HOUSE AMENDED

 

PRIOR PRINTER'S NOS. 1087, 1400

PRINTER'S NO. 2260

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

901

Session of

2009

  

  

INTRODUCED BY SCARNATI AND M. WHITE, JUNE 4, 2009

  

  

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, OCTOBER 6, 2010   

  

  

  

AN ACT

  

1

Amending the act of July 10, 2008 (P.L.1109, No.78), entitled

<--

2

"An act providing for the study and mandated content of

3

biofuels," further providing for definitions, for biodiesel

<--

4

content in diesel fuel sold for on-road use and for agency

<--

5

responsibilities; and imposing penalties.

6

Amending the act of July 10, 2008 (P.L.1009, No.78), entitled

<--

7

"An act providing for the study and mandated content of

8

biofuels," further providing for definitions, for biodiesel

9

content in diesel fuel sold for on-road use and for

10

cellulosic ethanol content in gasoline; providing for

11

blending, registration and other requirements; further

12

providing for department authority and responsibility;

13

providing for fees; establishing the Biofuel Development

14

Account; and imposing penalties.

15

The General Assembly of the Commonwealth of Pennsylvania

16

hereby enacts as follows:

17

Section 1.  Section 3(f) of the act of July 10, 2008

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18

(P.L.1109, No.78), known as the Biofuel Development and In-State

19

Production Incentive Act, is amended to read:

20

Section 3.  Biodiesel content in diesel fuel sold for on-road

21

use.

22

Section 1.  Section 2 of the act of July 10, 2008 (P.L.1109,

<--

23

No.78), known as the Biofuel Development and In-State Production

 


1

Incentive Act, is amended by adding definitions to read:

2

Section 2.  Definitions.

3

The following words and phrases when used in this act shall

4

have the meanings given to them in this section unless the

5

context clearly indicates otherwise:

6

"American Society for Testing and Materials International" or

7

"ASTM."  A private organization that utilizes committees of

8

industry representatives and regulators to develop product

9

quality standards and test methods to be used by industries,

10

regulatory agencies and purchasing agents.

11

"Annualized basis."  The sum of three consecutive months of

12

in-State production multiplied by four.

13

"ASTM specification."  A standard quality specification

14

developed and published by the American Society for Testing and

15

Materials International. Each specification includes references

16

to standard test methods, also developed and published by ASTM.

17

* * *

18

"Biodiesel blend."  A blend of diesel fuel and biodiesel fuel

19

to be sold or offered for sale to ultimate consumers in this

20

Commonwealth for use in on-road compression ignition engines.

21

* * *

22

"Consumer."  A person that purchases automotive fuel for

23

purposes other than resale.

24

* * *

25

"Diesel fuel."  Petroleum diesel fuel that complies with ASTM

26

D975 or its successor standard.

27

"Distributor."  A person that manufactures, refines, receives

28

for storage, distributes, sells or uses petroleum products,

29

including diesel fuel, biodiesel and biodiesel blend, in this

30

Commonwealth for subsequent distribution to another person other

- 2 -

 


1

than the consumer.

2

"In-line injection blending."  Blending biodiesel with diesel

3

fuel through the use of a dispensing device which includes

4

Department of Agriculture-approved and National Institute of

5

Standard and Technology-approved meters on both the biodiesel

6

and diesel fuel supply and the ability to detect, alarm and

7

discontinue loading biodiesel blends that fall outside the

8

desired blend ratio by more than 0.5%.

9

"Load rack terminals."  A location where the commercial

10

transfer of petroleum products, including diesel fuel, biodiesel

11

and biodiesel blend, at the wholesale level is conducted

12

utilizing meters employed in the measurement of product

13

delivered to a seller by a buyer.

14

"Manufacture."  To produce, mix, blend, repackage or further

15

process.

16

* * *

17

"Person."  An individual, corporation, partnership, stock

18

company, society, association, business unit or agent or

19

employee thereof.

20

"Producer."  A person that purchases component elements and

21

blends them to produce automotive fuel, including biodiesel

22

blend.

23

"Refinery" or "terminal."  A petroleum refinery, pipeline

24

terminal, river terminal, load rack terminal, storage facility,

25

producer facility or other point of origin where petroleum

26

products, including diesel fuel, biodiesel and biodiesel blend,

27

are manufactured, blended or imported by rail, truck, barge or

28

pipe and held, stored, transferred, offered for distribution,

29

distributed, offered for sale or sold.

30

* * *

- 3 -

 


1

"Retailer."  A person that sells automotive fuel, including

2

diesel fuel, biodiesel and biodiesel blend, to the consumer.

3

"Sale," "sell," "offer for sale" or "sold."  To offer for

4

sale, contract, barter, exchange, distribute or transfer title.

5

"Unclassified importer."  A person that imports or causes to

6

be imported diesel fuel, biodiesel or biodiesel blend for use,

7

distribution or sale in this Commonwealth, but that does not

8

qualify as a distributor.

