Lawrence W. Bierlein, Attorney at Law

Transcription

1 RECONDITIONING CONTAINERS Lawrence W. Bierlein, Attorney at Law General Counsel, National Barrel & Drum Association Washington, DC The National Barrel & Drum Association (NABADA) represents reconditioners of containers, primarily 55-gallon steel and plastic drums. Our members generally do not recondition packaging smaller than 30 gallons. This is an established industry, and processes million drums annually. Most drums contain some residue of their former contents, and often those residues are hazardous materials. The drum reconditioning industry has been regulated for many years by the U.S. Department of Transportation (DOT), which prescribes specifications for new and reused packaging for hazardous materials (see 49 CFR Parts 173 and 178). Among these requirements are certain quality standards for the drum reconditioning process, including pressure test requirements, registration of parties engaged in the process, and various container markings and certifications. Under the DOT rules, an emptied container that has not been cleaned must be shipped as if it of its former contents, i.e., with all product labels, markings, etc., in place, and all closures tight. If the drum is going to someone other than for reconditioning, it must be accompanied by a certified DOT shipping document (not a manifest) that describes the contents by DOT shipping name, hazard class, and hazard identification number. 82

2 EPA has a very workable rule for most hazardous material residues in empty containers, set forth in 40 CFR Containers that are empty by this EPA definition are not regulated as hazardous wastes. For most residues a drum must be as thoroughly emptied as possible, but in no case can more than 1" (2.5 cm) of residue remain on the bottom. This does mean that each drum may contain an inch of residue -- it means the drum must be as thoroughly emptied as possible and, if more material will pour out, then it must be poured out before the container is considered empty. The 1" provision is an override in recognition of the greater viscosity of certain residues. For residues of acutels hazardous materials listed by name in 40 CFR (e), however, emptied containers must be triple rinsed with an effective solvent before being deemed to be empty and unregulated. Emptied drums come to reconditioners from a variety of sources. They can come directly from the emptier, or they can come from unknown sources through the services of dealers who collect them and deliver them to the reconditioner. Those coming directly from the emptier often are transported by the reconditioner in his own trucks, and it is common that a reconditioner's trailer will be parked at the emptier's plant to be loaded by the emptier's employees. Once received, drums are examined by the reconditioner and then may be washed, or may be put through a pyrolytic chamber and then shotblasted. Dents are removed, chimes are straightened, the container is tested for leaks (7 psi for hazardous materials drums), new gaskets and closures are put in place, and the drum is repainted. Containers that cannot be put back into service are cleaned and crushed in preparation for scrap dealers. As you know, EPA and approved States manage a permit system for hazardous waste treatment, storage and disposal facilities (TSDFs). Most drum reconditioners are permitted TSDFs -- these people are 83

3 professionals engaged in container restoration, not waste treatment. Accordingly, as a matter of law they only can accept containers satisfying EPA's empty container definition. Most reconditioners are hazardous waste generators, but not TSDFs. Containers that hold hazardous residues and do not meet this definition must be shipped on a hazardous waste manifest, using the services of an appropriately identified hazardous waste transporter, to a permitted TSDF. Shipping a non-empty hazardous waste drum to someone without a TSDF permit constitutes a serious regulatory violation by the generator, the transporter, and the receiving facility. The fact that this violation subjects the generator to punishment gives no comfort to the reconditioner who also may be prosecuted for having received a non-empty drum. In an endeavor to heighten emptiers' awareness of these liabilities, and of the critical provisions of Section 261.7, NABADA developed and last November its members began to use an "Empty Drum Certification" form. This document must be signed by the emptier or anyone else giving drums to a NABADA reconditioner. It says, "I hereby certify that these drums are 'empty' as that term is defined in the national Environmental Protection Agency regulations, 40 CFR 261.7, and that they have been properly prepared for transportation under the regulations of the US. Department of Transportation, 49 CFR " A copy of this form i7 attached. A serious difficulty arises for reconditioners with regard to drums used to ship the particular materials listed in Section (e) -- Le., those that must be triple rinsed. This list is a hodge-podge of materials, including liquids, solids and gases. We have been unable to determine with any certainty which of these materials are shipped in commerce at all, much less in 55-gallon drums. Many of the materials, for example, are totally prohibited in transportation under DOT regulations because of their instability (see 49 CFR and ). 84

4 Under the DOT regulations a shipper must mark the "proper shipping name" on each drum, and this name must remain on the emptied container until it is cleaned. The DOT shipping names, however, do not coincide with the names of the residues listed in 40 CFR (e). It is not the same as the brand name either. Thus, at least under the regulatory requirements as we perceive them, there is no clear notice to the emptier of the container that his residue is (e)-listed and, therefore, must be triple-rinsed in order to be unregulated under Section NABADA members' responsibilities and liabilities, and those of the transporter of the emptied container, hinge upon the emptier recognizing his material as being Section (e)-listed, and yet there is nothing in the regulations that provides a signal to him of this fact. This lack of a visual signal also leaves the reconditioner with no ready mechanism to double-check incoming containers for (eklisted residues. NABADA has discussed this with the Chemical Manufacturers Association, and I am raising it today for your consideration in this forum on pesticide container management. What is needed is a visual signal to the emptier, the transporter, and the receiving facility (whether it be a drum reconditioner, dump, scrap yard) that this container must be triple-rinsed or else it is a fully regulated hazardous waste. NABADA is not proposing a lengthy advisory statement. Frankly, none of the truck drivers or other personnel involved has the time or the professional background to discriminate between multisyllabic chemical names. NABADA perceives a need for a simple visual stimulus that conveys this message quickly, effectively, and preferably without having to touch the container. As a responsible association, NABADA members believe it is inappropriate to complain about a problem without proposing a solution. 85

5 NABADA suggests use of a consistent signal such as that attached to this paper, which is takes the form of a lower case "e" in a circle with a slash through it. This has the benefit of not duplicating any other symbols in use, and being easy to apply and to recognize, even when upside down. NABADA is not suggesting this is the only possible solution. This industry is suggesting, however, that there is a communications gap here, and that something must be done to close that gap other than by requiring the (e) chemical name to be marked on the container. NABADA seeks industry's involvement in the solution. If it appears that a government rule is necessary, NABADA is prepared to petition DOT and EPA for such rule making. e6

6 ~~ ~~~ ~ ~ EMPTY DRUM CER7WlCATION I hereby certify that these drums are "empty" as that term is defined in the national Environmental Protection Agency regulations, 40 CFR 261.7', and that they have been properly prepared for transportation under the regulations of the U.S. Department of Transportation, 49 CFR '* Date: *With regard to most regulated residues, EPA's 40 CFR says: "A container... is empty if: (i) All wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, e.g., pouring, pumping, and (ii) No more than 2.5 centimeters (one inch) of residue remain on the bottom of the container....i' EPA has explained this rule, saying that "one inch of waste material is an overriding constraint and may remain in an empty container only if it cannot be removed by normal means. The rationale for this provision is that there are certain tars and other extremely viscous materials that will remain in the container even after the container is emptied by normal means." For residues of products specifically listed by name in 40 CFR (e), EPA says the container is empty only "if the container... has been triple-rinsed using a solvent capable of removing" the product, or has been cleaned by another method shown to achieve equivalent removal. **DOT'S 49 CFR says that all openings on the empty container must be closed, and that all markings and labels must be in place as if the drum were full of its original contents. A DOT shipping paper is not required for transportation of a drum for reconditioning via contract or private motor carrier. DOT placarding is not required for vehicles carrying empty containers Fifteenth Street N.W. * Suite Washington. D.C. 2ow5 87