# Oil Pollution Prevention and Response; Non-Transportation-Related Facilities

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-8275

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** April 8, 1999
- **Citation:** 64 FR 17227

## Text

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[FRL-6319-1]
RIN 2050-AE64

Oil Pollution Prevention and Response; Non-Transportation-Related
Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: EPA proposes to amend the Facility Response Plan (FRP)
requirements in the Oil Pollution Prevention and Response regulation,

[[Page 17228]]

found at 40 CFR part 112 and promulgated under the Clean Water Act, for
non-transportation-related facilities. The main purpose of this
proposed rule is to provide a more specific methodology for planning
response resources that can be used by owners or operators of
facilities that handle, store, or transport animal fats and vegetable
oils. EPA is issuing this proposed rule in response to Public Law 105-
276, October 18, 1998, which requires EPA to issue regulations amending
40 CFR part 112 to comply with the Edible Oil Regulatory Reform Act. In
addition, EPA is providing an advance notice for similar revisions that
will be proposed for the Spill Prevention, Control, and Countermeasure
Plan requirements, also found at 40 CFR part 112.

DATES: Send your comments on or before May 10, 1999.

ADDRESSES:
Comments: Address your comments on the proposed FRP rule to the
Superfund Docket, Docket Number SPCC-9P, mail code 5203G, U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460. Address your comments on the advance notice of proposed
rulemaking for the Spill Prevention, Control, and Countermeasure (SPCC)
rule to the Superfund Docket, Docket Number SPCC-10P, mail code 5203G,
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460. Send three copies of your comments. You also may submit
electronic comments in ASCII format to
[email protected].
Docket: You may review materials concerning this rulemaking in the
Superfund Docket, Suite 105, 1235 Jefferson Davis Highway, Crystal
Gateway I, Arlington, VA 22202. You may inspect the docket (Docket
Number SPCC-9P and SPCC-10P ) between 9:00 a.m. and 4:00 p.m., Monday
through Friday, excluding Federal holidays; and you may make an
appointment to review the docket by calling 703-603-9232.
You may copy a maximum of 266 pages from any regulatory docket at
no cost. If the number of pages copied exceeds 266, however, you will
be charged an administrative fee of $25 and a charge of $0.15 per page
for each page after 266. The docket will mail materials to you if you
are outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: Barbara Davis, Oil Program Center,
U.S. Environmental Protection Agency, at 703-603-8823
([email protected]) concerning the FRP proposed rule; or
Hugo Fleischman, Oil Program Center, U.S. Environmental Protection
Agency, at 703-603-8769 ([email protected]) concerning
the advance notice of proposed rulemaking for the SPCC rule; 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: We organized the contents of this Preamble
in the following outline:

I. Introduction
A. Regulated Entities
B. Statutory Authority
1. The Oil Pollution Act of 1990 and the Clean Water Act
2. Edible Oil Regulatory Reform Act
3. Appropriations Act
C. Background of this Rulemaking
1. The Agency's Jurisdiction
2. Coordination with the United States Coast Guard
3. 1994 Final Facility Response Plan Rule
D. FRP-Related Petitions
1. Petition for Reconsideration
2. Differentiating Animal Fats and Vegetable Oils from Other
Oils
3. Other Petitions Submitted to EPA and the USCG
II. Request for Comment and Discussion of Proposed Revisions
A. Request for Comment
B. Proposed Revisions
1. Section 112.2 Definitions
2. Section 112.20(a)(4) Preparation and Submission of Facility
Response Plans for Animal Fat and Vegetable Oil Facilities
3. Section 112.20(f) Facility Classification
4. Section 112.20(h)(5) Response Planning Levels
5. Other Changes
6. Appendix E, Section 1.2 Definitions
7. Appendix E, Section 3.0 Determining Response Resources
Required for Small Discharges--Petroleum Oils and Non-petroleum Oils
Other than Animal Fats and Vegetable Oils
8. Appendix E, Section 4.0 Determining Response Resources
Required for Medium Discharges--Petroleum Oils and Non-petroleum
Oils Other than Animal Fats and Vegetable Oils
9. Appendix E, Section 6.0 Determining the Appropriate Amount of
Response Equipment
10. Appendix E, Section 7.0 Calculating Planning Volumes for a
Worst Case Discharge--Petroleum Oils and Non-petroleum Oils Other
than Animal Fats and Vegetable Oils
11. Appendix E, Section 8.0 Determining Response Resources
Required for Small Discharges--Animal Fats and Vegetable Oils
12. Appendix E, Section 9.0 Determining Response Resources
Required for Medium Discharges--Animal Fats and Vegetable Oils
13. Appendix E, Section 10.0 Calculating Planning Volumes for a
Worst Case Discharge--Animal Fats and Vegetable Oils
C. Advance Notice of Proposed Rulemaking
III. Bibliography
IV. Regulatory Analyses
A. Executive Order 12866: OMB Review
B. Executive Order 12875: Enhancing the Intergovernmental
Partnership
C. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
D. Executive Order 13045: Children's Health
E. Regulatory Flexibility Act
F. Paperwork Reduction Act
G. Unfunded Mandates
H. National Technology Transfer and Advancement Act
V. Appendices to the Preamble

I. Introduction

A. Regulated Entities

Entities Potentially Regulated by this Proposal Include:

------------------------------------------------------------------------
Category NAICS codes
------------------------------------------------------------------------
Starch and Vegetable Fats and Oils NAICS 31122.
Manufacturing.
Warehousing and Storage................ NAICS 493.
Petroleum and Coal Products NAICS 324.
Manufacturing.
Petroleum Bulk Stations and Terminals.. NAICS 42271.
Crude Petroleum and Natural Gas NAICS 211111.
Extraction.
Transportation, Pipelines, and Marinas. NAICS 482-486/488112-48819/4883/
48849/492/71393.
Electric Power Generation, NAICS 2211.
Transmission, and Distribution.
Other Manufacturing.................... NAICS 31-33.
Gasoline Stations/Automotive Rental and NAICS 4471/5321.
Leasing.
Heating Oil Dealers.................... NAICS 454311.
Coal Mining, Non-Metallic Mineral NAICS 2121/2123/213114/213116.
Mining and Quarrying.
Heavy Construction..................... NAICS 234.

[[Page 17229]]

Elementary and Secondary Schools, NAICS 6111-6113.
Colleges.
Hospitals/Nursing and Residential Care NAICS 622-623.
Facilities.
Crop and Animal Production............. NAICS 111-112.
------------------------------------------------------------------------

This table is not exhaustive, but rather it provides a guide for
you. Other types of entities not listed in the table could also be
subject to the regulation. To determine whether this action affects
your facility, you should carefully examine the criteria in Sec. 112.1
and Sec. 112.20 of title 40 of the Code of Federal Regulations. If you
have questions regarding the applicability of this action to a
particular facility, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.

B. Statutory Authority

1. The Oil Pollution Act of 1990 and the Clean Water Act
Congress enacted the Oil Pollution Act (OPA) (Public Law 101-380)
to expand oil spill prevention and preparedness activities, improve
response capabilities, ensure that shippers and oil companies pay the
costs of spills that do occur, provide an additional economic incentive
to prevent spills through increased penalties and enhanced enforcement,
establish an expanded research and development program, and establish a
new Oil Spill Liability Trust Fund, administered by the U.S. Coast
Guard (USCG). Section 4202(a) of OPA amends the Clean Water Act (CWA)
section 311(j) to require regulations for owners or operators of
facilities to prepare and submit ``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'' (i.e., a facility response plan or FRP). This requirement
applies to any offshore facility and to 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'' (i.e., a ``substantial harm'' facility).
Section 311(j)(1)(C) of the CWA authorizes the President to issue
regulations establishing procedures, methods, equipment, and other
requirements to prevent discharges of oil from vessels and facilities
and to contain such discharges. By Executive Order 12777 (56 FR 54757,
October 22, 1991), the President has delegated to EPA the authority to
regulate non-transportation-related onshore facilities under sections
311(j)(1)(C) and 311(j)(5) of the CWA. The President has delegated
similar authority over transportation-related onshore facilities,
deepwater ports, and vessels to the U.S. Department of Transportation
(DOT). Within DOT, the USCG is responsible for developing requirements
for vessels and marine transportation-related facilities.
2. Edible Oil Regulatory Reform Act
Congress enacted the Edible Oil Regulatory Reform Act (EORRA) (33
U.S.C. 2720) on November 20, 1995. Under this law, EPA must, in the
issuance or enforcement of any regulation or the establishment of any
interpretation or guideline relating to the transportation, storage,
discharge, release, emission, or disposal of a fat, oil, or grease,
differentiate among and establish separate classes for animal fats and
oils and greases, fish and marine mammal oils, and oils of vegetable
origin (as opposed to petroleum and other oils and greases).
3. Appropriations Act
Under the Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act, 1999 (Public
Law 105-276), which was signed into law on October 21, 1998, Congress
directed EPA to issue regulations amending 40 CFR part 112 not later
than March 31, 1999, to comply with the requirements of the Edible Oil
Regulatory Reform Act (Public Law 104-55).

C. Background of this Rulemaking

1. The Agency's Jurisdiction
The Memorandum of Understanding (MOU) between DOT and EPA, dated
November 24, 1971, established the definitions of non-transportation-
related facilities and transportation-related facilities. The
definitions in the 1971 MOU are in Appendix A to 40 CFR part 112.
2. Coordination with the United States Coast Guard
EPA and the USCG are proposing to modify their existing FRP rules
for non-transportation-related facilities and marine transportation-
related facilities that handle, store, and transport animal fats and
vegetable oils. The two agencies have worked together closely to ensure
uniformity in the proposed regulations whenever possible. Each agency
is proposing requirements appropriate to the universe of facilities
that it regulates. The two proposed rules reflect the similarities and
differences in the nature and activities of facilities regulated by the
two agencies. In EPA's proposed rule, the discussion of the rationale
for revisions addresses the similarities and differences between EPA-
regulated and USCG-regulated facilities.
3. 1994 Final Facility Response Plan Rule
On February 17, 1993, EPA (``we'') published a proposed rule to
revise the Oil Pollution Prevention Regulation, which was originally
promulgated under the Clean Water Act (58 FR 8824, February 17, 1993).
We received a total of 1282 comments on the proposed rule. We
considered these comments in developing the final rule. On July 1,
1994, we published the final FRP rule amending 40 CFR part 112 to add
new planning requirements for worst case discharges to implement
section 311(j)(5) of the CWA, as amended by OPA (59 FR 34070, July 1,
1994). Under the authority of section 311(j)(1)(C) of the CWA, we also
required planning for small and medium discharges of oil, as
appropriate.
a. The Clean Water Act applies to non-petroleum oils. In the
Preamble to the final FRP rule, we noted that for the purpose of CWA
section 311(j) planning, the CWA includes non-petroleum oils. We
pointed out that the definition of ``oil'' in the CWA includes oil of
any kind (40 CFR part 112.2). The oils regulated by 40 CFR part 112
include animal fats and vegetable oils.
b. Different rule requirements for non-petroleum oils. The FRP rule
requires 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. It also includes requirements to plan for a small
and medium discharge of oil.
In addressing comments on the proposed FRP rule, we agreed that
certain response equipment and strategies used for petroleum oil spills
may be inappropriate for non-petroleum oil. For non-transportation-
related facilities under our jurisdiction, we adapted the USCG approach
to

[[Page 17230]]

determine response resources for worst case discharges of non-petroleum
oils. Owners or operators of these facilities 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 will work in the conditions expected in
the relevant geographic areas, and that the equipment and other
resources will be able to respond within the required times (according
to Table 1 of Appendix E to part 112); and (4) ensure the availability
of required resources by contract or other approved means. Unlike
petroleum oil facilities, owners or operators of non-petroleum
facilities are not limited to using emulsification or evaporation
factors in Appendix E (the Equipment Appendix) of the final rule to
calculate response resources for their facilities. In the final FRP
rule, we added Section 7.7 to Appendix E to reflect these changes. We
stated that when there were results from research on such factors as
emulsification or evaporation of non-petroleum oil, we might make
additional changes (59 FR 34088, July 1, 1994). Based on our
examination of recent research, we are today proposing these factors
for animal fats and vegetable oils.

