{"operation":"document","citation":"99-0251","title":"Thompson, Hine & Flory L.L.P. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2000-03-21","effective_on":null,"summary":"99-0251 response to Thompson, Hine & Flory L.L.P. concerning 173.120.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0251.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0251.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0251","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1999/990251.pdf","body":"<<<PAGE 1>>>\n\n•\nU.S. Department\nof Transportation\n400 Seventh Street, S.W.\nWashington, D.C.\n20590\nResearch and\nSpecial Programs\nAdministration\nMAR 2 | 2000\nNorman J. Philion, Esq.\nThompson, Hine & Flory L.L.P.\nRef. No. 99-0251\n1920 N. Street, NW\nWashington, DC 20036-1601\nDear Mr. Philion:\nThis is in response to your August 31, 1999 letter regarding the use of recycled materials in\npackaging. Specifically, you address California's recent law requiring 25 percent post-consumer\nrecycled resin in eight-ounce to five-gallon plastic containers from and the potential problems\nlubricant.\nfaced by your client concerning the integrity of such packagings when shipping two-cycle\nBased on the information contained in your letter that the flash point of the two-cycle lubricant is\n170°-200°F, it is properly classed as a Combustible Liquid, not as a Class 3 (Flammable)\nliquid. A combustible liquid that is not a hazardous substance, hazardous waste, or marine\npollutant is not subject to the Hazardous Materials Regulations (49 CFR Parts 171-180) if\npackaged in non-bulk containers for highway transport. Accordingly, we recommend that\ndocumentation supporting your belief that packagings containing 25 percent post-consumer\nwaste are insufficient to provide secure containment should be forwarded to the appropriate\nagency in the State of California.\nI hope this satisfies your request.\nSincerely,\nDim tallis\nDelmer F. Billings\nChief, Standards Development\nOffice of Hazardous Materials Standards\nHIMANI\n990251\nI240NT\n\n<<<PAGE 2>>>\n\nAUG 31 1999 16:07 FR THOMPSON, HINE, FLORY2Ø2 785 Ø012 TO *00119*843243000 P.02/07\nTHOMPSON\nHINE & FLORY LLP\n99-025/\nAttorneys at Law\nTelephone:\nAugust 31, 1999\nFacsimile:\n202/973-2705\n202/331-8330\nVIA FACSIMILE\nMr. Edward T. Mazzullo\nDirector\nOffice of Standards\nResearch and Special Programs Administration\nU.S. Department of Transportation\n400 Seventh Street, SW\nWashington, DC 20590\nRe: Letter Request to You from AR Packaging Corp, Dated August 12, 1999\nDear Mr. Mazzullo:\nThis letter is written in support of the request submitted to you by Mr. Bruce C.\nDavidson, the Vice President of Marketing, AR Packaging Corp. by letter dated August 12,\n1999. A copy of Mr. Davidson's letter is attached for your convenient reference. In that letter,\nMr. Davidson describes the problem created by the law in California that now requires the use of\n25 percent post-consumer recycled resin in plastic containers from eight (8) ounces to five (5)\ngallons. Experience has shown that compliance with the California statute results in plastic\ncontainers that are likely to leak when they are utilized for packaging a two-cycle lubricant such\nas used in lawn mowers. This fact has created a significant dilemma for our client, The Toro\nCompany and its Lawn-Boy Subsidiary (\"Toro\". This dilemma has been recognized by\nofficials in California who, as Mr. Davidson notes in his letter, have shown an interest in trying\nto find an appropriate solution and who, to this end, have requested that the Department of\nTransportation provide information to the California Waste Management Board concerning the\nDepartment's requirements for packaging of the kind used for the two-cycle lubricant. It is our\nhope such information will be used by the Califomia Waste Management Board to exempt\nmanufacturers like AR and Toro from the requirement of the \"25 percent recycle rule.\"\nToro is in the business of manufacturing and distributing lawn mowers and other power\nequipment, and related equipment and supplies. The related supplies include a two-cycle\nlubricant which consumers purchase from Toro's distributors for use in their products. This two-\ncycle lubricant is identified in the Hazardous Materials Table (49 C.F.R. §172.101) as\n\"Petroleum products, n.o.s., UN1268, Packaging Group III.\" The lubricants are a Class 3 material\n1920 N Street, N.W. Washington, D.C. 20036-1601 202-331-8800 fax 331-8330\nBRUSSELS, BELGIUM\nCINCINNATI CLEVELAND COLUMBUS DAYTON PALM BEACH WASHINGTON, D.C.