Thousands of manufacturing companies in the United States purchase raw materials in industrial packaging, such as drums and intermediate bulk containers. A majority of drums and IBCs filled in the United States contain materials regulated by the U.S. Department of Transportation, the U.S. Environmental Protection Agency or both.

Millions of steel and plastic drums, as well as IBCs, are used every year. Once these containers have been emptied of their original contents, small amounts of product residue often remain inside. The EPA and DOT insist that such residue be managed safely to protect human health and the environment.

So when do these agencies consider a container to be empty and therefore exempt from certain rules?

The What’s What on Waste

Reconditioners collect empty industrial containers and safely prepare them for reuse. This process includes cleaning and, if needed, reforming the container. In cases where reuse is not an option, the clean containers are prepared for scrap.

Today, most industrial containers can be reused several times. Steel and plastic 55-gallon drums, for example, are often used three or more times after initial service. Composite IBCs can often be cleaned and reused, or a new inner receptacle can be placed in a used outer cage, making the IBC ready for reuse.

In 1976, Congress passed the Resource Conservation and Recovery Act, giving the EPA authority to control hazardous waste from “cradle to grave.” This authority includes the generation, transportation, treatment, storage and disposal of hazardous waste.

Four years later, in 1980, the EPA adopted a comprehensive regulatory scheme governing the management of hazardous wastes, the rules of which did not distinguish between empty and non-empty industrial containers. As a result, reconditioners would be classified and regulated as treatment, storage and disposal facilities for hazardous waste. The Reusable Industrial Packaging Association (then the National Barrel and Drum Association) asked the agency to reexamine the policy to decide if this classification was warranted.

The EPA reviewed the issue and concluded it was not necessary to regulate empty containers as long as the containers were being processed by a reconditioner, because the removal of such residue was ancillary to the reconditioning process. Requiring residue to be managed as hazardous waste would impose substantial burdens on industry while potentially ending the environmentally beneficial practice of reusing industrial containers.

The final empty container rule adopted by the EPA provides that a container that has been drained using commonly employed industrial practices is deemed empty and is not subject to regulation.

That said, the agency created a few key volume exceptions to the rule for viscous materials transported in drums or IBCs. Generally, the exceptions allow up to one inch or 3 percent by volume for drums, and IBCs are 0.3 percent by volume.

If containers are not empty by the EPA’s definition, the contents may be classified as hazardous material or waste. The company that failed to empty the container could be considered a generator of hazardous waste and must have an EPA identification number. The company is responsible for managing the container under appropriate DOT or EPA rules.

DOT Trumps All

DOT shipping regulations apply regardless of exceptions granted by another agency. So, while an EPA-empty container is not regulated by the EPA, it is still subject to DOT regulations.

An industrial container that originally carried a DOT-regulated hazardous material that has been emptied—but which still retains the residue of that material—must be shipped as if it were full of its original contents.

This means the container must be closed securely, and all original closures must be tightly in place. If, for example, the cover of an open head drum is missing, or the closures on a tight head drum are missing or loose, the DOT regulations are not satisfied.

All marks and labels required when the container was full are required when it is shipped with residual contents.

The DOT is concerned about the hazards of the residue if it were to be released during loading, unloading, transport or storage. DOT rules apply even if the container is cut, torn, crushed or the closures are not fully present and secured. In fact, concern is enhanced because of the greater likelihood of the residue injuring transportation or plant personnel if it is released from a damaged container.

DOT states, “Crushed steel drums which have not been cleaned and purged of all hazardous material residue must be packed in authorized packagings and marked and labeled as required when the drums previously contained a greater amount of the hazardous material.”

This means companies that do not remove all hazardous residue from a container after emptying must overpack the crushed or shredded container. The overpack, for example a salvage drum, must meet all applicable DOT regulations. This includes use of an appropriately marked and labeled United Nations certified container for the transport of dangerous goods, as well as proper shipping documents.

