[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26511]


[[Page Unknown]]

[Federal Register: October 26, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112

[FRL-5086-4]

 

Request for Data and Comment on Response Strategies for 
Facilities That Handle, Store, or Transport Certain Non-Petroleum Oils

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Notice and request for data.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is publishing a 
notice and request for data regarding issues concerning the Clean Water 
Act section 311 (as amended by the Oil Pollution Act of 1990) 
requirements for facility response plan preparation as applied to non-
transportation-related, onshore facilities that handle, store, or 
transport animal fats and vegetable oils. This notice is, in part, in 
response to a Petition for reconsideration of EPA's final facility 
response plan rule (Final Rule), (59 FR 34070, July 1, 1994), submitted 
to EPA by seven agricultural organizations. The Petition asserts that 
EPA does not adequately treat these oils differently from petroleum and 
toxic non-petroleum oils in the Final Rule. In support of their 
Petition, these organizations rely on studies that draw several 
conclusions concerning the physical, toxicological, and chemical 
properties of animal fats and vegetable oils compared with other types 
of oil. This notice summarizes the Petition, and asks for data and 
comment to assist EPA in determining whether and how the differences in 
properties of various oils warrant further different treatment, 
including possibly creating separate facility response plan regulatory 
regimes for these oils beyond the regime established in the July 1, 
1994 Final Rule.

DATES: Submit written comments on this notice on or before January 24, 
1995.

ADDRESSES: Address comments on this notice to the docket clerk at the 
following address: U.S. Environmental Protection Agency, SPCC-3, 401 M 
Street, SW., Washington, DC 20460. Send one original and two copies to 
the regulatory docket and identify the copies by regulatory docket 
reference number SPCC-3. The docket is open from 9:00 a.m. to 4:00 
p.m., Monday through Friday, excluding Federal holidays. Docket 
materials, including any materials referenced in this notice, may be 
reviewed by appointment by calling (202) 260-3046. (The titles of 
docket materials referenced in this notice are listed in Section VI.) 
Interested persons may copy a maximum of 266 pages from any one 
regulatory docket at no cost. Additional copies are $0.15 per page, 
plus a $25.00 administrative fee.

FOR FURTHER INFORMATION CONTACT: Bobbie Lively-Diebold, Oil Pollution 
Response and Abatement Branch, Emergency Response Division (5202G), 
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, at (703) 356-8744; the ERNS/SPCC Information line at (202) 260-
2342; or the RCRA/Superfund Hotline at (800) 424-9346 (in the 
Washington, DC metropolitan area, [703] 412-9810). The 
Telecommunications Device for the Deaf (TDD) Hotline number is (800) 
553-7672 (in the Washington, DC metropolitan area, [703] 412-3323).

SUPPLEMENTARY INFORMATION:

