40776 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 112

[FRL–6707–6]

RIN 2050–AE64

Oil Pollution Prevention and

Response; Non-Transportation-Related

Facilities

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Under section 311 of the

Clean Water Act, EPA is amending the

Facility Response Plan requirements in

the Oil Pollution Prevention regulation

for non-transportation-related facilities.

The main purpose of these amendments

is to provide a more specific

methodology for planning response

resources that can be used by an owner

or operator of a facility that handles,

stores, or transports animal fats and

vegetable oils. EPA has issued this rule

in response to legislation which requires

the Agency to issue regulations.

EFFECTIVE DATE: July 31, 2000.

ADDRESSES: 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) 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

(davis.barbara@epamail.epa.gov); 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: The

preamble is organized 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 Facility Response Plan Rule

4. Petition for Reconsideration

5. FRP-Related Requests

6. 1999 Proposed Rule

II. Discussion of Issues

A. Response Planning Scenarios

B. Planning Response Resources

C. Higher Volume Port Areas

D. Evaluation of Toxicity and

Biodegradation

E. Application of Executive Order 13101

(Purchasing)

F. Other Issues

1. Recovery Capacity

2. Use of Mechanical Dispersal Equipment

3. No-Action Option

4. FRP Preparation

G. Agency Decision on the Requests for

Modification of the FRP Rule

III. Bibliography

IV. Regulatory Analyses

A. Executive Order 12866: OMB Review

B. Executive Order 13132: Federalism

C. Executive Order 12898: Environmental

Justice

D. Executive Order 13045: Children’s

Health

E. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

F. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

G. Unfunded Mandates Reform Act

H. Paperwork Reduction Act

I. National Technology Transfer and

Advancement Act

J. Congressional Review Act

I. Introduction

A. Regulated Entities

Entities Potentially Regulated by this

Rule Include:

Category NAICS codes

Starch and Vegetable

Fats and Oils Manufacturing.

NAICS 31122.

Warehousing and

Storage.

NAICS 493.

Petroleum and Coal

Products Manufacturing.

NAICS 324.

Petroleum Bulk Stations and Terminals.NAICS 42271.

Crude Petroleum and

Natural Gas Extraction.

NAICS 211111.

Transportation, Pipelines, and Marinas.NAICS 482–486/

488112-48819/

4883/48849/492/

71393.

Category NAICS codes

Electric Power Generation, Transmission, and Distribution.NAICS 2211.

Other Manufacturing NAICS 31–33.

Gasoline Stations/

Automotive Rental

and Leasing.

NAICS 4471/5321.

Heating Oil Dealers ... NAICS 454311.

Coal Mining, Non-Metallic Mineral Mining

and Quarrying.

NAICS 2121/2123/

213114/213116.

Heavy Construction ... NAICS 234.

Elementary and Secondary Schools,

Colleges.

NAICS 6111–6113.

Hospitals/Nursing and

Residential Care

Facilities.

NAICS 622–623.

Crop and Animal Production.NAICS 111–112.

‘‘NAICS’’ refers to the North

American Industry Classification

System, a method of classifying various

facilities. The NAICS was adopted by

the United States, Canada, and Mexico

on January 1, 1997 to replace the

Standard Industrial Classification (SIC)

code. 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 § 112.1 and

§ 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

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40777

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)(A) of the CWA

authorizes the President to issue

regulations establishing methods and

procedures for removal of discharged

oil, and section 311(j)(1)(C) 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 54757–70, October 22, 1991), the

President has delegated to EPA the

authority to regulate non-transportationrelated onshore facilities under sections

311(j)(1)(A) and (C) and 311(j)(5) of the

CWA. The President has delegated

similar authority over transportationrelated 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, most Federal agencies

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). The Federal

agency must consider the differences in

the physical, chemical, biological, and

other properties, and in the

environmental effects, of the classes.

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

to comply with the requirements of

EORRA.

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

In today’s rule, EPA is modifying the

existing FRP rule for non-transportationrelated facilities that handle, store, and

transport animal fats and vegetable oils.

Today the Coast Guard is also modifying

its rule for 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 and final regulations

whenever possible. Each agency’s

requirements are appropriate to the

universe of facilities that it regulates.

The two rules reflect the similarities and

differences in the nature and activities

of facilities regulated by the two

agencies.

3. 1994 Facility Response Plan Rule

On February 17, 1993, EPA (‘‘we’’)

published a proposed rule (58 FR 8824–

8879) to revise the Oil Pollution

Prevention regulation, which we

originally promulgated under the Clean

Water Act, to address the OPA facility

response plan requirements. We

received a total of 1282 comments on

the proposed rule. We considered these

comments in developing the 1994 final

rule. On July 1, 1994, we published the

FRP rule (59 FR 34070–340136)

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. Under the authority of section

311(j)(1)(A) and (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. The definition of

‘‘oil’’ includes 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. 33 U.S.C. 1321(a)(1). In

the preamble to the 1994 FRP rule (59

FR 34070–34136, July 1, 1994), we

noted that for the purpose of CWA

section 311(j) planning, the CWA

includes non-petroleum oils. The nonpetroleum oils regulated by part 112

include animal fats, such as lard and

tallow; vegetable oils, such as corn oil,

rapeseed oil, and soy bean oil; and other

non-petroleum oils, such as coal tar,

turpentine, and silicon fluids. See the

definition of ‘‘oil’’ at 40 CFR 112.2.

b. Different rule requirements for nonpetroleum oils. In the preamble to the

1994 FRP rule, we agreed with

commenters that certain response

equipment and strategies used for

petroleum oil spills may be

inappropriate for non-petroleum oil.

Therefore, we adopted requirements

giving more flexibility in estimating

response resources to an owner or

operator of a facility that handles,

stores, or transports non-petroleum oil.

We used the USCG approach to

determine response resources for worst

case discharges of non-petroleum oil.

We required the owner or operator of a

non-petroleum oil facility to: (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 (according to Table 1 of appendix

E to part 112), and that the equipment

and other resources will be able to

respond within the required times; and

(4) ensure the availability of required

resources by contract or other approved

means. Unlike our requirements for the

owner or operator of a petroleum oil

facility, we did not limit the owner or

operator of a non-petroleum oil facility

to using emulsification or evaporation

factors in appendix E (the Equipment

Appendix) to calculate response

resources. In the 1994 FRP rule, we

added section 7.7 to Appendix E to

reflect these changes from the 1993

proposal. 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 34070, 34088,

July 1, 1994. Based on our examination

of recent research, in today’s rule we

have included these factors for the

owner or operator of a facility that

handles, stores, or transports animal fats

and vegetable oils. Owners or operators

of facilities that handle, store, or

transport non-petroleum oils other than

animal fats and vegetable oils are not

limited to using the emulsification or

evaporation factors in appendix E.

4. Petition for Reconsideration

As described in the preamble to the

proposed rule (67 FR 17227–17267,

April 8, 1999), by a letter dated August

12, 1994, we received a ‘‘Petition for

Reconsideration and Stay of Effective

40778 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

Date’’ of the OPA-mandated final FRP

rule as the rule applies to facilities that

handle, store, or transport animal fats

and 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.

On October 20, 1997, we denied the

petition to amend the FRP rule (62 FR

54508–54543). We found that the

petition did not substantiate most

claims that animal fats and vegetable

oils differ from petroleum oils in

properties and effects and concluded

that the facts 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 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 disagreed with Petitioners’ claim

that all animal fats and vegetable oils

are readily biodegradable and noted that

when biodegradation does occur in the

environment, it can lead to oxygen

depletion and death of fish and other

aquatic organisms. We also disagreed

with Petitioners’ claim that all animal

fats and vegetable oils are non-toxic

when spilled into the environment and

should therefore be placed in a separate

category from other ‘‘toxic’’ nonpetroleum oils. Information and data we

reviewed from other sources indicate

that some animal fats and vegetable oils,

their components, and their 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 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

spills of oil from facilities with these

characteristics may cause substantial

harm to the environment.

5. FRP-Related Requests

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 animal fats and vegetable

oils. 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 asked us to revise the FRP rule

by creating a separate category for

response planning for animal fat and

vegetable oil facilities and a separate

part of the Appendix with procedures

for these facilities. The requests also

included suggested language for the

revised rule. These requests are

addressed in section II.G of today’s

preamble.

6. 1999 Proposed Rule

On April 8, 1999, we published a

proposed rule to amend the FRP

requirements at 40 CFR part 112 (64 FR

17227–17267). The main purpose of the

proposal was to provide a more specific

methodology for planning response

resources that can be used by an owner

or operator of a facility that handles,

stores, or transports animal fats and

vegetable oils. We issued the proposal

in response to Public Law 105–276,

October 18, 1998, which requires us to

amend part 112. We requested public

comments on the usefulness of the new

procedure and tables for determining

response equipment needs for animal fat

and vegetable oil facilities. On May 18,

1999 (64 FR 26926–26927), we extended

the public comment period through

June 9, 1999. We received one comment

supporting the proposed methodology

and no comments specifically opposing

the proposed methodology.

In Section II of today’s preamble, we

discuss comments received on major

issues. In the Docket for this rulemaking

(SPCC–9P), you will find a detailed

Response to Comments document

addressing all comments and supporting

analyses. As shown in the Response to

Comments document, we received no

adverse comments on the definitions

proposed in § 112.2 or the definitions

(and groups of oils) proposed in

appendix E. As described in section II.G

of today’s preamble, we have finalized

those definitions as proposed, except for

minor editorial changes.

In today’s rule, we have also finalized

most of the minor editorial changes that

we included in the proposal, except that

we did not change ‘‘spill’’ to the word

‘‘discharge’’ everywhere that it appears

in appendix E and other sections of the

rule. Although ‘‘discharge’’ is the term

that is defined and used in the Clean

Water Act, we did not make this change

in phrases such as ‘‘spill prevention and

response’’ and ‘‘oil spill removal

organization.’’

II. Discussion of Issues

A. Response Planning Scenarios

In today’s rule, EPA is retaining the

requirement to plan for three specific

scenarios for oil discharges: small (2,100

gallons or less), medium (between 2,100

and 36,000 gallons), and worst case.

Most discharges are small or medium.

Planning for responses to more

commonly occurring discharges may be

more beneficial to facilities than

planning for a worst case discharge that

has a lower probability of occurrence.

Discharges of animal fats and vegetable

oils less severe than a worst case

scenario may pose a serious threat to

navigable waters or adjoining

shorelines, especially from the

cumulative effects of several discharges,

and can cause other adverse effects (62

FR 54508–54543, October 20, 1997).

The preamble to the April 8, 1999

proposal stated that EPA proposed to

keep the same response planning levels

for animal fats and vegetable oils,

although EPA proposed to add separate

sections for those oils. Several

commenters did not agree with EPA’s

proposal to require three planning

scenarios for animal fat and vegetable

oil facilities; instead, they suggested that

planning should be required only for

worst case discharges, under the

authority of OPA. One commenter

agreed that planning for commonly

occurring discharges is most valuable,

and asserted that most commonly

occurring discharges of vegetable oils

are small; the commenter suggested

planning for small and worst case

discharges only so that EPA and Coast

Guard rules are consistent. Another

commenter supported EPA’s proposal

for three planning scenarios.

In the preamble to the 1994 FRP rule,

EPA noted that although planning for

several discharge amounts is not

specifically mandated under OPA, EPA

has broad regulatory authority under

CWA section 311(j)(1)(C) for such a

requirement. The Agency also made this

point in the denial of the petition (62 FR

54508, 54509, October 20, 1997) and in

the proposed rule (67 FR 17227, 17229,

April 8, 1999). We also believe that EPA

has regulatory authority under CWA

section 311(j)(1)(A) for such a

requirement.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40779

A primary purpose of OPA was to

expand oil spill prevention and

preparedness activities. Different

personnel and equipment may be

necessary to respond to small, medium,

and worst case discharges. In our review

of FRPs submitted for animal fat and

vegetable oil facilities, we found several

facilities that show clear differences for

the three planning scenarios. For

example, a facility may use its own

personnel and equipment to respond to

a small discharge, call in an Oil Spill

Removal Organization (OSRO) to assist

the facility during a medium discharge,

and allow a worst case discharge to be

handled entirely by the OSRO. Planning

can increase the effectiveness of

response actions and can significantly

reduce the spread of spilled oil, the

environmental impacts of such spills,

and cleanup costs. Commenters have

not questioned these assertions.

EPA and the USCG regulate facilities

with different physical activities and

different response schemes, and the

requirements of each agency are

appropriate for the universe of facilities

regulated by that agency. Specifically,

each of the agencies addresses the

activities for the facilities under its

jurisdiction. EPA’s non-transportationrelated facilities generally have a greater

potential for large discharges than

USCG-regulated facilities. The worst

case discharge from an EPA-regulated

facility (generally the capacity of the

largest bulk storage tank) is often greater

by an order of magnitude or more than

the worst case discharge from a USCGregulated facility (determined by the

piping capacity and flow rate for

loading and unloading a vessel). Based

on information about animal fat and

vegetable oil FRPs provided to the EPA

Regions, the mean worst case discharge

(WCD) is approximately 2.0 million

gallons; the median WCD is

approximately 1.2 million gallons; and

the largest WCD is over 20 million

gallons. For Coast Guard-regulated

facilities that handle only animal fats

and vegetable oils, the mean worst case

discharge was over 22,000 gallons; the

median WCD was about 10,000 gallons;

and the largest worst case discharge was

less than 153,000 gallons.

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 and in a range of volumes at EPAregulated facilities. At these facilities,

there is a wide range of activities, and

many parameters can affect discharges.

Causes of oil discharges at EPAregulated facilities can include tank

failure, deterioration of tanks or valves,

facility transfers to or from tank cars or

tank trucks, and discharges from

processing units. At USCG-regulated

facilities, however, discharges usually

result from human error or equipment

failure. The discharge volume

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.

We have examined discharge data for

animal fats and vegetable oils to

determine whether the distribution of

different discharge volumes for these

oils is similar to the pattern for all oils.

In the FRP rule, the planning volumes

for discharges other than a worst case

discharge are based on an analysis of the

Emergency Response Notification

System (ERNS), which contains data on

discharges from all sources. These data

showed that the average reported

discharge for all oils is 1,300 gallons,

and 99.5 percent of the discharges of all

oils were less than approximately

36,000 gallons. Thus, in the existing

FRP rule the planning volume of 2,100

gallons rule or less for small discharges

represents a realistic planning quantity.

(See the Proposed FRP rule, 58 FR 8824,

8836, February 17, 1993).

We also reviewed data from the

USCG’s Marine Safety Information

System, which provided some

information that is not readily available

in ERNS. Specifically, the database

enabled us to identify which discharges

are from EPA-regulated, nontransportation-related facilities. During

the period 1992 to 1998, we found 28

reported non-petroleum oil discharges

from non-transportation-related

facilities or from the non-transportation

segment of a transportation facility. The

volume of these non-petroleum

discharges ranged from 1 gallon to 7,500

gallons. Most discharges (24) were less

than 1,000 gallons and only four 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.

According to these data, the

distribution of quantities discharged for

animal fats and vegetable oils is

comparable to that for all other oils. In

our proposed rule (67 FR 17227–17267,

April 8, 1999), we requested comment

on the reliability of these data and

whether they are representative of

discharges of animal fats and vegetable

oils at other facilities. We requested 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. No

commenter provided data on discharge

volume distribution.

The FRP rule also provides for

facilities where the range of possible

discharge scenarios is small. Under

today’s rule, as under the pre-existing

rule, a smaller facility may only need to

plan for two scenarios or a single

scenario if its worst case discharge falls

within one of the specified ranges for

small or medium discharges.

Furthermore, case-by-case deviations

may be allowed if they afford equal

environmental protection.

To summarize, our response planning

scenarios differ from those of the USCG.

Unlike EPA, the USCG requires

response planning for animal fats and

vegetable oils at marine transportationrelated facilities only for a worst case

discharge and an Average Most Probable

Discharge (the equivalent of EPA’s small

discharge). This difference, however, is

the result of differences in the universe,

nature, and characteristics of the

facilities regulated by each agency. Each

agency’s requirements are appropriate to

the universe of facilities that it

regulates. Our existing information

shows similar properties, effects, and

discharge volume for animal fats and

vegetable oils and other oils at EPAregulated facilities. We conclude that

our response planning scenario

requirements for animal fat and

vegetable oil facilities should be

consistent with our response planning

scenario requirements for petroleum

facilities. We believe that such planning

will be most useful for regulated

facilities in helping to protect the

environment.

B. Planning Response Resources

The primary changes to FRP

requirements for animal fat and

vegetable oil facilities in today’s rule

involve the addition of section 10.0 and

Tables 6 and 7 to appendix E. Proposed

ssction 10.0 described the approach for

calculating planning volumes for a

worst case discharge of animal fats and

vegetable oils. We proposed the two

new tables specifically for animal fats

and vegetable oils, Table 6 for Removal

Capacity Planning and Table 7 for

Emulsification Factors. Several

commenters supported the creation of

separate provisions for animal fat and

vegetable oil facilities. One commenter

supported the proposed methodology,

including Table 6, and the

emulsification factors for animal fats

and vegetable oils (Table 7). The

commenter stated that Table 6 accounts

for the potential for natural degradation

of oil as spilled animal fats and

vegetable oils undergo changes as well

as percentages of loss and recovery

40780 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

which will aid in response planning. No

commenters opposed our approach in

Section 10 or provided data suggesting

different values for Tables 6 and 7.

Today we are finalizing the proposed

methodology and tables.

In the preamble to the USCG’s

proposed rule (64 FR 17222–17227,

April 8, 1999), the USCG asked for

public comment on the appropriateness

of EPA’s Tables 6 and 7 for animal fat

and vegetable oil facilities. The animal

fat and vegetable oil industry provided

no comments indicating support of or

opposition to the tables. In the interest

of affording maximum flexibility to the

regulated community, the USCG is

offering the use of EPA’s planning

volume tables as an option, but not a

requirement, in its final rule that is also

published in today’s Federal Register.

The USCG notes that the use of these

tables may allow certain facilities to

provide a more appropriate level of

response resources to mitigate an oil

spill.

We have documented that the

methodology in section 10 and Tables 6

and 7 is supported by recent scientific

studies. These studies are summarized

in the preamble of the proposed FRP

rule (64 FR 17227, 17240, April 8,

1999). To arrive at the numbers in Table

6, we examined numerous studies on

the fate and effects of animal fats and

vegetable oils in the environment (62 FR

54508–54543, 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. 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. Animal fats and vegetable oils

can also be transformed by other

chemical reactions, such as hydrolysis.

Other reports are also summarized in

the proposed FRP rule. Preliminary data

from a study, which is being conducted

for EPA by Battelle Columbus

Laboratories, estimates that at 25°C, at

least 20 to 25 percent of crude soybean

oil was biodegraded after 25 days, and

at least 15 to 39 percent of the crude

canola oil was biodegraded after 365

days, depending on pH (Venosa and

Alleman, Personal Communication,

1999). At 10°C, less biodegradation

occurred. During biodegradation, an

increase in toxicity was observed, using

the Microtox test (ASTM, 1997).

Several studies described in the

proposed FRP rule indicate that the

degradation of animal fats and vegetable

oils depends on a variety of factors.

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 estimated

that approximately 20 percent of the

volume of a Group B animal fat or

vegetable oil may be lost due to natural

processes.

To evaluate the reasonableness of the

recovery rates in Table 6 to appendix E,

we have examined field data on

recovery rates for discharges of animal

fats and vegetable oils. According to the

Coast Guard’s Marine Safety

Information System, for 664 discharges

of animal fats and vegetable oils

between 1984 and 1999 responded to by

the Coast Guard, the data indicated that

39.9 percent of animal fats and

vegetable oils discharged to the water

were recovered. Similarly, 86.9 percent

of the animal fats and vegetable oils

discharged to land were recovered. The

data did not account for the amount of

water or solids, including soil or debris,

that may have been in the recovered

material. We believe that these recovery

rates are consistent with the planned

recovery rates in today’s rule. We also

note that today’s rule requires

temporary storage of twice the effective

daily recovery capacity.

In today’s FRP rule, we are finalizing

this methodology as proposed. The

methodology recognizes those

differences that exist in the physical and

chemical properties of petroleum oils

and animal fats and vegetable oils.

While most properties of these classes of

oils are similar, some petroleum oils

volatilize to a greater extent than most

animal fats and vegetable oils, and some

animal fats and vegetable oils can

biodegrade more rapidly than petroleum

oils under certain conditions. These

properties are criteria that we

considered in differentiating classes of

oils under EORRA. The similarities and

differences in properties and effects of

petroleum oils and animal fats and

vegetable oils are discussed further in

62 FR 54508–54543, October 20, 1997;

the supporting Technical Document,

which is available in the Docket; and in

the proposed rule.

Although we recognize that

degradation is affected by many factors

and conditions that are specific to each

spill, we are using the percentages of

loss and recovery in Table 6 to aid in

response planning. According to Table

6, facilities must 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. Facilities

must 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.

In today’s rule, we are also finalizing

Table 7, which presents emulsification

factors to account for the increases in

volume that result when discharged oil

forms emulsions. 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.

Studies that apply to emulsification of

animal fats and vegetable oils are

described in the preamble of the

proposed FRP rule. 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

(Allen and Nelson, 1983). Another study

indicated that certain crude and refined

vegetable oils form emulsions, ranging

from 10 to 32 percent (Calanog et al.,

1999). On the hydrophilic-lipophilic

balance (HLB) scale that characterizes

the solubility of emulsifiers, some

petroleum oils, 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).

Based on similarities in chemical and

physical characteristics of petroleum

oils and animal fats and vegetable oils

that have been detailed in the proposed

FRP rule and in our earlier evaluation

(62 FR 54508–54543, October 20, 1997),

we are finalizing Table 7. The

emulsification factors for animal fats

and vegetable oils in Table 7 are similar

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40781

to those of petroleum oils in

corresponding oil groups.

Today’s rule also includes a provision

for response capability caps or limits on

the quantity of response resources

which individual owners or operators

are required to contract for in advance.

Caps were developed during the USCG

Vessel Response Plan and FRP rules and

the 1994 EPA FRP rule to recognize the

limits of available technology and

private oil spill removal contractors in

specific operating areas. The USCG and

EPA response planning regulations

provide for the increase of caps on

contracted response resources at five

year intervals. Caps were initially

established on February 18, 1993 for all

operating areas and were increased by

25 percent on February 18, 1998 for

EPA-regulated facilities. The 1998 caps

remain in effect for the purposes of this

rule until the February 18, 2003 caps are

developed.

The methodology in today’s FRP rule

will also reduce the information

collection burden for some facilities by

providing specific tables that an owner

or operator may use to calculate

response resources. Many owners or

operators of animal fat and vegetable oil

facilities have been using Tables 2 and

3 in the existing FRP regulation, even

though they were not required to use

them. These tables were developed to

establish the planning volume and the

planned response resources for

petroleum oil discharges, including onwater recovery and onshore recovery of

petroleum oils. Using the new Tables 6

and 7 in today’s rule, some facility

owners or operators will now be able to

plan for a lower level of response

resources. Our approach also maintains

flexibility for an owner or operator to

use an alternative methodology or

approach as long as such methodology

or approach achieves equivalent

environmental protection.

