[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Rules and Regulations]
[Pages 40776-40817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13976]



[[Page 40775]]

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Part III





Environmental Protection Agency





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40 CFR Part 112



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

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

[[Page 40776]]


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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.

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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 
(<a href="/cdn-cgi/l/email-protection#debabfa8b7adf0bcbfacbcbfacbf9ebbaebfb3bfb7b2f0bbaebff0b9b1a8"><span class="__cf_email__" data-cfemail="e88c899e819bc68a899a8a899a89a88d988985898184c68d9889c68f879e">[email protected]</span></a>); 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:

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                 Category                            NAICS codes
------------------------------------------------------------------------
Starch and Vegetable Fats and Oils          NAICS 31122.
 Manufacturing.
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.
Electric Power Generation, Transmission,    NAICS 2211.
 and Distribution.
Other Manufacturing.......................  NAICS 31-33.
Gasoline Stations/Automotive Rental and     NAICS 4471/5321.
 Leasing.
Heating Oil Dealers.......................  NAICS 454311.
Coal Mining, Non-Metallic Mineral Mining    NAICS 2121/2123/213114/
 and Quarrying.                              213116.
Heavy Construction........................  NAICS 234.
Elementary and Secondary Schools, Colleges  NAICS 6111-6113.
Hospitals/Nursing and Residential Care      NAICS 622-623.
 Facilities.
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 Sec. 112.1 and Sec. 112.20 of 
title 40 of the Code of Federal Regulations. If you have questions 
regarding the applicability of this action to a particular facility, 
consult the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

B. Statutory Authority

1. The Oil Pollution Act of 1990 and the Clean Water Act
    Congress enacted the Oil Pollution Act (OPA) (Public Law 101-380) 
to expand oil spill prevention and preparedness activities, improve 
response capabilities, ensure that shippers and oil companies pay the 
costs of spills that do occur, provide an additional economic incentive 
to prevent spills through increased penalties and enhanced enforcement, 
establish an expanded research and development program, and establish a 
new Oil Spill Liability Trust Fund, administered by the U.S. Coast 
Guard (USCG). Section 4202(a) of OPA amends the Clean Water Act (CWA) 
section 311(j) to require regulations for owners or operators of 
facilities to prepare and submit ``a plan for responding, to the 
maximum extent practicable, to a worst case discharge, and to a 
substantial threat of such a discharge, of oil or a

[[Page 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-transportation-related onshore facilities 
under sections 311(j)(1)(A) and (C) and 311(j)(5) of the CWA. The 
President has delegated similar authority over transportation-related 
onshore facilities, deepwater ports, and vessels to the U.S. Department 
of Transportation (DOT). Within DOT, the USCG is responsible for 
developing requirements for vessels and marine transportation-related 
facilities.
2. Edible Oil Regulatory Reform Act
    Congress enacted the Edible Oil Regulatory Reform Act (EORRA) (33 
U.S.C. 2720) on November 20, 1995. Under this law, 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-
transportation-related 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 non-petroleum 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 non-petroleum 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

[[Page 40778]]

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'' 
non-petroleum 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 
Sec. 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.

[[Page 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-transportation-related 
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 USCG-regulated 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 EPA-regulated facilities. At these 
facilities, there is a wide range of activities, and many parameters 
can affect discharges. Causes of oil discharges at EPA-regulated 
facilities can include tank failure, deterioration of tanks or valves, 
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, non-transportation-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 transportation-related 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 EPA-
regulated 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

[[Page 40780]]

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 deg.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 deg.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

[[Page 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 on-water 
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 non-higher 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.

[[Page 40782]]

    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 non-petroleum 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 oil-based 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.

[[Page 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 oil-
based 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:
    <bullet> 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 non-
petroleum 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).
    <bullet> 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.
    <bullet> We described the limitations of the acute lethality 
(LC<INF>50</INF>) 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 LC<INF>50</INF> laboratory 
results to spills in the environment that have been raised by 
scientific experts, including the National Academy of Sciences.
    <bullet> 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 (LC<INF>50</INF>) Submitted by 
Commenter

    The only toxicity studies submitted by the commenter are acute 
lethality (LC<INF>50</INF>) 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 Vegetable-Based Oil Sample BIO 25-30

    The Parametrix report, which was developed for Agro Management 
Group and provided by Colorado State University, described an 
LC<INF>50</INF> value of 8,766 mg/l for rainbow trout (Oncorhynchus 
mykiss) exposed to various concentrations of a vegetable-based 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 LC<INF>50</INF> 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.

[[Page 40784]]

    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 LC<INF>50</INF> 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 LC<INF>50</INF> 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 
dose-response curve. The absence of these data precludes evaluation of 
the accuracy of the LC<INF>50</INF> 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 
LC<INF>50</INF> 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 
LC<INF>50</INF> and provide a statistical analysis of the data, the 
accuracy of the LC<INF>50</INF> 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 LC<INF>50</INF>, 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 LC<INF>50</INF> 
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 (LC<INF>50</INF> 
tests) with rainbow trout showed ``negligible toxicity'' for some 
vegetable oil-based products unless the formulations contained certain 
ingredients. The LC<INF>50</INF>, 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 
LC<INF>50</INF> 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

