THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SONNEY, MAHER, CAUSER, J. EVANS, EVERETT AND PICKETT, FEBRUARY 23, 2011

REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, FEBRUARY 23, 2011  

AN ACT

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

"An act providing for the study and mandated content of

biofuels," further providing for definitions, for biodiesel

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

cellulosic ethanol content in gasoline; providing for

blending, registration and other requirements; further

providing for department authority and responsibility;

providing for fees; establishing the Biofuel Development

Account; and imposing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

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

Incentive Act, is amended by adding definitions to read:

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"American Society for Testing and Materials International" or

"ASTM."  A member-based international standards organization

that develops and publishes voluntary consensus technical

standards and test methods for a variety of materials and

products, including automotive fuel and other petroleum

products, or any successor organization.

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

in-State production multiplied by four.

"Approved biodiesel blending method."  A method whereby

diesel fuel is blended with biodiesel under the following

conditions:

(1)  The method utilizes meters approved by the

Department of Agriculture to individually measure the volume

of each fuel.

(2)  The method achieves and maintains a consistent blend

throughout the entire volume being blended.

(3)  The method achieves and maintains the blend

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

total volume of biodiesel required to make the desired

blending percentage.

(4)  The blending occurs at a facility capable of

maintaining the biodiesel at a minimum of ten degrees

Fahrenheit above the cloud point of the biodiesel.

"ASTM specification."  A standard quality specification

developed and published by the American Society for Testing and

Materials International.

* * *

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

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

this Commonwealth for use in on-road compression ignition

engines.

* * *

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

purposes other than resale.

* * *

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

D975 or its successor standard.

* * *

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

limited liability company, business trust, association, estate

or foundation.

* * *

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

otherwise transfers title to fuel products, including diesel

fuel, biodiesel and biodiesel blend, to a consumer.

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

amended to read:

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

use.

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

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

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

compression ignition engines must [contain] be blended with

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

biodiesel by volume one year after the in-State production

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

and sustained for three months on an annualized basis as

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

biodiesel shall comply with ASTM specification D975 or its

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

biodiesel shall comply with ASTM specification D7467 or its

successor standard. Biodiesel blend of more than 20%

biodiesel shall comply with standards adopted by the

department through regulation until an ASTM standard is

applicable.

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

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

compression ignition engines must [contain] be blended with

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

biodiesel by volume one year after the in-State production

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

and sustained for three months on an annualized basis as

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

biodiesel shall comply with ASTM specification D975 or its

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

biodiesel shall comply with ASTM specification D7467 or its

successor standard. Biodiesel blend of more than 20%

biodiesel shall comply with standards adopted by the

department through regulation until an ASTM standard is

applicable.

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

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

compression ignition engines must [contain] be blended with

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

biodiesel by volume one year after the in-State production

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

and sustained for three months on an annualized basis as

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

through 20% biodiesel shall comply with ASTM specification

D7467 or its successor standard. Biodiesel blend of more than

20% biodiesel shall comply with standards adopted by the

department through regulation until an ASTM standard is

applicable.

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

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

compression ignition engines must [contain] be blended with

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

biodiesel by volume one year after the in-State production

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

and sustained for three months on an annualized basis as

determined by the department. Biodiesel blend of 20%

biodiesel shall comply with ASTM specification D7467 or its

successor standard. Biodiesel blend of more than 20%

biodiesel shall comply with standards adopted by the

department through regulation until an ASTM standard is

applicable.

* * *

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

section shall not apply to [aviation]:

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

by law.

(2)  Diesel fuel produced from 100% Pennsylvania grade

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

(relating to definitions). This paragraph shall expire

January 1, 2011.

(3)  Fuel stored at a nuclear power plant.

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

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

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

defined by 40 CFR 80.1101(g).

Section 4.  Cellulosic ethanol content in gasoline.

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

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

must contain at least 10% cellulosic ethanol by volume as

determined by an appropriate Environmental Protection Agency or

American Society for Testing Materials standard method of

analysis one year after the in-State production volume of

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

sustained for three months on an annualized basis as determined

by the department.

* * *

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

Section 4.1  .  Blending, registration and other requirements.

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

using an approved biodiesel blending method.

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

sale, sells or otherwise transfers title in this Commonwealth to

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

compression ignition engines shall register annually with the

department. Each location in this Commonwealth where the person

conducts the activity shall be separately registered, but may be

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

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

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

accepted electronically by the department.

(c)  Bill of lading.--

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

or title to which is otherwise transferred for ultimate sale

to consumers in this Commonwealth, a bill of lading or

shipping manifest meeting the requirements of paragraph (2)

shall be provided to the person that receives the biodiesel

blend. For sales of biodiesel blend made directly to

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

or shipping manifest shall be retained at the point of sale

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

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

shipping manifest is part of an enforcement action initiated

during the one-year period.

(2)  The bill of lading or shipping manifest required

under paragraph (1) shall:

(i)  Include a certification by the person that

created the biodiesel blend stating that it was created

by an approved biodiesel blending method and that the

information contained in the bill of lading or shipping

manifest is true and correct. The certification shall be

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

(relating to unsworn falsification to authorities).