\n\n<<<PAGE 3>>>\n\nAUG 31 1999 16:07 FR THOMPSON, HINE, FLORY202 785 0012 TO *Ø0119*043243000 P.03/07\nHINE & FLORY LLP\nTHOMPSON\nMr. Edward I. Mazzullo\nAlturnrys at Low\nAugust 31, 1999\nPage 2\n(Flammable liquid). As Mr. Davidson points out in his letter, because the flash point of the two-\ncycle lubricant is 170°-200°F, it may be reclassed as a combustible liquid; and if it is so\nreclassed and packaged in non-bulk containers, the requirements of the hazardous materials\nregulations do not apply. §173.150(f)(1) and (2)' The two-cycle lubricant has been so reclassed,\nas Mr. Davidson notes. Nevertheless, the fact that the two-cycle lubricant has been reclassed as a\ncombustible liquid does not eliminate the necd to maintain the integrity of the non-bulk\npackaging. For if such packaging is to serve its purpose of holding the lubricant in a non-bulk\nconfiguration, it must not leak. If the package does leak, the terms of the exception specified in\n§173.1.50(f) would apparently no longer be met (i.e. the lubricant, released to the environment, is\nno longer in a non-bulk package).\nIt would appear from the foregoing that, although the exception in §173.150(f) is a\njeopardized. The problem is how to define the requirement for such packaging if the commodity\nblanket exception, the integrity of the packaging is critical if the exception is not to be\nis otherwise exempt. It appears reasonable to conclude that the applicable standards are those\ngenerally set forth in $173.24. The requirements of 5173.24(b) are specified clearly and\nEach package used for the shipment of hazardous\nmaterials under this subchapter shall be designed,\nconstructed, maintained, filled, its contents so\nlimited, and closed, so that under conditions nor-\nmally incident to transportation--\n(1) Except as otherwise provided in this subchapter,\nthere will be no identifiable (without the use of\ninstruments) release of hazardous materials to the\nenvironment;\n(2) The effectiveness of the package will not be\nsubstantially reduced; for example, impact resistance,\nstrength, packaging compatibility, etc. must be main-\ntained for the minimum and maximum temperatures\nencountered during transportation....\nIf a plastic container conforming to the requirements of the California statute results in the\nrelease of the combustible liquid to the environment, then that packaging fails to meet the\nrequirements of the foregoing provision and, by implication, the requirement for \"non-bulk\npackaging\" in $173.150(D)(2). Your Office's confirmation of this fact will help to modify the\n'The two-cycle lubricant is not a hazardous substance, a hazardous waste, or a marine\npollutant. Therefore, it properly falls within the terms of §173.150(Đ(1) and (2).\n-..\n\n<<<PAGE 4>>>\n\nAUG 31 1999 16:07 FR THOMPSON, HINE, FLORY202 785 ØØ12 TO *Ø0119*043243000 P.04/07\nHINE & FLORY LLP\nTHOMPSON\nMr. Edward T. Mazzullo\nAttorneys at Lato\nAugust 31, 1999\nPage 3\nposition of the Califomia Waste Management Board.\nAnother fact that supports the need for modification of Califomia's position is provided\nby $173.24(c). That subsection reads in relevant part:\n(c) Authorized packagings. A packaging is authorized\nfor a hazardous material only if\n(1) The packaging is prescribed or permitted for the\nhazardous material in a packaging section specified\nfor that material in Column 8 of the §172.101 Table....\nColin for combusile olio, no, a akading aka in ril res to 03g That\nhazardous materials. §173.203 in turn (and as relevant hereto) refers to the standards for plastic\ndrums and jerricans in $178.509. As there specified:\n(b) Construction requirements for plastic drums and\njerricans are as follows:\n(1) The packaging must be manufactured from suitable\nplastic material and be of adequate strength in relation\nto its capacity and intended use. No used material other\nthan production residues or regrind from the same manu-\nfacturing process may be used unless approved by the\nAssociate Administrator for Hazardous Materials Safety.\n(Emphasis added)\nNow, although it may be argued (1) that the plastic containers which hold the two-cycle lubricant\nare not, strictly speaking, drums or jerricans; and (2) that, in any event, neither §173.203 nor\n$178.509 are applicable to shipments covered by the exception in §173.150(f), nevertheless, the\nquoted requirement provides a reference from which it is possible to glean a recognized fact--\nplastic containers used for the non-bulk transportation of materials such as a combustible liquid\nshould conform to this standard to ensure package integrity. Put another way, the standard\nrecognizes the kind of problem created by the use of recycled materials as implemented by the\nState of California. Moreover, as §178.509 goes on to state: \"The packaging must be adequately\nresistant to aging and to degradation caused either by the substance contained or by ultra-violet\nradiation. Any permeation of the substance contained may not constitute a danger under normal\nconditions of transport.