The following article appeared in 'Science Spin' magazine, spring 2004
Picture the scene - An oil distributor driver arrives at the laboratory reception area clutching cans marked with the official stamp of the Customs and Excise. His story is familiar. Stopped at a checkpoint in Donegal, as the Customs officials carried out their roadside marker tests. The clear colour in the test tube indicated a negative for marker dye. However, instead of waving him on, they seized the truck and drove it into Letterkenny for further investigations. On the way home on the bus to Monaghan, the driver must have pondered on the events that led him to have his truck and 35,000 litres of diesel impounded by the Customs and Excise.
As it turned out, he had good reason to be worried, that's according to Martin Boylan B.Sc., M. Inst. Petroleum, Independent Laboratory Ltd. The sulphur content result was 800 ppm - the maximum sulphur level allowed for diesel in the Republic is 350 ppm, stated Martin. Marked gas oil has around 1500 ppm, so in the book of evidence for the Prosecution, the Customs can use simple calculations to present their version of what happened. The diesel was washed - that is, the dye was removed with acid, the residual acid was neutralised with alkaline sodium hydroxide, and the dye was undetectable. But it takes a technically sophisticated sulphur removing unit - usually only available at a refinery - to remove the sulphur down to levels that are legal. Therefore, when he goes to court, his case will be weak - the supply source having vanished, the bill of purchase worthless. He will be another knowing or unknowing victim of the official washed diesel war.
Most drivers, especially hauliers, know about the game of cat and mouse between the Customs and illegal diesel washers that has been going on for years. The profits are huge and each side has become more and more technically sophisticated. The latest legislation, introduced in the Republic earlier this year, means that the Customs can prosecute diesel users on sulphur levels alone, without dye analysis back-up. In Northern Ireland, there has been a maximum sulphur concentration of 50 ppm for a number of years. Oil distributors have been prosecuted for selling diesel with concentrations as low as 60 ppm.
Running alongside the official war, the British customs, with government approval, have initiated another, unofficial war - with the sole aim of changing the legitimate business practices of some hauliers, continued Martin. He went on to explain what he meant by the unofficial war.
Two drivers were stopped in the U K but they weren't particularly worried as the roadside test - in their eyes - was clear. But the Customs officers weren't happy. They claimed that they could see 'the faintest of faint pink' colours and impounded the truck. Only the payment of a ten thousand sterling fine each would release the trucks. The haulier companies were outraged that such a hefty fine could be slapped on a law-abiding company who bought their diesel on contract from a leading oil company in the Republic.
When our chemists at Independent Laboratory looked for the 'faintest of faint pink' colours, they couldn't see it. Neither could the UV spectrophotometer detect this faint colouration. Sulphur analysis revealed that if there was any contamination, it was a only a trace. The more we looked into these cases, the more they began to smell of political overtones. A prosecution had taken place in Belfast where the marked gas oil contamination was less than 1% and the judge said that it was very harsh but the law was the law. He might also have added that his judgement was offensive to the spirit of the law.
'Let me further explain,' expressed Martin. In the Republic, the Customs generally do not prosecute unless there is evidence of contamination greater than 5% marked gas oil. This practice has developed for a very good reason - the cases against hauliers who were prosecuted for this level of contamination or less, were being dismissed by judges. Good sense prevails - who is going to risk their licence and a large fine for such a small profit? The judges listened when one of our chemists explained how the oil distribution business operated - diesel and marked gas oil are virtually the same product, except for the dye and sulphur levels. The same lines and compartments on the trucks are used for both products - trace level contaminations are normal.
'In one high court case in Belfast, three Customs chemists were brought over from London (they don't carry out the testing in Belfast) and were put up in an hotel for several days so that they could give evidence in court. When I questioned one of the chemists on their methods, he explained that they use a cartridge extraction method - to extract every last molecule of dye - and he claimed that they could analyse down to 0.5% marked gas oil contamination. But it begs the question. Why is all this technical muscle being used to extract huge fines from hauliers for trace level contaminations?
Over the past few years a legitimate cross-border business practice has developed. Hauliers who use a lot of diesel approach suppliers in the Republic and work out a business contract to the economic advantage of both parties. They are availing of the price deferential for diesel between the North and the Republic - even Belfast taxi drivers go over the border for a fill-up. The British government, wanting to eliminate this practice, are presently encouraging the Customs officers to impound trucks if they find a trace of marker dye present - releasing the truck on the payment of a 10,000 sterling fine. The Customs officers know, under present distribution practices, that there is hardly any diesel without a trace of marker dye present. By being selective in the trucks they stop, they are trying to eliminate a legitimate business practice, and thereby make gains for the British exchequer.
No one wants to indulge illegal practices - they discriminate against good, legitimate businesses, and encourage shoddy practices where the quality of the fuel becomes unimportant. It is the technical equivalent of the phoenix haulier syndrome, where a dodgy haulier closes down on Friday, and re-opens under a different name on Monday. But there is a good case to be made for the challenge to the British Customs in court, where they are trying to eliminate a legitimate business practice for governmental economic reasons.
In law, they have the right to fine a haulier if they discover one per cent or less marker dye. In the previously mentioned Belfast case, the judge upheld the law. However, judges are human - and in our opinion the defendant was very unlucky in that particular case. In four cases in the Republic, with low marked gas oil contamination of 5% or less one of our chemists explained the normal industrial practices, each case was dismissed by the judge.
The only sure way to eliminate trace contaminations is to have designated trucks for diesel and marked gas oil - and this will add significantly to the distribution costs. Judges don't want to pay more for their oil because the British Customs are trying to eliminate a legitimate business practice. A crunch case in Belfast should have at least a fifty-fifty chance of success, and one reversal in court could completely change the practices of the British Customs officers.
The washed diesel wars are not going to go away. To be ready for cases such as that illustrated above, and protect clients from illegal suppliers and practices. Independent Laboratories have upgraded X ray sulphur analysis equipment - we can now measure sulphur content down to 2.5 ppm. For marker dye, our instrument can measure down to one per cent contamination - and we are presently looking at equipment to measure down to 0.5%, using the British Customs method. Meantime, caveat emptor!