D. FRP-Related Petitions

1. Petition for Reconsideration
By a letter dated August 12, 1994, we received a ``Petition for
Reconsideration and Stay of Effective Date'' of the OPA-mandated final
FRP rule as the rule applies to facilities that handle, store, or
transport animal fats or vegetable oils. The petition was submitted on
behalf of seven agricultural organizations (``the 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.
a. Petitioners' request. To support their claims, the Petitioners
submitted an industry-sponsored report titled ``Environmental Effects
of Releases of Animal Fats and Vegetable Oils to Waterways'' (ENVIRON
Corporation, 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'' (Aqua Survey, Inc., 1993). We
received copies of both of these studies with a comment filed more than
nine months after the close of the comment period for the FRP
rulemaking. Based, in part, on these studies, the Petitioners asked us
to create a regulatory regime for response planning for ``non-toxic,''
non-petroleum oils separate from the framework established for
petroleum oils and ``toxic'' non-petroleum oils. They suggested
specific language revisions for the July 1, 1994, FRP rule. For
facilities that handle, store, or transport animal fats and vegetable
oils, their suggested revisions would: modify the definition of animal
fats and vegetable oil (set out in Appendix E, Section 1.2 of the FRP
rule); allow mechanical dispersal and ``no action'' options to be
considered in lieu of the oil containment and recovery devices
otherwise specified for response to a worst case discharge; require the
use of containment booms only for the protection of fish and wildlife
and sensitive environments; and increase the required on-scene arrival
time for response resources at a spill from 12 hours (including travel
time) to 24 hours plus travel time for medium discharges and worst case
Tier 1 response resources.
b. Federal agency findings. The Federal natural resource trustee
agencies who reviewed the ENVIRON study disagreed with many of the
study's conclusions. The U.S. Fish and Wildlife Service (FWS) stated
that the ENVIRON Report did not provide an accurate assessment of the
dangers that non-petroleum oils pose to fish and wildlife and
environmentally sensitive areas. The FWS further stated that key facts
were misrepresented, incomplete, or omitted in the ENVIRON Report (U.S.
Department of the Interior, Fish & Wildlife Service, 1994). The FWS
stated that petroleum oils and vegetable oils and animal fats cause
chronic effects from the fouling of coats and plumage in wildlife,
which often leads to death. The National Oceanic and Atmospheric
Administration (NOAA) also reviewed the ENVIRON study. NOAA evaluated
the physical and chemical properties, toxicity, and environmental
effects of spilled non-petroleum oils, including coconut, corn,
cottonseed, fish, and palm oil, and indicated that some edible oils,
when spilled, may have adverse environmental effects (U.S. Department
of Commerce, National Oceanic and Atmospheric Administration, 1993).
The views of the FWS and NOAA on the adverse effects of animal fats and
vegetable oils are discussed in detail in the Preamble to the USCG
final rule setting forth response plan requirements for marine
transportation-related facilities (61 FR 7890, February 29, 1996); in
our Notice and Request for Data (59 FR 53742, October 26, 1994); and in
our Denial of Petition Requesting Amendment of the Facility Response
Plan (62 FR 54508, October 20, 1997). We also discussed comments from a
bird rescue organization describing the harmful effects of spilled
animal fats and vegetable oils on birds (Frink, 1994).
In view of the differing scientific conclusions reached by the
Petitioners, the FWS, and other groups and agencies, we asked for
broader public comment on issues raised by the Petitioners in our
October 26, 1994 Notice and Request for Data. We asked whether we
should have different specific response approaches for releases of
animal fats and vegetable oils (rather than increased flexibility), and
for additional data and comments on the effects on the environment of
releases of these oils. We also asked commenters to provide specific
data comparing the properties and effects of petroleum and non-
petroleum oils. We received fourteen comments and considered them in
our evaluation of the petition. We did not receive any new data on
these issues.
c. Denial of petition. On October 20, 1997, EPA denied the petition
to amend the FRP rule. We found that the petition did not substantiate
claims that animal fats and vegetable oils differ from petroleum oils
in properties and effects and did not support a further differentiation
between these groups of oils under the FRP rule. Instead, we found that
a worst case discharge or substantial threat of discharge of animal
fats and/or vegetable oils to navigable waters, adjoining shorelines,
or the exclusive economic zone could reasonably be expected to cause
substantial harm to the environment, including wildlife that may be
killed by the discharge. We pointed out that the FRP rule already
provides for different response planning requirements for petroleum and
non-petroleum oils, including animal fats and vegetable oils.
We also disagreed with Petitioners' claim that animal fats and
vegetable oils are non-toxic when spilled into the environment and
should be placed in a separate category from other ``toxic'' non-
petroleum oils. Information and data we reviewed from other sources
indicate that some animal fats and vegetable oils, their components,
and degradation products are toxic. Furthermore, we emphasized that
toxicity is only one way that oil spills cause environmental damage.
Most immediate environmental effects are physical effects, such as
coating animals

[[Page 17231]]

and plants with oil, suffocating aquatic organisms from oxygen
depletion, and destroying food supply and habitats. We noted that
toxicity is not one of the criteria in determining which on-shore
facilities are high-risk and must prepare response plans. Rather, the
criteria for determining high-risk facilities are certain facility and
locational characteristics, because we expect that discharges of oil
from facilities with these characteristics may cause substantial harm
to the environment.
2. Differentiating Animal Fats and Vegetable Oils From Other Oils
a. Properties of animal fats and vegetable oils. Petroleum oils,
vegetable oils and animal fats, and other non-petroleum oils share
common physical properties and produce similar environmental effects.
When spilled in the aquatic environment, these oils and their
constituents can float on water; dissolve or form emulsions in the
water column; settle on the bottom as a sludge; or contaminate the
adjacent shoreline, depending on their physical and chemical
properties. Similar methods of removal and cleanup are used to reduce
the harm created by spills of petroleum oils, animal fats and vegetable
oils, and other non-petroleum oils. We have compared the properties and
effects of animal fats and vegetable oils with petroleum oils in detail
(See 62 FR 54508, October 20, 1997, and supporting technical
documents). While the physical and chemical properties of vegetable
oils and animal fats are highly variable, most fall within a range that
is similar to the physical parameters for petroleum oils. Common
properties--such as solubility, specific gravity, and viscosity--are
responsible for the similar environmental effects of petroleum oils,
vegetable oils, and animal fats.
In one respect, however, many petroleum oils differ from most
vegetable oils and animal fats. Unlike most vegetable oils and animal
fats, many petroleum oils have a high vapor pressure. The high vapor
pressure of petroleum oils can lead to significant evaporation from
spills. It may also produce exposure of nearby populations through the
air pathway.
We describe some important properties of oil below.
Solubility. Solubility refers to the ability of a chemical to
dissolve in water or solvents. Like petroleum oils, vegetable oils and
animal fats have limited water solubility and high solubility in
organic solvents.
Specific Gravity. Specific gravity is the ratio of the density of a
material to the density of fresh water. Specific gravity determines
whether an oil floats on the surface of a water body or sinks below the
surface and how long oil droplets reside in the water. It can also give
a general indication of other properties of the oil. For example, oils
with a low specific gravity tend to be rich in volatile components and
are highly fluid (International Tanker Owners Pollution Federation,
1987). The specific gravity of vegetable oils and animal fats whose
properties we examined is within the range of specific gravity values
for petroleum oils.
Viscosity. Viscosity refers to the resistance to flow. It controls
the rate at which oil spreads on water and how deeply it penetrates the
shore. Viscosity also determines how much energy organisms need to
overcome resistance to their movement. At similar temperatures, the
dynamic viscosity (shear stress/rate of shear) and kinematic viscosity
(dynamic viscosity/density) of vegetable oils and animal fats are
somewhat greater than those for light petroleum oils but less than
those for heavy petroleum oils. The viscosity of canola oil represents
a medium weight oil and is comparable to that of a lightly weathered
Prudhoe Bay crude oil after it has evaporated by 10 percent (Allen and
Nelson, 1983).
Vapor Pressure. Vapor pressure is the pressure that a solid or
liquid exerts in equilibrium with its own vapor depending on
temperature. It controls the evaporation rate of an oil spill and air
concentrations. The higher the vapor pressure of an oil, the faster it
evaporates. Vapor pressure varies over a wide range for petroleum oils,
from moderately volatile diesel-like products to slightly volatile
heavy crude oils and residual products. The vapor pressure of animal
fats and vegetable oils is generally much lower than that of many
petroleum oils. Evaporation is significant for many petroleum oil
spills, some of which completely evaporate in one to two days, but it
is rarely an important factor in spills of vegetable oils and animal
fats. In some vegetable oils, however, there is a small volatile
fraction that can evaporate. Thermal decomposition can also cause the
formation of many volatile degradation products.
Surface Tension. The spreading of oil relates to surface tension
(interfacial tension) in a complex manner. When the sum of the oil-
water and oil-air interfacial tensions is less than the water-air
interfacial tension, spreading is promoted. At 25 deg.C, the oil-water
interfacial tension for canola oil is far less than that of Prudhoe Bay
crude oil, suggesting that canola oil could spread more (Allen and
Nelson, 1983). Surface tension measurements in the laboratory, however,
are not necessarily predictive of the behavior of oil that is being
transformed by many processes in the environment.
Emulsions. Emulsions are fine droplets of liquid dispersed in a
second, immiscible liquid. When oil and water mix vigorously, they form
a dispersion of water droplets in oil and oil droplets in water (Hui,
1996c). When mixing stops, the phases separate. Small water drops fall
toward the interface between the phases, and the oil drops rise. The
emulsion breaks. When an emulsifier is present, one phase becomes
continuous, while the other remains dispersed. The continuous phase is
usually the one in which the emulsifier is soluble.
The tendency of petroleum and non-petroleum oils to form emulsions
of water-in-oil or oil-in-water depends on the unique chemical
composition of the oil as well as temperature, the presence of
stabilizing compounds, and other factors. When an emulsion is formed in
the environment, the oil changes appearance and its viscosity can
increase by many orders of magnitude. Removal of the oil becomes harder
because of the increased difficulty in pumping viscous fluids with up
to fivefold increases in volume.
The similar tendencies for formation of emulsions by petroleum
oils, vegetable oils, and animal fats is described in greater detail in
the discussion of Appendix E, Section 10 and Table 7.
Adhesions. Although the ability to form adhesions is difficult to
measure and predict, adhesions influence the ease with which spilled
oil can be physically removed from surfaces. When water is colder than
the oil pour point, oils become viscous and tar-like or form semi-
solid, spherical particles that are difficult to recover. Weathering
and evaporation are slowed, and oils may become entrapped or
encapsulated in ice and later may float on the surface when ice breaks
up. In ice adhesion tests, canola oil and Prudhoe Bay crude oil had the
same tendency to coat the surface of sea ice drawn up through an oil/
water interface (Allen and Nelson, 1983). Neither oil adhered to
submerged sea ice even after surface coating. This study suggests that
some vegetable oils and petroleum oils have a similar ability to form
adhesions under certain environmental conditions.
b. Environmental effects. Physical contact, destruction of food
sources, and toxic contamination produce the harmful environmental
effects of spills of petroleum oils, animal fats and vegetable oils,
and non-petroleum oils other than animal fats and vegetable oils

