[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Proposed Rules]
[Pages 50714-50720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24238]
[[Page 50713]]
_______________________________________________________________________
Part VIII
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Parts 171 through 180
Alternate Standards for Open-Head Fiber Drum Packaging; Proposed Rule
Federal Register / Vol. 60, No. 189 / Friday, September 29, 1995 /
Proposed Rules
[[Page 50714]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 through 180
[Docket No. HM-221; Notice No. 95-11]
RIN 2137-AC62
Alternate Standards for Open-Head Fiber Drum Packaging
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Termination of rulemaking concerning alternate standards for
open-head fiber drum packaging.
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SUMMARY: As directed by Section 122 of the Hazardous Materials
Transportation Authorization Act of 1994, RSPA has examined whether
there are alternate standards for open-head fiber drums that provide an
equal or greater level of safety as the HM-181 performance standards,
for the domestic transportation of liquid hazardous materials. Because
RSPA finds that there are no known alternate standards that provide an
equal or greater level of safety, RSPA is closing this rulemaking
without proposing alternate standards. RSPA initiated this rulemaking
in an advance notice of proposed rulemaking published on October 7,
1994 [59 FR 51157], and invited the submission of further proposals and
comments in a supplemental advance notice of proposed rulemaking
published on January 25, 1995 [60 FR 4879].
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street, SW, Washington, DC 20590-0001;
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Statute
Section 122(a) of the Hazardous Materials Transportation
Authorization Act of 1994 (Pub. L. 103-311) (the ``Act'') requires DOT
to initiate a rulemaking proceeding
to determine whether the requirements of section 5103(b) of title
49, United States Code (relating to regulations for safe
transportation) as they pertain to open head fiber drum packaging
can be met for the domestic transportation of liquid hazardous
materials (with respect to those classifications of hazardous
materials transported by such drums pursuant to regulations in
effect on September 30, 1991) with standards other than the
performance-oriented standards adopted under docket number HM-181
contained in part 178 of title 49, Code of Federal Regulations.
If, as a result of this rulemaking proceeding, DOT determines
that a packaging standard other than the performance-oriented
packaging standards referred to in [Section 122(a)] will provide an
equal or greater level of safety for the domestic transportation of
liquid hazardous materials than would be provided if such
performance-oriented standards were in effect, [DOT] shall issue
regulations which implement such other standard and which take
effect before October 1, 1996.
Section 122(b). The Act also requires that the rulemaking
proceeding be completed before October 1, 1995 (Section 122(c)), but
that this rulemaking and any regulations issued ``shall not apply to
packaging for those hazardous materials regulated by the Department of
Transportation as poisonous by inhalation * * *'' Section 122(d)(1).
B. HM-181 Performance Standards
As authorized by 49 CFR 171.14, ``non-specification'' packagings
may be used until October 1, 1996, for the transportation of the
following categories of liquid hazardous materials:
1. Flammable liquids with a flash point above 73 deg.F, in
packagings up to 110 gallons (55 gallons for cargo aircraft, one
gallon for passenger aircraft);
2. Liquid cleaning compounds and four other liquid corrosives
(coal tar dye, dye intermediate, mining reagent, and textile
treating compound), in drums with a removable or ``open'' head
(steel and fiber drums may not be larger than 55 gallons, and the
limit for plastic drums is 6.5 gallons) for shipments by rail,
highway, and water only; and
3. Hazardous wastes and hazardous substances not included in
another hazard class (for materials with a vapor pressure exceeding
16 psi at 100 deg.F, the packaging must be capable of withstanding
the inside vapor pressure at 130 deg.F without leaking).
The non-specification packagings authorized for use until October 1,
1996, need not meet the former ``DOT'' design specifications, but they
must be designed, constructed and used so that there will be no
identifiable release of hazardous materials to the environment under
conditions normally incident to transportation and the effectiveness of
the package will not be substantially reduced. 49 CFR 172.24(b); see
also 49 CFR 173.24(a) (1990 ed.).
After September 30, 1996, however, fiber drums and other non-bulk
packagings used for the transportation of these categories of liquid
hazardous materials must meet the performance-oriented standards
currently set forth in the Hazardous Materials Regulations (HMR) at 49
CFR Part 178, Subpart M. See 49 CFR 171.14(b)(6). (Non-bulk packagings
are those which have a capacity up to 450 liters (119 gallons) or a net
mass up to 400 kg (882 lbs.). This discussion of the HM-181 performance
standards applies only to non-bulk packagings.)
For liquid hazardous materials, the tests and standard prescribed
in the following sections of 49 CFR apply:
Section178.603--drop test
Section178.604--leakproofness test
Section178.605--hydrostatic pressure test
Section178.606--stacking test
Section178.608--vibration standard
These performance-oriented standards replaced DOT design specifications
and were adopted in RSPA's rulemaking proceeding in Docket No. HM-181.
55 FR 52042 (Dec. 21, 1990); 56 FR 66124 (Dec. 20, 1991); 57 FR 45446
(Oct. 1, 1992). (Former DOT specifications may be found in the October
1, 1990 edition of Title 49 CFR.)
The performance standards adopted in HM-181 are based on United
Nations (UN) recommendations (and sometimes referred to as ``UN
standards''). They are intended to simulate the normal transportation
environment and to achieve international uniformity. Under the UN
standards, packagings are subjected to design qualification tests as
well as periodic retesting (every year for single packagings; every two
years for combination packagings). 49 CFR 178.601(d), (e). In addition,
each packaging designed to contain liquids must be subjected to
leakproofness testing during production and before reuse. 49 CFR
173.28(b), 178.604(b)(1).
