By Cindy Skrzycki
Tuesday, July 5, 2005
When Anne G. Giesecke , vice president of policy analysis and environmental activities for the American Bakers Association , thinks of edible oils and fats, she sees doughnuts swimming in vats of hot oil, safe inside a commercial bakery.
When regulators at the Environmental Protection Agency consider edible oils and fats, they think of dangerous spills that can clog waterways, gum up water treatment facilities, kill fish and birds, and cause fires.
How you get from the bakery to navigable waterways has been part of the argument that has been going on between EPA regulators and food industry lobbyists like Giesecke for several years. (Plus, there's some question of just what is a navigable waterway, but that's another story.)
The food industry maintains that its spills are nothing like what happens in the petroleum industry, which is covered by the same rules. The edible-oils people point out they don't have accidents like the Exxon Valdez Alaskan oil spill in 1989. The EPA maintains that there is serious spill potential for edible oils and fats that goes beyond a pat of butter here, a drop of milk there.
"There is a bit of a laugh factor with vegetable oils, but when you learn about the impact of the spill . . . there is strong scientific basis for regulating them," said David Evans , director of the regulation and policy development division of EPA's Office of Emergency and Remedial Response.
So in 2002, at the urging of Congress, the agency issued its Spill Prevention, Control and Countermeasure rule. Lawsuits challenging the rule and two extensions of the deadline followed. And now, owners of facilities that make, use, transport or otherwise have more that 1,320 gallons of edible oils and fats on their premises face a compliance deadline next February.
That means commercial bakeries, dairies, farmers and other companies that make or store oil or fat products would have to file updated plans to prevent and contain spills. They have to have a professional engineer check their plans, have a way to prevent a spill from spreading, and do "integrity testing" of containers -- which might mean emptying tanks to check for leaks.
Since the rule flowed from EPA's authority under the Clean Water Act, the food industry will face the same regulatory requirements as the petroleum industry for prevention and cleanup. As it is now written, the section of the rule directed to edible oils includes mandates on how to handle offshore drilling spills.
"Do you need secondary containment for a doughnut fryer?" Giesecke asked. "Chances are, when you have doughnut fryer in a bakery and if it spills, it gets cleaned up and sent to animal feed and the sewer treatment plant."
"We have talked to them [EPA officials] until we are blue in the face," said Robert L. Garfield , senior vice president of the American Frozen Food Institute , which is part of an industry coalition still fighting the rule. "Integrity testing would cost a lot of money."
He said anything more than visual inspection of food storage tanks would be overkill because animal fats and vegetable oils are stored in stainless steel tanks that don't corrode and must be sterile.
The edible-oil people want the EPA to separate them from the petroleum industry.
The dairy people, meanwhile, want an exception to the rule that says milk and cheese, oleaginous mixtures, will be subject to EPA enforcement. "I'm sorry. You can have a cheese fire, but you won't have a river of liquid cheese that will endanger the environment," said Clay Detlefsen , counsel for the International Dairy Foods Association .
That's not to say edible-oil spills don't occur.
Evans said that on average, 45 spills of edible oils and fats reach navigable waters annually. He thinks such spills are underreported. The EPA says on its Web site that non-petroleum oils have physical properties similar to those of petroleum: They create slicks on surface water and form emulsions and sludge that can "be dangerous or even deadly to wildlife."
For example, 3 million pounds of butter melted in a fire last December in New Ulm, Minn. Evans said several hundred gallons reached a local river and formed an oil slick. (This episode even made the Prairie Home Companion public radio show, which theorized that a lactose-intolerant hate group started the blaze.)
Evans also cited a 2002 soybean oil spill in a harbor in Charleston, S.C., and a 1999 canola spill into Vancouver Harbor in British Columbia that killed 2,000 birds.
The industry acknowledges that spills occur, but nothing like the 20,000 a year reported by the petroleum industry. Also, the food industry says its oils are biodegradable, not toxic, and that its containment record is exemplary.
In 1995, the industry thought it made progress in its long dispute with the EPA with passage of a law that directed federal agencies to consider the chemical, physical and biological differences between edible oils and other oils when making regulatory decisions.
David C. Ailor , director of regulatory affairs for the National Oilseed Processors Association , said the EPA paid no attention to the 1995 law when it issued its 2002 rule. "The 2002 rule is a carbon copy of what they did with petroleum oils," said Ailor.
Evans said some help is on the way.
The agency has two proposals planned for August that will offer guidance to EPA inspectors and some flexibility for companies, especially those with smaller facilities, Evans said. Next July, the agency expects to propose a rule to differentiate vegetable oil and animal fat facilities from other oils.
But those subject to the rules have a hard time believing that the EPA will pull the fat out of the fire. They note that talks about changes have gone on for years.
"This stuff makes us roll our eyes," Ailor said. "They have done zero for us, and we don't have much comfort in guidance."