[[Page 17232]]

(62 FR 54508, October 20, 1997). Nearly all of the most immediate and
devastating environmental effects from oil spills, such as smothering
of fish or coating of birds and mammals and their food with oil, are
physical effects related to the physical properties of oils and their
interactions with living systems.
These immediate physical effects and effects on food sources may
not be considered the result of ``toxicity'' in the classic sense--
i.e., effects that are produced when a chemical reacts with a specific
receptor site of an organism at a high enough concentration for a
sufficient length of time. Nevertheless, severe debilitation and death
of fish and wildlife and destruction of their habitats can result from
spills of animal fats and vegetable oils, other non-petroleum oils, and
petroleum and petroleum products.
Like petroleum oils, animal fats and vegetable oils and their
constituents can cause toxic effects that are summarized below. They
can:
Cause devastating physical effects, such as coating
animals and plants with oil and suffocating them by oxygen depletion;
Be toxic and form toxic products;
Destroy future and existing food supply, breeding animals,
and habitat;
Produce rancid odors;
Foul shorelines, clog water treatment plants, and catch
fire when ignition sources are present; and
Form products that linger in the environment for many
years.

Adverse environmental effects can also occur long after the initial
exposure to animal fats and vegetable oils because of the formation of
toxic or persistent products in the environment, destruction of food
sources and habitat, or diminished reproduction.
Scientific research and experience with actual spills have shown
that spills of animal fats and vegetable oils kill or injure fish,
birds, mammals, and other species and produce other undesirable
effects. Waterfowl and other birds, mammals, and fish that are coated
with animal fats or vegetable oils can die of hypothermia, dehydration
and diarrhea, or starvation. They can also sink and drown or fall
victim to predators. Fish and other aquatic organisms may suffocate
because of the depletion of oxygen caused by spilled animal fats and
vegetable oils in water. Animal fats and vegetable oils can kill or
injure wildlife through physical effects or toxicity.
Spills of animal fats and vegetable oils have the same or similar
devastating impacts on the aquatic environment as petroleum oils.
Reports of real-world oil spills detail the environmental harm that can
be produced by spills of vegetable oils and animal fats into the
environment (62 FR 54508, October 20, 1997).
c. Toxicity. Adverse effects occur through both non-toxic and toxic
mechanisms. Toxicity refers to adverse effects that are produced when a
chemical reacts with a specific receptor site of an organism at a high
enough concentration for a sufficient length of time. Toxicity is
affected by the characteristics of the organisms and properties of the
chemicals or mixtures involved, the duration of exposure and dose
required to produce the effects, and the nature of the toxic effects
(Klaassen et al., 1986).
Many factors determine the toxicity of chemicals or mixtures. The
ingestion of small quantities of animal fats and vegetable oils in food
by humans and animals is a completely different situation from spills
of oil into the environment. These situations differ markedly in the
extent and duration of exposure, the route of exposure, the composition
of the chemicals involved, the organisms and ecosystems exposed, the
circumstances surrounding the exposure, and the types of effects
produced--factors that determine the toxicity and severity of the
adverse effects of chemicals. Thus, even if the human or animal
consumption of small quantities of oils in food were judged completely
safe, no inferences could be drawn about the toxicity and other effects
of animal fats and vegetable oils on environmental organisms exposed in
the very different circumstances of oil spills.
The toxic effects from acute exposure to a chemical (e.g., a single
dose) during a short period of time, such as 24 hours, may differ
greatly from those produced by repeated or chronic exposures. Oil
spills may result in chronic exposure if oil or its degradation
products remain in the environment for a long time.
Petroleum Oils. Petroleum oils affect nearly all aspects of
physiology and metabolism and produce impacts on numerous organ systems
of plants and animals, as well as altering local populations, community
structure, and biomass (Albers, 1995; National Academy of Sciences,
1985; International Agency for Research on Cancer, 1984). Commonly
reported individual effects of petroleum oils include impaired
reproduction and reduced growth, as well as death in plants, fish,
birds, invertebrates, reptiles, and amphibians; blood, liver, and
kidney disorders in fish, birds, and mammals; malformations in fish and
birds; altered respiration or heart rate in invertebrates, fish,
reptiles, and amphibians; altered endocrine function in fish and birds;
altered behavior in many animal species; hypothermia in birds and
mammals; impaired salt gland function in birds, reptiles, and
amphibians; altered photosynthesis in plants; and increased cells in
gills and fin erosion in fish. Among the group effects of petroleum are
changes in local population and community structure in plants,
invertebrates, and birds, and changes in biomass of plants and
invertebrates.
Certain petroleum products and crude oil fractions are associated
with increased cancer in refinery workers and laboratory animals (IARC,
1989). Many of these petroleum oils contain benzene and polynuclear
aromatic hydrocarbons (PAHs), toxic constituents that are carcinogenic
in humans and animals.
Vegetable Oils and Animal Fats. Some acute lethality tests suggest
that petroleum oils are more toxic to some aquatic species than certain
vegetable oils and animal fats. Other studies, however, show that
vegetable oils are more toxic than certain petroleum oils (62 FR54508,
October 20, 1997). In one study, no rats receiving mineral oil died,
although smaller doses of the vegetable oils administered for a shorter
time period killed rats (Boyd, 1973). Acute lethality tests are
typically LC50 (lethal concentration 50) or LD50
(lethal dose 50) tests that do not describe a ``safe'' level but rather
a level at which 50 percent of test organisms are killed under the
experimental conditions of the test. Standard acute toxicity tests are
not designed to test for the effects of spills of highly insoluble
materials, such as oils, but to measure the toxicity of chemicals in
normal use and disposal in effluents. Researchers have raised serious
questions about the relevance of such tests to spills in the
environment (NAS, 1985).
Animal fats and vegetable oils produce other types of acute
toxicity as well. Like petroleum oils, animal fats and vegetable oils
are laxatives that can produce diarrhea or lipid pneumonia in animals
and can impair their ability to escape predators (Frink, 1994; USDOI/
FWS, 1994). Clinical signs of toxicity in rats fed large amounts of
corn oil or cottonseed oil for 4 or 5 days include decreased appetite,
loss of body weight, diarrhea, fur soiling, incoordination, cyanosis
(dark blue skin color from deficient oxygenation of the blood), and
prostration, followed by respiratory failure and central nervous system
depression, coma, and death (Boyd, 1973). Autopsies showed violent
local irritation of the gastrointestinal tract

[[Page 17233]]

