51 Monroe Street
Suite 812
Rockville, Maryland 20850
TEL (301) 577-3786 / FAX (301) 577-6476
www.reusablepackaging.org
June 25, 2012
Docket Management System M-30
U.S. Department of Transportation
West Building, Ground Floor, Room W12-140
1200 New Jersey Avenue, SE
Washington, DC 20590-0001
Re: Docket No. FMCSA-2011-0138 (HM 218G)
The Reusable Industrial Packaging Association (RIPA) is the U.S.-based trade
association for businesses involved in the reconditioning, manufacturing, reuse and
recycling of industrial containers such as steel drums, plastic drums and composite
IBCs. RIPA’s membership accounts for the vast majority of the U.S. container
reconditioning industry.
These comments are offered in response to PHMSA’s Notice of Proposed
Rulemaking HM-218G published in the Federal Register on April 26, 2012. Among
other regulatory actions, HM-218G would require that the closure notifications
described in 49 CFR 178.2(c) be used in closing emptied drums containing residues
of hazardous materials.
Background
Container reconditioning requires that used containers such as drums be emptied of
their contents to the fullest extent practicable. In addition, RIPA members adhere to
a Code of Operating Practice that includes special measures to assure that used
packagings are empty when received for reconditioning. U.S. EPA regulations (40
CFR 261.7) specify residue content above which an emptied container could be
deemed a hazardous waste. RIPA members work diligently with emptiers to educate
personnel on how best to empty containers. Taken together, these measures assure
that residues represent very small volumes in transportation for packagings handled
by RIPA members, i.e., drums and intermediate bulk containers (IBCs). Such small
volumes do not present safety risks commensurate with those presented by filled
containers.
RIPA recognizes that under 49 CFR 173.29(a), any container with residues of a
hazardous material must be offered for shipment “in the same manner as when it
previously contained a greater quantity of that hazardous material.” For years, this
provision has been read to mean that emptied hazmat packagings should be closed
for transport in a manner that ensures safety. And, in fact, decades of experience
have shown that the current system is safe. Additionally, under 173.24(b)(1) –
General Requirements for Packagings and Packages – closure must ensure that,
“under conditions normally incident to transportation….there will be no
identifiable….release of hazardous materials to the environment.” RIPA maintains
that these provisions have operated well for years in ensuring safety with regards to
emptied packagings with residues.
PHMSA’s Proposal HM 218-G
On April 26, 2012, PHMSA proposed a rule change that would require written closure
notifications specified in 178.2(c) be followed by emptiers when closing an emptied
packaging containing only residue of a hazardous material. Also, emptiers would
have to notify the party to whom they transfer the packaging with information on
closure types and procedures that will assure the packaging can pass its applicable
performance tests. RIPA believes this new interpretation of the Hazardous Materials
Regulations (HMR) is not needed for safety, is excessively burdensome as a
practical matter, and is very costly.
As stated above, volumes of residue in emptied hazmat packaging are very small.
Under U.S. EPA regulations, drums and IBCs must be emptied as much as possible
using practices commonly employed to remove materials from any given type of
packaging (40 CFR 261.7). Moreover, there already exists a well-known obligation
in the HMR to fully close an emptied packaging (172.29(a)). Packagings with
residues are to be offered for shipment as when they previously contained a greater
quantity of hazardous material. There appears to be little real risk associated with
these packagings given that tens of millions of drums and IBCs are transported
annually to reconditioning in a safe manner. PHMSA cites no incident data that
would suggest an actual problem exists.
Additionally, the rule appears to require closure notifications be provided to
reconditioners, recyclers, and even waste management facilities as they all could
qualify as “a person to whom that packaging is transferred.” (178(c)(1)(i)). However,
a reconditioner is only going to open the packaging for cleaning, reconditioning and
re-certification. Requiring that notifications be provided reconditioners is a costly
paperwork burden with no safety benefit of any kind. Reconditioners already
maintain and provide to customers closure notifications for all the design types which
they produce. Under this proposal, they will have to retain redundant notifications for
a year. There is no need to mandate that closure notifications be sent with
packagings for reconditioning or reuse.
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From a practical perspective, significant new implementation burdens will fall upon
emptiers. Many plants receive product in both drums and IBCs (packagings with
which RIPA is familiar). It is conceivable that the drums and IBCs were produced by
several manufacturers and/or reconditioners. Each will arrive with its own set of
closure instructions. Emptier personnel will have to match up the appropriate drums
or IBCs with the current and corresponding closure notifications.
Other problems arise with the emptying personnel and their job stations. Where will
all the notifications be stored to ensure access for plan personnel? Can they stop
and read a closure notification in the course of their duties? Will they be required to
have torque wrenches and a program to re-calibrate wrenches regularly? How will
they know the appropriate (and properly calibrated) torque wrench has been used to
ensure proper closure. In a large manufacturing plant, these requirements will be
quite difficult to implement.
Finally, PHMSA must recognize that closing an emptied packaging is not necessarily
the same as closing one just filled. For instance, what if the emptied packaging now
has product stuck in the threads or to the gasket? This material will certainly affect
installation of a plug in either of two directions - too “slick” or too viscous to replicate
exactly the process described in the notification. Also, ambient conditions in the
emptier’s facility may be drastically different from those that existed when a
packaging was closed for design type qualification. Temperature, in particular, could
affect how closely the closing of a used, emptied drum can follow the closing of a
new, pristine drum design-type tested in a controlled, dry test facility.
Conclusion
PHMSA does not present adequately a safety need that supports this rule change.
Indeed, the preamble explains only that a 2006 request for interpretation led to the
current proposal. For the reasons stated above, RIPA believes PHMSA should
withdraw that part of the proposal dealing with closure notifications and emptied
packagings with residues. At a minimum, any final determination should be limited to
bulk packagings, as a bulk packaging was the subject of the 2006 interpretation.
RIPA thanks PHMSA for the opportunity to comment on the proposed rulemaking
HM-218G. Please contact RIPA with any questions or concerns.
C.L. Pettit
Director, Regulatory and Technical Affairs
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