In this rule, we have redesignated

sections 8.0, 9.0 and 10.0 of the 1994

rule as sections 11.0, 12.0 and 13.0,

respectively.

C. Higher Volume Port Areas

Under sections 7.2.3 and 7.7.4 of

appendix E of the existing FRP rule,

response resources identified in the FRP

must be located so that they are capable

of arriving at the scene of a discharge

within the time specified for different

response tiers. Tiering of response

resources allows for the timely and

orderly arrival of response resources

and allows for the identification of

response resources from outside the area

of the facility to meet the planning

requirements. Each response tier

corresponds to the on-water recovery

capacity necessary to respond to a

percentage of the worst case discharge.

EPA recognizes the value of planning

for the rapid arrival of response

resources and the increased availability

of response resources in certain areas

where higher volumes of oil are

handled, stored, and transported. For

higher volume port areas, the response

resources must arrive on-scene within

six hours for Tier 1, 30 hours for Tier

2, and 54 hours for Tier 3. The arrival

times for all other operating areas

(including the Great Lakes, Inland,

Nearshore, and Rivers and Canals) are

12 hours for Tier 1, 36 hours for Tier 2,

and 60 hours for Tier 3. The arrival

times are the same for petroleum and

non-petroleum facilities, including

animal fat and vegetable oil facilities.

In Appendix E of the proposed rule

(64 FR 17227–17267, April 8, 1999), we

proposed to continue to apply these

arrival times to petroleum oil facilities

in section 7.2.3 and to animal fat and

vegetable oil facilities in section 10.2.3.

We did not propose any changes to the

response times for any facilities. Section

10.2.3 of appendix E in the proposed

rule (64 FR 17227–17267, April 8, 1999)

would require that animal fat and

vegetable oil facilities calculate the

required on-water recovery capacity of

the response resources needed for each

tier, and we included a formula to do so.

The commenters did not comment on

the recovery capacity calculations, but

they did comment on the response

arrival times, which we did not propose

to change. Commenters requested that

we eliminate references to higher

volume port areas and the 6-hour

response times for animal fat and

vegetable oil facilities in higher volume

port areas. They suggested that because

we designated higher volume port areas

based on the location of petroleum oil

facilities, the faster response times for

facilities near these port areas should

not apply to animal fat and vegetable oil

facilities. We acknowledge that the

designated higher volume port areas in

our rule are based on the increased

availability of response resources in

areas where a higher volume of

petroleum oils are handled, stored, and

transported. Because the same

equipment is generally used in

responses to spills of petroleum oils and

animal fats and vegetable oils with

similar characteristics, these areas

usually have the greatest availability of

response resources for discharges of

animal fats and vegetable oils.

CWA section 311(j)(5), as amended by

OPA, requires facilities that prepare

FRPs to ensure by contract or other

approved means the availability of

resources to remove a worst case

discharge to the maximum extent

practicable. Higher volume port areas

have a greater number of response

contractors and resources nearby.

Therefore, we estimated a shorter

response time for facilities in higher

volume port areas compared with

facilities located in all other operating

areas. We believe that the increased

availability of response contractors and

reduced response times is likely to

reduce damage to the environment

resulting from discharges with little if

any additional costs.

We believe that the availability of

response equipment at higher volume

port areas and the shortened response

times (relative to other areas) is

appropriate for animal fat and vegetable

oil facilities located in these higher

volume port areas. We did not create

any new higher volume port areas based

solely on the amount of animal fats and

vegetable oils stored or shipped in the

United States. Oil type is one factor that

affects the performance of oil recovery

equipment such as skimmers. Other

factors are oil condition, oil viscosity;

winds, waves, currents; air and sea

temperatures; slick thickness, and the

presence of debris (Schultze, 1999). The

equipment that is used in responding to

discharges of petroleum oils is generally

the same equipment that is used to

respond to discharges of animal fats and

vegetable oils.

In May 1999, the USCG completed a

study on the availability of response

equipment (U.S. Coast Guard, 1999).

This study examined among other

issues the availability of mechanical

recovery equipment in geographic areas

of the United States and higher volume

port areas. Based on our review of this

report and our own analysis, we have

determined that at most higher volume

port areas the average estimated daily

recovery capacity at Tier 1 is 511,627

barrels per day. We have determined

that based on our review of 14 nonhigher volume port areas, the average

estimated daily recovery capacity at Tier

1 is 481,345 barrels per day. We

conclude that greater amounts of

response equipment are still found in

higher volume port areas compared to

other operating areas and that shortened

response times are appropriate in higher

volume port areas.

In the face of statutory mandates

under OPA, the response community

apparently has made a concerted effort

to increase the response resources in

other operating areas. In the future, EPA

may examine whether the expanded

availability of resources in non-higher

volume port areas warrants a reduction

in the response times in these operating

areas.

40782 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

The arrival times in today’s FRP rule

do not depend on the type of oil spilled.

We believe that the equipment needed

to respond to spills of animal fats and

vegetable oils is generally the same as

equipment needed to respond to spills

of petroleum oils that have similar

characteristics, such as viscosity and

specific gravity.

We examined data on all FRPs

submitted by animal fat and vegetable

oil facilities, and found that about 30

percent of such facilities are in higher

volume port areas. We believe those

facilities can achieve more rapid

response times than facilities in other

areas. The data show that facilities in

higher volume port areas are located

within 6 hours or less of at least one

USCG-classified level D or level E

OSRO. Most animal fat and vegetable oil

facilities located in higher volume port

areas are near several USCG-classified

level D or level E OSROs. All other

animal fat and vegetable oil facilities

who submitted FRPs are located within

12 hours of such an OSRO. Thus, all the

facilities can meet the required FRP

arrival times for response resources. In

addition to a contract with an OSRO,

the owner or operator of a facility can

ensure the availability of necessary

personnel and equipment within

appropriate response times by other

approved means. Under unique

circumstances when appendix E of our

rule is inappropriate for a particular

facility, the owner or operator and the

Regional Administrator (RA) may arrive

at alternative methods for determining

appropriate response resources. To date,

no animal fat and vegetable oil facilities

have suggested to RAs that these

response times cannot be met or that

alternative methods of determining

resources are appropriate while

maintaining equivalent levels of

environmental protection.

For these reasons, we are finalizing

sections 7.2.3 and 10.2.3 of appendix E

as proposed.

D. Evaluation of Toxicity and

Biodegradation

One commenter submitted two sets of

comments with attachments describing

the toxicity, biodegradation, and

performance characteristics of certain

animal fat and vegetable oil products.

The papers attached to the comments

had not been submitted to EPA

previously in response to our Notice

and Request for Data (59 FR 53742–

53745, October 26, 1994) or as part of

the Petition and requests to modify the

FRP rule. The commenter stated that

there is an emerging body of science

that confirms differences among types of

oils with respect to biodegradation and

aquatic toxcity.

The papers attached to the comments

and our evaluations of the papers were

peer reviewed by EPA scientists in other

offices. Peer reviewers were chosen

from within EPA, because of the initial

need to maintain the confidentiality of

material in one of the studies submitted,

and because of the expertise of the peer

reviewers, who are recognized for their

extensive experience and knowledge of

the types of tests described in the papers

and the interpretation of test results.

After peer reviewers were selected, the

commenter submitted another letter

granting permission to place the

confidential study in the docket and

allow limited distribution of the study

for rulemaking. The detailed evaluations

and peer review comments can be found

in the Docket.

Summary of our findings

Although toxicity and biodegradation

were not specified in the 1994 FRP rule

provisions or in the 1999 proposed FRP

revisions as risk factors and do not form

the basis for requirements to prepare

FRPs, we have evaluated both sets of

comments and attachments thoroughly.

In the FRP rule, facility and locational

characteristics are the basis for

identifying certain high risk facilities

that could reasonably be expected to

cause substantial harm in the

environment. We re-examined our

earlier evaluation of the properties,

environmental fate, and effects of

spilled animal fats and vegetable oils to

determine whether the additional

material submitted by commenters

would alter our recommendations on

the type and quantity of resources

needed for planning effective oil spill

response and whether response

planning requirements should be

modified for facilities that handle, store,

or transport animal fats and vegetable

oils. After a careful evaluation of these

comments and papers, we found that

the proposed response planning

requirements appropriately reflect the

similarities and differences in properties

and effects of petroleum oils, animal fats

and vegetable oils, and other nonpetroleum oils. We considered the

impact of these similarities and

differences among classes of oils on

planning for effective response to oil

spills.

Several of the papers that were

submitted with the comments support

the findings of our earlier evaluation (62

FR 54508–54543, October 20, 1997).

None of the papers refutes our

conclusion that response planning is

essential for insuring efficient responses

and minimizing the environmental

harm from spills of animal fats and

vegetable oils. Although we carefully

considered all of the materials

submitted, some papers did not provide

adequate data to support their

conclusions or allow full evaluation of

the methods, their implementation, or

validity and interpretation of results.

The papers generally do not address

physical effects of spilled oil, which are

usually the most immediate and

devastating effects.

One of the comment attachments

contains EPA methods that were already

discussed in detail and included in

appendix I, Table 3 of our earlier

evaluation; this table compared acute

aquatic testing methods in our earlier

evaluation (62 FR 54508, 54539, October

20, 1997). Another comment attachment

includes ‘‘Chemical Fate Testing

Guidelines for Part 796.’’ ‘‘New Fate,

Transport and Transformation Tests’’ in

the 835 series, which replace the tests

in the 796 series, apply to toxic

substances and pesticides regulated

under the Toxic Substances Control Act

and Federal Insecticide, Fungicide, and

Rodenticide Act. These tests are not

requirements of the 1994 FRP rule or the

proposed revisions, which were

promulgated under the Clean Water Act

as amended by the Oil Pollution Act.

Nevertheless, we evaluated the results

of these tests and their relevance to oil

spills. As noted above, we found

nothing to support modification of our

proposed requirements for animal fat

and vegetable oil facilities.

Uses and Chemical Composition of

Animal Fats and Vegetable Oils

Some of the papers that were

submitted with the comments discuss

expanding inedible uses of animal fats

and vegetable oils, thus underscoring

our finding that many animal fats and

vegetable oils are not used as food but

for inedible uses. In 1992,

approximately 20.8 billion pounds of

animal fats and vegetable oils were

consumed in the United States,

including over 14.8 billion pounds for

edible uses and more than 5.9 billion

pounds for inedible uses, such as soap,

paint or varnish, feed, resins and

plastics, lubricants, fatty acids, and

other products (Hui, 1996; 62 FR 54508,

54510, October 20, 1997). These

inedible products often contain

additives or contaminants.

Several papers submitted with the

comments discuss the importance of

additives in developing vegetable oilbased products for new applications and

show that the presence of additives can

have a profound effect on

biodegradation and toxicity of these

products under given test conditions.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40783

According to the materials submitted,

additives can comprise as much as 20

percent of a lubricant. Such lubricants

can differ greatly from the original

vegetable oil in properties, toxicity, and

environmental fate. Additives can

include metals, emulsifiers, and perhaps

dispersants that can greatly influence

the toxicity and spread of spilled oil and

hinder its recovery.

Physical Properties of Animal Fats and

Vegetable Oils

Many of the properties described in

the papers submitted with comments

were addressed in our previous

evaluation comparing the properties of

petroleum oils with animal fats and

vegetable oils (62 FR 54508–54543,

October 20, 1997). These properties are

closely linked to performance

characteristics of certain products and

applications. They include specific

gravity, flash point, pour point,

viscosity, and vapor pressure. We found

that petroleum oils, animal fats, and

vegetable oils share common properties

and produce similar environmental

effects (Crump-Wiesner and Jennings,

1975; USDOI, 1994; Frink, 1994). For

further information on the properties of

petroleum oils, animal fats and

vegetable oils, see 62 FR 54508–54543,

October 20, 1997, and the supporting

Technical Document.

In our earlier evaluation, we also

discussed the physical, chemical, and

biological processes that transform

animal fats and vegetable oils, including

their oxidation (62 FR 54508–54543,

October 20, 1997). We described the

toxic effects of some oxidation products

and the rancidity that results from

oxidation of unsaturated fatty acids.

Because of the similarity in properties of

petroleum and non-petroleum oils,

including animal fats and vegetable oils,

many of the same methods are used for

their containment, removal from the

aquatic environment, and cleanup from

shorelines (see 62 FR 54508–54543,

October 20, 1997, and supporting

Technical Document).

Most of the papers attached to the

comments focus on performance

characteristics of vegetable oil-based

products for specific applications,

particularly lubricants. While some of

these characteristics, such as the ability

to withstand friction and wear, relate to

performance standards for certain

applications, other characteristics are

consistent with the properties we

discussed in our earlier evaluation (62

FR 54508–54543, October 20, 1997).

Several papers state that the additives

that are utilized to overcome these

limitations can be toxic or affect

biodegradation of the vegetable oilbased product.

Toxicity

Earlier Consideration of Toxicity and

Other Effects

The physical and toxic effects of

animal fats and vegetable oils and

petroleum oils, their constituents, and

transformation products are discussed

in detail in 62 FR 54508–54543, October

20, 1997 and the supporting Technical

Document. Among our findings are the

following:

• We emphasized that toxicity is only

one of several mechanisms by which oil

spills cause environmental damage. The

deleterious environmental effects of

spills of petroleum oils and nonpetroleum oils, including animal fats

and vegetable oils, are produced

through physical contact and

destruction of food sources as well as

toxic contamination. 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

physical interactions with living

systems (Hartung, 1995).

• Our evaluation contained extensive

discussion and tables comparing the

toxic effects of animal fats and vegetable

oils with petroleum oils. We described

studies of the acute lethality of

petroleum oils and animal fats and

vegetable oils and other types of acute

toxicity that can compromise the ability

of animals in the wild to escape their

predators. We discussed the range of

chronic toxic effects that can be

manifested by animals exposed to

animal fats and vegetable oils. We

summarized studies of mussels that

show exposure to certain vegetable oils

can cause mortality, growth inhibition,

effects on shells and shell lining, and

decreases in foot extension activity that

is essential to survival. We detailed the

effects of toxic constituents of animal

fats and vegetable oils, including

specific fatty acids and oxidation

products formed by processing, heating,

storage, or reactions in the environment.

• We described the limitations of the

acute lethality (LC50) laboratory tests

that had been submitted with the

August 12, 1994 petition. We found

major deficiencies in the manner in

which the tests were conducted,

rendering the results highly

questionable. Furthermore, these acute

lethality tests measured only the death

of organisms and did not describe acute

toxic effects just short of lethality, such

as serious irreversible damage. They

also fail to measure long-term effects

experienced by organisms and

ecosystems or toxicity to other

organisms or life-stages or toxicity

under other environmental conditions.

We asserted that these tests do not

determine safe levels, but rather the

concentrations of oil that kill half the

organisms under a given set of

experimental conditions. We discussed

serious questions about the relevance of

LC50 laboratory results to spills in the

environment that have been raised by

scientific experts, including the

National Academy of Sciences.

• We stated that while low levels of

certain animal fats and vegetable oils or

their components may be essential

constituents of the diet of humans and

wildlife, adverse effects occur from

exposure to high levels of these

chemicals.

Report on Acute Lethality Tests (LC50)

Submitted by Commenter

The only toxicity studies submitted

by the commenter are acute lethality

(LC50) tests. Our evaluations of these

studies are detailed in the Response to

Comments document and supporting

analyses. The acute lethality tests

submitted by the commenter provide

additional examples of the toxicity of

base oils (primary stocks used to

formulate lubricants) and products

based on vegetable oils. We discussed

the limitations of acute lethality tests in

detail in our earlier evaluation (see 62

FR 54508–54543, October 20, 1997, and

supporting Technical Document) and

summarize them below.

Acute Lethality Tests of VegetableBased Oil Sample BIO 25–30

The Parametrix report, which was

developed for Agro Management Group

and provided by Colorado State

University, described an LC50 value of

8,766 mg/l for rainbow trout

(Oncorhynchus mykiss) exposed to

various concentrations of a vegetablebased Oil Sample BIO 25–30 in an acute

range-finding toxicity test. In a 96-hour

acute definitive toxicity test, a No

Observed Effect Concentration (NOEC)

of 5,000 mg/l; a Lowest Observed Effect

Concentration (LOEC) of 10,000 mg/l;

and an LC50 of 7,320 mg/l for Oil

Sample BIO 25–30 were reported. The

test protocols listed in the report are

Methods for Measuring the Acute

Toxicity of Effluents and Receiving

Waters to Freshwater and Marine

Organisms, EPA/600/4–90/027F, August

1993 (hereafter referred to as ‘‘ORD

Methods’’). According to the report, the

tests deviate from protocols in ways that

raise doubts about the validity of the

test results.

40784 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

Apparently, similar studies for

petroleum oils were not conducted.

Instead, the report compares the results

of its tests on the vegetable-based oil

sample with lower toxicity values

reported in two papers, one that

measured the LC50 of oil shale process

water and its inorganic constituents in

96-hour tests with rainbow trout, and a

second that determined the maximum

safe limit for one type of crude oil in a

90-day study with cutthroat trout.

Results of the tests on Oil Sample BIO

25–30, however, cannot be easily

compared with the toxicity values

derived from tests that were conducted

using different experimental conditions,

species, toxicity endpoints, and other

factors. Because many factors influence

toxicity, comparison of toxicity based

on measurements of survival times,

mortality, rates or fixed-time LC50

values are inadequate to establish the

existence or magnitude of a toxic effect

(Abel, 1996).

The report submitted with the

comments contains: no information

about sample preparation; no

description of acclimation or aeration

procedures, no information on feeding;

no data describing the number of

rainbow trout killed at each

concentration of test material; no data

on the actual concentration of parent

compound or breakdown products in

the test vessels and their change over

time; no data on the period of time that

dissolved oxygen was below the

required level or observations on the

effect of low oxygen on the rainbow

trout in the test; no measurements of pH

and temperature; no discussion of

whether the vessels were covered; and,

no statistical analysis of the data,

including standard deviations,

confidence limits, and slope of the doseresponse curve. The absence of these

data precludes evaluation of the

accuracy of the LC50 determination.

Among the deficiencies noted in the

report are the following:

1. Unknown methods of sample

preparation. The method of sample

preparation is especially critical for oily

substances. The report contains no

description of sample preparation, no

data on oil particle size, and no data on

the concentration of the parent chemical

and its breakdown products during the

course of the tests. Thus, it is not clear

what fractions or concentrations were

actually tested, how these fractions or

concentrations changed over time, or

how such changes affected test results.

Oil-in-water dispersions are usually

unstable under the conditions of static

tests, such as those described in the

report (NAS, 1985a).

2. Unknown concentrations of test

material encountered by fish during the

test. Because the actual concentrations

of the parent chemical and degradation

products were not measured, the LC50

estimated in the test corresponds to

unknown concentrations of the parent

chemical and its degradation products.

The tests appear to have relied on

nominally designated concentrations

(i.e., concentrations estimated, but not

measured), which EPA and the peer

reviewers believe is a highly

questionable approach. The report

contains no data on actual chemical

concentrations of the chemical or its

breakdown product, a critical

determination in static tests where

concentrations are affected by changes

in oil-water partitioning through

solubilization, chemical transformation,

or the loss of oil through degradation or

adsorption onto the test chambers or

fish (Rand and Petrocelli, 1985; NAS,

1985a). While ORD Methods, which are

cited in the report as the protocol used,

allow gentle aeration of test solutions,

they require that the concentration of

test material not vary more than 20

percent at any treatment level during

the exposure period. In the absence of

measurements of actual chemical

concentrations to which the fish were

exposed or data proving that the test

material does not volatilize or degrade,

the tests would be considered invalid

according to these guidelines.

3. Oxygen depletion. The toxicity of a

chemical may be masked by depletion

of oxygen when the biochemical oxygen

demand (BOD) is high in the test

solution, particularly in static tests

(Rand and Petrocelli, 1985). The

Parametrix report admits that the

dissolved oxygen concentrations fell

below the levels required by ORD

Methods cited as the test protocol

(USEPA/ORD, 1993). It cannot be

determined whether rainbow trout were

killed in the test by oxygen depletion or

by toxicity. Aeration apparently was

initiated at 72 hours for the range

finding test and 48 hours for the

definitive test, but the report contains

no discussion of the aeration

procedures, including whether all test

vessels were aerated or how vigorous

the aeration was.

4. Lack of statistical analysis of data.

Because of the lack of data on the

proportion of rainbow trout that died at

each concentration level, and the failure

to describe the method used to estimate

the LC50 and provide a statistical

analysis of the data, the accuracy of the

LC50 cannot be determined. Statistical

analyses, including confidence intervals

and slope of the dose-response curve,

are specified by the ORD Methods

(USEPA/ORD, 1993). While the report

states that no rainbow trout died at the

lowest three concentrations of oil in the

definitive test, and that the lowest

observed effect concentration (LOEC)

exceeded the LC50, it is unclear when

they died, or whether all trout died in

the two groups exposed to the highest

concentrations of oil. According to ORD

Methods, additional lower

concentration groups are added to an

LC50 study when the mortality is 100

percent in the highest concentration

groups within 1 hour of the start of the

test.

Acute Lethality Toxicity Tests of Several

Vegetable Oil-Based Products and Other

Products

The International Lubricants, Inc.

(ILI)—University of Idaho report

summarizes aquatic toxicity tests that

were conducted by Parametrix for a

number of products, apparently using

ORD Methods. Although the study

contains material labeled as

‘‘confidential,’’ ILI has authorized

limited distribution of the report for

purposes of EPA rulemaking. As

requested by ILI, the report is

maintained in the docket for public

inspection, but not copying.

According to the report, acute

lethality tests (LC50 tests) with rainbow

trout showed ‘‘negligible toxicity’’ for

some vegetable oil-based products

unless the formulations contained

certain ingredients. The LC50, BOD, and

COD (Chemical Oxygen Demand) were

reported for about 25 products, but

critical information supporting the

findings of the tests (for example,

sample preparation, dissolved oxygen

throughout the course of the test,

response data for various

concentrations, and statistical analyses)

were not included in the report.

Apparently only the 96-hour aquatic

toxicity test with rainbow trout was

conducted, although several other

protocols were listed in the report. The

report also includes two tables on

toxicity that apparently represent

hypotheses or rely on data that are not

included in the report.

Acute Lethality Toxicity Tests of

Lubricants

Hydraulic Oils. One paper attached to

the comments describes LC50 values

obtained in 96-hour rainbow trout tests

using five concentrations of test material

and a control (Galvain et al., 1994).

Trout were exposed to various

concentrations of an oil-water

dispersion created by using a central

cylinder-housed propeller system to

simulate physical dispersion of oil by

waves and currents. While the paper

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40785

summarizes information about these

oils, it does not include important

details about the implementation of the

protocol in individual tests or groups of

tests (such as oil particle size) that are

essential for evaluating the accuracy of

the determination of LC50 values. For

vegetable oils, the LC50 ranged from 633

parts per million (ppm) to >5000 ppm;

LC50 values were 389 ppm to >5000

ppm, 80 ppm to >5000 ppm, and >5000

ppm for mineral oil, polyglycol, and

synthetic ester, respectively. The paper

states that the aquatic toxicity is caused

by additives.