that allowed the absorption of oil droplets into the bloodstream. In
tissues, the oil droplets produced inflammation, congestion in the
blood vessels, and degenerative changes in the kidney, among other
effects.
Animals exposed to vegetable oils and animal fats can manifest a
range of chronic toxic effects. High levels of some types of fats
increase growth and obesity but cause early death in several species of
animals and may decrease their reproductive ability or the survival of
offspring (NAS/NRC, 1995; French et al., 1953). On the other hand, the
growth of some fish decreases with elevated levels of oils (NAS/NRC,
1981, 1983; Takeuchi and Watanabe, 1979; Stickney and Andrews, 1971,
1972). Mussels exposed to one of four vegetable oils began to die after
2 or 3 weeks of exposure (Salgado, 1995; Mudge, 1995, 1997a). Mussels
exposed to low levels of sunflower oil exhibited growth inhibition,
effects on shells and shell lining, and decreases in the foot extension
activity that is essential to survival.
Studies have associated dietary fat consumption with the increased
incidence of some types of cancer, including mammary and colon cancer,
in laboratory animals and humans (Hui, 1996a; US Department of Health
and Human Services, 1990; Food and Agriculture Organization/World
Health Organization, 1994). The intake of dietary fat or certain types
of fat has also been correlated with the incidence of coronary artery
disease, diabetes, and obesity in epidemiological studies. High dietary
fat intake has also been linked to altered immunity, changes in steroid
excretion, and effects on bone modeling and remodeling in humans.
Some vegetable oils and animal fats contain toxic constituents,
including specific fatty acids and oxidation products formed by
processing, heating, storage, or reactions in the environment (Hui,
1996a; Berardi and Goldblatt, 1980; Yannai, 1980; Mattson, 1973). We
have summarized the toxic effects of some of these constituents on the
heart, red blood cells, and immune system, as well as effects on
metabolism and impairment of reproduction and growth (62 FR 54508,
October 20, 1997). In addition, some lipid oxidation products may play
a role in development of cancer and atherosclerosis.
d. How properties and effects of oils are changed in the
environment. The physical and chemical properties of petroleum and non-
petroleum oils can change after spills into the environment (USDOC/
NOAA, 1992, 1996; Lewis et al., 1995; ITOPF, 1987; NAS, 1985; Hui,
1996a). Primary weathering processes that affect the composition of oil
include spreading, evaporation, dissolution, dispersion,
emulsification, and sedimentation (USDOC/NOAA, 1992, 1994, 1996). Wind
transport, photochemical degradation, and microbial degradation may
also play important roles. These processes can change the composition,
behavior, routes of exposure, persistence, and toxicity of the spilled
oil. As the spilled oil is changed by these environmental processes,
its toxicity may increase, decrease, or stay the same. These changes
may reduce the volume of some oils and increase the volume in other
oils because of their persistence in water or ability to form
emulsions. While some weathering mechanisms are different for petroleum
oils and animal fats and vegetable oils, spills of all of these oils
can create heavy sludges and hardened exposed surfaces with aggregates
or tars that can persist in the environment for many years (USDOC/NOAA,
1994; NAS, 1985; Mudge, 1995, 1997a, 1997b).
Oil can affect different parts of the ecosystem as its composition
changes. For example, when the lighter fractions of petroleum oil
dissolve or evaporate, the oil sinks and contaminates sediments and
contributes to water column toxicity (USDOC/NOAA, 1992; Hartung, 1995;
NAS, 1985). Spilled sunflower oil forms polymers that can wash ashore
or sink and cover sediments, exposing benthic and intertidal
communities to the oil (Mudge et al., 1993, 1995). Spilled soybean oil
can change its environmental behavior, forming rubbery floating masses
that move downstream and cover sediments on the bottom of water bodies
or lodge on the shoreline (Minnesota, 1963; USDHHS/PHS, 1963).
e. How properties affect removal of spilled oils. In aquatic
environments, the behavior of petroleum oils and vegetable oils and
animal fats is similar. They can form a layer on water, settle out on
sediments, foul shorelines and beaches, and form emulsions when there
is agitation by surf, wind, rapidly flowing streams, or prolonged
exposure to heat or light (Crump-Wiesner and Jennings, 1975; USDOC/
NOAA, 1996). When the emulsions and surface films or masses are
entangled with debris, they can settle to the bottom as sludge.
Because of the similarity in properties of petroleum and non-
petroleum oils, including vegetable oils and animal fats, many similar
methods are used for their containment, removal from the aquatic
environment, and cleanup from shorelines when the oils are spilled in
the environment. Canola oil and Prudhoe Bay crude oil exhibited similar
behavior in field tests with certain types of spill control equipment,
including their tendency to form emulsions with seawater in cold
tempera tures and their affinity for surfaces (Allen and Nelson, 1983).
Because of its greater viscosity at cold temperatures, the recovery
rate for canola oil with saturated mop fibers was 30 to 40 percent
greater than that of crude oil; at warm temperatures, the recovered
volume of canola oil was twice that of crude oil (Allen and Nelson,
1983). While canola oil penetrated fibers of sorbent pads at a slightly
slower rate than Prudhoe Bay crude oil, saturation for both occurred
within minutes. The volumes absorbed and recovered from saturated pads
were nearly identical for both oils, with amounts absorbed increasing
with reduced temperatures.
3. Other Petitions Submitted to EPA and the USCG
On January 16, 1998, we received a request from the Animal Fat/
Vegetable Oil Coalition to modify the FRP rule as it applies to
facilities that handle, store, or transport vegetable oils and animal
fats. We met with Coalition representatives on April 6, 1998 to clarify
their request. On April 9, 1998, we received a second request amending
two items in the previous request. The requests ask us to revise the
FRP rule by creating a separate category for response planning for
animal fat/vegetable oil facilities and a separate Appendix with
procedures for these facilities. The requests also include suggested
language for the revised rule. The suggested language would make the
following changes for facilities that handle, store, or transport
vegetable oils and animal fats:
Move the definitions of vegetable oils and animal fats
from the Preamble and Appendix E of the current FRP rule to the
definitions section, and modify the language slightly;
State the applicability dates by which facilities storing
vegetable oils and animal fats would need to comply with the rule;
Limit requirements for submitting a facility response
plan;
Change the planning distance formula used in determining
whether a facility storing vegetable oils and animal fats may present
substantial harm;
Revise the criteria considered by EPA Regional
Administrators in determining whether a facility is a significant and
substantial harm facility;
Increase required response time from on-scene arrival time
of 12 hours including travel time to 24 hours, with

[[Page 17234]]

a response commencing within 12 hours of discovery of a discharge;
Eliminate planning for small or medium discharges of oil
and eliminate tier planning requirements;
Eliminate the definitions of non-persistent and persistent
oil;
Allow mechanical dispersal and ``no action'' options to be
considered in lieu of the oil containment and recovery devices
otherwise specified for response for a worst case discharge; and
Make other changes in the rule language.
We address some of these issues in detail in this proposed rule. On
March 14, 1997, the National Oilseed Processors Association filed a
petition with the USCG requesting similar amendments to the marine-
transportation-related facility response plan regulations. To further
address these petitions, EPA and the USCG are requesting comments and
information on how facilities that handle animal fats and vegetable
oils should be regulated.

II. Request for Comment and Discussion of Proposed Revisions

A. Request for Comment

We request public comments on the usefulness of the new procedure
and tables in the proposed rule for determining response equipment
needs for facilities that handle, store, or transport animal fats and
vegetable oils compared to the approach provided in the existing rule.
In connection with these proposed changes, we invite public comment on
new approaches or data that have been developed since the issuance of
the rule, which would reduce the burden of FRP rule requirements
without compromising environmental protection. We are interested in
research in progress or planned research on the issues raised in this
rule. We also request data and comments bearing on the issues raised in
the requests for changes to the existing regulations.
In addition, we invite public comments for the purpose of securing
information to develop possible future rules or policies. We seek data
and comments on approaches for non-petroleum oils other than animal
fats and vegetable oils that are not now required, but that would
enhance the environmental protection the FRP rule provides.

B. Proposed Revisions

The main purpose of these revisions is to provide a more specific
methodology for planning response resources that can be used by owners
or operators of facilities that handle, store, or transport animal fats
and vegetable oils. Specific proposed revisions are discussed below.
1. Section 112.2 Definitions
The FRP rule defines oil as ``oil of any kind or in any form,
including, but not limited to petroleum, fuel oil, sludge, oil refuse
and oil mixed with wastes other than dredged spoil.'' (40 CFR 112.2).
In response to comments on our 1993 proposed FRP rule (58 FR 8866,
February 17, 1993), we set forth definitions for ``animal fat,''
``vegetable oil, `` ``petroleum oil,'' ``non-petroleum oil,'' and
``other non-petroleum oil'' in the Preamble to the final FRP rule (59
FR 34070, 34088 July 1, 1994) to assist owners or operators in
distinguishing among oil types. We also define non-petroleum oil in
Appendix E to the rule.
We propose to add the definitions of ``animal fat,'' ``non-
petroleum oil,'' ``petroleum oil,'' and ``vegetable oil'' to the FRP
regulations in Sec. 112.2. We believe that adding these definitions to
the regulatory text will help the regulated community better understand
the FRP rule. We have made slight revisions to the definitions to more
closely reflect the language of the 1995 Edible Oil Regulatory Reform
Act. According to the proposed definitions, non-petroleum oils other
than animal fats and vegetable oils would include, but are not limited
to, coal tar, silicone oils, and turpentine.
2. Section 112.20(a)(4) Preparation and Submission of Facility
Response Plans for Animal Fat and Vegetable Oil Facilities
The current FRP rule includes requirements for the owner or
operator of a facility to prepare and submit an FRP to the RA in
Sec. 112.20(a)(1), (a)(2), and (a)(3). The proposed rule includes a new
Sec. 112.20(a)(4) that describes the requirements for the facility
owner or operator to prepare and submit an FRP using the new
methodology for response planning for animal fats and vegetable oils.
The proposed new methodology for calculating planning volumes for worst
case discharges of animal fats and vegetable oils is discussed in
Appendix E, Section 10.
The proposed requirements for preparation and submission of an FRP
for animal fat and vegetable oil facilities are as follows:
If you have an approved FRP, you would not have to prepare
a new plan, unless there is a planned change in design, construction,
operation, or maintenance or an unplanned event or change in facility
characteristics. The existing FRP would be good for the 5-year period
of approval. The requirements for submitting a new plan after planned
or unplanned changes or events would be the same as in the current
rule.
If you have submitted an FRP to the RA and have not
received approval, you would recalculate response resources using the
new methodology. The new methodology is described in detail in the
discussion of Appendix E, Section 10. If your FRP does not meet or
exceed the recalculated estimate of response resources, you would
prepare and submit a new plan to meet this estimate within 60 days of
the effective date of this rule. A new plan would not be required,
however, if your existing FRP meets or exceeds the new estimate of
response resources.
If you are preparing a new FRP, you would ensure that
response resources meet or exceed the estimate obtained using the new
methodology. You would submit the new plan prior to the start of
operations as required by the existing FRP rule.
If you are amending your FRP, you would recalculate the
response resources using the new methodology and ensure that response
resources meet or exceed the new estimate. If the plan does not meet or
exceed the requirements, you would submit a new plan. In the proposed
rule, the time requirements for submitting a new plan remain the same
as in the existing FRP rule.
3. Section 112.20(f) Facility Classification
OPA requires agencies to classify facilities for the purposes of
response planning based on the facility's expected ability to cause
``substantial harm'' or ``significant and substantial harm'' to the
environment in the event of a spill or discharge. In Sec. 112.20(f)(1),
we indicate two sets of criteria that define a ``substantial harm''
facility for the purposes of response planning:
Any non-transportation-related facility that transfers oil
over water to or from vessels and has a total oil storage capacity
greater than or equal to 42,000 gallons; or
Any non-transportation-related facility that has a total
oil storage capacity of greater than or equal to 1 million gallons and
meets at least one of the following criteria: has insufficient
secondary containment to contain the capacity of the facility's largest
storage container in each storage area plus precipitation; is located
in proximity to fish and wildlife and sensitive environments; is
located in proximity to public drinking water intakes; or has
experienced an oil spill greater than or equal to 10,000 gallons within
the last five years.