The severity of the tests to which packagings are subjected varies
according to the degree of hazard of the material to be transported.
Packagings for materials with the greatest hazards (in Packing Group I)
must perform at a higher level than packagings designed for less
hazardous materials (in Packing Groups II and III). See 49 CFR
178.603(e), 178.604(e), 178.605(d).
A drop test is required for all hazardous materials packagings
marked with the UN identification. It is intended to simulate a
packaging's fall in transportation, such as a fall off a hand truck or
fork lift, or simply off another packaging. The minimum height for the
drop test is 0.8 meters (31.5 inches or 2.6 feet) for Packing Group III
materials, but greater heights are specified for Packing Group I and II
materials. 49 CFR 178.603(e). A stacking test, which is required for
all hazardous materials packagings other than bags, determines whether
the packagings will withstand the loads that occur when packages are
stacked to a height of three
[[Page 50715]]
meters (approximately ten feet) on a vehicle or in a warehouse. 49 CFR
178.606(c).
Hydrostatic pressure and leakproofness tests apply only to a
packaging designed to contain liquid hazardous materials. In the
hydrostatic pressure test, a filled packaging is subjected to an
internal pressure. This amount of pressure depends on the liquid
material's vapor pressure and Packing Group; it may be as low as 20
kiloPascals (kPa) (less than three psi) for low volatility, low hazard
materials, and more than 250 kPa (approximately 36 psi) for Packing
Group I volatile liquids. 49 CFR 178.605(d). This test is intended to
determine whether the increase in pressure that can occur with a rise
in temperature will deform the packaging and cause it to leak.
A leakproofness test is performed as one of the packaging design
qualification tests and also on every packaging produced. Depending on
the Packing Group of the material to be transported, internal air
pressure of 20 or 30 kPa (roughly 2.9 or 4.4 psi) is applied to each
packaging to determine if it leaks. 49 CFR 178.604(e). In addition, all
hazardous materials packagings must meet the vibration standard to
assure that the normal vibration incident to transportation will not
cause a packaging to fail. 49 CFR 178.608.
One of RSPA's purposes in the HM-181 rulemaking proceeding was to
promote ``safety in transport through the use of better packaging.''
Advance Notice of Proposed Rulemaking, 47 FR 16268, 16289 (Apr. 15,
1982). In the preamble to the final rule, RSPA noted that, in the past,
many packaging requirements had been ``based on industry standards,
with economic considerations sometimes taking precedence over safety
considerations, rather than on a systematic assignment of packagings
based on the hazards of the materials to be packaged and the
suitability of the packaging.'' 55 FR 52403. RSPA later affirmed that
an objective in HM-181 was ``to improve transportation safety by
upgrading package integrity for a number of materials, including
hazardous substances and wastes, previously shipped in non-
specification packagings.'' 56 FR 66145. (A wide variety of materials
are included in the category of hazardous substances, many of which,
such as polychlorinated biphenyls (PCBs), are not regulated except as
environmentally hazardous materials.
C. Prior Industry Requests for Relaxation of HM-181 Standards
Following issuance of the final rule in HM-181, the Fibre Drum
Technical Council (FDTC), submitted a petition for reconsideration in
which it asked RSPA to continue ``the status quo for domestic shipments
in non-D.O.T. specification drums'' of certain hazardous materials. In
December 1991, RSPA denied FDTC's petition and stated that, because it
intended to upgrade package integrity, it ``never intended to except
domestically-used fiber drums from the performance standards it
adopted'' in HM-181. 56 FR 66146.
In June 1992, FDTC then applied for an exemption from the HMR to
allow the continued use of open-head non-specification fiber drums for
rail and highway transportation within the United States of the three
categories of liquid hazardous materials specified above (plus certain
hazardous solids). FDTC stated that these drums would meet a series of
six standards prepared for the purpose of establishing an industry
specification.
To support its exemption application, FDTC asserted that, over the
1980-1991 period, these drums had a 99.99% safety record. FDTC also
stated that the fiber drum industry was ``completely unable to meet the
new UN/DOT specifications without incurring significant costs and
investments, which would make these drums prohibitively expensive in
the marketplace.'' It estimated that ``the average percentage (cost)
increase related to redesigning the fibre drums to meet specifications
is 50 percent'' and stated that ``the number of units to which the 50
percent increase applies represents a substantial portion of the fibre
drum industry.''
RSPA's Associate Administrator for Hazardous Materials Safety
denied FDTC's exemption application because he found that FDTC's
proposed impact test was not equivalent to the drop tests of 3.9 and
2.6 feet, respectively, required for Packing Group II and III
packagings, and that FDTC's other proposed standards did not address
the pressure requirements of the leakproofness and hydrostatic pressure
tests required for packagings intended for liquid hazardous materials.
RSPA's Acting Administrator affirmed the denial of FDTC's application
for an exemption and found that the standards proposed by FDTC would
not achieve a level of safety ``at least equal to that specified in the
regulation from which the exemption is sought.'' 49 CFR
107.103(b)(9)(i). In her detailed decision, the Acting Administrator
discussed the HMR's prior authority for the use of non-specification
fiber drums for certain materials, the adoption of the HM-181
performance standards which eliminated that prior authority, and
representative incidents involving spills when a fiber drum fell over
or was dropped a short distance. She also considered the 99.99%
``success rate'' for fiber drums but found that it ignored the types of
incidents which occur during normal transportation, including minor
accidents that justified RSPA's objective in HM-181 in upgrading
packaging integrity.