Lubricating Oils. A paper on

lubricating oils that is attached to the

comments emphasizes that a

biodegradable product is not necessarily

environmentally friendly (Baggot, 1992).

Biodegradability must be combined

with test data on potential human and

environmental toxicity and

bioaccumulation of the product, its

components, or related substances to

support its environmental benefits.

Additives that can improve performance

characteristics of a product may

increase its human and environmental

toxicity. Some substances partially

biodegrade into products that are more

toxic to aquatic life than the original

substances. Tests are available to

evaluate the toxicity of substances to

aquatic organisms and soil organisms

and the potential toxicity of substances

to animals and humans.

European Laws, Requirements,

Standards, and Guidelines. The

commenter described the increasing

interest in biodegradable lubricants in

Europe and provided information on

European requirements but did not

specify how those standards should

make a difference in our rule. Several

papers describe European standards and

guidelines, but do not provide specific

information on toxicity and other

effects. Two papers explain the Blue

Angel standards, used in Germany, for

base fluids and finished lubricants

(Mang, 1993; Korff and Fessenbecker,

1992).

Relevance of Acute Lethality Tests to Oil

Spills in the Environment and to the

FRP Rule

Some papers attached to the

comments describe results of acute

lethality (LC50) tests for vegetable oilbased products, base fluids, and

additive systems (Parametrix, 1997; ILI

and University of Idaho, 1996; Galvain

et al., 1994). Our earlier evaluation of

the properties, fate, and effects of

animal fats and vegetable oils detailed

the limitations of this type of testing (62

FR 54508, 54515–54516, October 20,

1997, and supporting Technical

Document).

Acute lethality tests measure only the

death of organisms and usually provide

no data on toxic effects other than death

(NAS, 1985a; Rand and Petrocelli, 1985;

Klaassen et al., 1986). Animals that

survive a toxic response nevertheless

may suffer irreversible damage (NAS,

1985c). As we stressed in our earlier

evaluation, such tests do not describe

other acute toxic effects, long-term

effects, effects on ecological

communities or changes in predatorprey relationships, toxicity to other

organisms or life-stages, or toxicity

under other environmental conditions

(62 FR 54508, 54516, October 20, 1997).

The LC50 (lethal concentration 50) value

or LD50 (lethal dose 50) value does not

describe a ‘‘safe’’ level, but rather a level

of test material at which 50 percent of

test organisms are killed under the

experimental conditions of the test

(Rand and Petrocelli, 1985; Klaassen et

al., 1986). A high LC50 value indicates

low acute lethal toxicity, because a large

concentration of chemical is needed to

cause 50 percent mortality.

Even if the acute lethality tests were

conducted properly—and we have

described significant doubts about the

manner in which some of these studies

were performed—serious questions

remain about the relevance of the LC50

laboratory results to spills in the

environment. We described these

considerations in detail in our earlier

evaluation (62 FR 54508, 54515–54516,

October 20, 1997, and supporting

Technical Document) and will discuss

them briefly here.

The methods used in the Parametrix

tests and similar tests are designed for

effluents, not for oils with limited water

solubility. The water-soluble fraction

that is typically used in static tests does

not simulate the dynamic changes that

occur between the aqueous and oil

phases unique to each spill (NAS,

1985a). In methods that attempt to

simulate some types of oil spills by

creating oil-water dispersions, the size

of the oil particles in the test profoundly

affects the composition and toxicity

results. Only one paper attached to the

comments used an oil-water dispersion

method, and it did not report the size of

oil particles (Galvain et al., 1994).

The many test variables that influence

estimates of LC50—the nature of the

chemicals or mixtures tested; test

parameters (for example, route of

administration, frequency and duration

of exposure, mixing energy,

temperature, salinity, static vs. flowthrough systems, duration of

observations); and biological factors (for

example, species selected for testing,

sex, age or life-stage, weight,

contamination history of the

organism)—rarely reflect the conditions

that occur following a spill (Rand and

Petrocelli, 1985; NAS, 1985a; Wolfe/

USEPA, 1986; Abel, 1996). Oil

concentrations from spills in the

environment can be virtually unlimited

and may well exceed LC50

concentrations. If environmental

conditions were identical to those in the

experiment, concentrations in the LC50

range would be expected to kill half of

the organisms with sensitivity similar to

rainbow trout. Among more sensitive

aquatic populations, lethality would be

even greater.

Furthermore, EPA reemphasizes that

toxicity is only one way that oils can

harm the environment. The most

immediate and devastating

environmental harm is often produced

by physical effects, such as coating of

plants and animals and suffocation (see

62 FR 54508, 54511, October 20, 1997).

EPA has found that vegetable oils,

animal fats, and petroleum oils share

common properties and produce similar

effects when spilled in the environment.

The papers submitted with the

comments do not acknowledge the

importance of physical effects, although

an earlier Petition by some of the same

Commenters admitted that the physical

effects of spilled animal fats and

vegetable oils can harm the

environment.

The comments, and papers attached

to them, ignore the long-term effects of

spills of animal fats and vegetable oils.

Some animal fats and vegetable oils,

their components, or breakdown

products remain in the environment for

years. Whether or not the oil persists in

the environment, spilled oil can have

long-lasting deleterious environmental

effects. By contaminating food sources,

reducing breeding animals and plants

that provide future food, contaminating

nesting habitats, and reducing

reproductive success through

contamination and reduced hatchability

of eggs, oil spills can cause long-term

effects years later even if the oil remains

in the environment for relatively short

periods of time.

Our earlier evaluation of the effects

and fate of animal fats and vegetable oils

spilled in the environment pointed out

that they have a broad range of

properties that influence their effects

and persistence in the environment and

that the presence of other compounds or

other factors can affect the

environmental fate and effects of oils

(62 FR 54508, 54523, October 20, 1997).

Although the papers that were

submitted with the comments discussed

vegetable oil-based products, these

40786 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

formulations usually contain many

other compounds that may be toxic or

affect the toxicity of the oil or alter its

persistence. For example, several papers

attached to the comments showed that

additives that were necessary for

adequate performance of some

lubricants often increased the aquatic

toxicity and altered the biodegradability

of the oil, according to the tests reported

in the papers (Galvain et al., 1994; Korff

and Fessenbecker, 1992; Baggot, 1992;

Rhodes, 1996). According to the papers,

some formulations contain as much as

20 percent additives, including barium

and lead compounds, lithium soaps,

emulsifiers, and perhaps dispersants.

The presence of toxic substances in a

vegetable oil-based lubricant casts

significant doubt on claims that all

vegetable oils and products derived

from them are non-toxic.

Unlike the European guidelines and

German laws described in these papers

that apply to specific uses of oils, EPA’s

1994 FRP rule and today’s FRP rule

revisions, which were promulgated

under the Clean Water Act as amended

by the Oil Pollution Act, apply to

planning for responses to oil spills. The

1994 FRP rule and today’s FRP rule

revisions apply to facilities that transfer

large volumes of oil over water or

handle, store, or transport 1 million

gallons of oil or more and meet other

criteria indicating that their discharges

could reasonably be expected to cause

substantial harm to the environment.

The rule does not require performance

standards for various applications or

tests that are described in the papers

submitted with the comments.

Furthermore, EPA’s 1994 FRP rule

and today’s FRP rule revisions are on a

vastly different scale from the European

regulations described in the submitted

papers. According to one paper attached

to the comments, German lubricant

demand is predicted to rise to about

115,000 to 170,000 tons per year, the

equivalent of approximately 32.2

million gallons to 47.6 million gallons

total for all German lubricants, if

favorable conditions occur. By

comparison, vegetable oil and animal fat

facilities under EPA’s jurisdiction have

estimated a worst case discharge of as

much as 20 million gallons from a single

spill. The volume of oil discharged from

two spills of this size is nearly as great

as the maximum German lubricant

demand projected for an entire year.

Biodegradation

Earlier Consideration of Biodegradation

and Other Transformation Processes

We detailed the chemical and

biological processes affecting animal

fats and vegetable oils in the

environment and described the

environmental fate of animal fats and

vegetable oils in actual spills in our

earlier evaluation (62 FR 54508–54543,

October 20, 1997). Several articles

submitted by the commenters further

support EPA’s earlier findings.

EPA has found that:

• While some animal fats and

vegetable oils degrade rapidly under

certain conditions, others persist in the

environment years after the oil is

spilled.

• The process of biodegradation can

cause environmental harm. When

biodegradation occurs in the

environment, it can lead to oxygen

depletion and suffocation of fish and

other aquatic organisms. Oxygen

depletion can result from reduced

oxygen exchange across the air-water

surface below the spilled oil, or from the

high BOD by microorganisms degrading

oil (Crump-Wiesner and Jennings, 1975;

Mudge, 1995). Under certain conditions,

some animal fats and vegetable oils

present a greater risk to aquatic

organisms than other oils spilled in the

environment, as indicated by their

greater BOD (Groenewold et al., 1982;

Institute, 1985; Crump-Wiesner and

Jennings, 1975; 62 FR 54508, 54512–

54513, October 20, 1997). While the

higher BOD of vegetable 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 that is

spilled in inland waters, such as small

rivers and streams, may be especially

harmful if there are limited oxygen

resources in the water body and little

dispersal of the oil.

• Every spill is different. How long

the vegetable oil or animal fat remains

in the environment after it is spilled,

what proportion of the oil degrades and

at what rate, what products are formed,

and where the oil and its products are

transported and distributed, are

determined by the properties of the oil

itself and those of the environment

where the oil is spilled. 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

affect the degradation of oil.

• Some products formed by

biodegradation and other transformation

processes are more toxic than the

original oils and fats. Toxicity can also

decrease or remain unchanged by

biodegradation. We have summarized

the toxic effects of animal fats and

vegetable oils, their constituents, and

degradation products in our earlier

evaluation (see 62 FR 54508–54543,

October 20, 1997).

• Spilled animal fats and vegetable

oils can cause long-term deleterious

environmental effects 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.

Adverse effects of spilled animal fats

and vegetable oils include physical

effects, such as coating and suffocation,

oiling of the food supply, and toxicity.

Spilled oils can also produce rancid

odors, foul shorelines, clog water

treatment plants, and catch fire when

ignition sources are present.

• Real-world examples demonstrate

the deleterious effects of spills of animal

fats and vegetable oils and show that

some animal fats and vegetable oils,

their components, and breakdown

products remain in the environment

many years after a spill (see 62 FR

54508–54543, October 20, 1997).

Study Submitted by Commenter on

Biodegradability of Certain Lubricants,

Lubricant Additives, and Formulations

Containing Telomer

In the ILI-University of Idaho study

submitted by the commenter,

biodegradability was measured in water

and soil for a variety of compounds,

including ILI telomers and other base

stocks, lubricants, lubricant additives,

gear oils, hydraulic fluids, and cutting

fluids. Most of the products were based

on vegetable oils, and some of them

were compared to mineral base oils. The

study report notes that the meaning of

the term ‘‘biodegradable’’ is not exact

and that biodegradability tests measure

the disappearance of a certain amount of

test material in a given period of time.

It discusses persistence tests for three

classifications of biodegradability

(primary, ultimate, and inherent).

The ILI-University of Idaho report

describes the results of two

environmental persistence tests—the

EPA Shake Flask Test and the OECD

301B Modified Sturm Test, two 28-day

tests that measure ultimate

biodegradability. The report states that

over 100 samples in nine separate

groups underwent testing using the EPA

Shake Flask Test, and limited testing

with two base stocks, two lubricants,

and one standard was performed using

the OECD 301B Modified Sturm test. A

method was also developed to test soil

biodegradation, and a different rank

order for biodegradation in soil and

water was noted. The report considers

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40787

the ‘‘passing level’’ as 60 percent

biodegradation (40 percent remaining)

after 28 days in the EPA Shake Flask

test or 70 percent biodegradation (30

percent remaining) after 28 days, with

10 to 40 percent biodegradation in 10

days, for the Modified Sturm test. For

many products, less than 40 percent of

the oil remained in the aqueous system

after 28 days. The results are based on

atypical estimation techniques that

involve correction of the curve using

canola standards, despite wide variation

(5–38 percent after 28 to 40 days) among

the six standard canola curves, and

fitting an unusual polynomial to the

data.

The curves shown in the report

indicate that except for one lubricant, at

least 65 percent of every product tested

remained after 4 days—a period of time

that is used to plan for equipment for

responses to oil spills at certain

facilities. For canola standards, an

average of 70 percent, ranging from 40–

95 percent, remained at 4 days.

Studies of Biodegradability of

Lubricants Submitted by Commenter

Hydraulic Oils. One paper attached to

the comments describes the

development of vegetable oil-based

hydraulic products for use as lubricants

for situations in which the lubricant

may inadvertently leak into the

environment (Galvain et al., 1994). The

paper lists some physical properties of

the selected vegetable oil and

formulated product and discusses

performance concerns. Most of the

paper describes performance tests,

including bench tests, full pump tests,

and field tests, that measure the

effectiveness of the products in certain

applications of lubricants. It emphasizes

that any claim of environmental

acceptability must be specific and

supported by appropriate technical

documentation. The paper states that

most petroleum-based lubricants are

environmentally acceptable by various

standards and proposes criteria for a

vegetable-oil based lubricant that passes

most of the company performance tests.

The paper describes two biodegradation

tests of mineral oils and three other

types of base oils that have been

employed for lubricants—vegetable oils,

polyglycols, and synthetic esters.

Vegetable oils and a number of synthetic

esters that were tested met the proposed

criterion (>60 percent conversion to CO2

in 28 days), while mineral oil

formulations did not meet this criterion

despite exhibiting some biodegradation.

Lubricants, Lubricating Oils, and

Industrial Lubricants. One paper

submitted with the comments describes

the use of different additives to improve

the performance of rapeseed oil and

synthetic esters as lubricant base fluids,

and the regulations affecting the use of

additives (Korff and Fessenbecker,

1992). Lubricants described in the paper

contain as much as 2–3 percent

additives. The paper reports that certain

additives allowed these fluids to

achieve the same performance as

mineral oil-based products. It describes

different combinations of additives,

such as antioxidants, corrosion

inhibitors, and pour point depressants,

that were investigated for their ability to

overcome performance problems that

have limited the use of rapeseed oil in

lubricants. The paper explains that

lubricants were developed to balance

technical requirements and potential

negative impacts by additives on

biodegradability or ecotoxicological

properties.

Another paper attached to the

comments points out trends in the

application of environmental legislation

that promote the development of

biodegradable lubricants in Germany

and other European countries (Mang,

1993). Biodegradable lubricants

represented 2 percent of the market

share of lubricants in Germany in 1992.

The paper forecast that they would soon

occupy 10–15 percent of the demand for

German lubricants.

Another paper submitted with the

comments describes the ‘‘real issues’’

that must be evaluated to convincingly

demonstrate that a lubricant reduces

environmental impact (Baggot, 1992). It

summarizes properties, performance

characteristics, and other information

about some types of oils that can be

used in lubricants, but does not present

detailed data from individual laboratory

tests. The paper defines biodegradation

as the decomposition of substances by

biological systems.

The paper emphasizes that a

biodegradable product is not necessarily

environmentally friendly and cautions

against unsubstantiated claims. It notes

that advertisers have promoted the

spurious notion that biodegradable

products somehow automatically reduce

the impact on the environment.

Biodegradability tests measure the fate

of a substance, not its impact. Some

substances partially biodegrade into

products that are more toxic to aquatic

life than the original substances.

Justifying the environmental benefits of

a product requires relevant test data on

biodegradability; mammalian toxicity;

ecotoxicity; and bioaccumulation of the

product, its components, or related

substances. These data should

demonstrate that the product is not

likely to be hazardous in environmental

media that it may pollute.

In principle, a full life cycle analysis

of the manufacture, packaging,

distribution, product use, and recycling

or disposal of base fluid and additives

should be performed before comparing

environmental impacts of products. In

practice, the evaluation generally

focuses on the use part of the life cycle

and potential impact from

environmental contamination that may

result from use or disposal.

To determine the biodegradability of

different substances, results from

biodegradability tests are compared

with certain accepted standards. Tests

of lubricants generally require the use of

an emulsifier, because lubricants are

usually not water soluble and often are

a complex mixture of base fluids and

chemical additives. While the technical

limitations of some biodegradable fluids

can be partially overcome by including

additives in the product formulation,

these additives may reduce the

biodegradability of a product and can

increase a product’s human and

environmental toxicity. Any kind of

environmental contamination should be

avoided and all spills and leaks cleaned

up.

Another paper submitted with the

comments appears to be a handout from

a presentation on industrial lubricants

(Rhodes, 1996). The paper lists

considerations associated with

biodegradable fluids. It describes

lubricant composition, showing that the

base stock can comprise 80–100 percent

of the lubricant, while additives are 0–

20 percent of the lubricant. Additives

can be detrimental to the environmental

acceptability of biodegradable fluid.

Available or potential additives in

biodegradable lubricants include

viscosity modifiers, anti-oxidants, pour

point modifiers, rust inhibitors, nonferrous metal protectants, anti-wear and

friction modifiers, extreme pressure

additives, dispersants, detergents, and

emulsifiers.

Relevance of Biodegradability Tests to

Oil Spills in the Environment and to

FRP Rule

As we have noted, biodegradability

tests are not specified in the 1994 or

today’s revised FRP rule and do not

form the basis for requirements to

prepare FRPs. Several papers refer to

‘‘passing EPA tests’’ or ‘‘EPA criteria’’ or

a ‘‘passing level’’ of 40 percent material

remaining at 28 days. These tests are not

requirements of the 1994 or today’s

revised FRP rule, and do not address

important mechanisms by which oils

cause environmental harm. The tests

described in the papers and reports

were not developed to implement Clean

Water Act requirements, but as test

40788 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

guidelines for pesticides and toxic

substances regulated under the Toxic

Substances Control Act (TSCA) and

Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA). These

guidelines have been harmonized with

some European guidelines. Several

guidelines include recent versions of

tests that are listed in the reports that

were attached to comments. (See Fate,

Transport, and Transformation Test

Guidelines OPPTS 835.3110 Ready

Biodegradability (EPA/OPPTS, 1998a)

for six methods that permit screening of

chemicals in an aerobic aqueous

medium, including Modified Sturm

Test; Ministry of International Trade

and Industry test, Japan; and Closed

Bottle test; OPPTS 835.3200 (EPA/

OPPTS, 1998b) for the Zahn-Wellens/

EMPA Test, and OPPTS 835.3210 for

the Modified SCAS Test (EPA/OPPTS,

1998c).)

The 21-day or 28-day period used in

the biodegradability tests in the papers

attached to the comments has little

relevance to prompt responses to oil

spills or to the planning requirements of

the FRP rule. Environmental effects can

begin immediately after a discharge. To

minimize environmental damage and

reduce the spread of spilled oil, the FRP

rule requires the first tier of response

equipment to arrive within 6 to 12 hours

of the discharge. FRP requirements for

estimating the response equipment

needed to recover oil from water and

from the shoreline are based on

responses during the first 3 to 4 days

after a discharge, when the most

immediate deleterious environmental

effects occur. Nevertheless,

bioremediation can be useful for longterm cleanup of some shoreline spills

under carefully controlled conditions.

Spills of petroleum oils, animal fats

and vegetable oils, and other nonpetroleum oils have immediate and

devastating physical effects, such as

coating and suffocation, that injure and

kill animals and plants, destroy food

supplies and habitat, and eliminate

breeding plants and animals. Some

animal fats and vegetable oils and their

components and breakdown products

can also produce toxic effects and form

compounds that linger in the

environment. Thus, an oil spill can

cause environmental damage even if all

of the spilled oil is transformed

completely into a harmless product in

28 days.

Even small discharges of animal fats

and vegetable oils can produce

significant environmental damage. For

facilities that meet the FRP criteria,

however, the volumes of the discharges

may be very large indeed. EPA regulates

vegetable oil/animal fat facilities with

worst case discharges as large as 20

million gallons.

Reports submitted by one commenter

show that 60–70 percent of most of the

products tested degrade after 28 days. If

the conditions in the area of the spill

were similar to those in the laboratory

tests, 300,000 to 400,000 gallons of oil

would remain in the environment after

28 days if 1 million gallons of vegetable

oils or animal fats were discharged.

Too often the term ‘‘biodegradability’’

has been misapplied to suggest the

complete breakdown of a compound

with formation of harmless products. In

fact, the tests employed measure only

the partial degradation of a compound

over a given period of time. They do not

analyze effects during biodegradation or

consider toxicity or other deleterious

effects of the breakdown products or

their influence on persistence. Thus,

applying the term ‘‘biodegradable’’

appropriately requires understanding

the time period, conditions, and extent

of biodegradability. Criteria have been

established for various types of

biodegradability tests.

While the papers submitted by the

commenter describe biodegradability

tests and performance results that are

not required under the FRP rule, many

support EPA’s previous findings about

the properties, fate, and effects of

animal fats and vegetable oils (see 62 FR

54508–54543, October 20, 1997). For

example, one paper attached to the

comments recognizes that various tests

and criteria have been developed

(Baggot, 1992). It urges accurate

definitions of biodegradability,

including conditions related to the term.

Other statements in the paper strongly

support our earlier findings that

deleterious effects can be produced even

by biodegradable oils. The paper asserts

that a biodegradable product is not

necessarily environmentally friendly

and that biodegradability tests measure

only the fate of a substance and not its

environmental impact.

In our previous evaluation, we found

that while some animal fats and

vegetable oils degrade rapidly under

certain conditions, others persist in the

environment years after the oil is

spilled. We examined the immediate

physical effects, such as coating and

suffocation, that can be produced by

spills of animal fats and vegetable oils,

other non-petroleum oils, and

petroleum oils. Utilization of oxygen by

microorganisms during biodegradation

can deplete oxygen and suffocate

aquatic organisms. Even if the exposure

period is relatively short, spilled oil can

result in long-term effects. We warned—

and the paper submitted with the

comments affirms—that biodegradation

can lead to the formation of products

that are more toxic than the original

substance (Baggot, 1992). We also

emphasized that biodegradation and

other transformation processes are not

limited to animal fats and vegetable oils;

petroleum oils and other non-petroleum

oils also biodegrade and are transformed

in the environment.

We disagree with some statements in

the paper submitted with the comments

that imply that biodegradability data,

combined with toxicity data, are

sufficient to support claimed

environmental benefits of a product

(Baggot, 1992). While these

considerations are important, they do

not consider other important effects of

oil spills—the devastating

environmental consequences of physical

effects, such as coating and suffocation,

that can occur with spills of any type of

oil, the interference of oil spills with

vital water treatment, or other impacts

of spilled oil. Nor do they address

fundamental concerns raised by the

National Academy of Sciences and

others about the relevance of laboratory

test results to actual oil spills (NAS,

1985a). That spills of animal fats and

vegetable oils can cause environmental

harm through physical effects has been

acknowledged in the previous Petition

submitted by the same commenter on

behalf of some of the same associations

(62 FR 54508, 54527, October 20, 1997).