9

Section 2.  Section 3(a) and (f) of the act are amended to

10

read:

11

Section 3.  Biodiesel content in diesel fuel sold for on-road

12

use.

13

(a)  Volume standards.--The following standards shall apply:

14

(1)  All diesel fuel sold or offered for sale to ultimate

15

consumers in this Commonwealth for use in on-road compression

16

ignition engines must [contain] be blended with biodiesel so

17

as to achieve a biodiesel blend of at least 2% biodiesel by

18

volume one year after the in-State production volume of

19

40,000,000 gallons of biodiesel has been reached and

20

sustained for three months on an annualized basis as

21

determined by the department. The biodiesel blend shall

22

comply with ASTM specification D975 or its successor

23

standard.

24

(2)  All diesel fuel sold or offered for sale to ultimate

25

consumers in this Commonwealth for use in on-road compression

26

ignition engines must [contain] be blended with biodiesel so

27

as to achieve a biodiesel blend of at least 5% biodiesel by

28

volume one year after the in-State production volume of

29

100,000,000 gallons of biodiesel has been reached and

30

sustained for three months on an annualized basis as

- 4 -

 


1

determined by the department. The biodiesel blend shall

2

comply with ASTM specification D975 or its successor

3

standard.

4

(3)  All diesel fuel sold or offered for sale to ultimate

5

consumers in this Commonwealth for use in on-road compression

6

ignition engines must [contain] be blended with biodiesel so

7

as to achieve a biodiesel blend of at least 10% biodiesel by

8

volume one year after the in-State production volume of

9

200,000,000 gallons of biodiesel has been reached and

10

sustained for three months on an annualized basis as

11

determined by the department. The biodiesel blend shall

12

comply with ASTM specification D7467 or its successor

13

standard.

14

(4)  All diesel fuel sold or offered for sale to ultimate

15

consumers in this Commonwealth for use in on-road compression

16

ignition engines must [contain] be blended with biodiesel so

17

as to achieve a biodiesel blend of at least 20% biodiesel by

18

volume one year after the in-State production volume of

19

400,000,000 gallons of biodiesel has been reached and

20

sustained for three months on an annualized basis as

21

determined by the department. The biodiesel blend shall

22

comply with ASTM specification D7467 or its successor

23

standard.

24

* * *

25

(f)  [Exception] Exceptions.--The requirements of this

26

section shall not apply to [aviation]:

27

(1)  Aviation fuel, home heating fuel or where prohibited

28

by law.

29

(2)  Diesel fuel produced from 100% Pennsylvania grade

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30

crude oil by a small refiner, as defined by 40 CFR 80.1101(g)

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1

(relating to small refinery), through December 31, 2010.

2

Section 3.  Section 5 of the act is amended by adding

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3

subsections to read:

4

Section 5.  Agency responsibilities.

5

* * *

6

(e)  Enforcement.--

7

(1)  The department is charged with the general

8

enforcement of this act. The department may employ all proper

9

means for the enforcement of this act, including issuing

10

notices and orders, filing violations for criminal

11

prosecution, seeking injunctive relief, imposing civil

12

penalties and entering into consent agreements.

13

(2)  Any person that transfers, offers for sale or sells

14

biodiesel or biodiesel blend in this Commonwealth for use in

15

on-road compression ignition engines shall register with the

16

department. If a person has multiple locations where the

17

person conducts such activities, each location shall be

18

separately registered, but may be submitted in a single

19

electronic form. This paragraph includes in-State and out-of-

20

State persons, such as refineries, terminals, distributors,

21

producers, retailers and unclassified importers, that

22

transfer, sell or offer for sale biodiesel and biodiesel

23

blend products for ultimate on-road use by consumers in this

24

Commonwealth.

25

(3)  (i)  Any time biodiesel blend is sold or transferred

26

from a refinery, terminal, shipper or any person, for

27

sale to ultimate consumers in this Commonwealth, either

28

directly or through a retailer or other person, a bill of

29

lading or shipping manifest shall be provided to the

30

person that receives the biodiesel blend. The shipping

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1

manifest or bill of lading shall accompany the biodiesel

2

blend to the retailer. For direct consumer sales of

3

biodiesel blend by a terminal or refinery, such bills of

4

lading or shipping manifest shall be retained at the

5

point of sale. A copy of such records shall be retained

6

by the refinery, terminal, distributor, producer,

7

unclassified importer or person responsible for a period

8

of one year from delivery of the biodiesel blend product

9

or for a longer period of time if part of an enforcement

10

action.

11

(ii)  For biodiesel blend, the bill of lading or

12

shipping manifest shall contain and disclose the

13

following information:

14

(A)  The Pennsylvania registration number, name

15

and location of the terminal, refinery, distributor,

16

producer, unclassified importer or person that

17

created the biodiesel blend.