[[Page 17235]]

The owner or operator of a facility that meets one of these
requirements for ``substantial harm'' must prepare and submit to the
Regional Administrator (RA) a response plan, or must self-certify that
the facility does not meet the requirements of the FRP regulations and
maintain that self-certification on file. An RA may determine that a
facility could reasonably be expected to cause ``significant and
substantial harm'' to the environment by considering the facility's
frequency of past spills, the age of the facility's oil storage tanks,
the facility's proximity to navigable waters, and other facility and
Region-specific information, including local impacts on public health.
If an RA makes such a determination, the RA must notify the facility
owner or operator and must review and approve the response plan upon
initial receipt of the plan and at least once every five years
thereafter. The RA may require amendments to any ``significant and
substantial harm'' FRP that does not meet the requirements in 40 CFR
part 112. An appeals process allows facility owners or operators the
opportunity to challenge the RA's determination.
Currently, the owner or operator determines whether or not the
facility can be considered a ``substantial harm'' facility. Then, EPA
and the USCG make the initial designation of facilities as
``substantial harm'' or ``significant and substantial harm'' and can
subsequently reclassify them. For all types of oils, EPA designates a
facility as ``substantial harm'' initially and then determines whether
the facility meets criteria for ``significant and substantial harm.''
The USCG has determined that any facility capable of transferring any
type of oil to or from a vessel with a capacity of 250 barrels (10,500
gallons) or more, except for mobile facilities, could reasonably be
expected to cause significant and substantial harm in the event of a
discharge (33 CFR 154.1015(c)). The USCG considers non-petroleum oil
facilities ``significant and substantial harm'' facilities unless they
are reclassified. The USCG Captain of the Port may reclassify a
facility based on certain relevant factors including, but not limited
to: type and quantity of oil handled in bulk, facility spill history,
age of facility, proximity to public and commercial water supply
intakes, proximity to navigable waters, and proximity to sensitive
environments.
EPA's response planning rules intentionally do not distinguish
between types of oils for the purposes of determining ``substantial
harm'' and ``significant and substantial harm.'' We have decided not to
modify the ``substantial harm'' and ``significant and substantial
harm'' criteria or to distinguish between types of oils for the
purposes of making the designation in this proposed rule. We have come
to this decision because we believe that all oils addressed in the FRP
rule have the potential to produce similar effects when released into
the environment. The USCG is considering revisions to its
classification scheme that would make its policy on initial
classification more uniform with ours by initially classifying these
facilities as ``substantial harm.''
4. Section 112.20(h)(5) Response Planning Levels
a. Summary of proposed rule. In the existing FRP rule, the response
plan must include a discussion of three specific planning scenarios for
all oil discharges--small (2,100 gallons or less), medium (between
2,100 and 36,000 gallons, or ten percent of the capacity of the largest
tank), and worst case. Although we would add separate sections for
animal fats and vegetable oils, we are proposing to keep the same
response planning scenarios that are required in the existing rule. We
are proposing no changes in the response planning level requirements
for petroleum oils and non-petroleum oils other than to create separate
regulatory sections for animal fats and vegetable oils. Because we
understand that at the time of a spill certain factors may exist that
counter the original assumptions used during response planning, we
would continue to allow case-by-case deviations when such deviations
afford equivalent environmental protection. Nothing in the response
planning regulations is intended to limit the actions of the owner or
operator of the facility provided that those actions are in accordance
with the National Oil and Hazardous Substances Pollution Contingency
Plan (NCP), the Area Contingency Plan (ACP), and the Regional
Contingency Plan and that the actions are approved by the Federal On-
Scene Coordinator.
b. Comparison of facilities regulated by EPA and the USCG. Unlike
EPA, the USCG currently requires response planning for non-petroleum
oils (including animal fats and vegetable oils) at marine
transportation-related facilities only for a worst case discharge.
However, under 33 CFR 154.545 each facility must have ready access to
enough containment material and equipment to contain any oil discharged
on the water from operations at the facility. ``Access'' includes
direct ownership, joint ownership, cooperative venture, or contractual
agreement. The facility must establish response time limits, which are
approved by the Captain of the Port, for deployment of containment
material and equipment. These requirements were issued in 1980 and pre-
date the OPA response planning requirements and were intended to
prepare a facility for an ``operational'' discharge. The USCG proposed
rule retains response planning for a worst case discharge and proposes
planning for Average Most Probable Discharge that is similar to
existing requirements for identifying response equipment for
operational discharges.
EPA and the USCG regulate facilities with different physical
activities and different response schemes to fit their environment.
Each of the agencies addresses the most probable activities for the
facilities under its jurisdiction. EPA's non-transportation-related
facilities generally have a greater potential for large spills than
USCG-regulated facilities. The worst case discharge from EPA-regulated
facilities is often greater by an order of magnitude or more. EPA-
regulated facilities also tend to have a larger number of oil transfers
than USCG-regulated facilities, and they have a significant potential
for small and medium discharges. Because of the greater diversity of
structures and processes, oil can discharge in many ways over a range
of volumes at EPA-regulated facilities. At these facilities, there is a
wide range of activities, and many parameters can affect discharges.
Causes of oil discharges at EPA-regulated facilities can include tank
failure, deterioration of tanks or valves, transfer from tank cars to
tank trucks, and discharges from processing units. At USCG-regulated
facilities, however, discharges usually result from human error or
equipment failure, such as a barge sinking, or failure of off loading
lines or valves. The spill size associated with these transfer
activities is determined primarily by pump rate and pipe diameter and
covers a narrower range than discharge volumes at EPA-regulated
facilities.
c. Rationale for planning for three response scenarios. EPA
believes that discharges less severe than a worst case scenario may
pose a serious threat to navigable waters, especially from the
cumulative effects of several discharges, and that preparation to
respond to smaller spills produces better overall protection of the
nation's navigable waters. We have found that small spills of petroleum
oils, vegetable oils, and animal fats oils can cause significant
environmental damage (62 FR 54508, October 20, 1997). Real-world
examples demonstrate that spills of animal fats and vegetable oils do
occur and produce harmful environmental effects.

[[Page 17236]]

Various sizes of discharges can require different types and amounts
of equipment, products, and personnel, and must therefore be addressed
separately. For example, a facility may want to hire a contractor to
support response to a worst case discharge scenario, but handle
smaller, operational spills using its own personnel and equipment. To
the extent that facility personnel are better able to address immediate
actions associated with smaller spills, they will be better prepared to
initiate a response to a worst case discharge until back-up resources
arrive on-scene. Increased proficiency in handling the initial stages
of a discharge can result in significant reductions in the extent of
spill movement and associated impacts to the environment.
We recognize that this planning approach may not be appropriate for
all facilities, including those where the range of possible spill
scenarios is small. Under the proposed rule, as under the current rule,
large facilities would need to plan for three discharge amounts, but a
small facility may only need to plan for two scenarios or a single
scenario if the worst case discharge falls within one of the specified
ranges. Many commenters on the 1993 proposed FRP rule (58 FR 8824,
February 17, 1993) recognized that planning for responses to more
commonly occurring discharges may be more beneficial to facilities than
planning for a worst case discharge with a lower probability of
occurrence.
We have examined spill data for animal fats and vegetable oils to
determine whether the distribution of discharge size for these oils is
similar to the pattern for all oils. In the existing FRP rule, the
planning volumes for discharges other than a worst case discharge are
based on an analysis of Emergency Response Notification System (ERNS)
data, which contains data on discharges from facilities, etc. These
data showed that the average reported discharge is 1,300 gallons, and
99.5 percent of the discharges of all oils were less than approximately
36,000 gallons. The planning volume of 2,100 gallons or less for small
discharges represents a realistic planning quantity. (See the Proposed
FRP rule, 58 FR 8836, February 17, 1993).
In many of the ERNS records for spills, animal fats and vegetable
oils could not be distinguished from other non-petroleum oils, or data
on spill volume were incomplete. ERNS data for the entire U.S. show
that approximately 150 oils spills each year are greater than 10,000
gallons; fewer than one percent of these larger discharges are
positively identified as vegetable oil or animal fat.
We also reviewed data from the USCG's Marine Safety Information
System from 1992 to 1998 and found 28 non-petroleum discharges from
non-transportation-related facilities and from the non-transportation
segment of a transportation facility. The size of discharges ranged
from one gallon to 7,500 gallons. Most discharges (24) were less than
1,000 gallons and only 4 were greater than or equal to 1,000 gallons.
Fifty percent of the discharges were less than 20 gallons and 93
percent were less than 1,500 gallons.
Other data demonstrate the occurrence of spills of animal fats and
vegetable oils but do not provide estimates of spill size. Animal fats
and vegetable oils were among the most frequently spilled organic
materials, ranking sixth and seventh respectively, and were responsible
for over 6 percent of all spills (384 of 6076 spills) of organic
materials reported along the coasts and major waterways in the United
States in 1973-1979 (Wolfe, 1986). Other authors estimate that at least
5 percent of all spill notifications are for vegetable oils and animal
fats (Crump-Wiesner and Jennings, 1975). Of the 18,000 to 24,000 spills
in the United States reported annually to the National Response Center
and EPA Regions, 2 to 12 percent are from non-petroleum oils, including
vegetable oils and animal fats (USEPA/OSWER, 1995, 1996).
These figures represent the minimum number of spills. It is likely
that they greatly underestimate the actual number of spills because of
significant underreporting. We made a comparison of reports of spills
in Ohio of vegetable oil and soybean oil from January 1984 to June 1993
to the State of Ohio Environmental Protection Agency (Ohio EPA) and to
the National Response Center (NRC). Only 7 of 27 reports (26 percent)
to the Ohio EPA were also reported to the NRC (USEPA, 1994). There were
a number of reports of vegetable and soybean oil spills to the NRC that
were not on the State list (USEPA, 1994).
We have also compared spills of animal fats and vegetable oils that
were reported to the State of Iowa and to the NRC between 1991 and
1996. Only 32 percent of the reports to Iowa were also reported to the
NRC. Of 19 reports from fixed facilities, where the amount spilled was
known, the size of discharges ranged from one gallon to 37,728 gallons.
Most (13) were less than 1,000 gallons and only two were greater than
10,000 gallons.
d. Request for data and comment. Our figures on spill size suggest
that the most commonly occurring discharges of animal fats and
vegetable oils are small discharges. We request comment on the
reliability of these data and whether these data are representative of
spills of animal fats and vegetable oils at other facilities. We
request that States or other parties who have data about the discharges
of animal fats and vegetable oils provide this information to assist
our rulemaking efforts.
In keeping with requirements of the Edible Oil Regulatory Reform
Act, EPA has examined the properties and effects of classes of oils to
determine how or whether to differentiate them in response planning
levels. We have found that the properties and environmental effects are
similar for petroleum oils, animal fats and vegetable oils, and other
non-petroleum oils. We also analyzed the size of oil discharges.
According to our data, the size distribution for spills of animal fats
and vegetable oils is comparable to that of all other oils.
EPA solicits comments on whether it is feasible to require
differentiated response planning levels for animal fats and vegetable
oils. Members of the public have inquired as to whether we will modify
the rule such that facilities would only be responsible for one or two
planning levels instead of the three levels required in the existing
rule. We presently have no basis for making this distinction in
response planning levels for different classes of oils. Our existing
information shows similar properties, effects, and spill size for
animal fats and vegetable oils and other oils at EPA-regulated
facilities. We solicit data justifying different levels of planning,
such as combining small and medium discharge planning or eliminating
some planning levels.
5. Other Changes
As described in the following sections, most of the proposed
changes affect Appendix E to part 112, which assists facility owners
and operators in determining the required FRP response resources. Some
general changes include adding to the Appendix new Sections 8.0, 9.0,
and 10.0 for animal fats and vegetable oils, renumbering of existing
sections, and adding and renumbering definitions in Section 1.2.
6. Appendix E, Section 1.2 Definitions
a. Non-persistent oils and persistent oils. Sections 1.2.3 and
1.2.8. In the current FRP rule, the definitions of persistent and non-
persistent oils rely on distillation criteria and specific gravity for
petroleum oils and specific gravity for non-petroleum oils. We propose
changing the definitions of