EPA has further elaborated upon the

environmental harm that can result from

physical effects of oils in the Agency

Decision Document and supporting

documents regarding that Petition (62

FR 54508–54543, October 20, 1997, and

supporting Technical Document).

Several other papers and reports

submitted with the comments contain

incorrect premises about the

environmental damage that can be

caused by biodegradable oils. Unlike the

previous paper (Baggot, 1992), these

papers and reports do not acknowledge

that oils can cause damage when spilled

in the environment regardless of

whether they are ‘‘biodegradable’’

(Galvain et al., 1994; Mang, 1992;

Rhodes, 1996; ILI-University of Idaho,

1996). As our earlier evaluation

demonstrated, rapid biodegradation of

an oil does not insure that spills of the

oil will do no harm. When

biodegradation does occur in the

environment, it can lead to oxygen

depletion and death of fish and other

aquatic organisms. Oxygen depletion

can result from reduced oxygen

exchange across the air-water surface

below the spilled oil or from the high

biological oxygen demand by

microorganisms degrading oil (CrumpVerDate 11<MAY>2000 20:03 Jun 29, 2000 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\30JNR3.SGM pfrm01 PsN: 30JNR3
Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40789

Wiesner and Jennings, 1975; Mudge,

1995).

Whether biodegradation of a vegetable

oil or animal fat occurs when the oil is

spilled in the environment, how long

the oil remains in the environment after

it is spilled, what proportion of the oil

is degraded and at what rate, what

products are formed, and where the oil

and its products are transported and

distributed, are determined by the

properties of the oil itself and those of

the environment where the oil is

spilled. 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 (Ratledge, 1994;

Venosa et al., 1996; Salanitro et al.,

1997; NAS, 1985b).

While the focus of several papers,

reports, and other materials submitted

with the comments is on the

performance of lubricants rather than

the technical issues that relate directly

to EPA’s FRP regulation, they

underscore the importance of

preventing spills of vegetable oils and

responding effectively to oil spills when

they occur. The papers show that

vegetable oil-based lubricants require

additives in order to perform

satisfactorily as lubricants in many

applications and that additives can alter

the toxicity and biodegradability of the

product (Galvain et al., 1994; Korff and

Fessenbecker, 1992; Mang, 1993; Baggot,

1992; Rhodes, 1996). When oil is spilled

in the environment, species in the area

of the oil spill are at risk from exposure

to all of the components of the

formulation—the vegetable oil base

fluid, antioxidants, corrosion inhibitors,

anti-wear and friction modifiers, pour

point depressants, viscosity modifiers,

and other additives or contaminants.

Among the additives described in the

papers submitted with the comments

are lead and barium compounds,

phenolic and aminic antioxidants,

lithium soaps, emulsifiers, and perhaps

dispersants (Korff and Fessenbecker,

1992; Mang, 1993; Rhodes, 1996; ILI and

University of Idaho, 1996). Emulsifiers

can alter the toxicity and transformation

of oils in the environment. They can

complicate the recovery of oil spills,

expand the amount of material that

must be recovered, greatly decrease the

effectiveness of recovery operations, and

increase recovery costs.

According to one paper attached to

the comments, dispersants and

detergents are being developed for use

in lubricants (Rhodes, 1996).

Dispersants that may be authorized for

oil spill response are on the Product

Schedule of the National Contingency

Plan (40 CFR 300.905—subpart J—Use

of Dispersants and Other Chemicals).

The use of dispersants for oil spill

response in inland areas is limited by

their toxicity and adverse

environmental effects. Similar effects

may well occur when lubricants

containing such additives are spilled in

the environment. If a facility discharges

1 million gallons of lubricant containing

20 percent additives, some 200,000

gallons of additives would be

discharged into the environment. These

compounds may have a profound effect

on the behavior of oil in the

environment, and some of them can

inhibit the microorganisms that

biodegrade oil.

E. Application of Executive Order 13101

(Purchasing)

Background. The President signed

Executive Order 13101, ‘‘Greening the

Government through Waste Prevention,

Recycling, and Federal Acquisition,’’ on

September 14, 1998. The Executive

Order directs all Executive agencies to

use the principles and concepts in EPA

Guidance on Acquisition of

Environmentally Preferable Products

and Services, in addition to pilot and

demonstration projects, in identifying

and purchasing environmentally

preferable products and services.

‘‘Environmentally preferable’’ refers to

products or services that have a lesser

or reduced effect on human health and

the environment when compared with

competing products or services. In

addition to promoting environmentally

preferable purchasing, the Executive

Order encourages agencies to purchase

bio-based products.

Comment. One commenter pointed

out that Executive Order 13101 includes

biobased products such as animal fats

and vegetable oils. The commenter

stated that through this Executive Order,

the Federal government has recognized

the environmentally preferable

characteristics of animal fats and

vegetable oils and has set out an action

plan to substitute their use for other,

less desirable products. The commenter

believed that the same differences in

characteristics that are used to promote

the use of biobased products as

environmentally preferred products

should be recognized by EPA when

regulating those products.

Response. EPA has developed

guidance for identifying

environmentally preferable products

(USEPA/OPPTS, 1999). The guidance

describes five guiding principles for

applying environmentally preferable

purchasing in the Federal government.

These principles include: (1)

Environmental considerations should

become part of the normal purchasing

practice, consistent with such

traditional factors as product safety,

price, performance, and availability; (2)

Consideration of environmental

preferability should begin early in the

acquisition process and be rooted in the

ethic of pollution prevention, which

strives to eliminate or reduce, up-front,

potential risks to human health and the

environment; (3) A product or service’s

environmental preferability is a function

of multiple attributes from a life cycle

perspective; (4) Determining

environmental preferability might

involve comparing environmental

impacts; in comparing environmental

impacts, Federal agencies should

consider the reversibility and

geographic scale of the environmental

impacts, the degree of difference among

competing products or services, and the

overriding importance of protecting

human health; and (5) Comprehensive,

accurate, and meaningful information

about the environmental performance of

products or services is necessary in

order to determine environmental

preferability.

The guidance notes that bio-based

products may also be environmentally

preferable. However, Federal purchasers

should not assume that all bio-based

products are automatically

environmentally preferable. As with

other products, agencies should

consider a range of environmental

impacts associated with bio-based

products when making purchasing

decisions. In some cases, factors such as

pesticide use or high water

consumption might make a bio-based

product less environmentally preferable.

The guidance also includes a menu of

environmental attributes. The impact of

products and services on natural

resources use, including ecosystem

impacts; human health and ecological

stressors, including conventional

pollutants released to water and other

stressors; and hazard factors, including

aquatic toxicity, are among the

attributes considered.

Executive Order 13101 and the EPA

Guidance apply to government

procurement of products and services

rather than to planning requirements for

effective response to oil spills. In our

detailed comparison of the properties

and effects of petroleum oils and animal

fats and vegetable oils, we found that

these oils share many of the properties

of petroleum oils and produce many of

the same environmental effects when

discharged into the environment. Not

only can animal fats and vegetable oils

cause harmful environmental impacts at

40790 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

the time of a discharge, but their adverse

environmental effects may continue

long after the discharge.

Furthermore, the properties of these

bio-based products do not affect the

probability that they might be

discharged when they are handled,

stored, or transported. Increasing the

effectiveness of oil spill response

through planning, as mandated by OPA,

will reduce environmental harm and

can reduce overall costs. Environmental

benefits include avoided cleanup costs,

value of lost product, avoided natural

resource damages, and avoided property

damage as a result of the mitigation of

the severity of spills (USEPA, 1994).

F. Other Issues

1. Recovery Capacity

We also received a comment

regarding section 6.0 of appendix E,

which describes the process that

facilities follow to determine the

effective daily recovery capacity needed

for oil recovery devices. The commenter

stated that a sufficient body of measured

and compared data does not exist for the

recovery capacities for petroleum oils

and animal fats and vegetable oils.

Therefore, the commenter stated that we

can only apply the recovery capacities

for petroleum oils to animal fats and

vegetable oils until a body of data for

animal fats and vegetable oils indicates

otherwise.

We agree. In section 6.0 we did not

propose to use different recovery

capacities for devices depending on the

type of oil, or to make any other

revisions to the section. The same

methods and types of equipment are

often used to respond to spills of

petroleum oils and animal fats and

vegetable oils with comparable

properties (see 62 FR 54508–54543

October 20, 1997, and supporting

Technical Document). Because of the

similarity in properties, we would

anticipate similar recovery capacities for

devices that recover petroleum oils and

animal fats and vegetable oils.

Therefore, as the commenter suggests,

we will continue to use the same criteria

to determine recovery capacities for

devices that are used to recover all types

of oil.

2. Use of Mechanical Dispersal

Equipment

Some commenters urged us to modify

the 1994 FRP rule to clarify that ‘‘other

appropriate equipment’’ includes

mechanical dispersal equipment. We

disagree that this change is necessary.

We specifically discussed the use of

mechanical dispersal devices in our

1997 Denial of Petition requesting

amendment of the FRP rule (62 FR

54508, 54528, October 20, 1997).

Although the use of such devices may

be considered in response to an actual

spill under certain conditions (e.g., river

currents are too high for the effective

use of a boom), specifically allowing the

use of these devices alone in response

planning does not meet the intent of

OPA. The intent of OPA was for

industry to plan for and secure the

equipment and resources needed to

respond to and remove a worst case

discharge of oil, which may be a

discharge of 1 million gallons or greater

for a large animal fat or vegetable oil

facility.

Mechanical dispersal of the animal fat

or vegetable oil into the water column

could shut down or negatively impact

drinking water intakes because of flavor

changes and odors, reduce cooling

efficiency in cooling waters of power

plants, contaminate food from receiving

waters, increase BOD levels, violate

water quality standards, cause sludges,

and adversely impact benthic organisms

and the resulting food chain in inland

areas (62 FR 54508, 54528, October 20,

1997). Oil dispersed by mechanical

means may resurface and cause further

environmental damage in the same area

or a different area depending on the

characteristics of the water body.

In our denial of the Petition, we also

provided an example of the ineffective

use of mechanical dispersal to respond

to a spill of rapeseed oil in Vancouver

Harbor (Smith and Herunter, 1989; 62

FR 54508, 54525–54526, October 20,

1997). After an attempt to disperse the

thick oil with multiple passes of small

tug, booms were set up to contain the oil

and skimmer boats recovered the oil.

The authors of the paper emphasized

that containing and recovering the

spilled oil as soon as possible is critical

to minimizing environmental damage,

such as the death of oiled birds in the

harbor. They urged the use of booms,

testing transfer lines, having spill

detection equipment in place, training

on-site personnel, and reporting spills

immediately as essential measures in

reducing environmental harm.

Section 10.7.3 of appendix E in

today’s rule (section 7.7.3 of the 1994

FRP rule) requires that the owner or

operator of the facility identify the

response resources that are available by

contract or other approved means. The

equipment described in the response

plan must include: (1) boom or other

containment methods; (2) appropriate

recovery devices; and, (3) other

appropriate equipment necessary to

respond to a discharge involving the

type of oil carried. Other appropriate

equipment can be described in the FRP,

but only to supplement appropriate

containment and recovery devices.

We have received no additional data

from commenters that demonstrate the

effectiveness of mechanical dispersal in

supplementing appropriate containment

and recovery devices for responses to

discharges of animal fats and vegetable

oils. We believe that such equipment

will generally be ineffective in

supplementing containment and

recovery devices that are appropriate for

responses to discharges of animal fats

and vegetable oils and that it may well

lead to environmental damage and other

adverse effects, as described above.

However, we believe that the FRP may

describe mechanical dispersal

equipment as appropriate to supplement

containment and recovery devices in

those cases where the facility owner or

operator demonstrates the effectiveness

of such equipment in supplementing

appropriate containment and recovery

devices for responses to discharges of

animal fats and vegetable oils from the

facility and shows that the use of such

equipment will not increase

environmental harm or produce other

adverse effects, or when the relevant

Area Contingency Plan identifies such

equipment as appropriate for

supplementing containment and

recovery devices for responses to

discharges of animal fats and vegetable

oils from the facility.

We have refrained from being too

prescriptive in defining or naming

particular types of equipment in the

regulation wherever possible to avoid

limiting technology and innovation by

responders. If you need advice about

recovery devices, we recommend that

you consult your trade association, local

OSRO, or the appropriate EPA Regional

office.

3. No-Action Option

Some commenters urged us to

acknowledge that no action may be

appropriate in certain circumstances.

We disagree. Although a ‘‘no action’’

option may be considered in response to

an actual spill under certain conditions,

such an option is not appropriate for

planning purposes. The intent of OPA is

for industry to plan for and secure the

equipment and resources needed to

respond to a worst case discharge,

which may be a discharge of 1 million

gallons or greater for a large vegetable

oil facility.

The commenters are confusing

requirements for preparedness and

planning with the actual response. As

we have emphasized repeatedly,

nothing in the response planning

regulations is intended to limit the

actions of the owner or operator of the

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40791

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 OSC . See

64 FR 17227, 17235, April 8, 1999, 62

FR 54508, 54528, October 20, 1997, 59

FR 34070–34136, July 1, 1994.

4. FRP Preparation

In today’s rule we are finalizing

§ 112.20(a)(4) as proposed. One

commenter agreed with EPA’s proposal.

A second commenter asked for

clarification of the need to prepare and

submit a plan following the proposed

requirements. Other commenters

supported EPA’s timeframe for

resubmission of FRPs or the Agency’s

provision of a specific compliance

schedule. The preamble of today’s rule

clarifies the need for preparation and

submission of a plan.

Facilities with Approved Plans.

Section 112.20(a)(4)(i) of the proposed

rule would provide that if you are the

owner or operator of an animal fat or

vegetable oil facility with an approved

FRP, you would not need to prepare or

submit a revised plan, except as

otherwise required by paragraphs (b),

(c), and (d) of § 112.20. 64 FR 17227,

17253, April 9, 1999. Under § 112.20(d),

an owner or operator of a facility subject

to the FRP rule is required to revise and

resubmit the revised portion of the

response plan within 60 days of a

facility change that materially may

affect the response to a worse case

discharge. Such a material change

requiring a revision includes: a change

in the facility’s configuration that

materially alters the information

included in the response plan; a change

in the type of oil handled, stored, or

transferred that materially alters the

required response resources; a material

change in capabilities of the oil spill

removal organizations that provide

equipment and personnel to respond to

certain discharges of oil; a material

change in the facility spill prevention

and response equipment or emergency

response procedures; and, any other

changes that materially affect the

implementation of the response plan.

We agree with the second

commenter’s interpretation that the

owner or operator of an animal fat or

vegetable oil facility whose FRP has

been approved by EPA need not submit

a new one, except as required by

paragraphs (b), (c), and (d) of this

section. It may be beneficial, however,

for an owner or operator with an

approved plan to perform a

recalculation using the new

methodology, because EPA believes that

the new methodology for calculating

response resources for animal fat and

vegetable oil facilities in today’s rule

may reduce the response resources

required for some facilities. In addition,

owners or operators of animal fat or

vegetable oil facilities, as do all owners

or operators subject to the FRP rule,

need to be aware of the requirement to

revise a plan and resubmit the revised

portion if there is a material change at

the facility as outlined above and in

§ 112.20(d). As such, an owner or

operator of an animal fat or vegetable oil

facility with an approved FRP plan for

which a recalculation with the new

methodology results in a change in the

required response equipment or a

change in resources that an OSRO will

provide to the facility in response to a

worst-case discharge, will need to revise

the plan and the revised portion will

need to be submitted to the Regional

Administrator. We expect that this may

occur in a number of cases even for

facilities with approved plans, because

the use of the new methodology in

appendix E, section 10 may result in

fewer resources required to respond to

a worst case discharge for some

facilities, and, thus, there may be an

incentive to perform the recalculation

due to the potential for reduced costs.

Facilities with Plans that Have Been

Submitted to the Regional

Administrator. We disagree with the

commenter’s interpretation that a

facility owner or operator automatically

must submit a new plan if the 5-year

duration period for the approved plan

has expired. Section 112.20(a)(4)(ii) of

today’s rule provides that the owner or

operator of an animal fat or vegetable oil

facility who has submitted a response

plan but has not obtained EPA approval

(either because the facility is not a

significant and substantial harm facility

for which approval is required or

because the Agency has not yet acted on

the final approval) must review the

submitted plan and determine whether

it meets or exceeds the requirements of

today’s rule for animal fat and vegetable

oil facilities. If a recalculation using the

new methodology indicates that the

existing plan meets or exceeds the rule

requirements, there is no need to

resubmit the plan. Although not

required by today’s rule, we believe that

it may be useful for an owner or

operator of an animal fat or vegetable oil

facility who has conducted a

recalculation under the new

methodology to keep evidence of that

recalculation with his or her plan. If the

plan must be revised, however, then the

owner or operator must submit an

amended plan that meets or exceeds the

applicable requirements to the Regional

Administrator within 90 days after

today’s date.

Newly Regulated Facilities. We agree

with the second commenter’s

interpretation that the owner or operator

of a newly regulated animal fat and

vegetable oil facility that commences

operations after the effective date of the

rule must prepare and submit a plan in

accordance with § 112.20(a)(2)(ii). If

there are planned or unplanned changes

in facility characteristics that subject an

existing facility to regulation under

§ 112.20(f)(1), the owner or operator of

that facility must prepare and submit a

plan in accordance with paragraph

(a)(2)(iii) or (iv) of this section, as

appropriate. The plan must meet or

exceed the applicable requirements of

today’s rule.

Facilities Amending Existing Plans.

We agree with the second commenter’s

interpretation that a facility that is

amending an existing plan because of

material changes must submit a new

plan that complies with the

requirements of today’s rule. This

requirement is discussed further in the

above section on Facilities with

Approved Plans.

The facility owner or operator

amending an existing plan must

determine whether the existing plan

meets or exceeds the requirements of

today’s rule. If the plan does not meet

or exceed the requirements established

in the rule, the owner or operator must

revise and submit revised portions of an

amended plan that meet or exceed the

applicable requirements to the Regional

Administrator in accordance with

§ 112.20(d).

We disagree with the commenter’s

interpretation that a facility owner or

operator is always required to

recalculate oil spill response resources,

although recalculation will often be

necessary. Other approaches for

determining the adequacy of response

resources, such as comparing factors

that are multiplied in the recalculation,

may be possible, as long as the owner

or operator can show that these

approaches can ensure that the plan

meets or exceeds the applicable

provisions of today’s rule.

One commenter asked for clarification

of the need to prepare and submit a plan

following the proposed requirements.

Plan preparation and submission

depends on the adequacy of plan

resources. Recalculation of response

resources using the revised

methodology described in appendix E,

section 10, may or may not be

necessary. After reviewing relevant

factors used in the methodology, you

40792 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

may find that your plan already meets

or exceed the requirements of today’s

rule. If such is the case, you do not need

to amend your plan. If your plan does

not meet or exceed the requirements of

today’s rule, you must prepare and

submit revised portions of your plan.

Whenever you submit changes to your

plan, you must provide the EPA-issued

facility identification number as

required by § 112.20(d)(3).

G. Agency Decision on the Requests for

Modification of the FRP Rule

As part of this rulemaking, we have

considered the requests that were

submitted by the Animal Fat/Vegetable

Oil Coalition on January 16, 1998, and

amended on April 9, 1998. We agree in

whole or in part with some items in the

requests and disagree with others.

Today’s rule reflects our decision.

The requests ask us to revise the FRP

rule by creating a separate category for

response planning for animal fat and

vegetable oil facilities and a separate

Appendix with procedures for these

facilities. The requests also include

suggested language for the revised rule.

Some requests for changes, particularly

those requests that were also major

issues considered in today’s rule, are

discussed below. The other requested

changes and our decisions concerning

them are in the Response to Comments

document, which is available in the

Docket for this rule.

• Request. Move definitions of animal

fats and vegetable oils. Move the

definitions of animal fats and vegetable

oils from the preamble and Appendix E

of the 1994 FRP rule to the definitions

section, i.e., § 112.2, and modify the

language slightly.

Decision. We agree. In today’s rule,

we are finalizing the definitions as

proposed. Commenters also supported

the change.

• Request. Clarify applicability dates.

Clarify the applicability dates by which

animal fat and vegetable oil facilities

must comply with the rule.

Decision. We agree. Today’s rule

incorporates the applicability dates as

proposed. In section II.F.4 of the

preamble, we have discussed in detail

the requirements for preparation and

submission of FRPs.

• Request. Create separate regulatory

provisions for animal fat and vegetable

oil facilities. Create separate regulatory

provisions for animal fat and vegetable

oil facilities.

Decision. We agree. In today’s rule,

we are retaining separate provisions for

animal fat and vegetable oil facilities.

Commenters supported this aspect of

the proposal rule.

• Request. Create categories of animal

fats and vegetable oils that recognize

physical characteristics. Modify the FRP

rule to reflect the non-persistence of

animal fats and vegetable oils.

Decision. We agree in part and

disagree in part. We agree that

persistence varies greatly according to

the nature of the oil and environmental

conditions. We changed the rule to

reflect that decision. We disagree that

all animal fats and vegetable oils are

non-persistent. In today’s rule, we

eliminated the terms ‘‘persistent’’ and

‘‘non-persistent’’ for animal fats and

vegetable oils. We also created new

groups, i.e., groups ‘‘A,’’ ‘‘B,’’ and ‘‘C’’

for animal fats and vegetable oils, based

on specific gravity. Commenters

supported these rule revisions.

• Request. Create specific planning

requirements for animal fat and

vegetable oil facilities. Create specific

planning requirements based on the

type of animal fat or vegetable oil

handled at the facility.

Decision. We agree with the need to

create specific planning requirements

for animal fat and vegetable oil

facilities. As discussed in Section II.B of

today’s preamble, we proposed a new

methodology for determining response

resources needed for spills of animal

fats and vegetable oils. One commenter

supported the methodology, and others

supported the creation of specific

planning requirements for these

facilities. In today’s FRP rule, we have

finalized the methodology as proposed,

except for clarification and editorial

changes.

• Request. Modify criteria for

determining significant and substantial

harm. Adopt criteria that are identical to

those in the Coast Guard’s proposed rule

for facility response plans for marinetransportation-related facilities.

Decision. We disagree and are

denying this request. We received

several comments requesting this

change and one comment supporting

the criteria for substantial harm and

significant and substantial harm as

proposed. A comparison between the

EPA rule and Coast Guard rule shows

that most differences in the listed

criteria result primarily from differences

between the facilities regulated by each

agency. Some factors listed in the EPA

rule, such as a lack of secondary

containment, are relevant to EPAregulated facilities, which are generally

onshore, but may be less effective for

preventing spills from reaching

navigable waters in marinetransportation-related facilities

regulated by the Coast Guard. The EPA

rule requires consideration of oil storage

capacity as a significant and substantial

harm criterion, while Coast Guard

criteria include the type and quantity of

oil handled. This difference in the two

rules reflects the greater volumes of oil

that are generally stored at EPAregulated facilities (often an order of

magnitude or more greater than Coast

Guard-regulated facilities), the more

varied activities, and greater number

and types of transfers. If the type of oil

is an important consideration, the

Regional Administrator has broad

discretion to consider other site-specific

characteristics and environmental

factors that are related to protecting the

environment in the EPA rule.