18

(B)  The biodiesel content, stating volume

19

percentage, based upon gallons of biodiesel per

20

gallons of diesel fuel base-stock, or an ASTM “Bxx”

21

designation where “xx” denotes the volume percentage

22

biodiesel included in the blended product.

23

(C)  The ASTM specification of the biodiesel used

24

in the biodiesel blend.

25

(D)  The grade and ASTM specification of the

26

diesel fuel.

27

(E)  The ASTM specification of the biodiesel

28

blend.

29

(F)  The total gallons of biodiesel blend sold,

30

shipped or transferred.

- 7 -

 


1

(G)  A certification signed by the refinery,

2

terminal, distributor, producer, unclassified

3

importer or other person, that created the biodiesel

4

blend stating the information contained in the bill

5

of lading or shipping manifest is true and correct

6

subject to the penalties of 18 Pa.C.S. § 4904

7

(relating to unsworn falsification to authorities).

8

(iii)  Retailers offering a biodiesel blend product

9

for ultimate sale to consumers in this Commonwealth for

10

use in on-road compression ignition engines shall assure

11

they receive and retain for their records a copy of the

12

bills of lading and shipping manifests required by

13

subparagraphs (i) and (ii). These records shall be

14

retained for a period of one year from receipt of the

15

biodiesel blend product or for a longer period of time if

16

part of an enforcement action either at the facility

17

where the product is sold or at the corporate

18

headquarters, so long as the bills of lading and shipping

19

manifests remain at the facility where the product is

20

sold until such time as that product is sold or is no

21

longer present at the facility. Notwithstanding the

22

provisions of this subsection, no retailer shall be found

23

in violation of this act for failure to make the records

24

required by subparagraphs (i) and (ii) immediately

25

available to the department upon inspection of the

26

facility where the product is sold, provided that the

27

records are submitted to the department within two

28

business days.

29

(iv)  Any time biodiesel is sold or transferred from

30

any person to be sold or offered for sale to ultimate

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1

consumers in this Commonwealth for use in on-road

2

compression ignition engines as part of a biodiesel

3

blend, a certification shall be provided to the person

4

that receives the biodiesel. The certification shall

5

accompany the biodiesel to the person that blends the

6

biodiesel with diesel fuel and shall accompany the

7

biodiesel blend into which the biodiesel has been

8

incorporated to the retailer. The certification shall be

9

signed by the person selling or transferring the

10

biodiesel and state that the biodiesel is compliant with

11

the definition and quality standards for biodiesel under

12

this act, including ASTM D-6751-02, or its successor

13

standard, and be made subject to the penalties of 18

14

Pa.C.S. § 4904. A copy of the certification shall be

15

retained by the person selling or transferring the

16

biodiesel, the person blending the biodiesel with diesel

17

fuel and by the retailer for a period of one year from

18

delivery of the biodiesel or biodiesel blend, as

19

applicable, or for a longer period of time if part of an

20

enforcement action. With regard to a retailer, a copy of

21

the certification may be retained at the corporate

22

headquarters so long as the certification remains at the

23

facility where the product is sold until such time as

24

that product is sold or is no longer present at the

25

facility. Notwithstanding the provisions of this

26

subsection, no retailer shall be found in violation of

27

this act for failure to make the records required by

28

subparagraphs (i) and (ii) immediately available to the

29

department upon inspection of the facility where the

30

product is sold, provided that the records are submitted

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1

to the department within two business days.

2

(4)  The department shall have the following authority:

3

(i)  To conduct unannounced random inspections of any

4

person or establishment located in this Commonwealth that

5

stores, holds, blends, sells or offers for sale diesel

6

fuel, biodiesel or biodiesel blend. Inspections shall

7

include the premises, tanks, storage facilities,

8

transportation and storage vehicles, dispensing devices

9

and any other place where diesel fuel, biodiesel or

10

biodiesel blend is stored, held, blended, sold or offered

11

for sale.

12

(ii)  To take samples of and test the diesel fuel,

13

biodiesel and biodiesel blend being stored, held,

14

blended, sold or offered for sale.

15

(iii)  To audit the books and records, including

16

copying, pertaining to the diesel fuel, biodiesel or

17

biodiesel blend being stored, held, sold or offered for

18

sale, and its component parts, including:

19

(A)  Delivery invoices, bills of lading and

20

shipping manifests.

21

(B)  Sales invoices, bills of lading and shipping

22

manifests.

23

(C)  Inventory records.

24

(D)  Contracts and agreements between suppliers,

25

buyers and sellers.