I. Background

A. Introduction

    On July 1, 1994, EPA published its Final Rule amending the Oil 
Pollution Prevention regulation (40 CFR part 112) to incorporate new 
requirements to implement section 4202(a)(6) of the Oil Pollution Act 
of 1990 (OPA), amending section 311(j)(5) of the Clean Water Act (CWA). 
(See 33 U.S.C. 1321(j)(5).) (Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities; Final Rule, 59 FR 34070, 
July 1, 1994.) The Final Rule directs certain facility owners and 
operators to prepare plans for responding to a worst case discharge of 
oil, and to a substantial threat of such a discharge. Under authority 
of section 311(j)(1)(C) of the CWA, the Final Rule requires planning 
for a small and medium discharge of oil, as appropriate.
    Under section 4202(a)(6) of the OPA, these planning requirements 
apply to owners and operators of all offshore facilities and any 
onshore facility that, ``because of its location, could reasonably be 
expected to cause substantial harm to the environment by discharging 
into or on the navigable waters, adjoining shorelines, or the exclusive 
economic zone.'' OPA directs owners and operators of these facilities 
to prepare a plan for responding ``to the maximum extent practicable, 
to a worst case discharge, and to a substantial threat of such a 
discharge of oil or a hazardous substance.'' The July 1, 1994, Final 
Rule establishes requirements for plans for responding to discharges of 
oil from certain onshore facilities within EPA's jurisdiction.
    EPA published the proposed facility response plan rule on February 
17, 1993 (58 FR 8824). One of the issues on which the Agency received 
comment was whether EPA should establish separate response plan 
requirements and selection criteria for owners or operators of 
facilities that handle, store, or transport non-petroleum oils. Among 
other things, some commenters argued that fundamental chemical and 
physical differences between petroleum and non-petroleum oils indicate 
the necessity for different response techniques and equipment. At least 
two comments on the proposed rule asserted that lack of toxicity was a 
property distinguishing some non-petroleum oils both from petroleum and 
other non-petroleum oils. (See letters commenting on the February 17, 
1993, proposed rule from the National Renderers Association [SPCC-2P-2-
1248]; and on behalf of the American Soybean Association, the Corn 
Refiners Association, the National Corn Growers Association, the 
Institute of Shortening & Edible Oils, the National Cotton Council, the 
National Cottonseed Products Association, and the National Oilseed 
Processors Association, [SPCC-2P-2-L34].) The letter on behalf of the 
seven agricultural organizations [SPCC-2P-2-L34] asked EPA to ``provide 
for a different approach to response and removal methodologies for 
these substances than that required for petroleum oil.''
    EPA's Final Rule for non-transportation-related facility response 
plans provides a strategy for petroleum oils and non-petroleum oils 
that gives a considerably greater degree of flexibility to owners and 
operators of non-petroleum oil facilities than to owners and operators 
of petroleum oil facilities in designing their plans. The Petitioners 
contend that EPA should avoid treating the category animal fats and 
vegetable oils with the category toxic, non-petroleum oils. EPA 
addressed the likely differences in responding to petroleum oil as 
opposed to non-petroleum oil, and created an approach that allows 
owners or operators of facilities that handle, store, or transport non-
petroleum oils flexibility to determine appropriate response equipment 
levels within the framework established by the regulation (See Section 
7.7 of Appendix E to 40 CFR part 112). The Agency provided further 
flexibility by allowing the Regional Administrators (RA) to assess the 
adequacy of response plans including those for non-petroleum 
facilities, recognizing the greater knowledge RAs have about facilities 
and geographic-specific environmental areas within their Regions.
    EPA's approach for the identification of response resources for 
non-petroleum oil facilities is adapted from, and consistent with, the 
U.S. Coast Guard's (USCG) interim final rule establishing response plan 
requirements under the OPA for owners and operators of marine-
transportation-related, non-petroleum oil facilities. (See 33 CFR part 
154. The docket includes a chart comparing USCG plan resource 
requirements for petroleum and non-petroleum oil facilities, and 
referencing the applicable sections of the USCG facility response plan 
rule.) As with the USCG Interim Final Rule, the EPA approach gives 
these facility owners and operators substantial latitude in calculating 
required response resources for their non-petroleum facilities.
    To calculate resources for non-petroleum oil facilities, an owner 
or operator is not limited to using emulsification or evaporation 
factors in Appendix E (the Equipment Appendix) of the Final Rule, as 
required for petroleum oil facilities. Rather, these owners and 
operators must: (1) show procedures and strategies for responding to 
the maximum extent practicable to a worst case discharge; (2) show 
sources of equipment and supplies necessary to locate, recover, and 
mitigate discharges; (3) demonstrate that the equipment identified in 
the plan will work under the conditions and in the areas that the plan 
covers, and reach the area within required times; and (4) ensure the 
availability of required resources by contract or other approved means. 
EPA does not prescribe the type and amount of equipment that response 
plans for non-petroleum oil discharges must identify (See Section 7.7 
of Appendix E to 40 CFR part 112).
    EPA's Final Rule is consistent with the CWA section 311(j)(5) (as 
amended by section 4202(a) of the OPA), which requires facility 
response plans to ``remove to the maximum extent practicable'' a worst 
case discharge of oil or a hazardous substance. In many responses to 
discharges of oil, response personnel may need to employ containment 
boom, skimmers, or other equipment to contain oil and remove oil from 
water. Responders also may employ other strategies appropriate for the 
area. These strategies apply to all oils and do not distinguish among 
types of oil (i.e., petroleum and non-petroleum or toxic and non-toxic 
oils).
    As EPA stated in the Final Rule (59 FR 34088), when results from 
research on such factors as emulsification or evaporation of non-
petroleum oil are available, the Agency may change the rule regarding 
the type of response resources for which an owner or operator of a non-
petroleum oil facility must plan.