FDTC's successor organization, the International Fibre Drum
Institute (IFDI), states that Congress passed Section 122 of the Act
because it was concerned that RSPA had not considered the safety record
of open-head fiber drums when it denied FDTC's application for an
exemption. According to IFDI, Congress enacted this provision ``to
require DOT to take a 'fresh and fair' look at open-head fibre drum
packaging to determine whether it should be used after October 1, 1996
* * *''
D. ANPRM
On October 7, 1994, RSPA published in the Federal Register an
advance notice of proposed rulemaking (ANPRM), Docket No. HM-221;
Notice No. 94-9 (59 FR 51157), soliciting comments and proposals for
alternate standards for open-head fiber drum packaging. In the ANPRM,
RSPA requested ``[d]etailed comments and proposals * * * that will
assist RSPA in developing an appropriate regulatory proposal consistent
with the requirement'' in Section 122 of the Act. 59 FR 51158. RSPA
invited proposals, ``preferably in the form of a draft standard, that
would assist RSPA in accomplishing the intended effect of this law.''
Id. RSPA also invited comments on whether alternate standards for open
head fiber drums should be limited to domestic transportation of liquid
hazardous materials.
In response to the ANPRM, RSPA received comments from 17 parties.
In addition, RSPA's Administrator and other DOT officials held separate
meetings concerning this rulemaking with: (1) IFDI's counsel and
officials of Sonoco Products Company (a member of IFDI), and (2)
representatives of the Association of Container Reconditioners (ACR),
the 3M Corporation, USX Corporation, and the Steel Shipping Container
Institute (SSCI). Notes of these two meetings have been placed in the
public docket for this rulemaking.
Only IFDI proposed alternate standards for open-head fiber drum
[[Page 50716]]
packaging for the transportation of liquid hazardous materials. The set
of six standards it has offered appear to be identical to the standards
proposed by FDTC in its 1992 exemption application and, according to
IFDI, ``accurately predict, and will continue to accurately predict,
the safety of liquid hazardous materials as transported in open-head
fibre drums.'' IFDI referred to ``a 30-year record of safe shipping
experience,'' and a safety record that ``has continued to remain at
99.99 percent for the past 14-year period.'' It asserted that the ANPRM
was deficient for failing to specify factors that, according to IFDI,
Congress directed DOT to consider. These factors are set forth in
the legislative history and include: (1) DOT's Hazardous Incident
Reporting System as it pertains to fibre drums; (2) the fibre drum
industry's own safety record; (3) the 30 years of shipping
experience associated with use of these drums and (4) existing
industry standards that have led to the industry's ``excellent
shipping record.''
IFDI also contended that other matters were ``irrelevant'' to this
rulemaking, including the safety record for other packagings (similar
to that for fiber drums), the comparative costs of other packagings,
and possible impacts that alternate standards would have on
international trade agreements.
Several commenters expressed opposition to alternate standards for
fiber drums. The 3M Corporation stated: ``The UN performance standards
are very basic standards that simulate the transportation environment.
There are no other standards that simulate the current transportation
environment.'' DuPont acknowledged that it used a ``small amount'' of
fiber drums for shipping non-hazardous liquids, but that its
evaluations have led it to follow a ``long-standing practice'' of not
using fiber drums for hazardous liquids. Elf Atochem stated that
``liquid-type fiber drums could not offer the filler, carrier and
emptier an `equal or greater level of safety' to a drum which does pass
the required [HM-181] tests.''
SSCI argued that alternate standards would move the United States
away from an international system of hazardous materials regulations,
forcing some shippers to stock different packagings for domestic and
international shipments, and compromise transportation safety by
authorizing lower quality packagings. ACR stated that alternate
packagings should be approved only under the provisions of 49 CFR
178.601(h), which authorizes RSPA's Associate Administrator for
Hazardous Materials Safety to approve packagings which are ``shown to
be equally effective, and testing methods must be equivalent.''
Monsanto Company supported the position that fiber drums should
conform to the HM-181 performance standards, but it suggested a limited
exception to allow the use of non-standard fiber drums for the shipment
of liquid hazardous wastes in packing groups II and III to incineration
facilities, under certain conditions. Monsanto stated that it would not
be acceptable ``to allow for any other use of fiber drums which do not
meet the requirements of performance standards.''
Besides opposing the issuance of alternate standards, Russell-
Stanley and The Society of the Plastics Institute also stated that if
any alternate standards were adopted, they should apply to all open-
head drums, including those made from steel and plastic as well as
fiber. According to Sirco Systems, Inc., alternate standards would be
``a precedent for similar requests by other packaging industries
[which] could undermine the entire performance-oriented packaging
standards system * * *''
E. SANPRM
On January 25, 1995, RSPA published in the Federal Register a
supplemental advance notice of proposed rulemaking (SANPRM), Docket No.
HM-221; Notice No. 95-2 (60 FR 4879). In the SANPRM, RSPA reopened the
comment period and scheduled a public hearing to allow interested
parties to submit additional proposals as well as comments with regard
to the alternate standards offered by IFDI.
