[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26511]
[[Page Unknown]]
[Federal Register: October 26, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[FRL-5086-4]
Request for Data and Comment on Response Strategies for
Facilities That Handle, Store, or Transport Certain Non-Petroleum Oils
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Notice and request for data.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is publishing a
notice and request for data regarding issues concerning the Clean Water
Act section 311 (as amended by the Oil Pollution Act of 1990)
requirements for facility response plan preparation as applied to non-
transportation-related, onshore facilities that handle, store, or
transport animal fats and vegetable oils. This notice is, in part, in
response to a Petition for reconsideration of EPA's final facility
response plan rule (Final Rule), (59 FR 34070, July 1, 1994), submitted
to EPA by seven agricultural organizations. The Petition asserts that
EPA does not adequately treat these oils differently from petroleum and
toxic non-petroleum oils in the Final Rule. In support of their
Petition, these organizations rely on studies that draw several
conclusions concerning the physical, toxicological, and chemical
properties of animal fats and vegetable oils compared with other types
of oil. This notice summarizes the Petition, and asks for data and
comment to assist EPA in determining whether and how the differences in
properties of various oils warrant further different treatment,
including possibly creating separate facility response plan regulatory
regimes for these oils beyond the regime established in the July 1,
1994 Final Rule.
DATES: Submit written comments on this notice on or before January 24,
1995.
ADDRESSES: Address comments on this notice to the docket clerk at the
following address: U.S. Environmental Protection Agency, SPCC-3, 401 M
Street, SW., Washington, DC 20460. Send one original and two copies to
the regulatory docket and identify the copies by regulatory docket
reference number SPCC-3. The docket is open from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding Federal holidays. Docket
materials, including any materials referenced in this notice, may be
reviewed by appointment by calling (202) 260-3046. (The titles of
docket materials referenced in this notice are listed in Section VI.)
Interested persons may copy a maximum of 266 pages from any one
regulatory docket at no cost. Additional copies are $0.15 per page,
plus a $25.00 administrative fee.
FOR FURTHER INFORMATION CONTACT: Bobbie Lively-Diebold, Oil Pollution
Response and Abatement Branch, Emergency Response Division (5202G),
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC
20460, at (703) 356-8744; the ERNS/SPCC Information line at (202) 260-
2342; or the RCRA/Superfund Hotline at (800) 424-9346 (in the
Washington, DC metropolitan area, [703] 412-9810). The
Telecommunications Device for the Deaf (TDD) Hotline number is (800)
553-7672 (in the Washington, DC metropolitan area, [703] 412-3323).
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
On July 1, 1994, EPA published its Final Rule amending the Oil
Pollution Prevention regulation (40 CFR part 112) to incorporate new
requirements to implement section 4202(a)(6) of the Oil Pollution Act
of 1990 (OPA), amending section 311(j)(5) of the Clean Water Act (CWA).
(See 33 U.S.C. 1321(j)(5).) (Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities; Final Rule, 59 FR 34070,
July 1, 1994.) The Final Rule directs certain facility owners and
operators to prepare plans for responding to a worst case discharge of
oil, and to a substantial threat of such a discharge. Under authority
of section 311(j)(1)(C) of the CWA, the Final Rule requires planning
for a small and medium discharge of oil, as appropriate.
Under section 4202(a)(6) of the OPA, these planning requirements
apply to owners and operators of all offshore facilities and any
onshore facility that, ``because of its location, could reasonably be
expected to cause substantial harm to the environment by discharging
into or on the navigable waters, adjoining shorelines, or the exclusive
economic zone.'' OPA directs owners and operators of these facilities
to prepare a plan for responding ``to the maximum extent practicable,
to a worst case discharge, and to a substantial threat of such a
discharge of oil or a hazardous substance.'' The July 1, 1994, Final
Rule establishes requirements for plans for responding to discharges of
oil from certain onshore facilities within EPA's jurisdiction.
EPA published the proposed facility response plan rule on February
17, 1993 (58 FR 8824). One of the issues on which the Agency received
comment was whether EPA should establish separate response plan
requirements and selection criteria for owners or operators of
facilities that handle, store, or transport non-petroleum oils. Among
other things, some commenters argued that fundamental chemical and
physical differences between petroleum and non-petroleum oils indicate
the necessity for different response techniques and equipment. At least
two comments on the proposed rule asserted that lack of toxicity was a
property distinguishing some non-petroleum oils both from petroleum and
other non-petroleum oils. (See letters commenting on the February 17,
1993, proposed rule from the National Renderers Association [SPCC-2P-2-
1248]; and on behalf of the American Soybean Association, the Corn
Refiners Association, the National Corn Growers Association, the
Institute of Shortening & Edible Oils, the National Cotton Council, the
National Cottonseed Products Association, and the National Oilseed
Processors Association, [SPCC-2P-2-L34].) The letter on behalf of the
seven agricultural organizations [SPCC-2P-2-L34] asked EPA to ``provide
for a different approach to response and removal methodologies for
these substances than that required for petroleum oil.''