• Request. Require plans only for

worst case discharge. Modify the FRP

rule to require planning for a worst case

discharge only, as required by OPA.

Decision. We disagree and are

denying this request. Section 4202(a) of

the OPA amends 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.’’ This requirement

applies to 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’’ (‘‘substantial harm facilities’’).

Under authority of section 311(j)(1)(A)

and (C) of the CWA, the 1994 FRP rule

and today’s rule also require planning

for a small and medium discharge of oil,

as appropriate.

We have discussed the rationale for

retaining planning requirements for

small, medium, and worst case

discharges (59 FR 34070–34136, July 1,

1994; 62 FR 54508, 54509, October 20,

1997; 62 FR 17227, 17229, 17235–

17236, April 8, 1999). EPA strongly

believes that planning for small and

medium discharges, which comprise

about 95 percent of all discharges, is

vital for environmental protection.

Personnel and equipment needed for

responses to small, medium, and worst

case discharges are often different.

We received comments supporting

one, two, or three planning levels. We

have detailed the differences between

facilities regulated by EPA and Coast

Guard and our rationale for requiring

three response planning levels in the

preamble of today’s rule in section II.A.

In today’s rule, we are retaining

planning requirements for small,

medium, and worst case discharges.

• Request. Proposed elimination of

references to higher volume port areas

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40793

and 12-hour response time for all areas.

Modify the rule by eliminating reference

to Higher Volume Port Areas, including

the 6-hour response time requirements,

on the basis that these port areas were

identified in connection with the

location of petroleum facilities, and the

concept of Higher Volume Port Areas

has no relation to the location of animal

fat and vegetable oil facilities.

Decision. We disagree and are

denying this request. The availability of

response equipment that is used for

spills of animal fats and vegetable oils

as well as petroleum oils is usually

greatest in Higher Volume Port Areas.

Response times are designed to reduce

environmental harm from spills and

allow the orderly arrival of response

equipment so that it can be deployed

effectively in spill response. We

received several comments supporting

elimination of this requirement and one

comment supporting its retention. Our

reasons for retaining this requirement

are described in the proposed rule (64

FR 17227–17267, April 8, 1999) and

summarized in the preamble in II.C. In

today’s rule, we have finalized this

requirement as proposed.

• Request. Clarification of Use of

Mechanical Dispersal Equipment.

Modify the rule to clarify that ‘‘other

appropriate equipment’’ includes

mechanical dispersal equipment.

Decision. We disagree and are

denying this request. The mechanical

dispersion option does not meet the

intent of OPA for planning purposes.

The intent of OPA was for industry to

plan for and secure the equipment and

resources needed to respond to a worst

case discharge, which may be a

discharge of 1 million gallons or greater

for a large vegetable oil facility.

Mechanical dispersal of an animal fat or

vegetable oil into the water column can

produce a host of adverse impacts on

drinking water intakes and aquatic

organisms. A detailed discussion of our

previous denials of this request and the

rationale for our decision is in the

preamble in section II. F.2.

• Request. No Action Option. Modify

the rule to include the no action option.

Decision. We disagree and deny the

request. Although the no action option

may be considered in response to an

actual spill under certain conditions,

i.e., river currents too high for the

effective use of a boom, the no action

option would not meet the intent of

OPA for planning purposes. It would

allow a large amount of oil to remain in

the environment, which would in turn

cause immediate physical effects to

resources that could extend for

considerable distances as the oil

spreads. This oil would have the

potential to remain in the environment

for long periods of time. We have

emphasized repeatedly that 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 OSC (see 62

FR 54508, 54528, October 20, 1997). We

have rejected this request for a ‘‘no

action’’ planning option before (62 FR

54508–54543, October 20, 1997). Our

reasons for continuing to deny it are

described in the preamble in section

II.F.3.

III. Bibliography

Abel, P.D. (1996). Water Pollution

Biology. Taylor and Francis, London,

pp. 113–163.

Allen, A. and W.G. Nelson. (1983).

Canola Oil As a Substitute for Crude Oil

in Cold Water Tests. Spill Technology

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4–10.

American Society for Testing and

Materials (ASTM). (1997). Annual Book

of ASTM Standards, Section 11. Water

and Environmental. Volume 11.04,

Designation D 5660–96. Standard Test

Method for Assessing the Microbial

Detoxification of Chemically

Contaminated Water and Soil Using a

Toxicity Test with a Luminescent

Marine Bacterium, pp. 235–242.

Baggot, J.E. (1993). Biodegradability of

Lubricating Oils: A Case Study. Institute

of Petroleum, pp. 47–54; undated, but

appears to be approximately 1992 and

before August 1993, based on references

in the article. (Submitted by

commenter.)

Calanog, S. A., J.Y. Chen, and R.F.

Toia. (1999). Preliminary Evaluation of

Potential Impacts of Non-Petroleum Oils

in the Aquatic Environment.

Proceedings of the 1999 International

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Petroleum Institute, Washington, DC,

pp. 597–605.

Crump-Wiesner, H. J. and A. L.

Jennings. (1975). Properties and Effects

of Nonpetroleum Oils. Pro. of 1975

Conference on Prevention and Control

of Pollution. American Petroleum

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Frink, L. (1994). Statement on

Regulatory Standards for the

Transportation of Edible Oil. Tri-State

Bird Rescue & Research, Inc., January

30, 1994.

Galvain, M.P., V.M. Cheng, A.A.

Wessol, P. Baudouin, M.T. Benkinney,

and N.J. Novick. (1994). Biodegradable

and Nontoxic Hydraulic Oils.

Conference of Societe des Ingenieurs de

l’Automobile, May 4 and 5, 1994.

(Submitted by commenter.)

Groenewold, J.C., R.F. Pico, and K.S.

Watson. (1982). Comparison of BOD

Relationships for Typical Edible and

Petroleum Oils. Journal of the Water

Pollution Control Federation, Volume

54, number 4, April 1982, pp. 398–405.

Hartung, R. (1995). Assessment of the

Potential for Long-Term Toxicological

Effects of the Exxon Valdez Oil Spill on

Birds and Mammals. In: P.G. Wells, J.N.

Butler, and J.S. Hughes, Editors, Exxon

Valdez Oil Spill: Fate and Effects in

Alaskan Waters, American Society for

Testing and Materials, Philadelphia, PA,

pp. 693–725.

Hui, Y.H. (1996). Bailey’s Industrial

Oil and Fat Products, Edible Oil and Fat

Products: General Application. John

Wiley & Sons, Inc., New York, Volume

1, Fifth Edition, pp. 1–280, 397–439.

International Lubricants Inc., Seattle,

Washington and University of Idaho,

Moscow, Idaho. (1996). Biodegradability

of Environmentally Responsible

Lubricants Containing HEAR-Oil-Based

Telomer, Lubricant Additives and

Formulations Containing Telomer, Final

Report, USDA Grant: 93–COOP–1–8654.

Undated, but appears to be 1996 or later,

based on references. (Submitted by

commenter.)

Institute of Shortening and Edible

Oils, Inc. (1985). Treatment of

Wastewaters from Food Oil Processing

Plants in Municipal Facilities. October

1985, pp. 1–18.

Klaassen, C. D., M. O. Amdur, and J.

Doull. (1986). Casarett And Doull’s

Toxicology. Macmillan Publishing

Company, New York, Third Edition, pp.

11–98, 519–635.

Korff, J. and A. Fessenbecker. (1992).

Additives for Biodegradable Lubricants.

Presented at NLGI meeting in October

1992, Hilton Head Island, South

Carolina. (Submittted by commenter.)

Knowlton, J. and S. Pearce. (1993).

Emulsions In: Handbook of Cosmetic

Science and Technology. Elsevier

Advanced Technology, Oxford, First

Edition, pp. 21–32, 95–118, 528–529.

Mang, T. (1992). Environmentally

Harmless Lubricants; Current Status and

Relevant German Environmental

Legislation. Presented at NLGI’s 59th

Annual Meeting, October 1992, Hilton

Head Island, SC; NLGI Spokesman,

September 1993, pp. 233–239.

(Submitted by commenter.)

Minnesota Department of

Conservation, Division of Game and

Fish. (1963). Waterfowl Mortality

Caused by Oil Pollution of the

Minnesota and Mississippi Rivers in

1963. In: Proceedings of the 20th

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Annual Meeting of the Upper

Mississippi River Conservation

Committee, pp. 149–177.

Mudge, S. M. (1995). Deleterious

Effects from Accidental Spillages of

Vegetable Oils. Spill Science and

Technology Bulletin. Volume 2, number

2/3, pp. 187–191.

Mudge, S. M. (1997a). Presentation,

Third International Ocean Pollution

Symposium, Harbor Branch

Oceanographic Institution, Ft. Pierce,

Florida, April 6–11, 1997.

Mudge, S. M. (1997b). Can Vegetable

Oils Outlast Mineral Oils in the Marine

Environment? Marine Pollution

Bulletin. Volume 34, number 3, p. 213.

Mudge, S.M., H. Saunders, and J.

Latchford. (1994). Degradation of

Vegetable Oils in the Marine

Environment. In: Countryside

Commission for Wales Report, CCW,

Bangor, pp. 1–41.

National Academy of Sciences (NAS).

(1985a). Oil in the Sea—Inputs, Fates

and Effects. Chemical and Biological

Methods. National Academy Press,

Washington DC, pp. 89–269.

National Academy of Sciences (NAS).

(1985b). Oil in the Sea—Inputs, Fates

and Effects. Fates. National Academy

Press, Washington DC, pp. 270–368.

National Academy of Sciences (NAS).

(1985c). Oil in the Sea—Inputs, Fates

and Effects. Effects. National Academy

Press, Washington DC, pp. 369–547.

Rand, G. M. and S. R. Petrocelli.

(1985). Fundamentals of Aquatic

Toxicology: Methods and Applications.

Hemisphere Publishing Corporation,

New York, pp. 1–109, 124–163.

Ratledge, C. (1994). Biodegradation of

Oils, Fats, and Fatty Acids. In: C.

Ratledge, Editor, Biochemistry of

Microbial Degradation. Kluwer

Academic Publishers, The Netherlands,

pp. 89–141.

Rhodes, B.N. (1996). Biodegradable

Industrial Lubricants: A Primer. USB

Technical Advisory Panel Meeting, May

15, 1996; International Lubricants, Inc.,

Seattle, Washington. (Submitted by

commenter.)

Parametrix, Inc. (1997). Toxicity

Evaluation of Oil Sample BIO 25–30 to

Oncorhynchus mykiss. Prepared for

Agro Management Group, November

1997.

Salanitro, J.P., P. Dorn, M.

Huesemann, K.O. Moore, I.A. Rhodes,

L.M.R. Jackson, T.E. Vipond, M.M.

Western, and H.L. Wisniewski. (1997).

Crude Oil Hydrocarbon Bioremediation

and Soil Ecotoxicity Assessment.

Environ. Sci. Technol. Volume 31, pp.

1769–1776.

Schultze, R., Editor. (1999). The

World Catalog of Oil Spill Response

Products (7th edition, 1999), page 2–3,

World Catalog Joint Venture.

Smith, D.W. and S.M. Herunter.

(1989). Birds Affected by a Canola Oil

Spill in Vancouver Harbour, February

1989. Spill Technology Newsletter,

October-December 1989, pp. 3–5.

U.S. Coast Guard. (1999). Response

Plan Equipment Caps Review: Are

Changes to Current Mechanical

Recovery, Dispersant, and In Situ Burn

Equipment Requirements Practicable?,

Unpublished Report, Chapter 3,

Assessment of the Impact of Mechanical

Recovery Improvements on Response

Capability.

U.S. Department of Commerce

(USDOC), National Oceanic and

Atmospheric Administration (NOAA).

(1994). Options for Minimizing

Environmental Impacts of Freshwater

Spill Response. NOAA and American

Petroleum Institute, September 1994,

pp. 2–11, 122–124.

U.S. Department of the Interior

(USDOI), Fish & Wildlife Service (FWS).

(1994). Submitted to U.S.

Environmental Protection Agency, 1994.

FWS Memorandum from Peter H.

Albers, Leader, Contaminant Ecology

Group to Oil Spill Response

Coordinator, December 29, 1993. U.S.

Department of the Interior (USDOI),

Fish & Wildlife Service (FWS). FWS

Letter from Michael J. Spear, Assistant

Director, Ecological Services, to Ms. Ana

Sol Gutierrez, Research and Special

Projects Administration, U.S.

Department of Transportation, April 11,

1994.

U.S. Environmental Protection

Agency (USEPA), Office of Research and

Development (ORD). (1993). Methods

for Measuring the Aquatic Toxicity of

Effluents and Receiving Waters to

Freshwater and Marine Organisms.

EPA/600/4–90/027F, Fourth Edition,

Office of Research and Development,

U.S. Environmental Protection Agency,

Washington, D.C., August 1993, pp. 1–

132, 200–218.

U.S. Environmental Protection

Agency (USEPA), Emergency Response

Division, Office of Emergency and

Remedial Response. (1994). The

Regulatory Impact Analysis of Revisions

to the Oil Pollution Prevention

Regulation (40 CFR part 112) to

Implement the Facility Response

Planning Requirements of the Oil

Pollution Act of 1990. March 1994.

U.S. Environmental Protection

Agency (USEPA), Office of Prevention,

Pesticides and Toxic Substances

(OPPTS). (1998a). Fate, Transport and

Transformation Test Guidelines. OPPTS

835.3110, Ready Biodegradability. EPA

712–C–98–076, U.S. Environmental

Protection Agency, Washington, D.C.,

January 1998, pp. 1–53.

U.S. Environmental Protection

Agency (USEPA), Office of Prevention,

Pesticides and Toxic Substances

(OPPTS). (1998b). Fate, Transport and

Transformation Test Guidelines. OPPTS

835.3200, Zahn-Wellens/EMPA Test.

EPA 712–C–98–084, U.S. Environmental

Protection Agency, Washington, D.C.,

January 1998, pp. 1–8.

U.S. Environmental Protection

Agency (USEPA), Office of Prevention,

Pesticides and Toxic Substances

(OPPTS). (1998c). Fate, Transport and

Transformation Test Guidelines. OPPTS

835.3210, Modified SCAS Test. EPA

712–C–98–0, U.S. Environmental

Protection Agency, Washington, D.C.,

January 1998, pp. 1–5.

U.S. Environmental Protection

Agency (USEPA), Office of Prevention,

Pesticides and Toxic Substances

(OPPTS). (1999). Final Guidance on

Environmentally Preferable Purchasing.

Office of Prevention, Pesticides and

Toxic Substances, U.S. Environmental

Protection Agency, Washington, D.C.

Venosa, A.D., M.T. Suidan, B.A.

Wrenn, K.L. Strohmeier, J.R. Haines,

B.L. Eberhart, D. King, and E. Holder.

(1996). Bioremediation of an

Experimental Oil Spill on the Shoreline

of Delaware Bay. Environ. Sci. Technol.

Volume 30, pp. 1764–1775.

Venosa, A.D. and B. Alleman. (1999).

Preliminary Results of Laboratory

Experiments on the Biodegradability

and Change in Toxicity of Vegetable

Oils During Aerobic Biodegradation.

Personal Communication to B. Davis.

January 21, 1999.

Wolfe, D.A. and U.S. Environmental

Protection Agency (USEPA). (1986).

Source of Organic Contaminants in the

Marine Environment: Ocean Disposal

and Accidental Spills. In: C.S. Giam and

H.J.M. Dou, Editors, Strategies and

Advanced Techniques for Marine

Pollution Studies: Mediterranean Sea.

Springer-Verlag, Berlin, pp. 237–288.

IV. Regulatory Analyses

A. Executive Order 12866: OMB Review

Under Executive Order 12866, (58 FR

51735–51744, October 4, 1993), we must

determine whether a regulatory action is

‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The order defines

‘‘significant regulatory action’’ as one

that is likely to result 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

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40795

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

set forth 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 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This final rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. Under CWA

section 311(o), States are free to impose

additional requirements, including more

stringent requirements, that pertain to

response planning for facilities that may

have discharges of oil to navigable

waters. The FRP regulation which we

are revising in today’s rule already

recognizes that States may require

facilities to prepare response plans. 40

CFR 112.20(h). Moreover, we have

acknowledged that the number of States

requiring preparation of response plans

which are similar to or which overlap

with the Agency’s regulation has

increased. 62 FR 7769, 7774 (Feb. 20,

1997). This rule does not preempt State

law or regulations. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

rule.

C. Executive Order 12898

Environmental Justice

Executive Order 12898 requires that

each Federal agency make achieving

environmental justice part of its mission

by identifying and addressing, as

appropriate, disproportionately high

and adverse human health or

environmental effects of its programs,

policies, and activities on minorities

and low-income populations. EPA has

determined that the regulatory changes

in this rule will not have a

disproportionate impact on minorities

and low-income populations. This rule

will only affect the environmental

standards of a small number of

regulated entities that use or store large

volumes of animal fats or vegetable oils

that are located throughout all

communities, not only in low income or

minority communities. In addition,

today’s rule revisions will have a

positive environmental effect for

neighboring communities by helping

affected facilites to plan for effective

responses to oil discharges.

D. Executive Order 13045 Children’s

Health

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19883–

19888, April 23, 1997), applies to any

rule that: (1) Is determined to be

‘‘economically significant’’ as defined

under Executive Order 12866; and (2)

concerns an environmental health or

safety risk that EPA has reason to

believe may have a disproportionate

effect on children. If the regulatory

action meets both criteria, the Agency

must evaluate the environmental health

or safety effects of the planned rule on

children, and explain why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency. EPA interprets Executive Order

13045 as applying only to those

regulatory actions that are based on

health or safety risks, such that the

analysis required under Section 5–501

of the Executive Order has the potential

to influence the regulation. This final

rule is not subject to Executive Order

13045 because it is not economically

significant as defined in Executive

Order 12866, and because the Agency

does not have reason to believe the

environmental health or safety risks

addressed by this action present a

disproportionate risk to children. We

have no data that indicate that the types

of risks resulting from animal fat or

vegetable oil discharges have a

disproportionate effect on children, and

do not have reason to believe that they

do so.

E. Executive Order 13084 Consultation

and Coordination With Indian Tribal

Governments

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to OMB, in a

separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input into

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. EPA believes

that no tribal governments are included

in its FRP-regulated community. Our

records indicate that none of the animal

fat and vegetable oil FRP facilities

subject to this revised rule are located

within Indian Lands. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

F. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

40796 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today’s rule on small entities, small

entity is defined as: (1) A small business

that is any business which is

independently owned and operated and

not dominant in its field as defined by

Small Business Administration (SBA)

regulations under section 3 of the Small

Business Act; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s final rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

In determining whether a rule has a

significant economic impact on a

substantial number of small entities, the

impact of concern is any significant

adverse economic impact on small

entities, since the primary purpose of

the regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities.’’ 5

U.S.C. 603 and 604. Thus, an agency

may certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule.

In this rulemaking, we are adding a

methodology that can be used by

facilities to plan for the appropriate

volume of response resources needed

for a worst case discharge of an animal

fat or vegetable oil, similar to the

existing methodology provided for

petroleum oils. As a result, the overall

economic effect of this regulation has

been determined to reduce the reporting

and recordkeeping burden for facilities

that are required to prepare and

maintain plans for the discharge of

animal fats and vegetable oils because

they no longer will be required to

provide additional documentation to

support their determinations.

Furthermore, we believe that some

facilities could realize additional cost

savings as a result of calculations

performed in estimating the appropriate

amount of response planning resources

needed to respond to a worst case

discharge based on new information

provided in proposed Tables 6 and 7.

We have therefore concluded that

today’s final rule will not increase the

regulatory burden for any small entities.

G. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today’s rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector. This determination is

based on the fact that the revisions are

designed to clarify the requirements for

certain facilities that store animal fats

and vegetable oils to comply with the

FRP rule. The revisions are designed to

decrease the current reporting or

recordkeeping burden and cost for these

facilities and do not impose any

additional requirements that might

significantly or uniquely affect small

governments for similar reasons.

Furthermore, based on a survey of FRPs

submitted to EPA, we did not identify

any small governments that would be

affected by this rulemaking. For these

reasons, EPA has also determined that

this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments.

H. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to OMB under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. We prepared Information

Collection Request (ICR) documents

(EPA ICR No. 1630.05), and you may

obtain a copy by contacting Sandy

Farmer, OP Regulatory Information

Division; U.S. Environmental Protection

Agency (2137); Ariel Rios Building;

1200 Pennsylvania Avenue, NW.;

Washington, DC 20460, by email at

farmer.sandy@epamail.epa.gov, or by

calling 202–260–2740. You may also

view or download these ICRs at our ICR

Internet site at http://www.epa.gov/icr.

The information collection requirements

are not effective until OMB approves

them.

The FRP rule (40 CFR 112.20–21)

requires that owners or operators of

facilities that could cause ‘‘substantial

harm’’ to the environment by

discharging oil into navigable waters or

adjoining shorelines prepare plans for

responding, to the maximum extent

practicable, to a worst case discharge of

oil, to a substantial threat of such a

discharge, and, as appropriate, to

discharges smaller than worst case

discharges. All facilities subject to this

requirement must submit their plans to

EPA. In turn, we review and approve

plans submitted by facilities identified

as having the potential to cause

‘‘significant and substantial harm’’ to

the environment from oil discharges.

Other facilities are not required to

prepare FRPs but are required to

document their determination that they

do not meet the ‘‘substantial harm’’

criteria.

Through this final rulemaking, we are

reducing the reporting and

recordkeeping burden for facilities that

are regulated under the FRP rule due to

the storage of animal fats and vegetable

oils by clarifying response planning

requirements for these facilities.

Specifically, we are finalizing our

proposal to add a new methodology to

allow facilities to calculate planning

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40797

volumes for a worst case discharge of

animal fats or vegetable oils similar to

the methodology provided for

discharges of petroleum oils. Currently

these facilities are required to identify

in their plans the procedures used to

determine the appropriate amount of

resources needed to respond to a worst

case discharge of a non-petroleum oil.

As a result, we believe that the overall

economic effect of this final rule will be

to reduce the reporting and

recordkeeping burden for these

facilities.

In addition, we are allowing case-bycase deviations for facility response

planning levels. In the proposed

rulemaking, we solicited comment on

whether to allow facilities to combine

response planning at either the small

and medium stage, or the medium and

large stage for discharges of animal fats

and vegetable oils. Based on those

comments (see section II. A of this

preamble), and on our own study of the

different types of response plans, we

have decided to retain all three planning

levels. We estimated the cost savings

from eliminating a response planning

level to be minimal, because our

Regional Administrators already give

consideration to unique facility

characteristics during their review of

FRPs in allowing plan deviations.

EPA has information to suggest that

certain bulk storage facilities may store

large quantities of both petroleum oils

and animal fats/vegetable oils in the

same tanks but at different times. We

have not included these facilities within

the scope of our economic analysis for

this rule, because the goal of this

regulation is to address response

planning requirements for those

facilities storing only animal fats or

vegetable oils. We believe that facilities

which store both types of oils in the

same tanks at different times should

follow the response planning

requirements for petroleum oils.