The SANPRM broadly encouraged interested parties to ``submit any
comments relevant to the direction in Section 122 of the Act.'' 60 FR
4880. Additional comments were invited on whether the alternate
standards proposed by IFDI meet the statutory measure, in light of the
prior determination by RSPA (on FDTC's application for an exemption)
that similar standards did not provide an equal or greater level of
safety than the HM-181 performance standards. RSPA also requested
comments on the ``factors set forth in the legislative history'' of
Section 122, as represented by IFDI; whether alternate standards, if
adopted, should apply to packagings other than fiber drums; and
Monsanto's proposal for a limited exception to allow non-standard fiber
drums to be used for shipping hazardous wastes to incineration
facilities.
At a public hearing on February 17, 1995, statements were presented
by IFDI, three manufacturers of fiber drums, two shippers of hazardous
materials in fiber drums, ACR and SSCI. RSPA also received 13
additional written comments, including five from members of Congress:
Sens. Hollings (D-SC) and Thurmond (R-SC) and Reps. Baker (R-CA),
Gillmor (R-OH), and Spratt (D-SC). All the statements and comments to
the ANPRM and the SANPRM have been carefully considered as discussed
below.
II. IFDI's Proposed Alternate Standards
FDTC's June 1992 exemption application and IFDI's comments in this
proceeding both state that open-head fiber drums presently being
manufactured meet the stacking test set forth in 49 CFR 178.606 and the
vibration standard set forth in 49 CFR 178.608. As alternatives to the
other three HM-181 performance standards (drop, leakproofness, and
hydrostatic pressure tests),
IFDI has proposed a set of six standards entitled as follows:
IFDI Standard 101, Rev. 1--Compatibility Test
IFDI Standard 110, Rev. 1--Joint Integrity Test
IFDI Standard 120, Rev. 1--Leakage Spray Test
IFDI Standard 130, Rev. 1--Weatherproofing Test
IFDI Standard 140, Rev. 1--Fibre Drum Structure
IFDI Standard 150, Rev. 1--Impact Test
IFDI's standard for fiber drum structure (No. 140) specifies the
manner and materials for construction of fiber drums, rather than a
test of how the drums will perform. It sets forth specifications for
the drum heads, joint materials (caulking and gaskets) and sidewall
(paperboard caliper, burst strength, and adhesive). This standard
requires that the drum manufacturer know the expected use for the drum,
as it specifies non-water soluble adhesive only for drums ``intended
for outdoor or high humidity storage.'' It also states that a
polyethylene, polymer or poly/foil liner, laminated to the paperboard,
``may be used as the interior ply to provide liquid-holding capability
and/or improved product protection and drum cleanliness properties.''
IFDI's other five standards represent forms of performance
standards; according to IFDI, four of them set forth tests to which
samples are subjected during the design phase (before regular
production begins), and the fifth (leakage spray, No. 120) is ``a
production run test on each container.'' In summary, these five
standards consist of:
Compatibility (No. 101)--The test consists of folding and
stapling a 6''
[[Page 50717]]
square of the drum's lining material into a five-sided cube (or
``boat'') and exposing the bottom creases under the surface level of a
sample of the liquid hazardous material in a closed 8 oz. jar which is
then elevated in temperature for ``any appropriate set of time and
temperature conditions'' (for example, 130 deg.F for 30 days). Other
``product contact'' materials (such as caulking and gaskets) may also
be placed in the jar. Success is indicated when there is no stress
cracking of the lining material. IFDI indicates that this test is
performed for each different liquid hazardous material for which the
drum is to be used.
Joint Integrity (No. 110)--The test consists of filling a
drum with water containing a ``wetting agent'' (such as ``a squirt of
dish detergent'') and subjecting the drum to the one-hour vibration
test specified in 49 CFR 178.608. Success is based on the absence of
any ``observable staining of the interior and exterior of the drum in
the vicinity of the bottom chime.'' However, IFDI also states that the
drum is closed and, accordingly, this test establishes the integrity of
both top and bottom joints, including the gasket used in the closure.
Leakage Spray (No. 120)--The test consists of spraying
``[a]ll interior seams and joints of the (plastic lined) surface of
each drum * * * with denatured alcohol or its equivalent in such a way
that the target drum areas are wetted.'' The drum passes the test if no
stains are observed on the interior surface that would indicate that
the paperboard has been wetted through the plastic lining.
Weatherproofing (No. 130)--This test is applied only to
drums intended for outdoor or high humidity storage and consists of
subjecting random samples to a 72-hour shower of water at the rate of
one inch per hour. The drum passes the test if it loses no more than
15% of its compression strength and is still capable of passing the
stacking test in 49 CFR 178.606.
Impact (No. 150)--After conditioning at specified
temperature and humidity for 48 hours, the drum is filled to its net
capacity with water and subjected to two tests. It is first tipped over
on concrete onto its cover chime. The same drum must then withstand a
diagonal drop on the bottom chime ``sufficient to provide at least 500
foot-pounds impact,'' except that the minimum drop height is one foot
and the maximum is two feet. This means that a 55-gallon fiber drum
designed to contain a liquid with the specific gravity of water (8.3
lbs. per gallon) would be tested from a height of approximately 13
inches. A drum passes the test if there is no leakage.