[[Page 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 LC<INF>50</INF> values. 
For vegetable oils, the LC<INF>50</INF> ranged from 633 parts per 
million (ppm) to >5000 ppm; LC<INF>50</INF> 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 (LC<INF>50</INF>) tests for vegetable oil-based 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 predator-prey relationships, 
toxicity to other organisms or life-stages, or toxicity under other 
environmental conditions (62 FR 54508, 54516, October 20, 1997). The 
LC<INF>50</INF> (lethal concentration 50) value or LD<INF>50</INF> 
(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 LC<INF>50</INF> 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 LC<INF>50</INF> 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 
LC<INF>50</INF>--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. 
flow-through 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 LC<INF>50</INF> concentrations. If environmental conditions were 
identical to those in the experiment, concentrations in the 
LC<INF>50</INF> 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

[[Page 40786]]

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:
    <bullet> While some animal fats and vegetable oils degrade rapidly 
under certain conditions, others persist in the environment years after 
the oil is spilled.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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).
    <bullet> 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.
    <bullet> 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

[[Page 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 CO<INF>2</INF> 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, non-ferrous 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

[[Page 40788]]

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 long-term cleanup 
of some shoreline spills under carefully controlled conditions.
    Spills of petroleum oils, animal fats and vegetable oils, and other 
non-petroleum 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 (Crump-

[[Page 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

[[Page 40790]]

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

[[Page 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 Sec. 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 Sec. 112.20. 64 FR 17227, 
17253, April 9, 1999. Under Sec. 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 
Sec. 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 Sec. 112.20(a)(2)(ii). If there are planned or unplanned changes 
in facility characteristics that subject an existing facility to 
regulation under Sec. 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 
Sec. 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

[[Page 40792]]

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 Sec. 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.
    <bullet> 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., Sec. 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 marine-
transportation-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 EPA-regulated facilities, which are 
generally onshore, but may be less effective for preventing spills from 
reaching navigable waters in marine-transportation-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 EPA-regulated 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.
    <bullet> 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.
    <bullet> Request. Proposed elimination of references to higher 
volume port areas

[[Page 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.
    <bullet> 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.
    <bullet> 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 Newsletter. January-
February, 1983, pp. 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 Oil Spill Conference. 
American 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 Institute, Washington, DC, pp. 
29-32.
    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

[[Page 40794]]

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

[[Page 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

[[Page 40796]]

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 cost-effective 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 
<a href="/cdn-cgi/l/email-protection#0c6a6d7e61697e227f6d6268754c697c6d616d656022697c6d226b637a"><span class="__cf_email__" data-cfemail="731512011e16015d00121d170a331603121e121a1f5d1603125d141c05">[email protected]</span></a>, 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

[[Page 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-by-case 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 Sec. 112.2 to add the following definitions in 
alphabetical order to read as follows:

[[Page 40798]]

Sec. 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 Sec. 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).


Sec. 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-
transportation-related 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.
* * * * *


Sec. 112.21  [Amended]

    4. Amend Sec. 112.21 by revising the phrase ``section 10'' to read 
``section 13'' in the second sentence of paragraph (c).


Appendix 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

[[Page 40799]]

[GRAPHIC] [TIFF OMITTED] TR30JN00.061



Appendix D to Part 112--[Amended]
[[Page 40800]]



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 non-persistent 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 non-petroleum 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 Sec. 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.

[[Page 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 
Sec. 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 
Sec. 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 on-scene 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 Sec. 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 
Sec. 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 Sec. 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  Tier 2  (in  Tier 3  (in
                                                                              hours)       hours)       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 on-water 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 
Sec. 112.2, to arrive on-scene within the specified response times 
for oil containment and collection. The specific quantity of boom 
required for collection and containment will depend on the facility-
specific 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

[[Page 40802]]

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 Sec. 112.2, the 
availability of an oil spill removal organization(s) (as described 
in Sec. 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  x  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 non-persistent (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 Sec. 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 Sec. 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 non-petroleum 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 non-petroleum 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 non-petroleum 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 
Sec. 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.
* * * * *

[[Page 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 non-petroleum 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 Sec. 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 Sec. 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 transportation-related 
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 Sec. 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 non-petroleum 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 on-scene 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 
Sec. 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 Sec. 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 on-scene 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 Sec. 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

[[Page 40804]]

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 on-water 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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  x  .2  x  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 On-Water 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

[[Page 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  x  0.65  x  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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 on-scene. 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

[[Page 40806]]

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                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent                                Percent
                                      Percent     recovered   Percent oil    Percent     recovered   Percent oil
           Oil group \1\              natural      floating     onshore      natural      floating     onshore
                                    dissipation      Oil                   dissipation      oil
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
\1\ The 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                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent      Percent                   Percent      Percent
                                      Percent     recovered    recovered     Percent     recovered    recovered
           Oil group \1\              natural      floating     oil from     natural      floating     oil from
                                        loss         oil        onshore        loss         oil        onshore
----------------------------------------------------------------------------------------------------------------
Group A...........................           40           15           45           50           20           30
Group B...........................           20           15           65           30           20          50
----------------------------------------------------------------------------------------------------------------
\1\ Substances 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 Group <SUP>1</SUP>:
  Group A......................................................      1.0
  Group B......................................................      2.0
------------------------------------------------------------------------
\1\ Substances 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.


[[Page 40807]]


    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:
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TR30JN00.062


[[Page 40808]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.063


[[Page 40809]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.064


[[Page 40810]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.065


[[Page 40811]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.066


[[Page 40812]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.067


[[Page 40813]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.068


[[Page 40814]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.069


[[Page 40815]]


[GRAPHIC] [TIFF OMITTED] TR30JN00.070


[[Page 40816]]


    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--Facility-Specific 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:

[[Page 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 Sec. 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


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