26

(5)  The department is authorized to access, during

27

regular business hours, the premises, including the tanks,

28

storage facilities, transportation and storage vehicles,

29

dispensing devices and any other place where diesel fuel,

30

biodiesel or biodiesel blend is stored, held, blended, sold

- 10 -

 


1

or offered for sale, and the records of any establishment,

2

located in this Commonwealth, where diesel fuel, biodiesel or

3

biodiesel blend is stored, held, processed, distributed,

4

offered or exposed for sale or sold in this Commonwealth for

5

the purpose of investigation and enforcement of this act,

6

including auditing records and taking samples of diesel fuel,

7

biodiesel or biodiesel blend from tanks, storage facilities,

8

transportation and storage vehicles, dispensing devices and

9

any other place where diesel fuel, biodiesel or biodiesel

10

blend is stored, held, blended, sold or offered for sale. A

11

person that willfully and intentionally interferes with an

12

employee of the department in the performance of duties or

13

activities authorized under this act commits a misdemeanor of

14

the third degree.

15

(6)  The department shall have the authority to issue

16

stop-sale orders with respect to all biodiesel and biodiesel

17

blend stored, held, blended, sold or offered for sale to

18

ultimate consumers in this Commonwealth for use in on-road

19

compression ignition engines where the department determines,

20

after sampling and analysis, that the biodiesel or biodiesel

21

blend does not comply with the standards established by this

22

act or the regulations promulgated under this act and would

23

be detrimental to the operation of on-road compression

24

ignition engines if used for its intended use. The department

25

shall release the noncompliant biodiesel or biodiesel blend

26

for sale only when the department determines the biodiesel or

27

biodiesel blend is either brought into compliance with this

28

act or regulations promulgated under this act or it would no

29

longer be detrimental to the operation of on-road compression

30

ignition engines if used for its intended use. All such

- 11 -

 


1

biodiesel or biodiesel blend must be properly labeled as to

2

its noncompliant characteristics if released and permitted to

3

be sold without being brought into compliance with this act

4

or regulations promulgated under this act. A person who

5

knowingly sells or offers for sale biodiesel or biodiesel

6

blend subject to a stop-sale order in this Commonwealth for

7

use by ultimate consumers in on-road compression ignition

8

engines commits a misdemeanor of the third degree.

9

(f)  Penalties.--

10

(1)  (i)  The department may assess a civil penalty of

11

not less than $100 nor more than $1,000 per day for each

12

knowing violation of this act or a regulation promulgated

13

under this act.

14

(ii)  The department shall provide written notice of

15

the penalty amount as well as the general factual and

16

legal basis for the penalty and shall advise the affected

17

person that, within 15 days of receipt of the notice, the

18

person may file with the Secretary of Agriculture a

19

written request for an administrative hearing. Unless a

20

timely request has been filed, the written notice shall

21

become final. If a written request for a hearing is

22

timely filed, the hearing on the penalty assessment shall

23

be held in accordance with the provisions of 2 Pa.C.S.

24

Chs. 5 Subch. A (relating to practice and procedure of

25

Commonwealth agencies) and 7 Subch. A (relating to

26

judicial review of Commonwealth agency action).

27

(iii)  In cases of inability to collect the civil

28

penalty or failure of any person to pay all or a portion

29

of the penalty, the department may refer the matter to

30

the Office of General Counsel or the Office of Attorney

- 12 -

 


1

General, which shall institute an action in the

2

appropriate court to recover the penalty.

3

(2)  A person who knowingly violates a provision of this

4

act or a rule or regulation adopted or order issued under

5

this act:

6

(i)  Unless otherwise specified in this act, for the

7

first offense, commits a summary offense and shall, upon

8

conviction, be sentenced to pay a fine of not less than

9

$100 nor more than $500 plus costs of prosecution or to

10

imprisonment for not more than 90 days, or both.

11

(ii)  For a subsequent offense at a registered

12

location that occurs within two years of sentencing for

13

the prior violation, commits a misdemeanor of the third

14

degree and shall, upon conviction, be sentenced to pay a

15

fine of not less than $500 nor more than $1,000 plus

16

costs of prosecution or to imprisonment of not more than

17

one year, or both.

18

(3)  A person creating a biodiesel blend by means other

19

than in-line injection blending or another blending process

20

approved by the department as a substantial equivalent,

21

either through regulations promulgated under this act or upon

22

application to the department for approval pursuant to this

23

subsection, shall be found in violation of this act's

24

biodiesel percentage requirements for creating a biodiesel

25

blend that does not conform to this act's biodiesel

26

percentage requirements without proof of having knowingly

27

violated this act.

28

(4)  In addition to any other remedies set forth under

29

this act, a violation of this act or a regulation promulgated

30

under this act shall be abatable in the manner provided by

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1

law or equity. In cases where the circumstances require it, a

2

mandatory preliminary injunction, special injunction or

3

temporary restraining order may be issued upon the terms

4

prescribed by the court, provided notice of the application

5

has been given to the respondent in accordance with the rules

6

of equity practice. In any proceeding, the court shall issue

7

a prohibitory or mandatory injunction if it finds that the

8

respondent is engaging in unlawful conduct as defined under

9

this act or is engaging in conduct which is causing immediate

10

and irreparable harm to the public. In addition to the

11

injunction, the court, in the equity proceeding, may assess

12

civil penalties in accordance with this section.