According to IFDI, ``[t]he impact test cannot be evaluated by
itself,'' but three standards in combination (structure, joint
integrity, and impact) account for the ``outstanding record'' of fiber
drums and should be compared to DOT's drop test. IFDI also states that
the leakage spray test is the industry's version of DOT's leakproofness
test, although no pressure is applied ``because of the nature of the
materials of construction.'' Nonetheless, IFDI states that this is an
``exceedingly sensitive'' test and ``will reliably detect the smallest
leaks.'' IFDI further comments that the liquid hazardous materials for
which fiber drums have been authorized have low vapor pressures, for
which the hydrostatic pressure in 49 CFR 178.605 is not necessary. IFDI
indicates it will not object if RSPA issues alternate standards limited
to liquids with a vapor pressure (Reid Test) not to exceed 16 psia at
100 deg.F.
IFDI implies that its standards have been in use in the fiber drum
industry since 1973, when the liquid materials shipped in fiber drums
were first regulated under the HMR. IFDI has claimed a safety record
for fiber drums of 99.99% since 1980, based on its review of industry
records and DOT's Hazardous Materials Incident Reporting System (HMIS)
(and a comparable record before that time). It states that the lack of
customer complaints and commercial claims confirms that fiber drums are
dependable and safe. Three members of IFDI and two users of fiber drums
echo these contentions: Astro Fibre Drum Inc., General Cooperage Co.,
Sonoco Products Co., Neste Polyester Inc., and Sybron Chemicals Inc.
General Cooperage indicates that 40 million fiber drums of all
types are produced each year; between 1980 and 1991, a total of more
than 13 million were built for shipping solid and liquid hazardous
materials and, during that time, DOT received only 1,487 incident
reports ``indicating a failure of some type with fibre drums of all
kinds.'' (In its 1992 exemption application, FDTC stated that only 455
of these incidents involved liquid hazardous materials for which non-
specification fiber drums were authorized.) According to General
Cooperage, the HMIS ``indicates that only 72 failures occurred between
January 1992 and October 1994 from a total of two million drums built
for liquid hazardous materials.'' Astro and Sonoco also refer to the
fiber drum industry's ``99.99 percent safety record.''
Neste states that, for each of the past seven years, it has shipped
approximately 10,000 fiber drums containing its gelcoat product, a
polyester resin, without any reported incidents of spillage or other
problems in shipping and handling. It indicates it has not had the same
success with steel drums, which it previously used. Sybron testifies
that it has not had any ``safety-related problems'' during more than 20
years of shipping various materials, including corrosives and
combustibles, in open-head fiber drums. It states its customers prefer
fiber drums to other packagings, such as steel and plastic drums, and
that fiber drums offer ``definite advantages'' over these other
packagings.
IFDI and Sonoco both assert:
The yardstick by which any alternate standards should be
measured or evaluated in determining whether the standards provide
an equal or greater level of safety for transport is whether the
standards predict safety in the transport--not whether the alternate
standards are identical to the UN or HM-181 standards.
These parties further contend that IFDI's proposed alternate standards
``should be evaluated as a whole in terms of their ability to predict
safety'' in transportation of hazardous materials, and ``not on an
individualized basis.''
ACR and SSCI specifically challenge IFDI's proposed standards. ACR
repeats an earlier characterization of IFDI's alternate standards as
``similar to but less stringent than those adopted by DOT under HM-
181.'' SSCI states that the HM-181 performance standards are ``minimum
standards based on real world experience and conditions,'' but that
IFDI's proposed standards ``do not adequately reflect a `real world'
transportation environment.'' ACR contends that the fiber drum
industry's arguments come down to: (1) Non-specification open-head
fiber drums have a good record of safety in transportation, and (2)
these fiber drums have been constructed to industry standards which,
based on shipping experience, appear to work well in practice even
though the industry standards are not as stringent as the HM-181
performance standards. In this context, however, SSCI states that the
IFDI standards ``were first adopted in May 1992,'' both questioning the
procedures under which these standards were adopted and implying that
the prior shipping experience has little relevance.
ACR points out that IFDI's compatibility test (Standard 101) may be
run ``under any appropriate set of time and temperature conditions,''
which ``does not meet the rigors of good packaging testing methodology,
makes nearly impossible meaningful comparisons of test data, and
eliminates the possibility of repeating the tests for purposes of
enforcement.'' According to
[[Page 50718]]
SSCI, IFDI acknowledged at the February 17, 1995 public hearing that
the compatibility test was not routinely performed. SSCI also takes the
position that the compatibility requirement in 49 CFR 173.24(e)
``renders this test moot.''
Both ACR and SSCI contend that, because IFDI's leakage spray test
(Standard 120) does not require pressure inside the fiber drum, it is
not equivalent to DOT's leakproofness test. ACR states that the leakage
spray test would not be adequate if the vapor pressure of liquid
materials ``exceeds that of the previously authorized materials.'' SSCI
asserts that this is a problem also with IFDI's joint integrity test
(Standard 110) if liquids have ``elevated vapor pressures in the normal
range of temperatures experienced during transport.''