We do not expect the number of

facilities that are subject to the

requirements to develop an FRP and

maintain the plan on a year-to-year basis

to change as a result of this rulemaking.

In the current ICR, we estimate that

5,465 facilities would be required to

develop and submit FRPs. Of these

5,465 facilities, we estimate that

approximately 63 facilities (owned or

operated by approximately 34

companies) are required to develop and

submit FRPs because of the storage of

animal fats and vegetable oils. We have

previously estimated that it requires

between 99 and 132 hours for facility

personnel in a large facility (i.e., total

storage capacity greater than 1 million

gallons) and between 26 and 46 hours

for personnel in a medium facility (i.e.,

total storage capacity greater than

42,000 gallons and less than or equal to

1 million gallons) to comply with the

annual, subsequent-year reporting and

recordkeeping requirements of the FRP

rule. We have also estimated that a

newly regulated facility will require

between 253 and 293 hours to prepare

a plan in the first year. We estimate that

the present information collection

burden of the FRP rule for facilities that

are regulated due to the storage of

animal fats and vegetable oils to be

approximately 6,867 hours a year.

Through this rulemaking, we are

reducing that burden by approximately

five hours for a large facility and two

hours for a medium facility. This

proposed reduction would result in an

annual average burden of 6,587 hours.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

required to perform the following tasks:

(1) Review instructions; (2) develop,

acquire, install, and utilize technology

and systems for the purpose of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; (3) adjust

the existing ways to comply with any

previously applicable instructions and

requirements; (4) train personnel to be

able to respond to a collection of

information; (5) search data sources; (6)

complete and review the collection of

information; and (7) transmit or

otherwise disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR Chapter

15. In the proposed rule, we requested

comments on our need for this

information, the accuracy of the

provided burden estimates, and the

accuracy of the supporting analyses

used to develop the burden estimates.

We also requested suggestions on

methods for further minimizing

respondent burden, including the use of

automated collection techniques. No

comments were received on either of

these issues.

I. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’). Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards such as materials

specifications, test methods, sampling

procedures, and business practices that

are developed or adopted by voluntary

consensus standards bodies. The

NTTAA directs EPA to provide

Congress, through OMB, explanations

when the Agency decides not to use

available and applicable voluntary

consensus standards.

This rulemaking does not involve

technical standards. We received no

comments on this aspect of the

rulemaking.

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a ‘‘major rule’’ as defined by 5 U.S.C.

804(2). This rule will be effective July

31, 2000.

List of Subjects in 40 CFR Part 112

Environmental protection, Fire

prevention, Flammable materials,

Materials handling and storage, Oil

pollution, Oil spill response, Petroleum,

Reporting and recordkeeping

requirements, Tanks, Water pollution

control, Water resources.

Dated: May 24, 2000.

Carol M. Browner,

Administrator.

For the reasons discussed in the

preamble, the Environmental Protection

Agency amends 40 CFR part 112 as

follows:

PART 112—OIL POLLUTION

PREVENTION

1. The authority citation for part 112

is revised to read as follows:

Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C.

2720; E.O. 12777 (October 18, 1991), 3 CFR,

1991 Comp., p. 351.

2. Amend § 112.2 to add the following

definitions in alphabetical order to read

as follows:

40798 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

§ 112.2 Definitions.

* * * * *

Animal fat means a non-petroleum

oil, fat, or grease of animal, fish, or

marine mammal origin.

* * * * *

Non-petroleum oil means oil of any

kind that is not petroleum-based,

including but not limited to: Fats, oils,

and greases of animal, fish, or marine

mammal origin; and vegetable oils,

including oils from seeds, nuts, fruits,

and kernels.

* * * * *

Petroleum oil means petroleum in any

form, including but not limited to crude

oil, fuel oil, mineral oil, sludge, oil

refuse, and refined products.

* * * * *

Vegetable oil means a non-petroleum

oil or fat of vegetable origin, including

but not limited to oils and fats derived

from plant seeds, nuts, fruits, and

kernels.

* * * * *

3. Amend § 112.20 by:

a. adding paragraph (a)(4) to read as

set forth below;

b. revising the phrase ‘‘section 10’’ to

read ‘‘section 13’’ in the second

sentence of paragraph (f)(1)(ii)(B);

c. revising the word ‘‘spill’’ to read

‘‘discharge’’ in paragraph (f)(1)(ii)(D);

d. revising the word ‘‘spills’’ to read

‘‘discharges’’ in paragraph (f)(3)(i); and

e. revising the words ‘‘spill’’ and

‘‘spilled’’ to read ‘‘discharge’’ and

‘‘discharged’’, respectively, wherever

they appear in paragraph (h).

§ 112.20 Facility response plans.

(a) * * *

(4) Preparation and submission of

response plans—Animal fat and

vegetable oil facilities. The owner or

operator of any non-transportationrelated facility that handles, stores, or

transports animal fats and vegetable oils

must prepare and submit a facility

response plan as follows:

(i) Facilities with approved plans. The

owner or operator of a facility with a

facility response plan that has been

approved under paragraph (c) of this

section by July 31, 2000 need not

prepare or submit a revised plan except

as otherwise required by paragraphs (b),

(c), or (d) of this section.

(ii) Facilities with plans that have

been submitted to the Regional

Administrator. Except for facilities with

approved plans as provided in

paragraph (a)(4)(i) of this section, the

owner or operator of a facility that has

submitted a response plan to the

Regional Administrator prior to July 31,

2000 must review the plan to determine

if it meets or exceeds the applicable

provisions of this part. An owner or

operator need not prepare or submit a

new plan if the existing plan meets or

exceeds the applicable provisions of this

part. If the plan does not meet or exceed

the applicable provisions of this part,

the owner or operator must prepare and

submit a new plan by September 28,

2000.

(iii) Newly regulated facilities. The

owner or operator of a newly

constructed facility that commences

operation after July 31, 2000 must

prepare and submit a plan to the

Regional Administrator in accordance

with paragraph (a)(2)(ii) of this section.

The plan must meet or exceed the

applicable provisions of this part. The

owner or operator of an existing facility

that must prepare and submit a plan

after July 31, 2000 as a result of a

planned or unplanned change in facility

characteristics that causes the facility to

become regulated under paragraph (f)(1)

of this section, must prepare and submit

a plan to the Regional Administrator in

accordance with paragraphs (a)(2)(iii) or

(iv) of this section, as appropriate. The

plan must meet or exceed the applicable

provisions of this part.

(iv) Facilities amending existing

plans. The owner or operator of a

facility submitting an amended plan in

accordance with paragraph (d) of this

section after July 31, 2000, including

plans that had been previously

approved, must also review the plan to

determine if it meets or exceeds the

applicable provisions of this part. If the

plan does not meet or exceed the

applicable provisions of this part, the

owner or operator must revise and

resubmit revised portions of an

amended plan to the Regional

Administrator in accordance with

paragraph (d) of this section, as

appropriate. The plan must meet or

exceed the applicable provisions of this

part.

* * * * *

§ 112.21 [Amended]

4. Amend § 112.21 by revising the

phrase ‘‘section 10’’ to read ‘‘section 13’’

in the second sentence of paragraph (c).

C to Part C—[Amended]

Appendix C to Part C—[Amended]

5. Amend Appendix C to part 112 by:

a. revising the phrase ‘‘section 10’’ to

read ‘‘section 13’’ wherever it appears;

b. revising the word ‘‘spill’’ to read

‘‘discharge’’ in sections 2.3 and 2.4, and

the last sentence of section 2.5;

c. revising the word ‘‘Spills’’ to read

‘‘Discharges’’ in the heading of section

2.5;

d. revising the word ‘‘spill’’ to read

‘‘discharge’’ in paragraph 5 of

Attachment C–II;

e. revising the word ‘‘spilled’’ to read

‘‘discharged’’ in section 1.1 of

Attachment C–III;

f. revising the word ‘‘spill’’ to read

‘‘discharge’’ in section 3.2(1) of

Attachment C–III; and

g. revising Attachment C–I to read as

follows:

BILLING CODE 6560–50–P

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40799

40800 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

Appendix D to Part 112—[Amended]

6. Amend Appendix D to part 112 by

revising the phrase ‘‘section 10’’ to read

‘‘section 13’’ in the second sentence of

section 1.4, and by revising the word

‘‘spill’’ to read ‘‘discharge’’ in section

2.2.3 of Attachment D–1.

7. Amend Appendix E to Part 112 as

follows:

a. Revising section 1.0 and sections

1.2.1 through 1.2.8 and adding sections

1.2.9 and 1.2.10;

b. Revising sections 2.0, 2.3.1, and

2.6;

c. Revising sections 3.0, 3.2, 3.3, 3.3.1,

and 3.3.3 and adding sections 3.2.1 and

3.2.2;

d. Revising sections 4.0, 4.2, and 4.4

through 4.7 and adding sections 4.2.1

and 4.2.2;

e. Revising sections 5.0, 5.1, 5.3, 5.5,

5.7, and 5.8;

f. Revising sections 6.0, 6.3, and 6.3.1;

g. Revising sections 7.0, 7.1, 7.2, 7.2.1,

7.4, 7.5.2, 7.6.3, 7.7, 7.7.1, 7.7.2, 7.7.3,

and 7.7.5;

h. Revising sections 8.0, 8.1 and 8.2

and adding sections 8.2.1, 8.3, 8.3.1,

8.3.2, and 8.3.3;

i. Revising sections 9.0, 9.1, 9.2 and

9.3 and adding sections 9.2.1 and 9.4

through 9.7;

j. Revising sections 10.0, 10.1, 10.2,

and 10.3;

k. Adding sections 10.2.1 through

10.2.4, sections 10.3.1 through 10.3.3,

and section 10.4;

l. Adding sections 10.5 and 10.5.1

through 10.5.5;

m. Adding sections 10.6 and 10.6.1

through 10.6.3;

n. Adding sections 10.7 and 10.7.1

through 10.7.5;

o. Adding sections 11.0 through 11.2;

p. Adding sections 12.0 through 12.3;

and

q. Adding sections 13.0 through 13.3.

The revisions and additions read as

follows:

Appendix E to Part 112—Determination

and Evaluation of Required Response

Resources for Facility Response Plans

1.0 Purpose and Definitions

* * * * *

1.2 Definitions.

1.2.1 Animal fat means a non-petroleum

oil, fat, or grease of animal, fish, or marine

mammal origin. Animal fats are further

classified based on specific gravity as

follows:

(1) Group A—specific gravity less than 0.8.

(2) Group B—specific gravity equal to or

greater than 0.8 and less than 1.0.

(3) Group C—specific gravity equal to or

greater than 1.0.

1.2.2 Nearshore is an operating area

defined as extending seaward 12 miles from

the boundary lines defined in 46 CFR part 7,

except in the Gulf of Mexico. In the Gulf of

Mexico, it means the area extending 12 miles

from the line of demarcation (COLREG lines)

defined in 49 CFR 80.740 and 80.850.

1.2.3 Non-persistent oils or Group 1 oils

include:

(1) A petroleum-based oil that, at the time

of shipment, consists of hydrocarbon

fractions:

(A) At least 50 percent of which by

volume, distill at a temperature of 340

degrees C (645 degrees F); and

(B) At least 95 percent of which by volume,

distill at a temperature of 370 degrees C (700

degrees F); and

(2) A non-petroleum oil, other than an

animal fat or vegetable oil, with a specific

gravity less than 0.8.

1.2.4 Non-petroleum oil means oil of any

kind that is not petroleum-based, including

but not limited to: fats, oils, and greases of

animal, fish, or marine mammal origin; and

vegetable oils, including oils from seeds,

nuts, fruits, and kernels.

1.2.5 Ocean means the nearshore area.

1.2.6 Operating area means Rivers and

Canals, Inland, Nearshore, and Great Lakes

geographic location(s) in which a facility is

handling, storing, or transporting oil.

1.2.7 Operating environment means

Rivers and Canals, Inland, Great Lakes, or

Ocean. These terms are used to define the

conditions in which response equipment is

designed to function.

1.2.8 Persistent oils include:

(1) A petroleum-based oil that does not

meet the distillation criteria for a nonpersistent oil. Persistent oils are further

classified based on specific gravity as

follows:

(A) Group 2—specific gravity less than

0.85;

(B) Group 3—specific gravity equal to or

greater than 0.85 and less than 0.95;

(C) Group 4—specific gravity equal to or

greater than 0.95 and less than 1.0; or

(D) Group 5—specific gravity equal to or

greater than 1.0.

(2) A non-petroleum oil, other than an

animal fat or vegetable oil, with a specific

gravity of 0.8 or greater. These oils are further

classified based on specific gravity as

follows:

(A) Group 2—specific gravity equal to or

greater than 0.8 and less than 0.85;

(B) Group 3—specific gravity equal to or

greater than 0.85 and less than 0.95;

(C) Group 4—specific gravity equal to or

greater than 0.95 and less than 1.0; or

(D) Group 5—specific gravity equal to or

greater than 1.0.

1.2.9 Vegetable oil means a nonpetroleum oil or fat of vegetable origin,

including but not limited to oils and fats

derived from plant seeds, nuts, fruits, and

kernels. Vegetable oils are further classified

based on specific gravity as follows:

(1) Group A—specific gravity less than 0.8.

(2) Group B—specific gravity equal to or

greater than 0.8 and less than 1.0.

(3) Group C—specific gravity equal to or

greater than 1.0.

1.2.10 Other definitions are included in

§ 112.2, section 1.1 of Appendix C, and

section 3.0 of Appendix F.

2.0 Equipment Operability and Readiness

* * * * *

2.3.1 The Regional Administrator may

require documentation that the boom

identified in a facility response plan meets

the criteria in Table 1 of this appendix.

Absent acceptable documentation, the

Regional Administrator may require that the

boom be tested to demonstrate that it meets

the criteria in Table 1 of this appendix.

Testing must be in accordance with ASTM F

715, ASTM F 989, or other tests approved by

EPA as deemed appropriate (see Appendix E

to this part, section 13, for general

availability of documents).

* * * * *

2.6 This appendix provides information

on response resource mobilization and

response times. The distance of the facility

from the storage location of the response

resources must be used to determine whether

the resources can arrive on-scene within the

stated time. A facility owner or operator shall

include the time for notification,

mobilization, and travel of resources

identified to meet the medium and Tier 1

worst case discharge requirements identified

in sections 4.3 and 9.3 of this appendix (for

medium discharges) and section 5.3 of this

appendix (for worst case discharges). The

facility owner or operator must plan for

notification and mobilization of Tier 2 and 3

response resources as necessary to meet the

requirements for arrival on-scene in

accordance with section 5.3 of this appendix.

An on-water speed of 5 knots and a land

speed of 35 miles per hour is assumed,

unless the facility owner or operator can

demonstrate otherwise.

* * * * *

3.0 Determining Response Resources

Required for Small Discharges—Petroleum

oils and non-petroleum oils other than

animal fats and vegetable oils

* * * * *

3.2 Complexes that are regulated by EPA

and the United States Coast Guard (USCG)

must also consider planning quantities for

the transportation-related transfer portion of

the facility.

3.2.1 Petroleum oils. The USCG planning

level that corresponds to EPA’s ‘‘small

discharge’’ is termed ‘‘the average most

probable discharge.’’ A USCG rule found at

33 CFR 154.1020 defines ‘‘the average most

probable discharge’’ as the lesser of 50 barrels

(2,100 gallons) or 1 percent of the volume of

the worst case discharge. Owners or

operators of complexes that handle, store, or

transport petroleum oils must compare oil

discharge volumes for a small discharge and

an average most probable discharge, and plan

for whichever quantity is greater.

3.2.2 Non-petroleum oils other than

animal fats and vegetable oils. Owners or

operators of complexes that handle, store, or

transport non-petroleum oils other than

animal fats and vegetable oils must plan for

oil discharge volumes for a small discharge.

There is no USCG planning level that directly

corresponds to EPA’s ‘‘small discharge.’’

However, the USCG (at 33 CFR 154.545) has

requirements to identify equipment to

contain oil resulting from an operational

discharge.

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40801

3.3 The response resources shall, as

appropriate, include:

3.3.1 One thousand feet of containment

boom (or, for complexes with marine transfer

components, 1,000 feet of containment boom

or two times the length of the largest vessel

that regularly conducts oil transfers to or

from the facility, whichever is greater), and

a means of deploying it within 1 hour of the

discovery of a discharge;

* * * * *

3.3.3 Oil storage capacity for recovered

oily material indicated in section 12.2 of this

appendix.

4.0 Determining Response Resources

Required for Medium Discharges—Petroleum

oils and non-petroleum oils other than

animal fats and vegetable oils

* * * * *

4.2 Complexes that are regulated by EPA

and the USCG must also consider planning

quantities for the transportation-related

transfer portion of the facility.

4.2.1 Petroleum oils. The USCG planning

level that corresponds to EPA’s ‘‘medium

discharge’’ is termed ‘‘the maximum most

probable discharge.’’ The USCG rule found at

33 CFR part 154 defines ‘‘the maximum most

probable discharge’’ as a discharge of 1,200

barrels (50,400 gallons) or 10 percent of the

worst case discharge, whichever is less.

Owners or operators of complexes that

handle, store, or transport petroleum oils

must compare calculated discharge volumes

for a medium discharge and a maximum

most probable discharge, and plan for

whichever quantity is greater.

4.2.2 Non-petroleum oils other than

animal fats and vegetable oils. Owners or

operators of complexes that handle, store, or

transport non-petroleum oils other than

animal fats and vegetable oils must plan for

oil discharge volumes for a medium

discharge. For non-petroleum oils, there is no

USCG planning level that directly

corresponds to EPA’s ‘‘medium discharge.’’

* * * * *

4.4 Because rapid control, containment,

and removal of oil are critical to reduce

discharge impact, the owner or operator must

determine response resources using an

effective daily recovery capacity for oil

recovery devices equal to 50 percent of the

planning volume applicable for the facility as

determined in section 4.1 of this appendix.

The effective daily recovery capacity for oil

recovery devices identified in the plan must

be determined using the criteria in section 6

of this appendix.

4.5 In addition to oil recovery capacity,

the plan shall, as appropriate, identify

sufficient quantity of containment boom

available, by contract or other approved

means as described in § 112.2, to arrive

within the required response times for oil

collection and containment and for

protection of fish and wildlife and sensitive

environments. For further description of fish

and wildlife and sensitive environments, see

Appendices I, II, and III to DOC/NOAA’s

‘‘Guidance for Facility and Vessel Response

Plans: Fish and Wildlife and Sensitive

Environments’’ (see Appendix E to this part,

section 13, for availability) and the

applicable ACP. Although 40 CFR part 112

does not set required quantities of boom for

oil collection and containment, the response

plan shall identify and ensure, by contract or

other approved means as described in

§ 112.2, the availability of the quantity of

boom identified in the plan for this purpose.

4.6 The plan must indicate the

availability of temporary storage capacity to

meet section 12.2 of this appendix. If

available storage capacity is insufficient to

meet this level, then the effective daily

recovery capacity must be derated

(downgraded) to the limits of the available

storage capacity.

4.7 The following is an example of a

medium discharge volume planning

calculation for equipment identification in a

higher volume port area: The facility’s largest

aboveground storage tank volume is 840,000

gallons. Ten percent of this capacity is 84,000

gallons. Because 10 percent of the facility’s

largest tank, or 84,000 gallons, is greater than

36,000 gallons, 36,000 gallons is used as the

planning volume. The effective daily

recovery capacity is 50 percent of the

planning volume, or 18,000 gallons per day.

The ability of oil recovery devices to meet

this capacity must be calculated using the

procedures in section 6 of this appendix.

Temporary storage capacity available onscene must equal twice the daily recovery

capacity as indicated in section 12.2 of this

appendix, or 36,000 gallons per day. This is

the information the facility owner or operator

must use to identify and ensure the

availability of the required response

resources, by contract or other approved

means as described in § 112.2. The facility

owner shall also identify how much boom is

available for use.

5.0 Determining Response Resources

Required for the Worst Case Discharge to the

Maximum Extent Practicable

5.1 A facility owner or operator shall

identify and ensure the availability of, by

contract or other approved means as

described in § 112.2, sufficient response

resources to respond to the worst case

discharge of oil to the maximum extent

practicable. Sections 7 and 10 of this

appendix describe the method to determine

the necessary response resources. Worksheets

are provided as Attachments E–1 and E–2 at

the end of this appendix to simplify the

procedures involved in calculating the

planning volume for response resources for

the worst case discharge.

* * * * *

5.3 Oil discharge response resources

identified in the response plan and available,

by contract or other approved means as

described in § 112.2, to meet the applicable

worst case discharge planning volume must

be located such that they are capable of

arriving at the scene of a discharge within the

times specified for the applicable response

tier listed as follows

Tier 1

(in hours)

Tier 2

(in hours)

Tier 3

(in hours)

Higher volume port areas ........................................................................................................................ 6 30 54

Great Lakes ............................................................................................................................................. 12 36 60

All other river and canal, inland, and nearshore areas ........................................................................... 12 36 60

The three levels of response tiers apply to

the amount of time in which facility owners

or operators must plan for response resources

to arrive at the scene of a discharge to

respond to the worst case discharge planning

volume. For example, at a worst case

discharge in an inland area, the first tier of

response resources (i.e., that amount of onwater and shoreline cleanup capacity

necessary to respond to the fraction of the

worst case discharge as indicated through the

series of steps described in sections 7.2 and

7.3 or sections 10.2 and 10.3 of this

appendix) would arrive at the scene of the

discharge within 12 hours; the second tier of

response resources would arrive within 36

hours; and the third tier of response

resources would arrive within 60 hours.

* * * * *

5.5 A facility owner or operator shall

identify the availability of temporary storage

capacity to meet section 12.2 of this

appendix. If available storage capacity is

insufficient, then the effective daily recovery

capacity must be derated (downgraded) to the

limits of the available storage capacity.

* * * * *

5.7 In addition to oil spill recovery

devices, a facility owner or operator shall

identify sufficient quantities of boom that are

available, by contract or other approved

means as described in § 112.2, to arrive onscene within the specified response times for

oil containment and collection. The specific

quantity of boom required for collection and

containment will depend on the facilityspecific information and response strategies

employed. A facility owner or operator shall,

as appropriate, also identify sufficient

quantities of oil containment boom to protect

fish and wildlife and sensitive environments.

For further description of fish and wildlife

and sensitive environments, see Appendices

I, II, and III to DOC/NOAA’s ‘‘Guidance for

Facility and Vessel Response Plans: Fish and

Wildlife and Sensitive Environments’’ (see

Appendix E to this part, section 13, for

availability), and the applicable ACP. Refer to

this guidance document for the number of

days and geographic areas (i.e., operating

40802 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

environments) specified in Table 2 and Table

6 of this appendix.

5.8 A facility owner or operator shall also

identify, by contract or other approved means

as described in § 112.2, the availability of an

oil spill removal organization(s) (as described

in § 112.2) capable of responding to a

shoreline cleanup operation involving the

calculated volume of oil and emulsified oil

that might impact the affected shoreline. The

volume of oil that shall, as appropriate, be

planned for is calculated through the

application of factors contained in Tables 2,

3, 6, and 7 of this appendix. The volume

calculated from these tables is intended to

assist the facility owner or operator to

identify an oil spill removal organization

with sufficient resources and expertise.