13

Section 2 4.  This act shall take effect in 60 days.

<--

14

Section 1.  Section 2 of the act of July 10, 2008 (P.L.1009,

<--

15

No.78), known as the Biofuel Development and In-State Production

16

Incentive Act, is amended by adding definitions to read:

17

Section 2.  Definitions.

18

The following words and phrases when used in this act shall

19

have the meanings given to them in this section unless the

20

context clearly indicates otherwise:

21

"American Society for Testing and Materials International" or

22

"ASTM."  A member-based international standards organization

23

that develops and publishes voluntary consensus technical

24

standards and test methods for a variety of materials and

25

products, including automotive fuel and other petroleum

26

products, or any successor organization.

27

"Annualized basis."  The sum of three consecutive months of

28

in-State production multiplied by four.

29

"Approved biodiesel blending method."  A method whereby

30

diesel fuel is blended with biodiesel under the following

- 14 -

 


1

conditions:

2

(1)  The method utilizes meters approved by the

3

Department of Agriculture to individually measure the volume

4

of each fuel.

5

(2)  The method achieves and maintains a consistent blend

6

throughout the entire volume being blended.

7

(3)  The method achieves and maintains the blend

8

percentage within a margin of one-half of one percent of the

9

total volume of biodiesel required to make the desired

10

blending percentage.

11

(4)  The blending occurs at a facility capable of

12

maintaining the biodiesel at a minimum of ten degrees

13

Fahrenheit above the cloud point of the biodiesel.

14

"ASTM specification."  A standard quality specification

15

developed and published by the American Society for Testing and

16

Materials International.

17

* * *

18

"Biodiesel blend."  A blend of diesel fuel and biodiesel in a

19

percentage blend to be sold or offered for sale to consumers in

20

this Commonwealth for use in on-road compression ignition

21

engines.

22

* * *

23

"Consumer."  A natural person who purchases fuel products for

24

purposes other than resale.

25

* * *

26

"Diesel fuel."  Petroleum diesel fuel that complies with ASTM

27

D975 or its successor standard.

28

* * *

29

"Person."  A natural person, corporation, partnership,

30

limited liability company, business trust, association, estate

- 15 -

 


1

or foundation.

2

* * *

3

"Retailer."  A person that sells, offers for sale or

4

otherwise transfers title to fuel products, including diesel

5

fuel, biodiesel and biodiesel blend, to a consumer.

6

Section 2.  Sections 3(a) and (f) and 4(a) of the act are

7

amended to read:

8

Section 3.  Biodiesel content in diesel fuel sold for on-road

9

use.

10

(a)  Volume standards.--The following standards shall apply:

11

(1)  All diesel fuel sold or offered for sale to

12

[ultimate] consumers in this Commonwealth for use in on-road

13

compression ignition engines must [contain] be blended with

14

biodiesel so as to achieve a biodiesel blend of at least 2%

15

biodiesel by volume one year after the in-State production

16

volume of 40,000,000 gallons of biodiesel has been reached

17

and sustained for three months on an annualized basis as

18

determined by the department. Biodiesel blend of less than 6%

19

biodiesel shall comply with ASTM specification D975 or its

20

successor standard. Biodiesel blend of 6% or more through 20%

21

biodiesel shall comply with ASTM specification D7467 or its

22

successor standard. Biodiesel blend of more than 20%

23

biodiesel shall comply with standards adopted by the

24

department through regulation until an ASTM standard is

25

applicable.

26

(2)  All diesel fuel sold or offered for sale to

27

[ultimate] consumers in this Commonwealth for use in on-road

28

compression ignition engines must [contain] be blended with

29

biodiesel so as to achieve a biodiesel blend of at least 5%

30

biodiesel by volume one year after the in-State production

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1

volume of 100,000,000 gallons of biodiesel has been reached

2

and sustained for three months on an annualized basis as

3

determined by the department. Biodiesel blend of less than 6%

4

biodiesel shall comply with ASTM specification D975 or its

5

successor standard. Biodiesel blend of 6% or more through 20%

6

biodiesel shall comply with ASTM specification D7467 or its

7

successor standard. Biodiesel blend of more than 20%

8

biodiesel shall comply with standards adopted by the

9

department through regulation until an ASTM standard is

10

applicable.

11

(3)  All diesel fuel sold or offered for sale to

12

[ultimate] consumers in this Commonwealth for use in on-road

13

compression ignition engines must [contain] be blended with

14

biodiesel so as to achieve a biodiesel blend of at least 10%

15

biodiesel by volume one year after the in-State production

16

volume of 200,000,000 gallons of biodiesel has been reached

17

and sustained for three months on an annualized basis as

18

determined by the department. Biodiesel blend of 10% or more

19

through 20% biodiesel shall comply with ASTM specification

20

D7467 or its successor standard. Biodiesel blend of more than

21

20% biodiesel shall comply with standards adopted by the

22

department through regulation until an ASTM standard is

23

applicable.