SSCI describes IFDI's impact test (Standard 150) as a ``pale
substitute'' for DOT's drop test and ``substantially inadequate to
simulate the full range of transporting experiences.'' It notes that
IFDI's impact test does not require dropping a fiber drum more than two
feet, which is some 30% less than the 0.8 meters required for
packagings certified for Packing Group III materials. SSCI's comments
include a memorandum by a professor in the Virginia Tech Department of
Mechanical Engineering, who indicates that ``energy that must be
dissipated at impact is proportional to the drop height (so that) a
drum dropped from a height of 2.7 ft. would have to absorb 2.7 times
the energy resulting from an impact from a 1 ft. height.'' This
professor states that steel would ``dissipate about 3.5 times the
energy in plastic deformation'' as compared to fiberglass epoxy, which
he assumes to have similar properties to a fiber drum. He concludes
that
a valid drop test for drums of different materials must be performed
at the same drop height. Drums that are dropped during handling are
going to be dropped from the same height regardless of the material
that the drum is made of. Therefore, the height that container
industry determines by consensus to be representative of mishandling
in the field should apply to all container materials. To request a
different height for different materials is to ignore how containers
are handled in the field.
Shell Chemical Company believes that IFDI has not demonstrated that
fiber drum packaging provides a level of safety equivalent to the HM-
181 standards for the transportation of liquid hazardous materials.
DuPont also urges DOT not to accept ``a standard for the United States
that is less than the international standard.''
III. Other Industry Standards for Non-hazardous Materials
At the February 17, 1995 public hearing, IFDI noted that there are
numerous ``methods used to evaluate packaging other than the UN
performance standards,'' including the Uniform Freight Classification
(UFC), the National Motor Freight Classification (NMFC), and the
National Safe Transit Packaging systems. According to IFDI, these
systems were developed to evaluate a packaging's ability ``to retain
its contents so that the packaging will be delivered intact; that there
will be no loss of contents.'' SSCI also stated that the ``American
performance standards for shipping containers (including the drop,
compression, permeability and vibration tests) were first developed by
the American Society of Testing and Materials (ASTM) in the 1940's.''
All of these other systems apply to general freight. Both UFC and NMFC
explicitly state that hazardous materials must be tendered in
accordance with DOT's regulations, i.e., the HMR. UFC Rule 39; NMFC
Item 540. ASTM Standard Practice for Performance Testing of Shipping
Containers and Systems (D 4169) states that the ``suitability of this
practice for use with hazardous materials has not been determined.''
As IFDI testified, the UFC and NMFC systems generally use a
combination of ``both design and performance systems.'' This is similar
to the former DOT 21C specification for fiber drums, which set forth
the minimum thickness and strength for the top, bottom, and sidewall of
the fiber drum and also included a compression test and a series of
four drops from four feet in different orientations (top chime, bottom
chime, sidewall and closure). See 49 CFR 178.224 (1990 ed.). The UFC
and NMFC standards applicable to fiber drums for liquids set forth
several different options. All but one of these options include
construction standards, capacities and weight limits as well as the
following similar to IFDI's impact test:
Drums filled to net capacity with water must withstand without
leakage a tipover fall on concrete on the cover chime followed by a
diagonal drop on the bottom chime sufficient to provide at least 500
foot-pounds impact, except that a maximum height of drop shall not
exceed two feet and the minimum height of drop not less than one
foot.
The last option in the UFC and NMFC systems allows the use of a fiber
drum that passes a four-foot drop test from two different orientations,
without regard to construction specifications. In this respect, the UFC
and NMFC systems resemble the HM-181 performance standards.
The ASTM D 4169 standard provides for a single test sample to be
subjected to a series of tests, such as climate hazards, handling,
vehicle stacking, and vibration (loose-load and stacked). The specific
tests performed and their order are determined by the shipper's
intended ``distribution cycle'' as to how the package will be shipped,
the ``acceptance criteria'' (whether the package is damage-free or
merely intact), and the desired ``assurance level.'' The last is
``based on the product value, the desired level of anticipated damage
that can be tolerated, the number of units to be shipped, knowledge of
the shipping environment, or other criteria.'' Within ``handling'' is a
drop test that also depends on the type and shipping weight of the
package. Among the test methods referred to in ASTM D 4169 is the
Standard Test Method for Drop Test for Loaded Cylindrical Containers (D
997), applicable to barrels, drums and kegs of all construction
materials. The procedure for drop tests states that the height from
which the drum is dropped ``will depend upon the purpose of the test,
but normally will be 4 ft (1.2 m).'' Otherwise, ASTM D 4169 generally
prescribes lower drop heights for ``large and heavy shipping units and
unitized loads to withstand mechanical handling hazards,'' up to one
foot; as applied to drums, these standards appear to contemplate that
the drums are secured to a pallet for handling.
Procedures of the International Safe Transit Association (formerly
the National Safe Transit Association) for testing packaged products
weighing over 100 lbs. (Project No. 1) consist of a vibration test
followed by an incline-impact test. For the latter, the package slides
down an inclined plane and strikes a vertical surface at a specified
velocity. However, this standard appears to be designed only for
materials packaged in boxes, and it is not applicable to drums.
IV. Finding on Alternate Standards
Packagings manufactured to IFDI's proposed standards will not meet
the drop, leakproofness and hydrostatic tests adopted in HM-181. No
pressure is applied in IFDI's leakage spray test. And IFDI's impact
test does not measure the ability of a fiber drum to survive a fall on
its bottom chime from the minimum 2.6 feet height specified in the HM-
181 drop test. The other industry standards discussed above also do not
assure that packagings will perform to the same level as packagings
that meet the HM-
[[Page 50719]]
181 performance standards (other than perhaps the option in the UFC and
NMFC systems that includes a four-foot drop test).
