From California Highway Patrol, Central Division Commercial Unit (401):
“Recently the California Highway Patrol has been contacted by the construction industry as a result of OSHA inspections at job sites. One of the topics of concern was the use of unapproved fuel cans at job sites. Upon reviewing the regulations for transporting fuel cans (Materials of Trade) to a job site, we notice a possible issue relating to the transportation of fuel on tow trucks. In the past when issues have been brought, the question of where does it say that has been asked. Throughout the email you will find the regulation sections that apply. I think this would be good time to review the Materials of Trade requirements.
In order to know if this applies to tow trucks, we need to know what a material of trade is, 49 CFR 171.8 (http://www.ecfr.gov/cgi-bin/text-idx?SID=ad15a790a75feb9cc05907f70a439ddd&mc=true&node=se49.2.171_18&rgn=div8) defines a material of trade as the following:
Material of trade means a hazardous material, other than a hazardous waste, that is carried on a motor vehicle—
(1) For the purpose of protecting the health and safety of the motor vehicle operator or passengers;
(2) For the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment); or
(3) By a private motor carrier (including vehicles operated by a rail carrier) in direct support of a principal business that is other than transportation by motor vehicle.
Tow truck operations would fall under number 3 since the operator is using the fuel on the truck to provide fuel to disabled vehicles which is in direct support of the principal business.
Now that we know the fuel transported on a tow tuck is considered a material of trade, we need to know what regulations apply to that material. In order to determine what regulations apply, we refer to 49 CFR 173.6 (http://www.ecfr.gov/cgi-bin/text-idx?SID=ad15a790a75feb9cc05907f70a439ddd&mc=true&node=se49.2.173_16&rgn=div8), which in essence states the following:
1) a single package/container containing a flammable liquid is limited to 8 gallons (49 CFR 173.6(a)(1))
2) packages must be leak tight (49 CFR 173.6(b)(1))
3) packages must be securely closed, secured against movement, and protected against damage (49 CFR 173.6(b)(1))
4) For gasoline, a packaging must be made of metal or plastic and conform to the requirements of this subchapter or to the requirements of the Occupational Safety and Health Administration of the Department of Labor contained in 29 CFR 1910.106(d)(2) or 1926.152(a)(1). (49 CFR 173.6(b)(4))
5) A non-bulk packaging must be marked with a common name or proper shipping name to identify the material it contains, including the letters “RQ” if it contains a reportable quantity of a hazardous substance. (49 CFR 173.6(c)(1))
6) Can not exceed an aggregate gross weight of 440 lbs of all materials of trade on a motor vehicle. (49 CFR 173.6(d))
All the items above apply. In the past, the main issue we have had with fuel containers is a package spilling fuel when checking compliance. The new item of concern raised by the OSHA inspector is Item 4) above; we have noticed from past inspections the current containers will most likely not meet the requirements of 49 CFR 173.6(b)(4). Section 49 CFR 173.6(b)(4) has two ways to comply with this section.
Option 1– “…a packaging must be made of metal or plastic and conform to the requirements of this
subchapter“. This, in essence, states the container used to transport fuel must be made of metal or plastic and it must conform to USDOT packaging requirements or be a USDOT approved package for the transportation of gasoline. An approved DOT package will have a DOT package marking on the package. To the left is an example of a USDOT approved package with DOT package markings. A quick disclaimer, we are not recommending you purchase the fuel cans in the pictures. We are only including the pictures to give you an example of items that are approved. The top portion shows what the package looks like and the portion below shows a USDOT package marking, UN 3H1/Y1.2/100/10/USA/+BP084.
Option 2– the package used to transport gasoline must conform to the requirements of the Occupational Safety and Health Administration of the Department of Labor contained in 29 CFR 1910.106(d)(2) or 1926.152(a)(1). When you read 29 CFR 1910.106(d)(2), it says only approved containers and portable tanks shall be used. If we read 29 CFR 1910.106(a)(29) it defines a safety can as the following: Safety can shall mean an approved container, of not more than 5 gallons capacity, having a spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure.
When you read 29 CFR 1926.152(a)(1), it states: Only approved containers and portable tanks shall be used for storage and handling of flammable liquids. Approved safety cans or Department of Transportation approved containers shall be used for the handling and use of flammable liquids in quantities of 5 gallons or less, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, the original container may be used, for storage, use and handling of flammable liquids.
If you refer to 29 CFR 1926.155(a) it defines a the term approved, Approved, for the purpose of this subpart, means equipment that has been listed or approved by a nationally recognized testing laboratory such as Factory Mutual Engineering Corp., or Underwriters’ Laboratories, Inc., or Federal agencies such as Bureau of Mines, or U.S. Coast Guard, which issue approvals for such equipment. The container will either state “Listed” or “Approved” on the container. Typically the container indicates “UL Listed” or “FM Approved”
29 CFR 1926.152(a)(1) also states Approved safety cans. We previously looked up approved in 29 CFR 1926.155(a), but now we have to look up safety can. 1926.155(I) states a safety can means the following: Safety can means an approved closed container, of not more than 5 gallons capacity, having a flash-arresting screen, spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure. Again, a quick disclaimer, we are not recommending you purchase the fuel cans in the pictures. We are only including the pictures to give you an example of items that are approved. The top portion shows what the package looks like, the bottom portion shows a UL Listed package marking, and the third picture shows an FM Approved marking.