24

(4)  All diesel fuel sold or offered for sale to

25

[ultimate] consumers in this Commonwealth for use in on-road

26

compression ignition engines must [contain] be blended with

27

biodiesel so as to achieve a biodiesel blend of at least 20%

28

biodiesel by volume one year after the in-State production

29

volume of 400,000,000 gallons of biodiesel has been reached

30

and sustained for three months on an annualized basis as

- 17 -

 


1

determined by the department. Biodiesel blend of 20%

2

biodiesel shall comply with ASTM specification D7467 or its

3

successor standard. Biodiesel blend of more than 20%

4

biodiesel shall comply with standards adopted by the

5

department through regulation until an ASTM standard is

6

applicable.

7

* * *

8

(f)  [Exception] Exceptions.--The requirements of this

9

section shall not apply to [aviation]:

10

(1)  Aviation fuel, home heating fuel or where prohibited

11

by law.

12

(2)  Diesel fuel produced from 100% Pennsylvania grade

13

crude oil by a small refiner, as defined by 40 CFR 80.1101(g)

14

(relating to definitions). This paragraph shall expire

15

January 1, 2011.

16

(3)  Fuel stored at a nuclear power plant.

17

(4)  The blend percentage requirements of subsection (a)

18

(2), (3) and (4) shall not apply to diesel fuel produced from

19

100% Pennsylvania grade crude oil by a small refiner, as

20

defined by 40 CFR 80.1101(g).

21

Section 4.  Cellulosic ethanol content in gasoline.

22

(a)  Cellulosic ethanol content required.--All gasoline sold

23

or offered for sale to [ultimate] consumers in this Commonwealth

24

must contain at least 10% cellulosic ethanol by volume as

25

determined by an appropriate Environmental Protection Agency or

26

American Society for Testing Materials standard method of

27

analysis one year after the in-State production volume of

28

350,000,000 gallons of cellulosic ethanol has been reached and

29

sustained for three months on an annualized basis as determined

30

by the department.

- 18 -

 


1

* * *

2

Section 3.  The act is amended by adding a section to read:

3

Section 4.1  .  Blending, registration and other requirements.

4

(a)  Blending requirements.--Biodiesel blend shall be created

5

using an approved biodiesel blending method.

6

(b)  Registration requirements.--Any person that offers for

7

sale, sells or otherwise transfers title in this Commonwealth to

8

biodiesel blend or biodiesel for use by consumers in on-road

9

compression ignition engines shall register annually with the

10

department. Each location in this Commonwealth where the person

11

conducts the activity shall be separately registered, but may be

12

submitted in a single form. This subsection shall apply to in-

13

State and out-of-State persons. The application for registration

14

shall be on a form prescribed by the department and may be

15

accepted electronically by the department.

16

(c)  Bill of lading.--

17

(1)  Each time biodiesel blend is sold, offered for sale

18

or title to which is otherwise transferred for ultimate sale

19

to consumers in this Commonwealth, a bill of lading or

20

shipping manifest meeting the requirements of paragraph (2)

21

shall be provided to the person that receives the biodiesel

22

blend. For sales of biodiesel blend made directly to

23

consumers by the person that created it, the bill of lading

24

or shipping manifest shall be retained at the point of sale

25

for a period of one year from delivery of the biodiesel blend

26

or for a longer period of time, if the bill of lading or

27

shipping manifest is part of an enforcement action initiated

28

during the one-year period.

29

(2)  The bill of lading or shipping manifest required

30

under paragraph (1) shall:

- 19 -

 


1

(i)  Include a certification by the person that

2

created the biodiesel blend stating that it was created

3

by an approved biodiesel blending method and that the

4

information contained in the bill of lading or shipping

5

manifest is true and correct. The certification shall be

6

subject to the penalties under 18 Pa.C.S. § 4904

7

(relating to unsworn falsification to authorities).

8

(ii)  Contain the following information:

9

(A)  The name and location of the person that

10

created the biodiesel blend and, if the biodiesel

11

blend was created in this Commonwealth, the

12

registration number assigned by the department to the

13

subject location.

14

(B)  The biodiesel content, stated as volume

15

percentage, based upon gallons of biodiesel per

16

gallons of diesel fuel base-stock, or an ASTM "Bxx"

17

designation where "xx" denotes the volume percentage

18

biodiesel included in the blended product.

19

(C)  The ASTM specification of the biodiesel used

20

in the biodiesel blend.

21

(D)  The grade and ASTM specification of the

22

diesel fuel.

23

(E)  The ASTM specification of the biodiesel

24

blend.