EPA's Final Rule for non-transportation-related facility response
plans provides a strategy for petroleum oils and non-petroleum oils
that gives a considerably greater degree of flexibility to owners and
operators of non-petroleum oil facilities than to owners and operators
of petroleum oil facilities in designing their plans. The Petitioners
contend that EPA should avoid treating the category animal fats and
vegetable oils with the category toxic, non-petroleum oils. EPA
addressed the likely differences in responding to petroleum oil as
opposed to non-petroleum oil, and created an approach that allows
owners or operators of facilities that handle, store, or transport non-
petroleum oils flexibility to determine appropriate response equipment
levels within the framework established by the regulation (See Section
7.7 of Appendix E to 40 CFR part 112). The Agency provided further
flexibility by allowing the Regional Administrators (RA) to assess the
adequacy of response plans including those for non-petroleum
facilities, recognizing the greater knowledge RAs have about facilities
and geographic-specific environmental areas within their Regions.
EPA's approach for the identification of response resources for
non-petroleum oil facilities is adapted from, and consistent with, the
U.S. Coast Guard's (USCG) interim final rule establishing response plan
requirements under the OPA for owners and operators of marine-
transportation-related, non-petroleum oil facilities. (See 33 CFR part
154. The docket includes a chart comparing USCG plan resource
requirements for petroleum and non-petroleum oil facilities, and
referencing the applicable sections of the USCG facility response plan
rule.) As with the USCG Interim Final Rule, the EPA approach gives
these facility owners and operators substantial latitude in calculating
required response resources for their non-petroleum facilities.
To calculate resources for non-petroleum oil facilities, an owner
or operator is not limited to using emulsification or evaporation
factors in Appendix E (the Equipment Appendix) of the Final Rule, as
required for petroleum oil facilities. Rather, these owners and
operators must: (1) show procedures and strategies for responding to
the maximum extent practicable to a worst case discharge; (2) show
sources of equipment and supplies necessary to locate, recover, and
mitigate discharges; (3) demonstrate that the equipment identified in
the plan will work under the conditions and in the areas that the plan
covers, and reach the area within required times; and (4) ensure the
availability of required resources by contract or other approved means.
EPA does not prescribe the type and amount of equipment that response
plans for non-petroleum oil discharges must identify (See Section 7.7
of Appendix E to 40 CFR part 112).
EPA's Final Rule is consistent with the CWA section 311(j)(5) (as
amended by section 4202(a) of the OPA), which requires facility
response plans to ``remove to the maximum extent practicable'' a worst
case discharge of oil or a hazardous substance. In many responses to
discharges of oil, response personnel may need to employ containment
boom, skimmers, or other equipment to contain oil and remove oil from
water. Responders also may employ other strategies appropriate for the
area. These strategies apply to all oils and do not distinguish among
types of oil (i.e., petroleum and non-petroleum or toxic and non-toxic
oils).
As EPA stated in the Final Rule (59 FR 34088), when results from
research on such factors as emulsification or evaporation of non-
petroleum oil are available, the Agency may change the rule regarding
the type of response resources for which an owner or operator of a non-
petroleum oil facility must plan.
II. The Organizations' Petition
By a letter dated August 12, 1994, EPA received a ``Petition for
Reconsideration and Stay of Effective Date'' of the OPA-mandated
facility response plan Final Rule as that rule applies to facilities
that handle, store, or transport animal fat or vegetable oils. The
Petition was submitted on behalf of seven agricultural organizations
(``the Organizations'' or ``Petitioners''): the American Soybean
Association, the Corn Refiners Association, the National Corn Growers
Association, the Institute of Shortening & Edible Oils, the National
Cotton Council, the National Cottonseed Products Association, and the
National Oilseed Processors Association.
To support their Petition, the Organizations reference an industry-
sponsored study titled ``Environmental Effects of Release of Animal
Fats and Vegetable Oils to Waterways'' (prepared by ENVIRON
Corporation, June 28, 1993) and an associated study titled ``Diesel
Fuel, Beef Tallow, RBD Soybean Oil and Crude Soybean Oil: Acute Effects
on the Fathead Minnow, Pimephales Promelas'' (prepared by Aqua Survey,
Inc., May 21, 1993). Both of these studies had been submitted to EPA
during the facility response plan rulemaking as enclosures to a comment
filed over nine months after the close of the comment period.