[[Page 17237]]

persistent and non-persistent oils to eliminate their applicability to
animal fats and vegetable oils. The terms ``persistent'' and ``non-
persistent'' would still apply to petroleum oils and non-petroleum oils
other than animal fats and vegetable oils. The definitions would also
be renumbered.
We are proposing to change these definitions because persistence or
non-persistence of animal fats and vegetable oils does not depend
merely on specific gravity. Instead, it depends on many environmental
factors. The same oil may exhibit differing degrees of persistence in
different environmental situations. In addition to the scientific
imprecision of ``persistent'' and ``non-persistent'' for animal fats
and vegetable oils, these terms do not determine response planning
requirements for animal fats and vegetable oils in the current FRP rule
or in the approach proposed in this rule.
In our evaluation of studies on the environmental fate of animal
fats and vegetable oils, we found that the extent of degradation or
persistence depends on many factors (62 FR 54508, October 20, 1997).
Although some animal fats and vegetable oils can degrade rapidly,
others persist in the environment years after the oil was spilled
(Mudge et al., 1995; Mudge, 1995, 1997a, 1997b).
Every spill is different. Factors such as pH (acidity),
temperature, oxygen concentration, dispersal of oil, the presence of
other chemicals, soil characteristics, nutrient quantities, and
populations of various microorganisms at the location of the spill
profoundly influence the degradation of oil. Environmental processes
can alter the chemical composition and environmental behavior of the
spilled oils and influence their proximity to environmentally sensitive
areas and the environmental damage they cause.
All oils can deplete oxygen and suffocate aquatic organisms. Under
certain conditions, however, some animal fats and vegetable oils
present a far greater risk to aquatic organisms than other oils spilled
in the environment, as indicated by their greater biological oxygen
demand (BOD). According to studies designed to measure the degradation
of fats in wastewater, some food oils exhibit nearly twice the BOD of
fuel oil and several times the BOD of other petroleum-based oils
(Groenewold et al., 1982; Institute, 1985; Crump-Wiesner and Jennings,
1975). While the higher BOD of food oils is associated with greater
biodegradability by microorganisms using oxygen, it also reflects the
increased likelihood of oxygen depletion and suffocation of aquatic
organisms under certain environmental conditions. Oil creates the
greatest demand on the dissolved oxygen concentration in smaller water
bodies, depending on the extent of mixing (Crump-Wiesner and Jennings,
1975). Furthermore, spilled animal fats and vegetable oils can cause
long-term harm even if they remain in the environment for relatively
short periods of time because they destroy existing and future food
sources, reduce breeding animals and plants, and contaminate eggs and
nesting habitats.
b. Definitions for groups of oils. Sections 1.2.1 and 1.2.9. We
propose reclassifying the oil categories for animal fats and vegetable
oils to further differentiate between classes of oils. We would add
definitions of three new groups (Groups A, B, and C) for animal fats
and vegetable oils. We have found that the specific gravity of most
animal fats and vegetable oils falls within the range for Group 3 oils,
so that we can reduce the number of categories for these oils. We are
proposing to combine Groups 2, 3, and 4 into a single group (Group B)
for animal fats and vegetable oils. No longer would animal fats and
vegetable oils be considered Groups 1, 2, 3, 4, or 5 in our proposed
rule. Rather, they would belong to Groups A, B, or C. These groups
would be used in new Tables 6 and 7 in Appendix E to assist owners or
operators of facilities that handle, store, or transport animal fats
and vegetable oils in determining response equipment needs.
The groups of oils are based on the specific gravity of the animal
fats and vegetable oils. Most of the common vegetable oils and animal
fats found in commerce will be classified in Group B with a specific
gravity greater than or equal to 0.8 but less than 1.0. Group A
substances are defined as having a specific gravity of less than 0.8
and will include a few substances such as light greases. Group C
substances are those with a specific gravity equal to or greater than
1.0 and are likely to drop below the water's surface.
7. Appendix E, Section 3.0 Determining Response Resources Required for
Small Discharges--Petroleum Oils and Non-petroleum Oils Other Than
Animal Fats and Vegetable Oils
The current FRP rule describes planning requirements for small
discharges of all oils in one section (Section 3.0). We are proposing
to add a new section (Section 8.0) for animal fats and vegetable oils.
The planning requirements for small discharge of other oils would
remain in Section 3.0.
Section 3.2. The proposed rule would clarify the requirements for
response planning for small discharges at installations with both EPA-
regulated and USCG-regulated facilities and describe current USCG
requirements. This section would apply to petroleum oils and non-
petroleum oils other than animal fats and vegetable oils. We would add
a separate section (Section 8.2) for animal fats and vegetable oils.
Section 3.3. We propose minor revisions to clarify the
determination of response resources. We would change the word ``spill''
to the more specific term ``discharge'' and change the number of the
section mentioned in Section 3.3.3 to make it consistent with the new
section numbers in the proposed rule.
8. Appendix E, Section 4. 0 Determining Response Resources Required for
Medium Discharges--Petroleum Oils and Non-petroleum Oils Other Than
Animal Fats and Vegetable Oils
The current FRP rule describes planning requirements for medium
discharges of all oils in one section (Section 4.0). This section would
apply to petroleum oils and non-petroleum oils other than animal fats
and vegetable oils. We are proposing a new section (Section 9.0) for
medium discharges of animal fats and vegetable oils.
Section 4.2. The proposed rule would clarify the requirements for
response planning for medium discharges at EPA-USCG complexes and
describe current USCG requirements. This section would apply to
petroleum oils and non-petroleum oils other than animal fats and
vegetable oils.
Section 4.4. We propose replacing the word ``spill'' with the more
specific term ``discharge.''
9. Appendix E, Section 6.0. Determining the Appropriate Amount of
Response Equipment
We will continue to use the criteria in Section 6.0 to determine
the effective daily recovery capacity (EDRC) of oil recovery devices.
These criteria are specified in Section 5.4. Section 6.0 provides for
primary and alternative criteria for determining the EDRC of oil
recovery devices. We have no data to suggest that a different EDRC
would be appropriate for animal fats and vegetable oils. We request
comment and data on the EDRC of oil recovery devices for animal fats
and vegetable oils and whether different rates are appropriate for
animal fats, vegetable oils, and petroleum oils with similar physical
and chemical characteristics.

[[Page 17238]]

10. Appendix E, Section 7.0 Calculating Planning Volumes for a Worst
Case Discharge--Petroleum Oils and Non-petroleum Oils Other Than Animal
Fats and Vegetable Oils
In the current FRP rule, the worst case discharge of all oils is
described in one section (Section 7.0). We propose adding new Section
10.0 for animal fats and vegetable oils and removing animal fats and
vegetable oils from provisions in Section 7.0. We propose to modify
Section 7.0 to include only petroleum oils and non-petroleum oils other
than animal fats and vegetable oils. Our revisions would clarify that
petroleum oils and non-petroleum oils other than animal fats and
vegetable oils are included in Sections 7.0, 7.1, 7.7, 7.7.1, 7.7.2,
and 7.7.3.
Section 7.7.5. Our revisions would require the facility owner or
operator to ensure fire fighting resources by contract or other
approved means. In the current rule, we recommend that the owner or
operator ensure these resources. We propose this revision because
although most oils do not easily catch fire by themselves, once oil
fires begin, they are difficult to extinguish and can cause
considerable environmental damage.
11. Appendix E, Section 8.0 Determining Response Resources Required for
Small Discharges--Animal Fats and Vegetable Oils
In the current FRP rule, small discharges of all oils are included
in one section (Section 3.0). We propose adding a new section (Section
8.0) for small discharges for facilities that handle, store, or
transport animal fats and vegetable oils. The requirements for other
oils would remain in Section 3.0. The planning requirements for small
discharges of animal fats and vegetable oils would stay the same,
except for the revisions that we propose below.
Section 8.2. The proposed rule would explain the requirements for
response planning for small discharges at EPA-USCG complexes and
describe current USCG requirements.
Section 8.3.1. The specific term ``discharge'' would replace
``spill,'' which is used in current Section 3.3
Section 8.3.3. We would renumber the section referred to in current
Section 3.3.3.
12. Appendix E, Section 9.0 Determining Response Resources Required for
Medium Discharges--Animal Fats and Vegetable Oils
In the current FRP rule, medium discharges of all oils are included
in one section (Section 4.0). We propose adding Section 9.0 for medium
discharges for facilities that handle, store, or transport animal fats
and vegetable oils. The requirements for other oils would remain in
Section 4.0. The planning requirements for medium discharges of animal
fats and vegetable oils would stay the same, except for the revisions
that we propose below.
Section 9.2. The proposed rule would explain the requirements for
response planning for medium discharges at EPA-USCG complexes and would
separate sections for petroleum oils and non-petroleum oils. The
proposed rule would clarify current USCG requirements.
Sections 9.4 and 9.6. We would renumber the sections described in
current Sections 4.4 and 4.6.
Section 9.7. We are including a new example that demonstrates the
method discussed in this Appendix for calculating response planning
equipment for medium discharges.
13. Appendix E, Section 10.0 Calculating Planning Volumes for a Worst
Case Discharge--Animal Fats and Vegetable Oils
a. Summary of Proposed Revisions. In the current FRP rule, worst
case discharges for all oils are included in one section (Section 7.0),
which includes separate provisions for non-petroleum oils (Section
7.7). We address the likely differences in responding to spills of
petroleum oil as opposed to non-petroleum oils, and create an approach
that allows owners or operators of facilities that handle, store, or
transport non-petroleum oils the flexibility to determine appropriate
response equipment within the framework established by the regulation.
(See Section 7.7 of Appendix E to 40 CFR part 112.) We provide further
flexibility by allowing the Regional Administrator to assess the
adequacy of response plans, including those for non-petroleum
facilities, to account for site-specific factors. We do not prescribe
the type and amount of equipment that response plans for non-petroleum
oil discharges must identify. As required at Sec. 112.20(h)(3)(i), in
cases where it is not appropriate to follow part of Appendix E to
identify response resources to meet the facility response plan
requirements, owners or operators must clearly demonstrate in the plan
why use of Appendix E is not appropriate at the facility and make
comparable arrangements for response resources.
Our review of FRPs submitted to date shows that most owners and
operators of facilities that handle, store, or transport animal fats
and vegetable oils have voluntarily employed the petroleum oil
methodology for determining response resources. The petroleum oil
methodology is appropriate for determining response resources for
petroleum discharges at facilities that store both petroleum oils and
animal fats and vegetable oils. We are proposing a similar approach
with some different factors for derermining response resources for
discharges of animal fats and vegetable oils at such facilities and at
facilities that store only animal fats and vegetable oils.
We are proposing a separate section (Section 10.0) describing the
approach for calculating planning volumes for a worst case discharge of
animal fats and vegetable oils. This new section reflects recent
knowledge about the emulsification and environmental fate of animal
fats and vegetable oils. It clearly differentiates between animal fats
and vegetable oils and other classes of oils. The definitions and
groups of animal fats and vegetable oils described above--Groups A, B,
and C--are included in this section. The requirements for other oils
would remain in Section 7.0.
We propose two new tables for animal fats and vegetable oils--Table
6, Removal Capacity Planning Table for Animal Fats and Vegetable Oils,
and Table 7, Emulsification Factors for Animal Fats and Vegetable Oils.
These tables are discussed in detail below.
The proposed methodology includes paragraphs on the following
topics:
Section 10.1. Accounting for the potential for loss of oil to the
environment through physical, chemical, and biological processes and
deposition of oil on the shoreline or on sediments when planning for
on-water oil recovery.
Section 10.2. Steps in determining the on-water recovery capacity.
Section 10.3. Procedures to calculate the volume for shoreline
cleanup resource planning and identify appropriate shoreline cleanup
capacity.
Section 10.4. Identifying response resources with appropriate fire
fighting capability.
Section 10.5. An example showing how the proposed method and tables
would be applied.
Section 10.6. Procedures for Group C oils (oil with a specific
gravity greater than 1.0).
Section 10.7. Procedures used to determine appropriate response
plan development and evaluation criteria.
b. Calculating planning volumes for a worst case discharge using
the current FRP rule. EPA and the USCG considered the components of the
weathering process in developing criteria for