6.0 Determining Effective Daily Recovery

Capacity for Oil Recovery Devices

* * * * *

6.3 As an alternative to section 6.2 of this

appendix, a facility owner or operator may

submit adequate evidence that a different

effective daily recovery capacity should be

applied for a specific oil recovery device.

Adequate evidence is actual verified

performance data in discharge conditions or

tests using American Society of Testing and

Materials (ASTM) Standard F 631–99, F 808–

83 (1999), or an equivalent test approved by

EPA as deemed appropriate (see Appendix E

to this part, section 13, for general

availability of documents).

6.3.1 The following formula must be used

to calculate the effective daily recovery

capacity under this alternative:

R = D × U

where:

R—Effective daily recovery capacity;

D—Average Oil Recovery Rate in barrels per

hour (Item 26 in F 808–83; Item 13.2.16 in

F 631–99; or actual performance data); and

U—Hours per day that equipment can

operate under discharge conditions. Ten

hours per day must be used unless a

facility owner or operator can demonstrate

that the recovery operation can be

sustained for longer periods.

* * * * *

7.0 Calculating Planning Volumes for a

Worst Case Discharge—Petroleum Oils and

Non-Petroleum Oils Other Than Animal Fats

and Vegetable Oils

7.1 A facility owner or operator shall plan

for a response to the facility’s worst case

discharge. The planning for on-water oil

recovery must take into account a loss of

some oil to the environment due to

evaporative and natural dissipation, potential

increases in volume due to emulsification,

and the potential for deposition of oil on the

shoreline. The procedures for non-petroleum

oils other than animal fats and vegetable oils

are discussed in section 7.7 of this appendix.

7.2 The following procedures must be

used by a facility owner or operator in

determining the required on-water oil

recovery capacity:

7.2.1 The following must be determined:

the worst case discharge volume of oil in the

facility; the appropriate group(s) for the types

of oil handled, stored, or transported at the

facility [persistent (Groups 2, 3, 4, 5) or nonpersistent (Group 1)]; and the facility’s

specific operating area. See sections 1.2.3 and

1.2.8 of this appendix for the definitions of

non-persistent and persistent oils,

respectively. Facilities that handle, store, or

transport oil from different oil groups must

calculate each group separately, unless the

oil group constitutes 10 percent or less by

volume of the facility’s total oil storage

capacity. This information is to be used with

Table 2 of this appendix to determine the

percentages of the total volume to be used for

removal capacity planning. Table 2 of this

appendix divides the volume into three

categories: oil lost to the environment; oil

deposited on the shoreline; and oil available

for on-water recovery.

* * * * *

7.4 A response plan must identify

response resources with fire fighting

capability. The owner or operator of a facility

that handles, stores, or transports Group 1

through Group 4 oils that does not have

adequate fire fighting resources located at the

facility or that cannot rely on sufficient local

fire fighting resources must identify adequate

fire fighting resources. The facility owner or

operator shall ensure, by contract or other

approved means as described in § 112.2, the

availability of these resources. The response

plan must also identify an individual located

at the facility to work with the fire

department for Group 1 through Group 4 oil

fires. This individual shall also verify that

sufficient well-trained fire fighting resources

are available within a reasonable response

time to a worst case scenario. The individual

may be the qualified individual identified in

the response plan or another appropriate

individual located at the facility.

* * * * *

7.5.2 Because the requirements for Tiers

1, 2, and 3 for inland and nearshore exceed

the caps identified in Table 5 of this

appendix, the facility owner will contract for

a response to 10,000 barrels per day (bpd) for

Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd

for Tier 3. Resources for the remaining 7,850

bpd for Tier 1, 9,750 bpd for Tier 2, and

7,600 bpd for Tier 3 shall be identified but

need not be contracted for in advance. The

facility owner or operator shall, as

appropriate, also identify or contract for

quantities of boom identified in their

response plan for the protection of fish and

wildlife and sensitive environments within

the area potentially impacted by a worst case

discharge from the facility. For further

description of fish and wildlife and sensitive

environments, see Appendices I, II, and III to

DOC/NOAA’s ‘‘Guidance for Facility and

Vessel Response Plans: Fish and Wildlife and

Sensitive Environments,’’ (see Appendix E to

this part, section 13, for availability) and the

applicable ACP. Attachment C–III to

Appendix C provides a method for

calculating a planning distance to fish and

wildlife and sensitive environments and

public drinking water intakes that may be

impacted in the event of a worst case

discharge.

* * * * *

7.6.3 A response plan must identify

response resources with fire fighting

capability. The owner or operator of a facility

that handles, stores, or transports Group 5

oils that does not have adequate fire fighting

resources located at the facility or that cannot

rely on sufficient local fire fighting resources

must identify adequate fire fighting

resources. The facility owner or operator

shall ensure, by contract or other approved

means as described in § 112.2, the

availability of these resources. The response

plan shall also identify an individual located

at the facility to work with the fire

department for Group 5 oil fires. This

individual shall also verify that sufficient

well-trained fire fighting resources are

available within a reasonable response time

to respond to a worst case discharge. The

individual may be the qualified individual

identified in the response plan or another

appropriate individual located at the facility.

7.7 Non-petroleum oils other than animal

fats and vegetable oils. The procedures

described in sections 7.7.1 through 7.7.5 of

this appendix must be used to determine

appropriate response plan development and

evaluation criteria for facilities that handle,

store, or transport non-petroleum oils other

than animal fats and vegetable oils. Refer to

section 11 of this appendix for information

on the limitations on the use of chemical

agents for inland and near shore areas.

7.7.1 An owner or operator of a facility

that handles, stores, or transports nonpetroleum oils other than animal fats and

vegetable oils must provide information in

his or her plan that identifies:

(1) Procedures and strategies for

responding to a worst case discharge to the

maximum extent practicable; and

(2) Sources of the equipment and supplies

necessary to locate, recover, and mitigate

such a discharge.

7.7.2 An owner or operator of a facility

that handles, stores, or transports nonpetroleum oils other than animal fats and

vegetable oils must ensure that any

equipment identified in a response plan is

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 of this

appendix. When evaluating the operability of

equipment, the facility owner or operator

must consider limitations that are identified

in the appropriate ACPs, including:

(1) Ice conditions;

(2) Debris;

(3) Temperature ranges; and

(4) Weather-related visibility.

7.7.3 The owner or operator of a facility

that handles, stores, or transports nonpetroleum oils other than animal fats and

vegetable oils must identify the response

resources that are available by contract or

other approved means, as described in

§ 112.2. The equipment described in the

response plan shall, as appropriate, include:

(1) Containment boom, sorbent boom, or

other methods for containing oil floating on

the surface or to protect shorelines from

impact;

(2) Oil recovery devices appropriate for the

type of non-petroleum oil carried; and

(3) Other appropriate equipment necessary

to respond to a discharge involving the type

of oil carried.

* * * * *

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40803

7.7.5 A response plan must identify

response resources with fire fighting

capability. The owner or operator of a facility

that handles, stores, or transports nonpetroleum oils other than animal fats and

vegetable oils that does not have adequate

fire fighting resources located at the facility

or that cannot rely on sufficient local fire

fighting resources must identify adequate fire

fighting resources. The owner or operator

shall ensure, by contract or other approved

means as described in § 112.2, the

availability of these resources. The response

plan must also identify an individual located

at the facility to work with the fire

department for fires of these oils. This

individual shall also verify that sufficient

well-trained fire fighting resources are

available within a reasonable response time

to a worst case scenario. The individual may

be the qualified individual identified in the

response plan or another appropriate

individual located at the facility.

8.0 Determining Response Resources

Required for Small Discharges—Animal Fats

and Vegetable Oils

8.1 A facility owner or operator shall

identify sufficient response resources

available, by contract or other approved

means as described in § 112.2, to respond to

a small discharge of animal fats or vegetable

oils. A small discharge is defined as any

discharge volume less than or equal to 2,100

gallons, but not to exceed the calculated

worst case discharge. The equipment must be

designed to function in the operating

environment at the point of expected use.

8.2 Complexes that are regulated by EPA

and the USCG must also consider planning

quantities for the marine transportationrelated portion of the facility.

8.2.1 The USCG planning level that

corresponds to EPA’s ‘‘small discharge’’ is

termed ‘‘the average most probable

discharge.’’ A USCG rule found at 33 CFR

154.1020 defines ‘‘the average most probable

discharge’’ as the lesser of 50 barrels (2,100

gallons) or 1 percent of the volume of the

worst case discharge. Owners or operators of

complexes that handle, store, or transport

petroleum oils must compare oil discharge

volumes for a small discharge and an average

most probable discharge, and plan for

whichever quantity is greater.

8.3 The response resources shall, as

appropriate, include:

8.3.1 One thousand feet of containment

boom (or, for complexes with marine transfer

components, 1,000 feet of containment boom

or two times the length of the largest vessel

that regularly conducts oil transfers to or

from the facility, whichever is greater), and

a means of deploying it within 1 hour of the

discovery of a discharge;

8.3.2 Oil recovery devices with an

effective daily recovery capacity equal to the

amount of oil discharged in a small discharge

or greater which is available at the facility

within 2 hours of the detection of a

discharge; and

8.3.3 Oil storage capacity for recovered

oily material indicated in section 12.2 of this

appendix.

9.0 Determining Response Resources

Required for Medium Discharges—Animal

Fats and Vegetable Oils

9.1 A facility owner or operator shall

identify sufficient response resources

available, by contract or other approved

means as described in § 112.2, to respond to

a medium discharge of animal fats or

vegetable oils for that facility. This will

require response resources capable of

containing and collecting up to 36,000

gallons of oil or 10 percent of the worst case

discharge, whichever is less. All equipment

identified must be designed to operate in the

applicable operating environment specified

in Table 1 of this appendix.

9.2 Complexes that are regulated by EPA

and the USCG must also consider planning

quantities for the transportation-related

transfer portion of the facility. The USCG

planning level that corresponds to EPA’s

‘‘medium discharge’’ is termed ‘‘the

maximum most probable discharge.’’ The

USCG revisions to 33 CFR part 154 define

‘‘the maximum most probable discharge’’ as

a discharge of 1,200 barrels (50,400 gallons)

or 10 percent of the worst case discharge,

whichever is less. Owners or operators of

complexes must compare calculated

discharge volumes for a medium discharge

and a maximum most probable discharge,

and plan for whichever quantity is greater.

9.2.1 Owners or operators of complexes

that handle, store, or transport animal fats or

vegetable oils must plan for oil discharge

volumes for a medium discharge. For nonpetroleum oils, there is no USCG planning

level that directly corresponds to EPA’s

‘‘medium discharge.’’ Although the USCG

does not have planning requirements for

medium discharges, they do have

requirements (at 33 CFR 154.545) to identify

equipment to contain oil resulting from an

operational discharge.

9.3 Oil recovery devices identified to

meet the applicable medium discharge

volume planning criteria must be located

such that they are capable of arriving onscene within 6 hours in higher volume port

areas and the Great Lakes and within 12

hours in all other areas. Higher volume port

areas and Great Lakes areas are defined in

section 1.1 of Appendix C to this part.

9.4 Because rapid control, containment,

and removal of oil are critical to reduce

discharge impact, the owner or operator must

determine response resources using an

effective daily recovery capacity for oil

recovery devices equal to 50 percent of the

planning volume applicable for the facility as

determined in section 9.1 of this appendix.

The effective daily recovery capacity for oil

recovery devices identified in the plan must

be determined using the criteria in section 6

of this appendix.

9.5 In addition to oil recovery capacity,

the plan shall, as appropriate, identify

sufficient quantity of containment boom

available, by contract or other approved

means as described in § 112.2, to arrive

within the required response times for oil

collection and containment and for

protection of fish and wildlife and sensitive

environments. For further description of fish

and wildlife and sensitive environments, see

Appendices I, II, and III to DOC/NOAA’s

‘‘Guidance for Facility and Vessel Response

Plans: Fish and Wildlife and Sensitive

Environments’’ (59 FR 14713–22, March 29,

1994) and the applicable ACP. Although 40

CFR part 112 does not set required quantities

of boom for oil collection and containment,

the response plan shall identify and ensure,

by contract or other approved means as

described in § 112.2, the availability of the

quantity of boom identified in the plan for

this purpose.

9.6 The plan must indicate the

availability of temporary storage capacity to

meet section 12.2 of this appendix. If

available storage capacity is insufficient to

meet this level, then the effective daily

recovery capacity must be derated

(downgraded) to the limits of the available

storage capacity.

9.7 The following is an example of a

medium discharge volume planning

calculation for equipment identification in a

higher volume port area:

The facility’s largest aboveground storage

tank volume is 840,000 gallons. Ten percent

of this capacity is 84,000 gallons. Because 10

percent of the facility’s largest tank, or 84,000

gallons, is greater than 36,000 gallons, 36,000

gallons is used as the planning volume. The

effective daily recovery capacity is 50 percent

of the planning volume, or 18,000 gallons per

day. The ability of oil recovery devices to

meet this capacity must be calculated using

the procedures in section 6 of this appendix.

Temporary storage capacity available onscene must equal twice the daily recovery

capacity as indicated in section 12.2 of this

appendix, or 36,000 gallons per day. This is

the information the facility owner or operator

must use to identify and ensure the

availability of the required response

resources, by contract or other approved

means as described in § 112.2. The facility

owner shall also identify how much boom is

available for use.

10.0 Calculating Planning Volumes for a

Worst Case Discharge—Animal Fats and

Vegetable Oils.

10.1 A facility owner or operator shall

plan for a response to the facility’s worst case

discharge. The planning for on-water oil

recovery must take into account a loss of

some oil to the environment due to physical,

chemical, and biological processes, potential

increases in volume due to emulsification,

and the potential for deposition of oil on the

shoreline or on sediments. The response

planning procedures for animal fats and

vegetable oils are discussed in section 10.7 of

this appendix. You may use alternate

response planning procedures for animal fats

and vegetable oils if those procedures result

in environmental protection equivalent to

that provided by the procedures in section

10.7 of this appendix.

10.2 The following procedures must be

used by a facility owner or operator in

determining the required on-water oil

recovery capacity:

10.2.1 The following must be determined:

the worst case discharge volume of oil in the

facility; the appropriate group(s) for the types

of oil handled, stored, or transported at the

facility (Groups A, B, C); and the facility’s

specific operating area. See sections 1.2.1 and

40804 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

1.2.9 of this appendix for the definitions of

animal fats and vegetable oils and groups

thereof. Facilities that handle, store, or

transport oil from different oil groups must

calculate each group separately, unless the

oil group constitutes 10 percent or less by

volume of the facility’s total oil storage

capacity. This information is to be used with

Table 6 of this appendix to determine the

percentages of the total volume to be used for

removal capacity planning. Table 6 of this

appendix divides the volume into three

categories: oil lost to the environment; oil

deposited on the shoreline; and oil available

for on-water recovery.

10.2.2 The on-water oil recovery volume

shall, as appropriate, be adjusted using the

appropriate emulsification factor found in

Table 7 of this appendix. Facilities that

handle, store, or transport oil from different

groups must compare the on-water recovery

volume for each oil group (unless the oil

group constitutes 10 percent or less by

volume of the facility’s total storage capacity)

and use the calculation that results in the

largest on-water oil recovery volume to plan

for the amount of response resources for a

worst case discharge.

10.2.3 The adjusted volume is multiplied

by the on-water oil recovery resource

mobilization factor found in Table 4 of this

appendix from the appropriate operating area

and response tier to determine the total onwater oil recovery capacity in barrels per day

that must be identified or contracted to arrive

on-scene within the applicable time for each

response tier. Three tiers are specified. For

higher volume port areas, the contracted tiers

of resources must be located such that they

are capable of arriving on-scene within 6

hours for Tier 1, 30 hours for Tier 2, and 54

hours for Tier 3 of the discovery of a

discharge. For all other rivers and canals,

inland, near shore areas, and the Great Lakes,

these tiers are 12, 36, and 60 hours.

10.2.4 The resulting on-water oil recovery

capacity in barrels per day for each tier is

used to identify response resources necessary

to sustain operations in the applicable

operating area. The equipment shall be

capable of sustaining operations for the time

period specified in Table 6 of this appendix.

The facility owner or operator shall identify

and ensure, by contract or other approved

means as described in § 112.2, the

availability of sufficient oil spill recovery

devices to provide the effective daily oil

recovery capacity required. If the required

capacity exceeds the applicable cap specified

in Table 5 of this appendix, then a facility

owner or operator shall ensure, by contract

or other approved means as described in

§ 112.2, only for the quantity of resources

required to meet the cap, but shall identify

sources of additional resources as indicated

in section 5.4 of this appendix. The owner or

operator of a facility whose planning volume

exceeded the cap in 1998 must make

arrangements to identify and ensure, by

contract or other approved means as

described in § 112.2, the availability of

additional capacity to be under contract by

2003, as appropriate. For a facility that

handles multiple groups of oil, the required

effective daily recovery capacity for each oil

group is calculated before applying the cap.

The oil group calculation resulting in the

largest on-water recovery volume must be

used to plan for the amount of response

resources for a worst case discharge, unless

the oil group comprises 10 percent or less by

volume of the facility’s oil storage capacity.

10.3 The procedures discussed in

sections 10.3.1 through 10.3.3 of this

appendix must be used to calculate the

planning volume for identifying shoreline

cleanup capacity (for Groups A and B oils).

10.3.1 The following must be determined:

the worst case discharge volume of oil for the

facility; the appropriate group(s) for the types

of oil handled, stored, or transported at the

facility (Groups A or B); and the geographic

area(s) in which the facility operates (i.e.,

operating areas). For a facility handling,

storing, or transporting oil from different

groups, each group must be calculated

separately. Using this information, Table 6 of

this appendix must be used to determine the

percentages of the total volume to be used for

shoreline cleanup resource planning.

10.3.2 The shoreline cleanup planning

volume must be adjusted to reflect an

emulsification factor using the same

procedure as described in section 10.2.2 of

this appendix.

10.3.3 The resulting volume shall be used

to identify an oil spill removal organization

with the appropriate shoreline cleanup

capability.

10.4 A response plan must identify

response resources with fire fighting

capability appropriate for the risk of fire and

explosion at the facility from the discharge or

threat of discharge of oil. The owner or

operator of a facility that handles, stores, or

transports Group A or B oils that does not

have adequate fire fighting resources located

at the facility or that cannot rely on sufficient

local fire fighting resources must identify

adequate fire fighting resources. The facility

owner or operator shall ensure, by contract

or other approved means as described in

§ 112.2, the availability of these resources.

The response plan must also identify an

individual to work with the fire department

for Group A or B oil fires. This individual

shall also verify that sufficient well-trained

fire fighting resources are available within a

reasonable response time to a worst case

scenario. The individual may be the qualified

individual identified in the response plan or

another appropriate individual located at the

facility.

10.5 The following is an example of the

procedure described in sections 10.2 and

10.3 of this appendix. A facility with a 37.04

million gallon (881,904 barrel) capacity of

several types of vegetable oils is located in

the Inland Operating Area. The vegetable oil

with the highest specific gravity stored at the

facility is soybean oil (specific gravity 0.922,

Group B vegetable oil). The facility has ten

aboveground oil storage tanks with a

combined total capacity of 18 million gallons

(428,571 barrels) and without secondary

containment. The remaining facility tanks are

inside secondary containment structures. The

largest aboveground oil storage tank (3

million gallons or 71,428 barrels) has its own

secondary containment. Two 2.1 million

gallon (50,000 barrel) tanks (that are not

connected by a manifold) are within a

common secondary containment tank area,

which is capable of holding 4.2 million

gallons (100,000 barrels) plus sufficient

freeboard.

10.5.1 The worst case discharge for the

facility is calculated by adding the capacity

of all aboveground vegetable oil storage tanks

without secondary containment (18.0 million

gallons) plus the capacity of the largest

aboveground storage tank inside secondary

containment (3.0 million gallons). The

resulting worst case discharge is 21 million

gallons or 500,000 barrels.

10.5.2 With a specific worst case

discharge identified, the planning volume for

on-water recovery can be identified as

follows:

Worst case discharge: 21 million gallons

(500,000 barrels) of Group B vegetable oil

Operating Area: Inland

Planned percent recovered floating vegetable

oil (from Table 6, column Near shore/

Inland/Great Lakes): Inland, Group B is

20%

Emulsion factor (from Table 7): 2.0 Planning

volumes for on-water recovery:

21,000,000 gallons × .2 × 2.0 = 8,400,000

gallons or 200,000 barrels.

Determine required resources for on-water

recovery for each of the three tiers using

mobilization factors (from Table 4,

column Inland/Near shore/Great Lakes).

Inland operating area Tier 1 Tier 2 Tier 3

Planning volume on water ......................................................................................................................................... .15 .25 .40

Estimated Daily Recovery Capacity (bbls) ................................................................................................................ 30,000 50,000 80,000

10.5.3 Because the requirements for OnWater Recovery Resources for Tiers 1, 2, and

3 for Inland Operating Area exceed the caps

identified in Table 5 of this appendix, the

facility owner will contract for a response of

12,500 barrels per day (bpd) for Tier 1,

25,000 bpd for Tier 2, and 50,000 bpd for

Tier 3. Resources for the remaining 17,500

bpd for Tier 1, 25,000 bpd for Tier 2, and

30,000 bpd for Tier 3 shall be identified but

need not be contracted for in advance.

10.5.4 With the specific worst case

discharge identified, the planning volume of

onshore recovery can be identified as

follows:

Worst case discharge: 21 million gallons

(500,000 barrels) of Group B vegetable oil

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40805

Operating Area: Inland

Planned percent recovered floating vegetable

oil from onshore (from Table 6, column

Near shore/Inland/Great Lakes): Inland,

Group B is 65%

Emulsion factor (from Table 7): 2.0

Planning volumes for shoreline recovery:

21,000,000 gallons × 0.65 × 2.0 = 27,300,000

gallons or 650,000 barrels

10.5.5 The facility owner or operator

shall, as appropriate, also identify or contract

for quantities of boom identified in the

response plan for the protection of fish and

wildlife and sensitive environments within

the area potentially impacted by a worst case

discharge from the facility. For further

description of fish and wildlife and sensitive

environments, see Appendices I, II, and III to

DOC/NOAA’s ‘‘Guidance for Facility and

Vessel Response Plans: Fish and Wildlife and

Sensitive Environments,’’ (see Appendix E to

this part, section 13, for availability) and the

applicable ACP. Attachment C–III to

Appendix C provides a method for

calculating a planning distance to fish and

wildlife and sensitive environments and

public drinking water intakes that may be

adversely affected in the event of a worst case

discharge.

10.6 The procedures discussed in

sections 10.6.1 through 10.6.3 of this

appendix must be used to determine

appropriate response resources for facilities

with Group C oils.