As directed by Section 122 of the Act, RSPA must determine whether
any of these alternate standards will provide a ``level of safety''
equal or greater than that provided when packagings meet the HM-181
performance standards. RSPA believes that any specified ``level of
safety'' in the transportation of hazardous materials can only be
measured with reference to the performance of the packaging used to
transport those hazardous materials. If the packaging fails, safety is
compromised. The ultimate purpose of any packaging standards must be,
as IFDI puts it, their ability ``to predict the safety of [the
packaging] in the transportation environment.'' In other words, how
will the packaging perform, and to what extent will it protect its
contents during transportation? To make the finding required by Section
122 of the Act, RSPA must determine whether a packaging that meets
other standards will perform as well in the normal transportation
environment as a packaging that meets the HM-181 performance standards.
The flaw in IFDI's proposed alternate standards is that they
contain no means of assuring the same performance that the HM-181
standards measure. IFDI's impact test, a tipover followed by a one- to
two-foot drop on the bottom chime, is essentially a lesser form of the
2.6-foot drop test in 49 CFR 178.603. IFDI states that its structure,
joint integrity and impact tests, in combination, must be compared to
DOT's drop test. But RSPA cannot find anything in the first two that
compensates for the inability of IFDI's 55-gallon fiber drum to survive
a drop of more than 13 inches. RSPA recognizes the historical use of
construction specifications, alone or with performance tests, in IFDI's
proposed standards and in the former DOT specifications. However, the
only purpose of construction standards is to assure satisfactory
performance. A fiber drum manufactured to the IFDI standards cannot
perform as well, or achieve the same level of safety as, a drum meeting
the HM-181 standard of a drop from 2.6 feet or more.
Similarly, since liquids expand in hot weather, a packaging that
will not withstand an increase in pressure is simply not as safe as one
that will. While IFDI has stated that it would not object if RSPA
limited the use of non-specification fiber drums to liquids with a
vapor pressure no greater than 16 psi, RSPA has no basis (from IFDI's
submission or otherwise) to find that this limitation is sufficient to
avoid those instances when an increase in internal pressure would
affect the performance of a drum.
Safety and the ability of a packaging to contain its contents can
be increased by certain handling practices that minimize damage to
individual packagings. For example, banding or wrapping individual
packagings secured to a pallet will reduce the likelihood of one
packaging falling over or off another. Restricting the height that
packagings are stacked will reduce the distance a single package can
fall off another. The familiarity and expertise of a private or
contract carrier, that handles only a few hazardous materials, reduces
risks associated with a common carrier that transports any freight
offered to it. Many exemptions issued by RSPA include operational
controls along these lines. Some of these controls are found in
Monsanto's proposal for a limited exception to allow the use of non-
standard fiber drums for the shipment of liquid hazardous wastes in
packing groups II and III to incineration facilities.
Monsanto's proposal would apply to the situation when the entire
package (with its contents) was to be incinerated, and would allow the
one-time use of drums similar in design to former DOT specifications
21C and 21P, under conditions similar to those set forth in 49 CFR
173.12(c) (authorizing the reuse of standard packagings for shipments
of hazardous waste, by highway only, when the packaging is finally
closed at least 24 hours in advance of transportation, inspected for
leaks, and loaded by the shipper and unloaded by the consignee--or
handled only by private or contract carrier). Monsanto would also limit
to 90 days the total time the non-standard fiber drum could contain the
liquid hazardous waste.
The only party to comment on Monsanto's proposal, the Association
of Waste Hazardous Materials Transporters (AWHMT) raised several
questions. AWHMT expressed concerns that the liquid hazardous waste
would cause the fiber drums to deteriorate during a 24-hour holding
period. It also noted that drums are typically double stacked (one on
another) during transportation and asked whether double stacking would
``compromise the integrity of fiber-drum packagings containing
liquids.'' For AWHMT, the packaging material and pre-trip requirements
were not important, but
all packaging should meet the same level of transportation
performance * * * based on safety, not the use proposed for the
packaging after transportation * * * In short, transporters should
not have to assume increased risk for the convenience of a shipper
or consignee.
Monsanto's suggestion appears to exclude fiber drums built to
IFDI's proposed standard, because the drums Monsanto would use would
meet former DOT specifications 21C (which includes a four-foot drop
test) or 21P (which mandates the tests applicable to the inside plastic
container). 49 CFR 178-224-2(b), 178-225-5(b) (1990 ed.). In this
circumstance, and without further comments on Monsanto's proposal in
response to the ANPRM, there is insufficient information on which to
propose a rule concerning the use of fiber drums for the shipment of
liquid hazardous wastes to incineration facilities.
IFDI, any of its member companies or any other person that wants to
use non-specification fiber drums for this or any other purpose may
petition RSPA for a rulemaking, in accordance with 49 CFR 106.31, or
apply for an exemption and provide the information specified in 49 CFR
107.103.
RSPA assumes that there are an infinite number of possible
alternate standards that could be measured against the level of safety
provided by the HM-181 performance standards. However, the final
determination of whether any standard provides an equal or greater
level of safety as the HM-181 standards must rest on whether it
produces a packaging that will perform as well in the normal
transportation environment as one that meets the HM-181 standards.
Because IFDI's proposed standards do not assure this same performance,
they will not provide as great a level of safety for the transportation
of liquid hazardous materials as the HM-181 standards. In light of that
finding, Section 122 does not require RSPA to propose any amendments or
additions to the HMR.