[[Page 17239]]

determining adequate response resources for the purpose of response
planning for oils. These criteria considered loss to the environment,
potential for on-water recovery, and potential for shoreline impact. In
developing rules for response planning for facilities and tank vessels,
EPA and the USCG have previously discussed the applicability,
development, and use of these criteria in several Federal Register
notices (62 FR 54508, October 20, 1997; 61 FR 7890, February 29, 1996;
61 FR 1081, January 12, 1996; 59 FR 34070, July 1, 1994; 58 FR 7330,
February 5, 1993; 58 FR 7376, February 5, 1993; 57 FR 27514, June 19,
1992).
The current FRP rule details several steps to calculate planning
volume for a worst case discharge of petroleum oils. These steps
involve selecting factors from tables and multiplying these factors by
other numbers. The rule includes a worksheet that explains these steps.
If you are a petroleum oil facility owner or operator, you must follow
the steps in Appendix E to identify response resources or, where not
appropriate, clearly demonstrate in the response plan why use of
Appendix E is not appropriate at your facility and make comparable
arrangements for response resources.
Under the current rule, if you are an owner or operator of a
facility that handles, stores, or transports petroleum oils, you would
determine the worst case discharge, the oil groups at the facility, and
the geographic areas in which the facility operates (Table 1). Next,
you would determine the percentages of oil volume used to determine
resource planning for recovery of floating oil and shoreline cleanup
(based on Table 2). Then you would obtain the on-water oil recovery
capacity by multiplying this figure by an emulsification factor (Table
3) and an on-water oil recovery resource mobilization factor (Table 4).
This latter value depends on the geographic area where your facility
operates (such as rivers and canals or inland/nearshore areas) and
three levels of response tiers. As a facility owner or operator, you
would have to plan for a certain proportion of response resources to
arrive at the scene of the discharge within the time frames that
correspond to the three response tiers. Next, you would determine
whether the requirements for the three response tiers exceed the values
for response capability caps by operating area (Table 5). You would
have to ensure by contract or other approved means, as described in
Sec. 112.2, availability of the quantity of resources required to meet
the cap. You would not need to contract for resources that are above
the response capability caps in advance, but you must identify sources
of additional response resources. Once you had determined the amount
and type of response equipment that you need, you would have to
identify the additional response resources available by contract or
other approved means, as described in Sec. 112.2. The equipment that
you identify must be capable of operating effectively in the conditions
where the facility operates and within the tier response times.
If you are the owner or operator of a non-petroleum oil facility,
including an animal fat or vegetable oil facility, you would have
greater flexibility than the owner or operator of a petroleum oil
facility. You would have to show procedures and strategies for
responding to the maximum extent practicable to a worst case discharge;
show sources of equipment and supplies necessary to locate, recover,
and mitigate discharges; demonstrate that the equipment identified will
work in the conditions expected in the relevant geographic areas, and
respond within the required times; and ensure the availability of
required resources by contract or other approved means. You would not
be limited to using the emulsification and evaporation factors in the
petroleum tables (Tables 2 and 3).
c. Calculating planning volumes for a worst case discharge of
animal fats and vegetable oils under the proposed rule. The proposed
rule would make no changes in the methodology for calculating planning
volumes for a worst case discharge of petroleum oils or non-petroleum
oils other than animal fats and vegetable oils. For animal fats and
vegetable oils, we propose to modify the methodology that is used to
assess response equipment needs for petroleum oils to account for
factors that are specific to animal fats and vegetable oils. With the
proposed methodology, the owner or operator of an animal fat or
vegetable oil facility would calculate response resources using the
same steps that are used for petroleum oils, but some factors used in
the calculation would be different. Section 10.0 describes the proposed
methodology.
The proposed methodology includes two new tables to Appendix E
(Table 6, Removal Capacity Planning for Animal Fats and Vegetable Oils,
and Table 7, Emulsification Factors for Animal Fats and Vegetable
Oils). For animal fats and vegetable oils, these tables would replace
Tables 2 and 3, which apply to petroleum oils. Three existing tables
(Table 1, Response Resource Operating Criteria; Table 4, On-Water Oil
Recovery Resource Mobilization Factors; and Table 5, Response
Capability Caps by Operating Area) would remain the same in the
proposed methodology. We are including Table 5 to recognize the
practical limitations on the availability of response resources. The
use of response caps in the methodology for petroleum oils and animal
fats and vegetable oils would prevent excessive planning requirements
for response equipment that does not exist in general operating areas.
Any equipment identified in a response plan would have to be capable of
operating in the conditions expected in the geographic area(s) (i.e.,
operating environments) in which the facility operates using the
criteria in Table 1 (see Section 10.7.2 of Appendix E). The proposed
rule also includes an example (Section 10.5) and a new worksheet that
shows a second example of the calculation of response resources for a
worst case discharge of animal fat or vegetable oils (Attachment E-2).
If you are the owner or operator of an animal fat or vegetable oil
facility who is using the proposed methodology, you would follow the
steps listed in the new worksheet to determine response resources.
First you would calculate the worst case discharge for your facility
and determine the oil group and operating area. The oil group is listed
in Table 7 and defined in Section 1.2 of this Appendix. The operating
areas are defined in Section 1.1 of Appendix C and listed in Table 1 of
Appendix E. In the next step, you would determine the percentage of
your oil that is apportioned to the three segments listed in Table 6--
oil lost to the environment, recovered floating oil, and oil onshore.
By multiplying the percentage of oil on-water or onshore by the worst
case discharge, you would determine on-water oil recovery or shoreline
recovery. Next, you would multiply the on-water recovery or shoreline
recovery by the emulsification factor, which is determined in Table 7.
You would multiply that figure by the on-water oil recovery resource
mobilization factors for the three response tiers in Table 4 and
compare the values to the response capability caps in Table 5. You must
ensure by contract, or other approved means, as described in
Sec. 112.2, availability of the quantity of resources to meet the
applicable caps. You would not need to contract in advance for amounts
of response resources above the caps, but you must identify sources of
additional response resources.
d. Removal capacity planning for animal fats and vegetable oils. In
the current FRP rule, owners or operators of non-petroleum oil
facilities do not have to use the evaporation factors that apply

[[Page 17240]]

to petroleum oils in Table 2. Unlike petroleum oils, most animal fats
and vegetable oils do not contain substantial amounts of volatile
materials that evaporate. Compared to some petroleum oils, a greater
proportion of spilled vegetable oils and animal fats usually remains in
the water, collects on sediments or land, or contaminates biota (USDOC/
NOAA, 1992, 1996; Hui, 1996a, 1996b).
We are proposing a new table, Table 6, Removal Capacity Planning
Table for Animal Fats and Vegetable Oils. This table accounts for the
potential for natural degradation of oil as spilled animal fats and
vegetable oils undergo changes in the environment. Although we
recognize that degradation is affected by many factors and conditions
that are specific to each spill, we are proposing the percentages of
loss and recovery in Table 6 to aid in response planning.
To arrive at the numbers in Table 6, EPA has examined numerous
studies on the fate and effects of animal fats and vegetable oils in
the environment (62 FR 54508, October 20, 1997). Experiments using
three vegetable oils (olive oil, sunflower oil, and linseed oil)
demonstrated that natural degradation occurred at a rate of between 3
and 8 percent per day (Mudge et al., 1994). At some stage during the
degradation process, the oils polymerized and degradation rates were
reduced to less than 1 percent per day. Polymerization, a chemical
reaction in which a large number of relatively simple molecules combine
to form a chain-like macromolecule, occurs spontaneously in the
environment (Sax and Lewis, 1987). With polymerization, soybean oil and
sunflower oil form a concrete-like aggregate with soil and sand that
cannot be readily degraded by bacteria and may remain in the
environment for many years after they are spilled (Minnesota, 1963;
Mudge, 1995, 1997a, 1997b). Petroleum oils also undergo oxidation and
polymerization reactions and can form tars that persist in the
environment for years (NAS, 1985). Animal fats and vegetable oils can
also be transformed by other chemical reactions, such as hydrolysis.
Another study, which is being conducted for EPA by Battelle
Columbus Laboratories, measures the biodegradation of vegetable oils
(Venosa and Alleman, Personal Communication, 1999). Preliminary data
provide an estimate of the biodegradation of two vegetable oils that
occurs under the conditions of the experiment. The experiment was
carried out at three pH levels (5, .7, and 9) and at two temperatures
(10 deg.C and 25 deg.C). Bacterial cultures were added to samples of
crude soybean oil and crude canola oil, and oil was extracted from the
samples at various times using standard method 5520B (APHA, 1992).
Because this extractable oil includes lipids derived from the bacteria
and other sources, the values represent the minimum amount of
biodegradation of the samples. At 25 C at least 20 to 25 percent of the
crude soybean oil was biodegraded after 25 days, and at least 15 to 39
percent of the crude canola oil was biodegraded after 36 days,
depending on pH. At the lower temperature less biodegradation occurred.
The total extractable oil was measured for a period up to 36 days. The
sample was cloudy, indicating significant emulsification. During
biodegradation an increase in toxicity was observed using the Microtox
test (ASTM, 1997).
Other reports indicate that the degradation of animal fats and
vegetable oils depends on a variety of factors. A summary of a group of
studies by the British Ministry of Agriculture, Fisheries and Food
(MAFF) explains that biodiesel (rape methyl ester), which was tested at
three concentrations, disappeared from the waterbody, plants, and
sediments more quickly than marine diesel (MAFF, 1996). Another report
describes the deterioration of olive oil by hydrolysis, phytoxidation,
and microbial action (Kiritsakis, 1991). The transformation of
vegetable oils exposed to air and light has been measured in terms of
deterioration of flavor (Hui, 1996a). A study of land disposal of
cooking oils used in potato processing measured a decomposition of 70
to 76 percent of the oil in soils over 12 weeks (Smith, 1974). When
adequate nitrogen was present, palm oil and soybean oil decomposed
rapidly. Another study reported that various fungal species caused
biochemical changes in the constituents of palm oil (Cornelius et al.,
1965). Factors that affect the biodegradation of oils include pH,
dispersal of oil, dissolved oxygen, presence of nutrients, soil type,
type of oil, and the concentration of undissociated fatty acids in
water (Ratledge, 1994; Venosa et al., 1996; Salanitro et al., 1997).
Based on the above information, we are suggesting that
approximately 20 percent of the volume of a Group B animal fat or
vegetable oil may be lost due to natural processes. We also expect that
facilities could plan to recover from the water approximately 15
percent of the total oil discharged during a 3-day period of sustained
operations in the Rivers and Canals operating environment. Due to the
narrowness of many of these operating environments, the spilled oil is
more likely to become stranded on the shoreline. We expect that
facilities could plan to recover approximately 20 percent of the oil
discharged during a 4-day period of sustained operations in the
Nearshore, Inland, and Great Lakes operating environments. Because of
the open nature of these operating environments, there will be a
greater opportunity for on-water recovery before the oil is stranded on
the shoreline. However, one study comparing canola oil (rapeseed oil)
to crude oil indicates that under certain conditions a 30 to 40 percent
increase in the recovery of canola oil is likely when compared to crude
oil (Allen and Nelson, 1983). In actual spill situations, some
responders have indicated that a larger percentage of the discharged
animal fats or vegetable oils may be recovered on the water than the
level we are proposing for on-water recovery in Table 6.
We request data and comments on the factors listed in Table 6,
including whether higher factors (percentage recovered) for on-water
recovery are appropriate. We are particularly interested in receiving
data on recovery of animal fats and vegetable oils from oil spill
contractors, such as Oil Spill Removal Organizations, or others who may
have experience in responding to discharges of animal fats and
vegetable oils. We are also interested in ongoing or planned research
on animal fats and vegetable oils that relates to these factors.
e. Emulsification factors for animal fats and vegetable oils. The
tendency of petroleum and non-petroleum oils to form emulsions of
water-in-oil or oil-in-water depends on the unique chemical composition
of the oil (NAS, 1985; Knowlton and Pearce, 1993; Fingas et al., 1995;
Lewis et al., 1995). Emulsification also depends on tempera ture, the
presence of stabilizing compounds, and other factors. Some oils contain
natural emulsifiers, such as lecithin, or form compounds, such as
monoglycerides, that are used as commercial emulsifiers (Hui, 1996c).
When an emulsion is formed in the environment, the oil changes
appearance, and its viscosity can increase by many orders of magnitude
(USDOC/NOAA, 1994). Removal of the oil becomes harder because of the
increased difficulty in pumping viscous fluids with up to fivefold
increases in volume.
While there is no simple method for determining the tendency of
oils to form emulsions in the environment, one study demonstrated that
canola oil and crude oils have similar tendencies for emulsification in
cold temperature tests

