On April 14, 2023, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a request for feedback on its recycled plastics policy. 88 Fed. Reg. 23140. PHMSA states that it published the notice to solicit information pertaining to how the potential use of recycled plastic resins in the manufacturing of specification packagings may affect hazardous materials transportation safety; ensure transparency of its current policy pertaining to the use of recycled plastics in the manufacturing of specification packagings; seek input on this policy to inform better potential regulatory changes; and gather information for the evaluation of future approval requests and to inform better decisions pertaining to potential regulatory revisions and other related work. Comments are due July 13, 2023. PHMSA notes that in conjunction with the notice, it is considering conducting a webinar to inform the public of its recycled plastics policy if there is sufficient feedback. PHMSA will post information regarding any future webinars on its website.

Background

PHMSA states that it is aware through its participation in the development of international standards and regulations that an increasing number of countries are interested in expanding the use of recycled plastics in plastic packagings manufactured for hazardous materials. According to PHMSA, plastic packagings perform an integral role in ensuring that hazardous materials are transported safely and securely, and plastics are a vital source material for the manufacture of packaging used to transport hazardous materials around the world. As defined in 49 C.F.R. Section 171.8, packaging is “a receptacle and any other components or materials necessary for the receptacle to perform its containment function in conformance with the minimum packing requirements of this subchapter.” DOT defines a package as “a packaging plus its contents.”

According to the notice, consistent with the Biden Administration’s goals of reducing climate pollution and reducing the effects of per- and poly-fluoroalkyl substances (PFAS) on communities across the United States, PHMSA is committed to taking actions that may extend the life cycle of existing plastic, including through reuse and recycling, and reduce the need for new plastics to limit the production of PFAS. PHMSA states that increasing the use of recycled plastics in packagings is one potential avenue to innovate within this complex issue. Further, PHMSA notes, advances in technology and operational cleaning processes may allow for new plastic articles to maintain high levels of consistency in the quality of the plastics at a molecular level and offer the potential for growth in the use of recycled plastics, including for the manufacture of plastic packagings used for hazardous materials.

PHMSA’s Current Policy on Recycled Plastics

According to the notice, while PHMSA has been committed to increasing the use of recycled plastics in packaging, it has traditionally taken an approach that corresponded to its understanding of the industry’s ability to implement sufficient quality control actions to maintain packaging standards. The Hazardous Materials Regulations (HMR) require approval from the Associate Administrator for Hazardous Materials Safety or a special permit to use recycled plastics in certain packagings to transport hazardous materials. PHMSA notes that it has not exempted plastic packagings manufactured from recycled plastic resins from applicable performance testing specifications as required by Part 178, Subparts M or O of the HMR. PHMSA states that since 1997, it has issued approximately ten approvals permitting manufacturers of plastic packagings to use recycled plastic resins provided strict controls are followed to ensure the quality of the packaging. These packagings have been permitted only for use at the Packing Group II and III levels, preventing their use for the hazardous materials posing the greatest risk (i.e., Packing Group I). Further, minimum thickness requirements for plastic packagings must still be followed in accordance with 49 C.F.R. Section 173.28(b)(4), and compatibility requirements for plastic packagings in 49 C.F.R. Section 173.24(e) are still applicable. This ensures that only plastic resins that have been prepared and evaluated under a manufacturer’s quality assurance program may be used in the manufacture of recycled plastic packagings.

PHMSA states that in the approvals, it has required that all recycled material selected for use be cleaned of residue from the prior lading. Further, batches of not more than 250,000 pounds must be sorted and selected using the manufacturer’s quality assurance program. The quality assurance program must identify the sources of the recycled material, their previous lading, and their tested metrics in accordance with designated testing procedures. PHMSA notes that it has not been asked and does not anticipate a request for approval to use recycled material that previously contained a Division 6.1 (poisonous) material, material that does not conform to melt index and density test specifications, or material that is otherwise determined to be unsuitable according to the manufacturer’s quality assurance program. PHMSA has further required manufacturers to verify that each batch of recycled plastic material has the proper melt flow rate and density, consistent with that of the design type manufactured from recycled material. In addition, PHMSA has required that each batch of recycled resin demonstrate certain characteristics.

