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

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]

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