10.6.1 The owner or operator of a facility

that handles, stores, or transports Group C

oils shall, as appropriate, identify the

response resources available by contract or

other approved means, as described in

§ 112.2. The equipment identified in a

response plan shall, as appropriate, include:

(1) Sonar, sampling equipment, or other

methods for locating the oil on the bottom or

suspended in the water column;

(2) Containment boom, sorbent boom, silt

curtains, or other methods for containing the

oil that may remain floating on the surface

or to reduce spreading on the bottom;

(3) Dredges, pumps, or other equipment

necessary to recover oil from the bottom and

shoreline;

(4) Equipment necessary to assess the

impact of such discharges; and

(5) Other appropriate equipment necessary

to respond to a discharge involving the type

of oil handled, stored, or transported.

10.6.2 Response resources identified in a

response plan for a facility that handles,

stores, or transports Group C oils under

section 10.6.1 of this appendix shall be

capable of being deployed on scene within 24

hours of discovery of a discharge.

10.6.3 A response plan must identify

response resources with fire fighting

capability. The owner or operator of a facility

that handles, stores, or transports Group C

oils that does not have adequate fire fighting

resources located at the facility or that cannot

rely on sufficient local fire fighting resources

must identify adequate fire fighting

resources. The owner or operator shall

ensure, by contract or other approved means

as described in § 112.2, the availability of

these resources. The response plan shall also

identify an individual located at the facility

to work with the fire department for Group

C oil fires. This individual shall also verify

that sufficient well-trained fire fighting

resources are available within a reasonable

response time to respond to a worst case

discharge. The individual may be the

qualified individual identified in the

response plan or another appropriate

individual located at the facility.

10.7 The procedures described in

sections 10.7.1 through 10.7.5 of this

appendix must be used to determine

appropriate response plan development and

evaluation criteria for facilities that handle,

store, or transport animal fats and vegetable

oils. Refer to section 11 of this appendix for

information on the limitations on the use of

chemical agents for inland and near shore

areas.

10.7.1 An owner or operator of a facility

that handles, stores, or transports animal fats

and vegetable oils must provide information

in the response plan that identifies:

(1) Procedures and strategies for

responding to a worst case discharge of

animal fats and vegetable oils to the

maximum extent practicable; and

(2) Sources of the equipment and

supplies necessary to locate, recover, and

mitigate such a discharge.

10.7.2 An owner or operator of a facility

that handles, stores, or transports animal fats

and vegetable oils must ensure that any

equipment identified in a response plan is

capable of operating in the geographic area(s)

(i.e., operating environments) in which the

facility operates using the criteria in Table 1

of this appendix. When evaluating the

operability of equipment, the facility owner

or operator must consider limitations that are

identified in the appropriate ACPs,

including:

(1) Ice conditions;

(2) Debris;

(3) Temperature ranges; and

(4) Weather-related visibility.

10.7.3. The owner or operator of a facility

that handles, stores, or transports animal fats

and vegetable oils must identify the response

resources that are available by contract or

other approved means, as described in

§ 112.2. The equipment described in the

response plan shall, as appropriate, include:

(1) Containment boom, sorbent boom, or

other methods for containing oil floating on

the surface or to protect shorelines from

impact;

(2) Oil recovery devices appropriate for the

type of animal fat or vegetable oil carried;

and

(3) Other appropriate equipment necessary

to respond to a discharge involving the type

of oil carried.

10.7.4 Response resources identified in a

response plan according to section 10.7.3 of

this appendix must be capable of

commencing an effective on-scene response

within the applicable tier response times in

section 5.3 of this appendix.

10.7.5 A response plan must identify

response resources with fire fighting

capability. The owner or operator of a facility

that handles, stores, or transports animal fats

and vegetable oils that does not have

adequate fire fighting resources located at the

facility or that cannot rely on sufficient local

fire fighting resources must identify adequate

fire fighting resources. The owner or operator

shall ensure, by contract or other approved

means as described in § 112.2, the

availability of these resources. The response

plan shall also identify an individual located

at the facility to work with the fire

department for animal fat and vegetable oil

fires. This individual shall also verify that

sufficient well-trained fire fighting resources

are available within a reasonable response

time to respond to a worst case discharge.

The individual may be the qualified

individual identified in the response plan or

another appropriate individual located at the

facility.

11.0 Determining the Availability of

Alternative Response Methods

11.1 For chemical agents to be identified

in a response plan, they must be on the NCP

Product Schedule that is maintained by EPA.

(Some States have a list of approved

dispersants for use within State waters. Not

all of these State-approved dispersants are

listed on the NCP Product Schedule.)

11.2 Identification of chemical agents in

the plan does not imply that their use will

be authorized. Actual authorization will be

governed by the provisions of the NCP and

the applicable ACP.

12.0 Additional Equipment Necessary to

Sustain Response Operations

12.1 A facility owner or operator shall

identify sufficient response resources

available, by contract or other approved

means as described in § 112.2, to respond to

a medium discharge of animal fats or

vegetables oils for that facility. This will

require response resources capable of

containing and collecting up to 36,000

gallons of oil or 10 percent of the worst case

discharge, whichever is less. All equipment

identified must be designed to operate in the

applicable operating environment specified

in Table 1 of this appendix.

12.2 A facility owner or operator shall

evaluate the availability of adequate

temporary storage capacity to sustain the

effective daily recovery capacities from

equipment identified in the plan. Because of

the inefficiencies of oil spill recovery

devices, response plans must identify daily

storage capacity equivalent to twice the

effective daily recovery capacity required onscene. This temporary storage capacity may

be reduced if a facility owner or operator can

demonstrate by waste stream analysis that

the efficiencies of the oil recovery devices,

ability to decant waste, or the availability of

alternative temporary storage or disposal

locations will reduce the overall volume of

oily material storage.

12.3 A facility owner or operator shall

ensure that response planning includes the

capability to arrange for disposal of recovered

oil products. Specific disposal procedures

will be addressed in the applicable ACP.

13.0 References and Availability

13.1 All materials listed in this section

are part of EPA’s rulemaking docket and are

located in the Superfund Docket, 1235

Jefferson Davis Highway, Crystal Gateway 1,

Arlington, Virginia 22202, Suite 105 (Docket

Numbers SPCC–2P, SPCC–3P, and SPCC–9P).

The docket is available for inspection

40806 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

between 9 a.m. and 4 p.m., Monday through

Friday, excluding Federal holidays.

Appointments to review the docket can be

made by calling 703–603–9232. Docket hours

are subject to change. As provided in 40 CFR

part 2, a reasonable fee may be charged for

copying services.

13.2 The docket will mail copies of

materials to requestors who are outside the

Washington, DC metropolitan area. Materials

may be available from other sources, as noted

in this section. As provided in 40 CFR part

2, a reasonable fee may be charged for

copying services. The RCRA/Superfund

Hotline at 800–424–9346 may also provide

additional information on where to obtain

documents. To contact the RCRA/Superfund

Hotline in the Washington, DC metropolitan

area, dial 703–412–9810. The

Telecommunications Device for the Deaf

(TDD) Hotline number is 800–553–7672, or,

in the Washington, DC metropolitan area,

703–412–3323.

13.3 Documents

(1) National Preparedness for Response

Exercise Program (PREP). The PREP draft

guidelines are available from United States

Coast Guard Headquarters (G–MEP–4), 2100

Second Street, SW., Washington, DC 20593.

(See 58 FR 53990–91, October 19, 1993,

Notice of Availability of PREP Guidelines).

(2) ‘‘Guidance for Facility and Vessel

Response Plans: Fish and Wildlife and

Sensitive Environments’ (published in the

Federal Register by DOC/NOAA at 59 FR

14713–22, March 29, 1994.). The guidance is

available in the Superfund Docket (see

sections 13.1 and 13.2 of this appendix).

(3) ASTM Standards. ASTM F 715, ASTM

F 989, ASTM F 631–99, ASTM F 808–83

(1999). The ASTM standards are available

from the American Society for Testing and

Materials, 100 Barr Harbor Drive, West

Conshohocken, PA 19428–2959.

(4) Response Plans for Marine

Transportation-Related Facilities, Interim

Final Rule. Published by USCG, DOT at 58

FR 7330–76, February 5, 1993.

8. Amend the Tables to Appendix E

to Part 112 by revising Table 2 and

adding Tables 6 and 7 to read as

follows:

TABLE 2 TO APPENDIX E.—REMOVAL CAPACITY PLANNING TABLE FOR PETROLEUM OILS

Spill location Rivers and canals Near shore/Inland

Sustainability of on-water oil recovery 3 days 4 days

Oil group 1

Percent natural dissipationPercent recovered

floating Oil

Percent oil

onshore

Percent natural dissipationPercent recovered

floating oil

Percent oil

onshore

1—Non-persistent oils ...................................................... 80 10 10 80 20 10

2—Light crudes ................................................................ 40 15 45 50 50 30

3—Medium crudes and fuels ........................................... 20 15 65 30 50 50

4—Heavy crudes and fuels ............................................. 5 20 75 10 50 70

1The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are outlined in section 7.7 of this appendix.

Note: Group 5 oils are defined in section 1.2.8 of this appendix; the response resource considerations are outlined in section 7.6 of this

appendix.

* * * * *

TABLE 6 TO APPENDIX E.—REMOVAL CAPACITY PLANNING TABLE FOR ANIMAL FATS AND VEGETABLE OILS

Spill location Rivers and canals Near shore/Inland Great Lakes

Sustainability of on-water oil recovery 3 days 4 days

Oil group 1 Percent natural loss

Percent recovered

floating oil

Percent recovered oil

from onshore

Percent natural loss

Percent recovered

floating oil

Percent recovered oil

from onshore

Group A ............................................................................ 40 15 45 50 20 30

Group B ............................................................................ 20 15 65 30 20 50

1Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility is responsible for determining appropriate response resources for

Group C oils including locating oil on the bottom or suspended in the water column; containment boom or other appropriate methods for containing oil that may remain floating on the surface; and dredges, pumps, or other equipment to recover animal fats or vegetable oils from the bottom and shoreline.

Note: Group C oils are defined in section 1.2.1 and 1.2.9 of this appendix; the response resource procedures are discussed in section 10.6 of

this appendix.

TABLE 7 TO APPENDIX E.—EMULSIFICATION FACTORS FOR ANIMAL FATS AND VEGETABLE OILS

Oil Group1:

Group A ........................................................................................................................................................................................................ 1.0

Group B ........................................................................................................................................................................................................ 2.0

1Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility is responsible for determining appropriate response resources for

Group C oils including locating oil on the bottom or suspended in the water column; containment boom or other appropriate methods for containing oil that may remain floating on the surface; and dredges, pumps, or other equipment to recover animal fats or vegetable oils from the bottom and shoreline.

Note: Group C oils are defined in section 1.2.1 and 1.2.9 of this appendix; the response resource procedures are discussed in section 10.6 of

this appendix.

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9. Amend the attachments to

Appendix E by revising Attachment E–

1 and Attachment E–1 Example and

adding Attachment E–2 and Attachment

E–2 Example to read as follows:

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10. Amend Appendix F to Part 112

and the attachments to Appendix F by

revising the phrase ‘‘section 10’’ to read

‘‘section 13’’ wherever it appears.

11. Appendix F to Part 112 is further

amended as follows:

a. Revise section 1.1, section 1.3

(A)(5), (6) and (7), and section 1.3.4.1;

b. Revise the first sentence of section

1.4.2 and sections 1.4.3 and 1.4.4 (12);

c. Revise sections 1.5, 1.5.1, 1.5.1.1,

and 1.5.1.2;

d. Revise sections 1.6, 1.6.1, and 1.6.2;

e. Revise sections 1.7 and 1.7.1, the

introductory text of section 1..7.1.1, and

the introductory text of section 1.7.3;

f. Revise section 1.8.2 (B), section

1.8.3; and

g. Revise the introductory text of

attachment F–1. The revised text reads

as follows:

Appendix F To Part 112—FacilitySpecific Response Plan

* * * * *

1.1 Emergency Response Action Plan

Several sections of the response plan shall

be co-located for easy access by response

personnel during an actual emergency or oil

discharge. This collection of sections shall be

called the Emergency Response Action Plan.

The Agency intends that the Action Plan

contain only as much information as is

necessary to combat the discharge and be

arranged so response actions are not delayed.

The Action Plan may be arranged in a

number of ways. For example, the sections of

the Emergency Response Action Plan may be

photocopies or condensed versions of the

forms included in the associated sections of

the response plan. Each Emergency Response

Action Plan section may be tabbed for quick

reference. The Action Plan shall be

maintained in the front of the same binder

that contains the complete response plan or

it shall be contained in a separate binder. In

the latter case, both binders shall be kept

together so that the entire plan can be

accessed by the qualified individual and

appropriate spill response personnel. The

Emergency Response Action Plan shall be

made up of the following sections:

1. Qualified Individual Information (Section

1.2) partial

2. Emergency Notification Phone List

(Section 1.3.1) partial

3. Spill Response Notification Form (Section

1.3.1) partial

4. Response Equipment List and Location

(Section 1.3.2) complete

5. Response Equipment Testing and

Deployment (Section 1.3.3) complete

6. Facility Response Team (Section 1.3.4)

partial

7. Evacuation Plan (Section 1.3.5) condensed

8. Immediate Actions (Section 1.7.1)

complete

9. Facility Diagram (Section 1.9) complete

* * * * *

1.3 Emergency Response Information

(A) * * *

(5) Section 1.3.4 lists the facility response

personnel, including those employed by the

facility and those under contract to the

facility for response activities, the amount of

time needed for personnel to respond, their

responsibility in the case of an emergency,

and their level of response training. Three

different forms are included in this section.

The Emergency Response Personnel List

shall be composed of all personnel employed

by the facility whose duties involve

responding to emergencies, including oil

discharges, even when they are not

physically present at the site. An example of

this type of person would be the Building

Engineer-in-Charge or Plant Fire Chief. The

second form is a list of the Emergency

Response Contractors (both primary and

secondary) retained by the facility. Any

changes in contractor status must be reflected

in updates to the response plan. Evidence of

contracts with response contractors shall be

included in this section so that the

availability of resources can be verified. The

last form is the Facility Response Team List,

which shall be composed of both emergency

response personnel (referenced by job title/

position) and emergency response

contractors, included in one of the two lists

described above, that will respond

immediately upon discovery of an oil

discharge or other emergency (i.e., the first

people to respond). These are to be persons

normally on the facility premises or primary

response contractors. Examples of these

personnel would be the Facility Hazardous

Materials (HAZMAT) Spill Team 1, Facility

Fire Engine Company 1, Production

Supervisor, or Transfer Supervisor. Company

personnel must be able to respond

immediately and adequately if contractor

support is not available.

(6) Section 1.3.5 lists factors that must, as

appropriate, be considered when preparing

an evacuation plan.

(7) Section 1.3.6 references the

responsibilities of the qualified individual for

the facility in the event of an emergency.

* * * * *

1.3.5 Evacuation Plans

1.3.5.1 Based on the analysis of the

facility, as discussed elsewhere in the plan,

a facility-wide evacuation plan shall be

developed. In addition, plans to evacuate

parts of the facility that are at a high risk of

exposure in the event of a discharge or other

release must be developed. Evacuation routes

must be shown on a diagram of the facility

(see section 1.9 of this appendix). When

developing evacuation plans, consideration

must be given to the following factors, as

appropriate:

(1) Location of stored materials;

(2) Hazard imposed by discharged material;

(3) Discharge flow direction;

(4) Prevailing wind direction and speed;

(5) Water currents, tides, or wave

conditions (if applicable);

(6) Arrival route of emergency response

personnel and response equipment;

(7) Evacuation routes;

(8) Alternative routes of evacuation;

(9) Transportation of injured personnel to

nearest emergency medical facility;

(10) Location of alarm/notification systems;

(11) The need for a centralized check-in

area for evacuation validation (roll call);

(12) Selection of a mitigation command

center; and

(13) Location of shelter at the facility as an

alternative to evacuation.

* * * * *

1.4.2 Vulnerability Analysis

The vulnerability analysis shall address the

potential effects (i.e., to human health,

property, or the environment) of an oil

discharge. * * *

* * * * *

1.4.3 Analysis of the Potential for an Oil

Discharge

Each owner or operator shall analyze the

probability of a discharge occurring at the

facility. This analysis shall incorporate

factors such as oil spill history, horizontal

range of a potential discharge, and

vulnerability to natural disaster, and shall, as

appropriate, incorporate other factors such as

tank age. This analysis will provide

information for developing discharge

scenarios for a worst case discharge and

small and medium discharges and aid in the

development of techniques to reduce the size

and frequency of discharges. The owner or

operator may need to research the age of the

tanks and the oil spill history at the facility.

1.4.4 Facility Reportable Oil Spill History

* * * * *

(12) Description(s) of how each oil

discharge was detected.

* * * * *

1.5 Discharge Scenarios

In this section, the owner or operator is

required to provide a description of the

facility’s worst case discharge, as well as a

small and medium discharge, as appropriate.

A multi-level planning approach has been

chosen because the response actions to a

discharge (i.e., necessary response

equipment, products, and personnel) are

dependent on the magnitude of the

discharge. Planning for lesser discharges is

necessary because the nature of the response

may be qualitatively different depending on

the quantity of the discharge. The facility

owner or operator shall discuss the potential

direction of the discharge pathway.

1.5.1 Small and Medium Discharges

1.5.1.1 To address multi-level planning

requirements, the owner or operator must

consider types of facility-specific discharge

scenarios that may contribute to a small or

medium discharge. The scenarios shall

account for all the operations that take place

at the facility, including but not limited to:

(1) Loading and unloading of surface

transportation;

(2) Facility maintenance;

(3) Facility piping;

(4) Pumping stations and sumps;

(5) Oil storage tanks;

(6) Vehicle refueling; and

(7) Age and condition of facility and

components.

1.5.1.2 The scenarios shall also consider

factors that affect the response efforts

required by the facility. These include but are

not limited to:

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 40817

(1) Size of the discharge;

(2) Proximity to downgradient wells,

waterways, and drinking water intakes;

(3) Proximity to fish and wildlife and

sensitive environments;

(4) Likelihood that the discharge will travel

offsite (i.e., topography, drainage);

(5) Location of the material discharged (i.e.,

on a concrete pad or directly on the soil);

(6) Material discharged;

(7) Weather or aquatic conditions (i.e.,

river flow);

(8) Available remediation equipment;

(9) Probability of a chain reaction of

failures; and

(10) Direction of discharge pathway.

* * * * *

1.6 Discharge Detection Systems

In this section, the facility owner or

operator shall provide a detailed description

of the procedures and equipment used to

detect discharges. A section on discharge

detection by personnel and a discussion of

automated discharge detection, if applicable,

shall be included for both regular operations

and after hours operations. In addition, the

facility owner or operator shall discuss how

the reliability of any automated system will

be checked and how frequently the system

will be inspected.

1.6.1 Discharge Detection by Personnel

In this section, facility owners or operators

shall describe the procedures and personnel

that will detect any discharge of oil or release

of a hazardous substance. A thorough

discussion of facility inspections must be

included. In addition, a description of initial

response actions shall be addressed. This

section shall reference section 1.3.1 of the

response plan for emergency response

information.

1.6.2 Automated Discharge Detection

In this section, facility owners or operators

must describe any automated discharge

detection equipment that the facility has in

place. This section shall include a discussion

of overfill alarms, secondary containment

sensors, etc. A discussion of the plans to

verify an automated alarm and the actions to

be taken once verified must also be included.

1.7 Plan Implementation

In this section, facility owners or operators

must explain in detail how to implement the

facility’s emergency response plan by

describing response actions to be carried out

under the plan to ensure the safety of the

facility and to mitigate or prevent discharges

described in section 1.5 of the response plan.

This section shall include the identification

of response resources for small, medium, and

worst case discharges; disposal plans; and

containment and drainage planning. A list of

those personnel who would be involved in

the cleanup shall be identified. Procedures

that the facility will use, where appropriate

or necessary, to update their plan after an oil

discharge event and the time frame to update

the plan must be described.

1.7.1 Response Resources for Small,

Medium, and Worst Case Discharges

1.7.1.1 Once the discharge scenarios have

been identified in section 1.5 of the response

plan, the facility owner or operator shall

identify and describe implementation of the

response actions. The facility owner or

operator shall demonstrate accessibility to

the proper response personnel and

equipment to effectively respond to all of the

identified discharge scenarios. The

determination and demonstration of adequate

response capability are presented in

Appendix E to this part. In addition, steps to

expedite the cleanup of oil discharges must

be discussed. At a minimum, the following

items must be addressed: * * *

* * * * *

1.7.3 Containment and Drainage Planning

A proper plan to contain and control a

discharge through drainage may limit the

threat of harm to human health and the

environment. This section shall describe how

to contain and control a discharge through

drainage, including: * * *

* * * * *

1.8.2 Facility Drills/Exercises

(A) * * *

(B) The PREP Guidelines specify that the

facility conduct internal and external drills/

exercises. The internal exercises include:

qualified individual notification drills, spill

management team tabletop exercises,

equipment deployment exercises, and

unannounced exercises. External exercises

include Area Exercises. Credit for an Area or

Facility-specific Exercise will be given to the

facility for an actual response to a discharge

in the area if the plan was utilized for

response to the discharge and the objectives

of the Exercise were met and were properly

evaluated, documented, and self-certified.

* * * * *

1.8.3 Response Training

Section 112.21(a) requires facility owners

or operators to develop programs for facility

response training. Facility owners or

operators are required by § 112.20(h)(8)(iii) to

provide a description of the response training

program to be carried out under the response

plan. A facility’s training program can be

based on the USCG’s Training Elements for

Oil Spill Response, to the extent applicable

to facility operations, or another response

training program acceptable to the RA. The

training elements are available from the

USCG Office of Response (G–MOR) at (202)

267–0518 or fax 267–4085/4065. Personnel

response training logs and discharge

prevention meeting logs shall be included in

sections 1.8.3.1 and 1.8.3.2 of the response

plan respectively. These logs may be

included in the facility response plan or kept

as an annex to the facility response plan.

* * * * *

1.9 Diagrams

* * * * *

(2) * * *

(H) direction of discharge flow from

discharge points.

* * * * *

Attachments to Appendix F

Attachment F–1—Response Plan Cover Sheet

This cover sheet will provide EPA with

basic information concerning the facility. It

must accompany a submitted facility

response plan. Explanations and detailed

instructions can be found in Appendix F.

Please type or write legibly in blue or black

ink. Public reporting burden for the

collection of this information is estimated to

vary from 1 hour to 270 hours per response

in the first year, with an average of 5 hours

per response. This estimate includes time for

reviewing instructions, searching existing

data sources, gathering the data needed, and

completing and reviewing the collection of

information. Send comments regarding the

burden estimate of this information,

including suggestions for reducing this

burden to: Chief, Information Policy Branch,

Mail Code: PM–2822, U.S. Environmental

Protection Agency, Ariel Rios Building, 1200

Pennsylvania Avenue, NW., Washington,

D.C. 20460; and to the Office of Information

and Regulatory Affairs, Office of Management

and Budget, Washington D.C. 20503.

* * * * *

[FR Doc. 00–13976 Filed 6–29–00; 8:45 am]

BILLING CODE 6560–50–P