II. The Organizations' Petition

    By a letter dated August 12, 1994, EPA received a ``Petition for 
Reconsideration and Stay of Effective Date'' of the OPA-mandated 
facility response plan Final Rule as that rule applies to facilities 
that handle, store, or transport animal fat or vegetable oils. The 
Petition was submitted on behalf of seven agricultural organizations 
(``the Organizations'' or ``Petitioners''): the American Soybean 
Association, the Corn Refiners Association, the National Corn Growers 
Association, the Institute of Shortening & Edible Oils, the National 
Cotton Council, the National Cottonseed Products Association, and the 
National Oilseed Processors Association.
    To support their Petition, the Organizations reference an industry-
sponsored study titled ``Environmental Effects of Release of Animal 
Fats and Vegetable Oils to Waterways'' (prepared by ENVIRON 
Corporation, June 28, 1993) and an associated study titled ``Diesel 
Fuel, Beef Tallow, RBD Soybean Oil and Crude Soybean Oil: Acute Effects 
on the Fathead Minnow, Pimephales Promelas'' (prepared by Aqua Survey, 
Inc., May 21, 1993). Both of these studies had been submitted to EPA 
during the facility response plan rulemaking as enclosures to a comment 
filed over nine months after the close of the comment period.
    The ENVIRON study concludes that ``animal fats and vegetable oils 
are significantly different from petroleum oils in their effects on the 
aquatic environment and so merit separate treatment in environmental 
regulations.'' Among other things, ENVIRON concludes that ``animal fat 
and vegetable oils are orders of magnitude less toxic than petroleum 
oils to aquatic life;'' that ``there are no accumulating or otherwise 
harmful components in animal fats and vegetable oils that are 
irritating, toxic or carcinogenic;'' and that ``animal fats and 
vegetable oils are easily biodegraded by bacteria using them as food.'' 
The study also concludes that these oils can coat aquatic biota and 
foul wildlife, causing hypothermia when fur or feathers mat; and that 
these oils have a high ``Biological Oxygen Demand'' (or BOD), which may 
result in oxygen deprivation where there is a large spill in a confined 
body of water with a low flow and low dilution rate. The ENVIRON 
study's ultimate conclusion is that animal fats and vegetable oils are 
sufficiently different from petroleum oils and other hazardous 
materials that they merit separate treatment in environmental 
regulations.
    The Aqua Survey, Inc. study presents the results of Aqua Survey's 
tests of the acute toxicity of the test substances on the Fathead 
minnow at five concentrations of each test substance. Based on the 
study results, the Organizations assert that animal fats and vegetable 
oils--unlike petroleum-based oil and toxic non-petroleum oils--``are 
non-toxic, readily biodegradable, not persistent in the environment, 
and, in fact, are essential components of human and wildlife diet.''
    Based, in part, on these studies, the Petitioners ask EPA to create 
a regulatory regime for response planning for non-petroleum, ``non-
toxic'' oils separate from the regime established for petroleum oils 
and ``toxic,'' non-petroleum oils. The Petitioners further submitted, 
as an Appendix to their Petition, specific suggested language to amend 
the July 1, 1994, facility response plan rule to allow mechanical 
dispersal and ``no action'' options for responding to a spill of animal 
fats and vegetable oils.