The ENVIRON study concludes that ``animal fats and vegetable oils
are significantly different from petroleum oils in their effects on the
aquatic environment and so merit separate treatment in environmental
regulations.'' Among other things, ENVIRON concludes that ``animal fat
and vegetable oils are orders of magnitude less toxic than petroleum
oils to aquatic life;'' that ``there are no accumulating or otherwise
harmful components in animal fats and vegetable oils that are
irritating, toxic or carcinogenic;'' and that ``animal fats and
vegetable oils are easily biodegraded by bacteria using them as food.''
The study also concludes that these oils can coat aquatic biota and
foul wildlife, causing hypothermia when fur or feathers mat; and that
these oils have a high ``Biological Oxygen Demand'' (or BOD), which may
result in oxygen deprivation where there is a large spill in a confined
body of water with a low flow and low dilution rate. The ENVIRON
study's ultimate conclusion is that animal fats and vegetable oils are
sufficiently different from petroleum oils and other hazardous
materials that they merit separate treatment in environmental
regulations.
The Aqua Survey, Inc. study presents the results of Aqua Survey's
tests of the acute toxicity of the test substances on the Fathead
minnow at five concentrations of each test substance. Based on the
study results, the Organizations assert that animal fats and vegetable
oils--unlike petroleum-based oil and toxic non-petroleum oils--``are
non-toxic, readily biodegradable, not persistent in the environment,
and, in fact, are essential components of human and wildlife diet.''
Based, in part, on these studies, the Petitioners ask EPA to create
a regulatory regime for response planning for non-petroleum, ``non-
toxic'' oils separate from the regime established for petroleum oils
and ``toxic,'' non-petroleum oils. The Petitioners further submitted,
as an Appendix to their Petition, specific suggested language to amend
the July 1, 1994, facility response plan rule to allow mechanical
dispersal and ``no action'' options for responding to a spill of animal
fats and vegetable oils.
III. Addressing Issues Presented in the ENVIRON and Aqua Survey Studies
EPA acknowledged in the Final Rule that response strategies for
petroleum and non-petroleum oils may differ (59 FR 34088). However,
because the Agency was aware of little data to support developing a
separate regulatory regime for non-petroleum oils and because the OPA
calls for resources to remove ``oil'' (broadly defined in section 311
of the Clean Water Act), the Agency adopted the regime described in the
Final Rule (see 59 FR 3470 at 34087, 34088) and summarized above.
The U.S. Fish and Wildlife Service (FWS) took issue with many
statements in the ENVIRON Report in a letter to the Research and
Special Projects Administration (U.S. Department of Transportation).
(See Letter from Michael J. Spear, Assistant Director, Ecological
Services, FWS to Ms. Ana Sol Gutierrez, Research and Special Projects
Administration, U.S. Department of Transportation, April 11, 1994.) The
FWS expressed concern with ENVIRON statements suggesting that edible
oils and fats pose no real risk to fish and wildlife. FWS states that
although petroleum oils may pose greater risks than vegetable oils for
acute toxicity to fish and wildlife from ingestion and inhalation of
petroleum oil's hydrocarbon component, both types of oil pose chronic
effects from the fouling of coats and plumage in wildlife, which often
leads to death. FWS also stated that in some circumstances, edible oils
can persist in the environment for extended periods of time, forming
mat and encrustation similar to petroleum products, potentially causing
chronic adverse effects to fish.
NOAA also has evaluated the effects on the environment of spilled
non-petroleum oils, including coconut, corn, cottonseed, fish, and palm
oils. (See a Memorandum for the Record, date June 3, 1993, from NOAA
Hazardous Materials Response and Assessment Division.) The NOAA
assessment, based on literature research, addresses physical and
chemical properties and toxicity of these and other oils, and indicates
that some edible oils, when spilled, may have adverse environmental
effects. Some of these effects seem to contradict conclusions in the
ENVIRON study. According to NOAA, coconut and palm oils are very
viscous; in most coastal waters, these oils probably would persist for
over a decade. By contrast, ENVIRON concluded that animal fats and
vegetable oils ``are easily biodegraded by bacteria,'' and that the
physical impacts of non-recoverable animal fats and vegetable oils
``would be of limited duration.''
Tri-State Bird Rescue and Research (TSBR) made a statement on the
ENVIRON study in response to a request for comment from the Department
of the Interior. (TSBR provides contingency planning, training
workshops, and emergency response for wildlife affected by oil spills.)
A summary of the TSBR statement was published in its ``Wildlife & Oil
Spills.'' (See Vol. 4, No. 1-Winter/Spring 1994.) In the summary, TSBR
makes the following observation: ``While edible oils do not contain the
toxic components of many of the polyaromatic hydrocarbons, they do have
many of the same physical properties as petroleum oils; the animals and
birds will suffer the same physical effects from edible oils as they
would from contamination with petroleum products.''
