Carriers beware: under EPA's Clean Air Act rules, a carrier can be held liable - for up to $25,000 per incident - if the gasoline it carries does not meet EPA's specifications for the destination. No longer can a carrier simply accept the product tendered by the shipper and deliver it to the consignee, relying on the shipper to assure that the delivery is a legal one. Now, a carrier must take steps to assure that it does not transport product that doesn't meet EPA specs. EPA is serious about enforcing these rules, and has taken enforcement action against many carriers, often seeking penalties of tens of thousands of dollars.
What fuels are regulated? EPA's rules govern gasoline volatility (RVP), reformulation (RFG), low-sulfur diesel, and detergent additives. Gasoline must meet specifications of the point of sale. In general, gasoline delivered in metropolitan areas (where air pollution tends to be more severe) must meet stricter RVP and RFG standards. The low-sulfur diesel and detergent restrictions apply nationwide.
How can a carrier be liable? There are tow ways that a carrier might be held liable for violations of EPA's fuels regulations. (1) If EPA "detects" non-spec gasoline in the carrier's "facility" - i.e., tank truck - the carrier is presumed to be liable. EPA's Environmental Appeals Board recently held that non-spec gasoline can be "detected" in a tank truck only by actually sampling and testing product in the truck, not by inference from testing before or after loading. (2) If EPA finds non-spec gasoline at a retail outlet where the carrier delivered, the carrier may be liable if EPA shows that it "caused" the violation. A carrier can cause a violation if it intentionally or negligently delivers non-spec product.
What can a carrier do to avoid liability? Carriers must be generally aware that gasoline can be either "reformulated" vs. "conventional", or high vs. low RVP, and that there are limitations on delivery of such products. A map showing the boundaries of designated areas in the region served by the carrier may b posted or made available to dispatchers and drivers. Retail outlets can be encouraged to label their tanks to warn of restrictions on products delivered. If a driver knows or suspects a load to be high-RVP or "conventional" gasoline, he should not deliver it unless assured that it is appropriate for the destination' conversely, if a driver delivers a load to retail outlet he knows to be in a designated area, he can check the product documentation to make sure that the lad is spec for the location.
This brief summary offers only the broadest guidelines. Pleas contact Environmental counsel for further information.