III. Addressing Issues Presented in the ENVIRON and Aqua Survey Studies

    EPA acknowledged in the Final Rule that response strategies for 
petroleum and non-petroleum oils may differ (59 FR 34088). However, 
because the Agency was aware of little data to support developing a 
separate regulatory regime for non-petroleum oils and because the OPA 
calls for resources to remove ``oil'' (broadly defined in section 311 
of the Clean Water Act), the Agency adopted the regime described in the 
Final Rule (see 59 FR 3470 at 34087, 34088) and summarized above.
    The U.S. Fish and Wildlife Service (FWS) took issue with many 
statements in the ENVIRON Report in a letter to the Research and 
Special Projects Administration (U.S. Department of Transportation). 
(See Letter from Michael J. Spear, Assistant Director, Ecological 
Services, FWS to Ms. Ana Sol Gutierrez, Research and Special Projects 
Administration, U.S. Department of Transportation, April 11, 1994.) The 
FWS expressed concern with ENVIRON statements suggesting that edible 
oils and fats pose no real risk to fish and wildlife. FWS states that 
although petroleum oils may pose greater risks than vegetable oils for 
acute toxicity to fish and wildlife from ingestion and inhalation of 
petroleum oil's hydrocarbon component, both types of oil pose chronic 
effects from the fouling of coats and plumage in wildlife, which often 
leads to death. FWS also stated that in some circumstances, edible oils 
can persist in the environment for extended periods of time, forming 
mat and encrustation similar to petroleum products, potentially causing 
chronic adverse effects to fish.
    NOAA also has evaluated the effects on the environment of spilled 
non-petroleum oils, including coconut, corn, cottonseed, fish, and palm 
oils. (See a Memorandum for the Record, date June 3, 1993, from NOAA 
Hazardous Materials Response and Assessment Division.) The NOAA 
assessment, based on literature research, addresses physical and 
chemical properties and toxicity of these and other oils, and indicates 
that some edible oils, when spilled, may have adverse environmental 
effects. Some of these effects seem to contradict conclusions in the 
ENVIRON study. According to NOAA, coconut and palm oils are very 
viscous; in most coastal waters, these oils probably would persist for 
over a decade. By contrast, ENVIRON concluded that animal fats and 
vegetable oils ``are easily biodegraded by bacteria,'' and that the 
physical impacts of non-recoverable animal fats and vegetable oils 
``would be of limited duration.''
    Tri-State Bird Rescue and Research (TSBR) made a statement on the 
ENVIRON study in response to a request for comment from the Department 
of the Interior. (TSBR provides contingency planning, training 
workshops, and emergency response for wildlife affected by oil spills.) 
A summary of the TSBR statement was published in its ``Wildlife & Oil 
Spills.'' (See Vol. 4, No. 1-Winter/Spring 1994.) In the summary, TSBR 
makes the following observation: ``While edible oils do not contain the 
toxic components of many of the polyaromatic hydrocarbons, they do have 
many of the same physical properties as petroleum oils; the animals and 
birds will suffer the same physical effects from edible oils as they 
would from contamination with petroleum products.''
    Among the studies reviewed by USCG (for the USCG rule referenced 
above) attesting to the harmful effects of non-petroleum oils in the 
environment is an International Maritime Organization (IMO) study 
titled ``Harmful Effects on Birds of Floating Lipophilic Substances 
Discharged from Ships.'' The IMO study underscores ENVIRON's findings 
of the physical hazards associated with non-petroleum oil.