[[Page 17241]]

(Allen and Nelson, 1983). Each oil took up approximately 10 percent of
the original volume in water globules that did not settle out for
several hours in the shake test. Under warm conditions, canola oil
formed small stable emulsions, while crude oil formed emulsions with
large amounts of seawater.
Another study indicates that certain crude and refined vegetable
oils form emulsions, ranging from 10 to 32 percent. The investigators
observed that crude corn oil has a greater tendency to emulsify than
refined corn oil (Calanog et al., 1999).
According to one scale, the characteristics of some animal fats and
vegetable oils and petroleum oils are similar (Hui, 1996c). The
hydrophilic-lyphophilic balance (HLB) scale characterizes the
solubility of emulsifiers. The scale has been used by manufacturers
seeking emulsifier systems with high stability and long shelf life. The
original HLB scale ranges from 0 to 20. The low end of the scale
signifies an emulsifier that is more soluble in oil than water, while
emulsifiers in the high end of the scale are more soluble in water than
in oil. Water/oil emulsions are most stable in the 3 to 6 range; oil/
water emulsions are favored in the 11 to 15 range; and emulsions with
intermediate values are generally not stable.
Some petroleum oils and vegetable oils and animal fats have a
similar range of HLB values in water-in-oil and oil-in-water emulsions
used in commercial products (Knowlton and Pearce, 1993). The required
HLB values for water-in-oil emulsions are 5 for cottonseed oil, 4 to 6
for mineral oil, 6 for kerosene, and 7 for gasoline. For oil-in-water
emulsions, HLB values for vegetable oils and animal fats include 5 for
lard, 6 for tallow, 6 to 10 for cottonseed oil, 12 for menhaden oil,
and 14 for castor oil; for other oils, HLB values for oil-in-water
emulsions are 7 to 8 for petrolatum, 10 to 12 for mineral oils, 12 for
kerosene, and 14 for petroleum naphtha.
While the physical properties of vegetable oils and animal fats are
highly variable, most fall within a range that is similar to the
physical parameters for petroleum oils (October 20, 1997, 63 FR 24508,
Appendix I, Table 1). Common properties, such as solubility, specific
gravity, and viscosity, are responsible for the similar environmental
effects of discharges of petroleum oils and animal fats and vegetable
oils. These common properties are also likely to result in similar
emulsification factors between petroleum oils and animal fats and
vegetable oils.
Based on similarities in chemical and physical characteristics of
petroleum oils, vegetable oils, and animal fats, we are proposing
emulsification factors for animal fats and vegetable oils which are
similar to the emulsification factors for petroleum oils in
corresponding oil groups. Emulsification factors are unitless
multipliers that are used in calculating planning volumes for worst
case discharges. The emulsification factors in Table 7 account for the
increases in volume that result when discharged oil forms emulsions.
For example, the emulsification factor of 2.0 means that the volume of
the oil increases two-fold when emulsified with water under appropriate
mixing conditions.
We request data on emulsification factors for animal fats or
vegetable oils from either laboratory testing or from actual
discharges.
f. Example--Application of Response Capability Caps to determine
response resources. We propose to apply the Response Capability Caps in
Table 5 in Appendix E to response equipment requirements for animal
fats and vegetable oils. In reviewing response plans submitted by
facilities that handle or store animal fats or vegetable oils, we
discovered that most plan holders had voluntarily employed the
petroleum oil methodology for determining response resources. In
proposing a methodology for animal fats and vegetable oils that is
similar to but different from the methodology for petroleum oils, we
determined that it is appropriate to recognize the practical
limitations on the availability of response resources. Failure to do
this may result in excessive planning requirements for response
equipment that does not exist in the general operating areas. See
Appendix A in the preamble and Appendix B in the preamble for examples
of the Planning Worksheet from Appendix E in 40 CFR part 112 and
application of the values in proposed Tables 6 and 7. The examples
demonstrate how the application of the Response Capability Caps is as
relevant for vegetable oils and animal fats as it is for petroleum
oils.
Determining the planning volume and response resources. To follow
the methodology, you would establish the volume of the worst case
discharge using one of the methods in Appendix D in part 112. Then you
would identify the oil group using the definitions in Section 1.2 of
Appendix E, identify the facility operating area using the definitions
in Appendix C, and locate the appropriate operating area (spill
location) in Table 6 in Appendix E. From Table 6, column Nearshore/
Inland/Great Lakes, you would identify the ``Percent Recovered Floating
Oil'' and the ``Percent Recovered Oil from Onshore.'' You would
multiply the ``Percent Recovered Floating Oil'' by the worst case
discharge and multiply the resulting value by the proper emulsification
factor in Table 7 to establish the on-water oil recovery volume in
barrels. You would consult Table 4 in Appendix E to establish the On-
Water Oil Recovery Resource Mobilization Factors. Then you would
multiply the factors in each of the three tiers by the on-water oil
recovery volume to determine the on-water recovery capacity (barrels
per day) that must be planned to be on scene at the response times
provided in Section 5.3 in Appendix E. You can check these values
against the Response Capability Caps (expressed in barrels per day) in
Table 5 for the specific operating area and date. The facility owner or
operator (plan holder) must ensure by contract or other approved means
the availability of response resources for the lesser of either the on-
water recovery capacity or the capability caps. Response resources are
required to be identified (but not contracted for in advance) for the
volume above the response capability caps. The capability of oil
recovery devices can be determined using Section 6.0 in Appendix E in
part 112. To establish the shoreline cleanup volume, you would multiply
the ``Percent Recovered Oil from Onshore'' from Table 6, column
Nearshore/Inland/Great Lakes in Appendix E times the worst case
discharge times the proper emulsification factor. The resulting volume
must be used to identify an oil spill removal organization with the
appropriate shoreline cleanup capability.
Comparison of planning volumes and response resources. Appendix C
in this preamble provides an example of the application of existing
regulations for petroleum oils. When the on-water recovery capacity
(Part II of the Worksheets) is compared in each of the three examples
in Appendix A, B, and C of the preamble, it is apparent that the
required planning volume for animal fats and vegetable oils to be
recovered from the water is less than for petroleum oils. The proposed
rule will require lesser amounts of response equipment to be identified
in a response plan for facilities that are located in the nearshore or
inland operating areas relative to a similar facility with petroleum
oil. It is also apparent that application of the Response Capability
Caps in Table 5 in Appendix E limits the amount of daily recovery
capacity

[[Page 17242]]

required to be ensured by contract or other approved means.
Section 10.5 in the proposed rule provides a similar example of
calculating the planning volume from a worst case discharge of animal
fats and vegetable oils into an Inland Operating Area. The planning
volume for on-water recovery is for a worst case discharge of 21
million gallons (500,000 barrels) of Group B vegetable oil.
By using the Response Capability Caps in Table 5, facilities that
handle or store oils are limited in the amount of response resources
they must have under contract or otherwise identify in the FRP. The
caps in Table 5 reflect the limits of technology and private removal
capability. Table 5 also provides the increases in the response
capability caps after February 18, 1998 to reflect the increase in
private removal resources. One study by the USCG on the scheduled
increases in removal resources indicates that the response capability
caps that were scheduled for 1998 have been exceeded in many areas.

C. Advance Notice of Proposed Rulemaking

EPA requests comment concerning ways we might differentiate among
the various classes of oils listed in the Edible Oil Regulatory Reform
Act for purposes of the Spill Prevention, Control, and Countermeasure
Rule, found at 40 CFR part 112. Those classes of oil are: animal fats
and oils and greases, and fish and marine mammal oils; oils of
vegetable origin, including oils from seeds, nuts, and kernels; and
other oils and greases, including petroleum. We are interested in how
we might differentiate in the prevention requirements for these classes
of oils based on the physical, chemical, biological, and other
properties of these oils, and on their environmental effects if
discharged into the environment.

III. Bibliography

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IV. Regulatory Analyses

A. Executive Order 12866: OMB Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB). A ``significant regulatory action'' is an action that results in
a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise new legal or policy issues arising out of legal mandates,
the President's priorities, or the principles in the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.

B. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local, and tribal
governments, the nature of their concerns, any written communications
from

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-8275. Public record. Not legal advice.