Some exceptions from DOT shipping documentation requirements are grant-ed, but only for non-bulk packaging “when collected and transported by a contract or private carrier for reconditioning, remanufacture or reuse.” Emptied non-bulk industrial packaging being discarded or scrapped does not fit the criteria and therefore must be accompanied by certified shipping documents indicating the hazard of the residue. Shipping papers are also required if the shipper is a common carrier, such as a trucking or rail company that makes its services available to the public.

Placarding of the vehicle is not required for emptied non-bulk packaging but is required for intermediate bulk packaging that holds residue of hazardous material.

Compliance Programs

In 1986, shortly after the EPA promulgated the final empty container rule, the reconditioning industry rolled out a nationwide program designed to educate container emptiers about their responsibilities under those new requirements. The program, “Responsible Container Management,” was presented to companies throughout the U.S. and led to significant improvements in compliance.

As part of this program, RIPA created the empty container certification form, which allows emptiers to certify that both the DOT and EPA empty container requirements are met when emptied packaging is offered for transport. A “rejected” sticker was also developed by reconditioners to place on packaging containing excess product. The sticker is still used to identify a so-called heavy container and note the date and time of identification, as well as the name of the company that shipped it.

Under the federal Comprehensive Environmental Response, Compensation and Liability Act, persons who arrange for the disposal of hazardous substances may be held liable for the cleanup of any site where those sub-stances are released into the environment. This includes disposals of shredded or crushed containers sent to scrap yards, since at least one court case has found that the processing of scrap materials constitutes disposal under CERCLA.

In order to protect them-selves from disposal liability, prudent scrap facility operators will not accept uncleaned containers. In addition to the environmental consequences of releasing residue, the employees in the scrap yard may be exposed to hazardous chemicals and vapors in violation of the Occupational Safety and Health Act.

Recognizing this, the scrap industry association and RIPA established a joint recommendation that all industrial containers to be scrapped should be cleaned using an effective cleaning agent and purged of all foreign matter and prior residues, or should be thermally neutralized in a drum reclamation furnace.

In 1999, Congress passed the Superfund Recycling Equity Act, which included an amendment exempting scrap processors from cleanup liability when they send lightly contaminated recyclable material to down-stream customers that must meet specific operating criteria. However, this law has a provision that excludes any industrial shipping container, whether intact or not, having a capacity of 8 to 800 gallons, from the definition of “recyclable material.”

This means that any used industrial container such as a steel or plastic drum—whether whole, shredded or crushed—that is sent to a scrap yard or steel mill with residue in or on the container or its parts could expose both the generator and the recipient to full cleanup liability.

Additionally, disposal facilities such as landfills often will not accept empty industrial packaging. Operating rules for solid waste landfills generally prohibit such waste disposal, because eventually the packaging will corrode, disturbing the stability of the site.

Responsibility for the care and management of empty containers remains with the emptier long after the containers leave the plant. Potential environmental, transportation and health and safety liabilities arising from the mismanagement of emptied containers do not go away when the truck carrying those containers leaves the plant. Non-compliance can lead to civil and, in some cases, criminal prosecution for the emptier.

The emptier of any industrial container must meet the expectation to manage emptied containers in an environmentally sound manner. Companies that empty industrial containers have a duty to inform their employees and the companies with which they do business about potential liabilities associated with the management of empty residue containers. Companies should implement appropriate policies and procedures that ensure front-line personnel, such as plant managers, are trained to understand their responsibilities under all applicable laws and regulations.

Helping customers navigate the confusing regulatory environment associated with empty residue container management is a commitment all RIPA members make to their customers. RIPA offers educational pro-grams, sample corporate policies and procedures, technical and legal articles and training videos that customers can access to educate employees at every level. RIPA urges companies to utilize these programs and materials, and to work with RIPA members to be safe and compliant.

Safe industrial container management practices and the promotion of container reuse is both a favorable business proposition and a great way to promote sustainable environmental practices that are an integral part of American corporate culture.

By: Paul W. Rankin

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