Among the studies reviewed by USCG (for the USCG rule referenced
above) attesting to the harmful effects of non-petroleum oils in the
environment is an International Maritime Organization (IMO) study
titled ``Harmful Effects on Birds of Floating Lipophilic Substances
Discharged from Ships.'' The IMO study underscores ENVIRON's findings
of the physical hazards associated with non-petroleum oil.
IV. Request for Public Comment
In view of the differing scientific conclusions reached by the
Petitioners, the FWS, and other groups and agencies, EPA requests
broader public comment on issues raised by the Petitioners. These
include whether to have different specific response approaches for
releases of animal fats and vegetable oils (rather than increased
flexibility), and the effects on the environment of releases of these
oils. EPA also asks for information regarding the following specific
questions.
What data are there on both the probability that spilled animal
fats and vegetable oils will persist in the environment, and the
physical effects of these substances on wildlife and aquatic biota? To
what extent do environmental factors such as water temperature affect
the physical characteristics of animal fats and vegetable oils and the
strategies for cleaning up the oil?
Both the ENVIRON and Aqua Survey Inc. studies imply that there is
some level or concentration at which animal fats and vegetable oils are
hazardous to wildlife when ingested. Are there additional further
studies, scientific papers, or other data that bear on the issue? Are
there data showing at what concentrations animal fat, vegetable oil,
and other non-toxic oils have adverse effects on animals that ingest
such oils? How critical is the matter of an oil's toxicity in
determining what kind of equipment resources and strategies responders
should use in containment and recovery?
The Agency also requests comment on whether there are data to
demonstrate that the response approach set out in the rule for non-
petroleum oils is either unnecessary or harmful. Does spill size or
location affect whether a response can be more harmful than leaving the
oil in the environment? If so, how and to what degree? Are there
circumstances where response techniques like containing and removing a
discharge of animal fats and vegetable oils are more harmful than
dispersing these oils through use of chemical or mechanical
dispersants? Are there effective, available, and authorized chemical
dispersants that responders can use for discharged animal fats and
vegetable oils?
Are there data on emulsification and evaporation factors for non-
petroleum oils that EPA can use to determine whether to revise the
facility response plan rule for facilities that handle, store, or
transport non-petroleum oils, including animal fats and vegetable oils?
Is there research in-progress or planned research on the issues
raised in this notice?
V. Further Action
After review and evaluation of the public comments on this notice,
EPA will decide whether data support creating a new facility response
plan regulatory regime for facilities that handle, store, or transport
non-petroleum oils which Petitioners assert are non-toxic. EPA's
determination may take the form of no further action, guidance, or some
other regulatory action.
VI. List of Documents Available for Review in the Docket
``Comparison of CG Response Planning Regulations for Petroleum and
Non-petroleum Oils,'' United States Coast Guard, undated
``Diesel Fuel, Beef Tallow, RBD Soybean Oil and Crude Soybean Oil:
Acute Effects on the Fathead Minnow, Pimephales Promelas,'' Aqua
Survey, Inc., May 21, 1993
``Environmental Effects of Releases of Animal Fats and Vegetable
Oils to Waterways,'' ENVIRON Corporation, June 28, 1993
``Harmful Effects on Birds of Floating Lipophilic Substances
Discharged from Ships,'' International Maritime Organization (IMO)
``Final Rule on Oil Pollution Prevention; Non-Transportation-Related
Onshore Facilities, Docket No. SPCC-2P; Petition for Reconsideration
and Stay of Effective Date,'' August 12, 1994
``Non-Petroleum Oils,'' National Oceanic and Atmospheric
Administration (NOAA) Memorandum for the Record, June 3, 1994
``Oil & Chemical Spills,'' Wildlife & Oil Spills, Vol. 4 No. 1--
Winter/Spring, 1994
``Oil Pollution Prevention; Non-Transportation-Related Onshore
Facilities; Final Rule,'' 59 FR 34070, July 1, 1994
``Oil Pollution Prevention; Non-Transportation-Related Onshore
Facilities; Proposed Rule,'' 58 FR 8824, February 17, 1993
``Oil Pollution Prevention, Applicability of 40 CFR part 112 to Non-
Petroleum Oils; Notice'' 40 FR 28849, July 9, 1975.
``SPCC-2P-2-1248,'' Philip H. Kimball, National Renderers
Association, Inc., April 19, 1993
``SPCC-2P-2-L34,'' Duncan C. Smith III and Warren L. Dean, Jr.,
January 24, 1994
``U.S. Fish and Wildlife Service Letter from Michael J. Spear,''
Assistant Director, Ecological Services, to Ms. Ana Sol Gutierrez,
Research and Special Projects Administration, U.S. Department of
Transportation, dated April 11, 1994
List of Subjects in 40 CFR Part 112
Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: October 14, 1994.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 94-26511 Filed 10-25-94; 8:45 am]
BILLING CODE 6560-50-P