25

(F)  The total gallons of biodiesel blend sold,

26

offered for sale or title to which is otherwise being

27

transferred.

28

(3)  A retailer selling, offering to sell or otherwise

29

transferring title to a biodiesel blend shall retain a copy

30

of the bill of lading or shipping manifest required under

- 20 -

 


1

paragraph (1) for a period of one year from receipt of the

2

biodiesel blend or for a longer period of time, if the bill

3

of lading or shipping manifest is part of an enforcement

4

action initiated during the one-year period. The bill of

5

lading or shipping manifest must remain at the facility where

6

the biodiesel blend has been offered for sale, sold or title

7

to which has otherwise been transferred at least until the

8

biodiesel blend physically leaves the facility, after which

9

it may be retained at the corporate headquarters of the

10

retailer. Failure by a retailer to make a copy of a bill of

11

lading or shipping manifest immediately available to the

12

department for inspection at the facility where the biodiesel

13

blend was offered for sale, sold or title to which was

14

otherwise transferred shall not be deemed a violation of this

15

act if the copy is submitted to the department within two

16

business days following the inspection.

17

(d)  Certification.--

18

(1)  Any time biodiesel is sold, offered for sale or

19

title to which is otherwise transferred in this Commonwealth

20

for use in biodiesel blend, the person selling, offering for

21

sale or otherwise transferring title to the biodiesel shall

22

provide a certification stating that the biodiesel is

23

compliant with the definition and quality standards for

24

biodiesel under this act, including ASTM D-6751-02, or its

25

successor standard. The certification shall also contain the

26

name and location of the person that manufactured the

27

biodiesel and, if the biodiesel was manufactured in this

28

Commonwealth, the registration number assigned by the

29

department to the subject location and shall be subject to

30

the penalties of 18 Pa.C.S. § 4904.

- 21 -

 


1

(2)  A copy of the certification required under paragraph

2

(1) shall be provided to any person that receives the

3

biodiesel, the person that blends the biodiesel with the

4

diesel fuel to create the biodiesel blend and to any person

5

that receives the biodiesel blend. The person providing the

6

certification and each person that receives a copy of the

7

certification shall retain a copy of the certification for a

8

period of one year from the delivery of the biodiesel or

9

biodiesel blend, as applicable, or for a longer period of

10

time, if the bill of lading or shipping manifest is part of

11

an enforcement action initiated during the one-year period.

12

With respect to a retailer that receives the biodiesel blend,

13

a copy of the certification must remain at a facility where

14

the biodiesel blend made with the biodiesel is offered for

15

sale, sold or title to which is otherwise transferred at

16

least until it physically leaves the facility, after which it

17

may be retained at the corporate headquarters of the

18

retailer. Failure by a retailer to make a copy of the

19

certification immediately available to the department for

20

inspection at a facility where biodiesel blend made with the

21

biodiesel is offered for sale, sold or title to which is

22

otherwise transferred shall not be deemed a violation of this

23

act if the copy is submitted to the department within two

24

business days following the inspection.

25

Section 4.  Section 5 heading and (a) of the act are amended

26

and the section is amended by adding subsections to read:

27

Section 5.  [Agency responsibilities] Department authority and

28

responsibility.

29

(a)  [Compliance] Enforcement.--With the exception of section

30

3(d), the department shall [ensure compliance with] enforce this

- 22 -

 


1

act and[, in consultation with the Department of Transportation

2

and the Department of Environmental Protection,] shall

3

promulgate regulations as necessary to implement and enforce the

4

requirements of this act. The department may employ all proper

5

means for the enforcement of this act, including issuing notices

6

and orders, initiating criminal prosecutions, seeking injunctive

7

relief, imposing civil penalties and entering into consent

8

agreements.

9

* * *

10

(e)  Authority.--

11

(1)  The department shall have the following authority:

12

(i)  To access during regular business hours and to

13

conduct unannounced random inspections of any facility

14

located in this Commonwealth that stores, holds, blends,

15

sells, offers for sale or otherwise transfers title to

16

diesel fuel, biodiesel or biodiesel blend. Inspections

17

shall include the premises of the facility, tanks,

18

storage facilities, transportation and storage vehicles,

19

dispensing devices and any other place where diesel fuel,

20

biodiesel or biodiesel blend is stored, held, blended,

21

sold, offered for sale, or title to which is otherwise

22

transferred.

23

(ii)  To take samples of and test the diesel fuel,

24

biodiesel and biodiesel blend being stored, held,

25

blended, sold, offered for sale or title to which is

26

otherwise being transferred.

27

(iii)  To audit and copy the books and records

28

pertaining to the diesel fuel, biodiesel or biodiesel

29

blend being stored, held, sold, offered for sale or title

30

to which is otherwise being transferred, and its

- 23 -

 


1

component parts, including:

2

(A)  Delivery invoices, sales invoices, bills of

3

lading and shipping manifests.