\" In the present case, the \"permeation\" does constitute a danger because\nthe two-cycle lubricant is permitted to leak into the environment when the plastic is created to the\nformula mandated by the California statute.\nFor the foregoing reasons, Toro respectfully requests that your Office provide a statement\n•\n\n<<<PAGE 5>>>\n\nAUG 31 1999 16:07 FR THOMPSON, HINE, FLORY202 785 0Ø12 TO *00119*843243000 P. 05/07\nMr. Edward T. Mazzullo\nAltoricy.ot Law\nAugust 31, 1999\nPage 4\nof the Department's position (as requested by Mr. Davidson) so that the Califomia requirement\ndoes not result in the kind of harm to the environment and to public safety that the Federal\nHazardous Materials Regulations are intended to avoid. To the extent that the analysis contained\nin this letter is of any help in this connection, you may use it as you wish. Finally, if you have\nany questions, please do not hesitate to contact me.\nSincerely yours,\nNorman J. Philion\nCC:\nC. Joseph Newberg\nBruce C. Davidson\n92422\n\n<<<PAGE 6>>>\n\n08/27/1999\nAUG 31 1999 15:87 FR THOMPSON, HINE, FLORY 2 7954012 TO *00119*843243008 P.86/07\n14:41\n4145493/11\nBROOKFIELD. W1 53008-0666\nP.O. BOX 456\nAIR PACKAGING CORP.\nFAX 414-549-3711\n411-569-1500\nCUSTOM LUBRICANT FILLING ANO PACKAGING\nwww.arpackaging.com\nAugust 12, 1999\nMr. Edward T. Mazzullo\nDirector of the Office of Hazardous Materials Standards\nUnited States Department of Transportation\n(DHM - 10)\n400 7ª Street SW\nWashington DC, 20590-0001\n-\nDear Mr. Mazzullo;\nI am writing to request your Department's input regarding a packaging law in the State of\nCalifomia that cancema our company and the cllents we do business with.\nSpecifically, our company packages two-cycle engine oils for original equipment\nmanufacturers. These two-cycle engine olls have flash points of approximately 170-200\nlubricants in their bulk form, but they are currently exempt from HM regulations in non-bulk\npacking.\nTypically these oils are packaged In polyethylene containers or bottles for consumer use.\nCalifomia has recently passed regulations requiring the use of 25% post consumer resin (or\nrecycled plastic) in all plasüc contalners to encourage plasties recycling in that state. While\nour packaging experience with 100% virgin polyethylene contalners and two-cycle lubricants\nhas been very positive, our experience with two-cycle engine olls in containers that have been\nmade with recycled plastic has been negative due to the increased stress cracking that\nadding additional plastic to the bottle. This option defeats the purposa of the California law.\nthe primary purpose of which Is to reduce plastic that will eventually ond up in Califomia trash.\nThe California law requiring 25% post consumer resin in plastic bottles does provide\nexemptions for DOT regulated materials. Further, Califomia Waste Management officials,\nrecognizing, our dilemma, have been sympathetic to our concems regarding the use of the\n25% post consumer resin and have suggested that we contact the Department of\nProviding Solutions for your Packaging Noeds\nALG 27 • 99\n14:41\n4145493711\n•. PAGE. B02\n\n<<<PAGE 7>>>\n\nAUG 31\n- 1999 16:03.\nZ.ER. THOMPSON, HINE, FLORY202 785 0012 TO *00119*843243000 P.07/07\nam requesting that the Department of Transportation provide input to the State of Califomi\nsupporting our stance that packaging two-cycle lubricants in bottles that are more prone to\nstress cracking is not in the best interests of the consuming public. Your prompt input on this\nIssue will be very much appreciated. The Calloria Waste Management Board is currently\nreviewing this matter and your Input at this time would be most timely. A decision from the\nboard is anticipated in the next two to three weeks.\nOur contact at the Califoria Integrated Waste Management Board, Department of\nEnvironmental Profection is Mr. John Nuffer. Mr. Nuffers address is 8800 Cai Center Drive,\nfor further background on this issue. I look forward to hearing from your department.\nSacramento CA 95826. His phone number is 918-255-2437. Please feel free to contact me\nSincerely:\nRice Pre, Dant - Marketing\n•\n• . -\n-\nALG 27^99 14:41\n4145493711\n• PAGE. 68S\n** TOTAL PAGE.009**\n** TOTAL PAGE.Ø7 **\n-","truncated":false,"body_characters":13133}