable oil loaded or 
     offloaded during a transfer ranges from 500 to 5,000 tons. In 
     contrast, a tanker carrying petroleum commonly loads or 
     offloads its entire cargo during one transfer operation.
       Similarly, facilities that handle or store animal fats and 
     vegetable oils do not share the same characteristics as 
     petroleum refineries and other facilities. Facilities that 
     handle animal fats and vegetable oils are generally located 
     in or near areas in which agricultural raw materials (e.g., 
     oilseeds, oil bearing plants, and animals) are available. 
     consequently, unlike petroleum oil facilities, many are found 
     in the Midwestern United States relatively far removed from 
     the regional oil spill response centers which have evolved 
     over the years and which are principally dedicated to 
     petroleum oil spills.


                      Differentiated Rules Needed

       Unfortunately, there has been overabundance of supposition 
     and anecdotal data cited to date to give support to treating 
     these non-toxic substances in the same manner as petroleum 
     oils. Reliance upon such information underscores the dangers 
     of imposing regulatory requirements on the industry in a 
     manner not specifically mandated by Congress and without 
     adequate scientific foundation. In fact, no documented 
     scientific data support treating these non-toxic animal fats 
     and vegetable oils in the same manner as petroleum.
       To the contrary, the significant differences between animal 
     fats and vegetable oils and other oils, warrant regulation of 
     these substances in a different manner. Identical 
     requirements would represent a misapplication of limited 
     industry resources.
       Unfortunately, agencies have been attempting to achieve 
     differentiation through vague regulatory language that 
     requires further administrative or judicial interpretation to 
     decipher and through discussions in the preambles to 
     regulations published in the Federal Register. These 
     techniques are examples of regulations that are not clear on 
     their face and in need of revision. Not only should available 
     scientific information be used to differentiate, but so 
     should basic common sense. Many existing regulatory regimes 
     go into detail to create separate categories for classes or 
     types of oils (petroleum edible, etc.). Thus proven 
     scientific and regulatory structures already exist that could 
     form the basis of or model for a similar approach for 
     regulations issued to implement the pollution prevention 
     statutes.
       Differentiation in rules is also warranted in view of 
     President Clinton's Executive Order on Regulatory Planning 
     and Review enunciates, and requires agencies to adhere to, 
     certain principles of regulation. Exec. Order No. 12,866, 58 
     Fed. Reg. 51,735, 51,736 (1993). Among those principles are 
     the following:
       In setting regulatory priorities, each agency shall 
     consider, to the extent reasonable, the degree and nature of 
     the risks posed by various substances or activities within 
     its jurisdiction.
       Each agency shall base its decisions on the best reasonably 
     obtainable scientific, technical, economic, and other 
     information concerning the need for, and consequences of, the 
     intended regulation.
       Each agency shall identify and assess alternative forms of 
     regulation and shall, to the extent feasible, specify 
     performance objectives, rather than specifying the behavior 
     or manner of compliance that regulated entities must adopt.
       Each agency shall avoid regulations that are inconsistent, 
     incompatible, or duplicative of its other regulations or 
     those of other Federal agencies.
       Ech agency shall tailor its regulations to impose the least 
     burden on society, including individuals, businesses of 
     differing sizes, and other entities (including small 
     communities and governmental entities), consistent with 
     obtaining the regulatory objectives, taking into account, 
     among other things, and to the extent practicable, the costs 
     of cumulative regulations.


                               Conclusion

       The animal fat and vegetable oil industry continues to seek 
     data to better understand the environmental risks associated 
     with the transportation, handling, and storage of animal fats 
     and vegetable oils. On the basis of scientific data currently 
     available, however, there is no rational basis for regulatory 
     non-toxic animal fats and vegetable oils in the same manner 
     as petroleum oils. In fact, it is very likely that imposing 
     certain regulatory requirements on animal fats and vegetable 
     oils based solely on requirements developed for the petroleum 
     oil (e.g. removal and response strategies and techniques) 
     could lead to greater damage to the environment than the 
     actual impact of a discharge of these substances themselves. 
     Moreover, these requirements would add to the cost of these 
     agricultural products. A category for animal fats and 
     vegetable oil should be implemented that is separate and 
     distinct from all other oils, including petroleum oil. In 
     addition, regulations should take into account the 
     differences in the physical, chemical, biological, and other 
     properties, and the environmental effects of these oils. 
     Further, regulatory principles should be followed which 
     clearly permit regulatory regimes to reflect the economic 
     impact on the industry regulated.

                          ____________________