Lastly, according to PHMSA, all plastic packagings manufactured from recycled plastic resins under the approvals must be tested more frequently than those plastic packagings manufactured from virgin resins. For example, periodic testing of drums must occur at least every 12 months, and periodic testing of jerricans must occur at least every 30 days.

PHMSA states that in anticipation of interested stakeholders considering the availability of approvals for packaging made from recycled plastics as they develop business plans, it seeks input on ways to facilitate innovation and acceptance without compromising safety. Consequently, PHMSA is interested in learning whether any manufacturers have avoided adopting more recent recycling technologies in the use of recycled resins in plastic packaging manufacturing due to approval requirements. PHMSA solicits input on this issue to guide better its efforts in promoting increased use of recycled plastic resins in the manufacturing of specification packagings.

Request for Feedback

PHMSA requests comment on the following questions to assist in its evaluation of future approval requests and to inform better PHMSA-supported research and development, and potential regulatory revisions:

• Are the controls (e.g., material characteristics, design and requalification testing, and manufacturers’ quality assurance programs) in the current approvals adequate for broader adoption of recycled plastics? Are they too narrow or too burdensome? Are there additional controls that should be implemented to ensure safety while using recycled plastic resins?

• Do current cleaning processes for recycled plastic resins adequately remove all contaminants of the prior lading? What additional cleaning methods are being considered?

• What, if any, are the potential cost savings in using recycled resins? Has there been or is there an expected increase in demand for hazardous materials packaging containing recycled materials?

• What would be the climate impact of using more recycled resins?

• Should hazardous materials packagings composed of recycled plastic resins be limited to resins derived from used hazardous materials packagings (i.e., industrial packagings), or should other sources of plastics -- such as plastics from consumer packagings -- be allowed? How could PHMSA expand allowable materials sources in this area without adversely affecting the safety of packagings? What consensus standards are available to help facilitate this change in source materials?

• What research could PHMSA conduct to characterize potential risks of transporting hazardous materials in packagings made of recycled resins?

• Are there specific hazardous materials classes or divisions, including packing groups, that should not be allowed to be used with recycled resins?

• Are the hazardous materials compatibility requirements of the HMR adequate for use with packagings made from recycled resins, or should there be additional considerations? If so, what are these considerations?

• Should there be a limit to the number of times resins can be recycled, and if so, what should that limit be? How could PHMSA track this information?

PHMSA states that it is also interested in learning whether any manufacturers have avoided adopting more recent recycling technologies in the use of recycled resins in plastic packaging manufacturing due to approval requirements. PHMSA requests input on this issue to guide better its efforts in promoting increased use of recycled plastic resins in the manufacturing of specification packagings.

Commentary

PHMSA seeks to understand if it is possible to incorporate recycled plastic packagings generally into its current framework, but appreciates the transport of hazardous materials is reliant upon the packagings’ ability to contain its hazards. This question considers the potential incompatibilities present when the source of the plastic is not pure material. Current PHMSA and DOT regulations rely on stringent testing standards for the construction of the packagings and also the ability of the package to withstand various shipping conditions. This includes specifications for shipping by all modes of transport (e.g., air, water, and ground). PHMSA’s utilization of special permitting procedures has established the groundwork for the use of recycled plastics, but note that Packing Group I and certain hazard classes are still considered too dangerous for the use of recycled plastic in these packagings.

Industry, especially packaging manufacturers, may wish to consider the specific complexities and testing that may be necessary to demonstrate that recycled plastic use in construction does not introduce potential issues for the shipping of hazardous materials. Comments on sources for the recycled plastic are relevant to allow a broader take on a circular economy and potential waste reduction. Procedural details on cleaning of packaging should also be factored into reduced waste comments. In addition, costs for all processes for cleaning, testing, and retesting are relevant factors for PHMSA to note.

Stakeholders that ship hazardous materials should consider if the utilization of a special permit process currently for recycled packagings has often resulted in not choosing it to avoid regulatory burdens and issues with shipping hazardous materials in recycled packagings. It is important that even if stakeholders are not packaging manufacturers, responses about the burden of current procedures for various aspects could shape future regulations within this already heavily regulated space.