IV. Request for Public Comment

    In view of the differing scientific conclusions reached by the 
Petitioners, the FWS, and other groups and agencies, EPA requests 
broader public comment on issues raised by the Petitioners. These 
include whether to have different specific response approaches for 
releases of animal fats and vegetable oils (rather than increased 
flexibility), and the effects on the environment of releases of these 
oils. EPA also asks for information regarding the following specific 
questions.
    What data are there on both the probability that spilled animal 
fats and vegetable oils will persist in the environment, and the 
physical effects of these substances on wildlife and aquatic biota? To 
what extent do environmental factors such as water temperature affect 
the physical characteristics of animal fats and vegetable oils and the 
strategies for cleaning up the oil?
    Both the ENVIRON and Aqua Survey Inc. studies imply that there is 
some level or concentration at which animal fats and vegetable oils are 
hazardous to wildlife when ingested. Are there additional further 
studies, scientific papers, or other data that bear on the issue? Are 
there data showing at what concentrations animal fat, vegetable oil, 
and other non-toxic oils have adverse effects on animals that ingest 
such oils? How critical is the matter of an oil's toxicity in 
determining what kind of equipment resources and strategies responders 
should use in containment and recovery?
    The Agency also requests comment on whether there are data to 
demonstrate that the response approach set out in the rule for non-
petroleum oils is either unnecessary or harmful. Does spill size or 
location affect whether a response can be more harmful than leaving the 
oil in the environment? If so, how and to what degree? Are there 
circumstances where response techniques like containing and removing a 
discharge of animal fats and vegetable oils are more harmful than 
dispersing these oils through use of chemical or mechanical 
dispersants? Are there effective, available, and authorized chemical 
dispersants that responders can use for discharged animal fats and 
vegetable oils?
    Are there data on emulsification and evaporation factors for non-
petroleum oils that EPA can use to determine whether to revise the 
facility response plan rule for facilities that handle, store, or 
transport non-petroleum oils, including animal fats and vegetable oils?
    Is there research in-progress or planned research on the issues 
raised in this notice?

V. Further Action

    After review and evaluation of the public comments on this notice, 
EPA will decide whether data support creating a new facility response 
plan regulatory regime for facilities that handle, store, or transport 
non-petroleum oils which Petitioners assert are non-toxic. EPA's 
determination may take the form of no further action, guidance, or some 
other regulatory action.

VI. List of Documents Available for Review in the Docket

``Comparison of CG Response Planning Regulations for Petroleum and 
Non-petroleum Oils,'' United States Coast Guard, undated
``Diesel Fuel, Beef Tallow, RBD Soybean Oil and Crude Soybean Oil: 
Acute Effects on the Fathead Minnow, Pimephales Promelas,'' Aqua 
Survey, Inc., May 21, 1993
``Environmental Effects of Releases of Animal Fats and Vegetable 
Oils to Waterways,'' ENVIRON Corporation, June 28, 1993
``Harmful Effects on Birds of Floating Lipophilic Substances 
Discharged from Ships,'' International Maritime Organization (IMO)
``Final Rule on Oil Pollution Prevention; Non-Transportation-Related 
Onshore Facilities, Docket No. SPCC-2P; Petition for Reconsideration 
and Stay of Effective Date,'' August 12, 1994
``Non-Petroleum Oils,'' National Oceanic and Atmospheric 
Administration (NOAA) Memorandum for the Record, June 3, 1994
``Oil & Chemical Spills,'' Wildlife & Oil Spills, Vol. 4 No. 1--
Winter/Spring, 1994
``Oil Pollution Prevention; Non-Transportation-Related Onshore 
Facilities; Final Rule,'' 59 FR 34070, July 1, 1994
``Oil Pollution Prevention; Non-Transportation-Related Onshore 
Facilities; Proposed Rule,'' 58 FR 8824, February 17, 1993
``Oil Pollution Prevention, Applicability of 40 CFR part 112 to Non-
Petroleum Oils; Notice'' 40 FR 28849, July 9, 1975.
``SPCC-2P-2-1248,'' Philip H. Kimball, National Renderers 
Association, Inc., April 19, 1993
``SPCC-2P-2-L34,'' Duncan C. Smith III and Warren L. Dean, Jr., 
January 24, 1994
``U.S. Fish and Wildlife Service Letter from Michael J. Spear,'' 
Assistant Director, Ecological Services, to Ms. Ana Sol Gutierrez, 
Research and Special Projects Administration, U.S. Department of 
Transportation, dated April 11, 1994

List of Subjects in 40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: October 14, 1994.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 94-26511 Filed 10-25-94; 8:45 am]
BILLING CODE 6560-50-P