OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

April 23, 1996

Mr. Eric J. Sadler
Mechanical Engineer
Chem-Tainer Industries, Inc.
361 Neptune Ave. N.
Babylon, NY 11704

Dear Mr. Sadler:

Thank you for your letter of April 26, 1995, regarding your product the "gas caddy" and the Occupational Safety and Health Administration's (OSHA's) Flammable and Combustible Liquids Standard, 29 CFR 1910.106.

Your letter indicated that your product is a 28-gallon Jerry Can made of cross-linked polyethylene plastic with an aluminum hand truck assembly permanently attached, that the product is currently for personal use (e.g., to transport gasoline from a filling station to boats at the dock) and that you are considering expanding your market to include industrial users who require small quantities of petroleum products. Your letter stated, "The regulations seem to be written specifically for the storage of flammable and combustible liquids. What about a container that is not for storage, but for continuous or short term use?" To clarify your general question, you requested that OSHA include answers to the following questions in its response. Following are your questions and our responses, respectively.

Question 1a: How does OSHA define storage?

Response: A storage container is a container that is not an integral part or component of machinery or equipment. For example, a gas tank on a lawn mower or tractor is not considered to be a storage container, since it is part of the machinery or equipment, however, a gas can indoors or outdoors is considered to be a storage container. Please note that the ANSI/NFPA 30 (1993 Edition) definition of "container" states, "Any vessel of 60 U.S. gal (227 L) or less capacity used for transporting or storing liquids."

Question 1b: How long must a liquid be in a container to be considered stored?

Response: According to the above definitions of "storage" and "container," time is not a relevant factor. So long as the liquid is contained in a container which is an integral component of the equipment, it can be stored for any length of time and it would not be considered in "storage." Otherwise, if the liquid is kept in a storage container which is not an integral part of machinery, that container is considered "storage" at all times.

Question 2: Are there separate regulations governing the use of flammable and combustible liquids?

Response: There are no separate regulations governing the use of flammable and combustible liquids. That is, the use of these liquids contained either in tanks which are integral components of equipment, or in portable containers, are governed by the same regulations.

Question 3: If there is no distinction between use and storage, does this mean that there can be no flammable or combustible liquid in a plastic container in any workplace except one gallon or less?

Response: "Use" and "storage" provisions are integrated under the same standards (OSHA and consensus standards). Paragraph 1910.106(d)(2) states. "Only approved containers and portable tanks shall be used." Nationally Recognized Testing Laboratories have, in the past, certified certain polyethylene safety containers exceeding 1 gallon.

Furthermore, Consensus Standard ANSI/NFPA 30, 1993 Edition, Chapter 4, references specifications for containers that are acceptable (e.g., ASTM/ANSI D3445, Plastic Containers (Jerry Cans) for Petroleum Products, and ANSI/UL 1313, Nonmetallic Safety Cans for Petroleum Products). ANSI D3435 (paraphrased) indicates that the standard is not a specification for safety containers intended for use with flammable liquids, and the containers will have a nominal (approximate) capacity of 26.5 liters (7 gal) or less in 1.9 liter increments.

Therefore, OSHA would approve containers and portable tanks that are certified by a National Recognized Testing Laboratory.

Question 4: If storage is a finite period of time, does this mean that a container that is not approved could be used if liquids are stored for less than that time?

Response: Again, storage is not defined in terms of a finite period of time, and therefore a container must be approved by a National Recognized Testing Laboratory (NRTL), based on the laboratory's permissible design criteria.

Question 5: What does it mean to be approved?

Response: According to ANSI/NFPA 30, 1993 Edition, "approved" means acceptable to the "authority having jurisdiction." "OSHA approved" means that your container must be tested and certified by a Nationally Recognized Testing Laboratory.

Question 5b: Can DOT approved serve the mean "approved" if the laboratory that conducted the test is not a nationally recognized laboratory?

Response: Generally, OSHA recognizes DOT approved containers used for transportation purposes. However, DOT-approved means approved for travel or transportation. For example, compressed gas cylinders are DOT approved, and so are containers for shipment. DOT, however, does not approve products for the purpose of their safe use in the workplace. The approval of those products is under the jurisdiction of OSHA. Therefore, DOT-approved containers may not be regarded, under all circumstances, to meet OSHA's approval criteria.

Question 5c: What qualifies a laboratory as a nationally recognized laboratory?

Response: OSHA qualifies a laboratory to be an NRTL. OSHA conducts a site visit to the laboratory, and among other things, investigates its testing and quality control, and then, if the laboratory qualifies, OSHA accredits that laboratory to certify specific products.

Question 5d: Are there any nationally recognized laboratories other than Underwriter Laboratories (UL)?

Response: A list of NRTL's have been enclosed for your convenience, so that you may research and find which one of these laboratories would be qualified to certify your products. Please note again, that these laboratories certify specific products, and you need to research which one is suitable for your products.

Question 6: If "tanks" can be built of materials other than steel (1910.106(d)(1)(c)) why was the regulation not written to also apply to containers.

Response: Because Section 1910.106 was not drafted by OSHA but was adopted from NFPA No. 30-1969, a definitive answer to your question cannot be given. Subsection 1910.106(b)(1)(a) states a general rule that tanks be built of steel, but an exception was provided for tanks built of other materials if designed in accordance with sound engineering practice. The exception was probable included in recognition of industrial needs for specialized non-steel tanks and the inherent likelihood that such tanks, which are larger and therefore potentially more dangerous than containers, will in fact be carefully designed. As a practical matter, however, containers are also being given the benefit of an exception since OSHA will now accept those nonmetallic containers of greater than one-gallon capacity which are approved by a NRTL.

Thank you for your interest in occupational safety and health. If you need further assistance, please contact Alcmene Haloftis of my staff at 202-219-8031.


John B. Miles, Jr., Director
Directorate of Compliance Programs