4

(B)  Inventory records.

5

(C)  Relevant contracts and agreements.

6

(iv)  To issue stop-sale orders with respect to all

7

biodiesel blend and biodiesel stored, held, blended, sold

8

or title to which is otherwise transferred or offered for

9

sale to consumers in this Commonwealth for use in on-road

10

compression ignition engines if the department

11

determines, after sampling and analysis, that the

12

biodiesel blend or biodiesel does not comply with the

13

standards established under this act or the regulations

14

promulgated under this act and would be detrimental to

15

the operation of on-road compression ignition engines if

16

used for its intended use. The department may release the

17

noncompliant biodiesel blend or biodiesel for sale only

18

when the department determines the biodiesel blend or

19

biodiesel is either brought into compliance with this act

20

or regulations promulgated under this act or it would no

21

longer be detrimental to the operation of on-road

22

compression ignition engines if used for its intended

23

use. All such biodiesel blend or biodiesel must be

24

properly labeled as to its noncompliant characteristics

25

if released and permitted to be sold without being

26

brought into compliance with this act or regulations

27

promulgated under this act. A person that knowingly

28

sells, offers for sale or otherwise transfers title to

29

biodiesel blend or biodiesel in this Commonwealth subject

30

to a stop-sale order for use by consumers in on-road

- 24 -

 


1

compression ignition engines commits a misdemeanor of the

2

third degree.

3

(2)  A person that willfully and intentionally interferes

4

with an employee of the department in the performance of the

5

duties conferred upon the department under the provisions of

6

this act commits a misdemeanor of the third degree.

7

(f)  Penalties.--

8

(1)  (i)  The department may assess a civil penalty of

9

not less than $100 nor more than $1,000 per day for each

10

knowing violation of this act or a regulation promulgated

11

under this act.

12

(ii)  If a person fails to pay all or a portion of a

13

penalty assessed against the person, the department may

14

refer the matter to the Office of General Counsel or the

15

Office of Attorney General, which shall institute an

16

action in the appropriate court to recover the penalty.

17

(2)  A person that knowingly violates a provision of this

18

act or a rule or regulation adopted or order issued under

19

this act:

20

(i)  Unless otherwise specified in this act, for the

21

first offense, commits a summary offense and shall, upon

22

conviction, be sentenced to pay a fine of not less than

23

$100 nor more than $500 plus costs of prosecution or to

24

imprisonment for not more than 90 days, or both.

25

(ii)  For a subsequent offense at one location that

26

occurs within two years of sentencing for the prior

27

violation at the same location, commits a misdemeanor of

28

the third degree and shall, upon conviction, be sentenced

29

to pay a fine of not less than $500 nor more than $1,000

30

plus costs of prosecution or to imprisonment of not more

- 25 -

 


1

than one year, or both.

2

(3)  In addition to any other remedies under this act, a

3

violation of this act or a regulation promulgated under this

4

act shall be abatable in any manner provided by law or

5

equity. In addition to any remedy ordered in an equity

6

proceeding, the court may assess civil penalties in

7

accordance with this act.

8

(g)  Fees.--

9

(1)  The department may impose and collect the following

10

annual fees for the registration required under section

11

4.1(b):

12

(i)  Five thousand dollars for a location in this

13

Commonwealth where biodiesel is manufactured.

14

(ii)  Five thousand dollars for a location in this

15

Commonwealth where biodiesel blend is created.

16

(iii)  One hundred dollars for a person, other than a

17

person that operates a location described in subparagraph

18

(i) or (ii), that sells, offers for sale or otherwise

19

transfers title to biodiesel or biodiesel blend in this

20

Commonwealth, whether or not the person operates a

21

location in this Commonwealth where such activities are

22

conducted.

23

(iv)  One hundred dollars for each location in excess

24

of one in this Commonwealth operated by the person

25

described in subparagraph (iii) where the person sells,

26

offers for sale or otherwise transfers title to biodiesel

27

or biodiesel blend.

28

(2)  There is established a restricted account within the

29

State Treasury to be known as the Biofuel Development

30

Account. All money in the account is hereby appropriated on a

- 26 -

 


1

continuing basis to the department for the enforcement and

2

administration of this act.

3

(3)  The following shall be deposited in the Biofuel

4

Development Account:

5

(i)  Federal and State funds appropriated to the

6

department for implementation and administration of this

7

act.

8

(ii)  Notwithstanding the provisions of 42 Pa.C.S. §§

9

3733 (relating to deposits into account) and 3733.1

10

(relating to surcharge), all fees, fines, judgments and

11

penalties, including administrative, civil and criminal

12

penalties, and interest on the foregoing collected by the

13

department under this act.

14

(iii)  Interest and any other earnings on money in

15

the account.

16

(iv)  Funds from any other source, including gifts

17

and other contributions from public and private sources.

18

Section 5.  This act shall take effect in 30 days.

- 27 -