V. Congressional Concerns and Other Matters
IFDI points to language in the Congressional Record, and letters
from Senators and Representatives to the docket, urging RSPA to
consider the fiber drum industry's ``excellent shipping record.'' These
letters also question whether the scope of this rulemaking is
consistent with Section 122 of the Act.
Sen. Hollings states that RSPA should not consider whether
alternate standards should apply to other packagings in this
rulemaking. Both he and Sen. Thurmond believe that RSPA's request for
estimates of cost differences between present and proposed packagings
``goes beyond the statutory mandate.'' As Sen. Thurmond states,
[[Page 50720]]
``the Act directed DOT to consider only one issue--safety.'' Sen.
Thurmond and Reps. Gillmor, Spratt and Baker all advised RSPA to
consider the factors mentioned in IFDI's comments to the ANPRM (on
which RSPA invited comments in the ANPRM). Sen. Hollings and Rep.
Gillmor questioned whether RSPA had prejudged the issues in this
rulemaking, and Rep. Spratt stated that the standard of an equal or
greater level of safety ``is specifically not a standard of equivalence
to the performance tests of HM-181.''
The Supreme Court has made clear that the ``starting point in
determining the scope'' of legislation ``is, of course, the statutory
language.'' North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520 (1982).
Resort to legislative history, or the asserted intentions of a
statute's sponsors, is unnecessary when the language of the statute is
unambiguous. Freytag v. Commissioner, 501 U.S. 868, 873 (1991) (``When
we find the terms of a statute unambiguous, judicial inquiry should be
complete except in rare and exceptional circumstances.''); United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (where
``the statute's language is plain,'' the only task is to enforce the
law according to its terms).
In this case, the Act's command is clear: DOT must determine
whether alternate standards will provide ``an equal or greater level of
safety'' than the HM-181 performance standards. The level of safety to
be provided by alternate standards is the sole basis of RSPA's finding
in Part IV, above, consistent with Section 122 of the Act. Historical
shipping experience under lesser standards, in effect prior to the
adoption of the performance standards in HM-181, cannot be dispositive.
As a matter of fact, the actual experience of shipping hazardous
materials in fiber drums was considered in RSPA's detailed decision on
FDTC's appeal from the denial of its application for an exemption.
There RSPA's Acting Administrator found that the claimed 99.99%
``success rate'' for fiber drums was comparable for all packagings but,
notwithstanding that record, it was appropriate to further improve
safety in HM-181 by eliminating non-specification packagings of all
constructions (metal and plastic, as well as fiber). Were RSPA to have
accepted the fiber drum industry's position that the past shipping
record was satisfactory, that success rate ``would foreclose RSPA from
taking any further actions to require appropriate levels of safety for
the transportation of hazardous materials.'' Moreover, the types of
incidents involving fiber drums were considered to be more reflective
of a packaging's performance, and the need to upgrade the packaging,
than just the number of incidents.
Also beyond the direction of Section 122 of the Act is IFDI's claim
that the HM-181 standards are too strict and need to be relaxed for
fiber drums. Under Section 122, the benchmark for alternate standards
is HM-181, not some less protective version thereof. Moreover,
contentions regarding the impossibility of making fiber drums to meet
the HM-181 performance standards and arguments concerning other
exceptions from the HM-181 requirements were discussed in detail in the
decision on FDTC's appeal from a denial of its application for an
exemption.
The only additional matter raised in IFDI's comments in this
proceeding relates to an approval recently issued by RSPA that permits
the remarking of steel drums, as meeting the HM-181 standards without
additional testing, that were certified to meet the former DOT
specifications at dates up to September 30, 1994. (Packagings may not
be made to the former DOT specifications after September 30, 1994. 49
CFR 171.14(b)(5)(ii).) Those former DOT specifications included a
series of tests in which sample drums were required to be tested at
pressures of 15 psi or more (some up to 80 psi) and dropped from a
height of at least four feet, in various orientations (e.g., diagonally
on the chime and on any other part ``considered weaker than the
chime,'' 49 CFR 178.116-12(a)(1990 ed.)). Moreover, a remanufacturer
who remarks a steel drum, under the authority of this approval,
certifies that the drum is capable of meeting the HM-181 performance
standards.
In contrast, IFDI would continue the authority to transport liquid
hazardous materials in fiber drums that cannot pass a drop test greater
than two feet (or 13 inches for the standard 55-gallon drum) or a
hydrostatic pressure test at 3 psi. Nothing in RSPA's approval for
remarking steel drums can justify the continued use of fiber drums that
do not meet either the former DOT specifications or the HM-181
performance standards.
Section 122 of the Act requires RSPA to determine whether alternate
standards for fiber drums provide ``an equal or greater level of
safety'' as the HM-181 performance standards. As already discussed, a
standard that requires only a one- to two-foot drop test does not
provide an equal level of safety as a standard that requires being able
to withstand a drop of 2.6 feet. The separate question raised by IFDI,
whether certain steel drums actually meet the former DOT specification,
is beside the point and concerns enforcement of the applicable
standards rather than the appropriate standard to be applied.
VI. Final Agency Action
This rulemaking proceeding is terminated, and this decision
constitutes RSPA's final agency action.
Issued at Washington, DC on September 21, 1995, under authority
delegated in 49 CFR Part 1.
D.K. Sharma,
Administrator.
[FR Doc. 95-24238 Filed 9-28-95; 8:45 am]
BILLING CODE 4910-60-P
