After our last article on Hazardous Materials, we received a few questions about whether diesel fuel is subject to hazardous material regulations (HMR). We thought it might be helpful to discuss how diesel falls within HMR.
Class 3 vs. Class 4
Diesel is listed on the Hazardous Materials Table (49 CFR 172). But diesel's classification is not stagnate. Sometimes, diesel is a class 3 material and sometimes it is a class 4 material. Which category your diesel falls within is important to determine which rules you are subject to.
Let's spend a moment to discuss why the classification is important. Class 3 materials are flammable and combustible liquids that must be stored in containers designed to prevent leaks. In contrast, class 4 materials are solids that ignite and burn easily, and include self-reactive substances, desensitized explosives, materials that can spontaneously combust, and those that have certain reactions to water. Instead of containers designed to prevent leaks, class 4 materials need to be stored in containers designed to prevent ignition and labeled with specific warnings (otherwise known as placarding requirements).
Bulk vs. Non-Bulk Packaging
To figure out if your diesel is categorized as class 3 or class 4, we need to review bulk and non-bulk packaging.
Per the Department of Transportation (DOT), "bulk packaging is a packaging . . . with a maximum capacity greater than 450 liters (119 gallons) as a receptacle for a liquid . . ." Using the DOT's rules, we can see that non-bulk packaging is packaging with a maximum capacity of 450 liters (119 gallons) or less as a receptacle for liquid.
The 119-gallon limit is key here. Why? 49 CFR 173.150 states that a flammable liquid with a flash point at or above 38 °C (100 °F) that does not meet the definition of any other hazard class may be reclassed as a combustible liquid. However, if diesel is being transported in bulk packaging, it cannot be reclassified. In other words, diesel in non-bulk packaging can be reclassified from a class 4 to a class 3 material.
What if you are above the 119-gallon limit? DOT notes that "the use of bulk packagings requires registration no matter how small the quantity of hazardous materials actually offered or transported."
So, then, whether diesel fuel can be reclassified, and exempt from more stringent HMR, depends on whether or not you stay within the non-bulk packaging limit of 119-gallons.
Remember, Reclassification Does Not Mean Fully Exempt from HMR
In the DOT's Interpretation Response #20-0034, DOT was asked two questions regarding whether an internal combustion engine filled with diesel would meet the definition of a "hazardous material" in in § 171.8.
DOT first considered whether an internal combustion engine with a 150-gallon fuel tank, containing diesel fuel with a flashpoint of 125 °F, which had been reclassified as a combustible liquid was still a hazardous material. The answer is yes simply because internal combustion engines containing a flammable or combustible liquid fuel are classified as a hazardous material under § 171.8.
DOT next considered whether an internal combustion engine's 150-gallon fuel tank, which contains a combustible liquid, meets the definition of a "hazardous material" in § 171.8. The answer was also yes because fuel tanks which are a part of the equipment they power are covered under the description for the engine. DOT did note that if fuel tank is transported separately from the equipment it is intended to power, the fuel inside must be described and transported in accordance with applicable HMR requirements or exceptions.
The biggest take away to remember is that an internal combustion engine containing flammable or combustible liquid fuel continues to meet the definition of "hazardous material" in § 171.8 even when transported under an exception that provides relief from part, or all of the requirements of the HMR.
What Does This Mean for My Business?
So long as you are transporting diesel in tanks or containers with a capacity of no more than 119-gallons, it means that you and your drivers do not need a hazmat endorsement. However, if you are transporting diesel in tanks or containers with a capacity of more than 119-gallons, make certain you are complying with all endorsement and placarding requirements.
If you or your company need help with HMR compliance please contact Sean Barrick (sbarrick@setlifflaw.com) at (804) 377-1276, or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.
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