(ii)  Contain the following information:

(A)  The name and location of the person that

created the biodiesel blend and, if the biodiesel

blend was created in this Commonwealth, the

registration number assigned by the department to the

subject location.

(B)  The biodiesel content, stated as volume

percentage, based upon gallons of biodiesel per

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

designation where "xx" denotes the volume percentage

biodiesel included in the blended product.

(C)  The ASTM specification of the biodiesel used

in the biodiesel blend.

(D)  The grade and ASTM specification of the

diesel fuel.

(E)  The ASTM specification of the biodiesel

blend.

(F)  The total gallons of biodiesel blend sold,

offered for sale or title to which is otherwise being

transferred.

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

transferring title to a biodiesel blend shall retain a copy

of the bill of lading or shipping manifest required under

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

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

of lading or shipping manifest is part of an enforcement

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

lading or shipping manifest must remain at the facility where

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

to which has otherwise been transferred at least until the

biodiesel blend physically leaves the facility, after which

it may be retained at the corporate headquarters of the

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

lading or shipping manifest immediately available to the

department for inspection at the facility where the biodiesel

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

otherwise transferred shall not be deemed a violation of this

act if the copy is submitted to the department within two

business days following the inspection.

(d)  Certification.--

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

title to which is otherwise transferred in this Commonwealth

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

sale or otherwise transferring title to the biodiesel shall

provide a certification stating that the biodiesel is

compliant with the definition and quality standards for

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

successor standard. The certification shall also contain the

name and location of the person that manufactured the

biodiesel and, if the biodiesel was manufactured in this

Commonwealth, the registration number assigned by the

department to the subject location and shall be subject to

the penalties of 18 Pa.C.S. § 4904.

(2)  A copy of the certification required under paragraph

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

biodiesel, the person that blends the biodiesel with the

diesel fuel to create the biodiesel blend and to any person

that receives the biodiesel blend. The person providing the

certification and each person that receives a copy of the

certification shall retain a copy of the certification for a

period of one year from the delivery of the biodiesel or

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

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

an enforcement action initiated during the one-year period.

With respect to a retailer that receives the biodiesel blend,

a copy of the certification must remain at a facility where

the biodiesel blend made with the biodiesel is offered for

sale, sold or title to which is otherwise transferred at

least until it physically leaves the facility, after which it

may be retained at the corporate headquarters of the

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

certification immediately available to the department for

inspection at a facility where biodiesel blend made with the

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

otherwise transferred shall not be deemed a violation of this

act if the copy is submitted to the department within two

business days following the inspection.

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

and the section is amended by adding subsections to read:

Section 5.  [Agency responsibilities] Department authority and

responsibility.

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

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

act and[, in consultation with the Department of Transportation

and the Department of Environmental Protection,] shall

promulgate regulations as necessary to implement and enforce the

requirements of this act. The department may employ all proper

means for the enforcement of this act, including issuing notices

and orders, initiating criminal prosecutions, seeking injunctive

relief, imposing civil penalties and entering into consent

agreements.

* * *

(e)  Authority.--

(1)  The department shall have the following authority:

(i)  To access during regular business hours and to

conduct unannounced random inspections of any facility

located in this Commonwealth that stores, holds, blends,

sells, offers for sale or otherwise transfers title to

diesel fuel, biodiesel or biodiesel blend. Inspections

shall include the premises of the facility, tanks,

storage facilities, transportation and storage vehicles,

dispensing devices and any other place where diesel fuel,

biodiesel or biodiesel blend is stored, held, blended,

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

transferred.

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

biodiesel and biodiesel blend being stored, held,

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

otherwise being transferred.

(iii)  To audit and copy the books and records

pertaining to the diesel fuel, biodiesel or biodiesel

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

to which is otherwise being transferred, and its

component parts, including:

(A)  Delivery invoices, sales invoices, bills of

lading and shipping manifests.

(B)  Inventory records.

(C)  Relevant contracts and agreements.

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

biodiesel blend and biodiesel stored, held, blended, sold

or title to which is otherwise transferred or offered for

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

compression ignition engines if the department

determines, after sampling and analysis, that the

biodiesel blend or biodiesel does not comply with the

standards established under this act or the regulations

promulgated under this act and would be detrimental to

the operation of on-road compression ignition engines if

used for its intended use. The department may release the

noncompliant biodiesel blend or biodiesel for sale only

when the department determines the biodiesel blend or

biodiesel is either brought into compliance with this act

or regulations promulgated under this act or it would no

longer be detrimental to the operation of on-road

compression ignition engines if used for its intended

use. All such biodiesel blend or biodiesel must be

properly labeled as to its noncompliant characteristics

if released and permitted to be sold without being

brought into compliance with this act or regulations

promulgated under this act. A person that knowingly

sells, offers for sale or otherwise transfers title to

biodiesel blend or biodiesel in this Commonwealth subject

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

compression ignition engines commits a misdemeanor of the

third degree.

(2)  A person that willfully and intentionally interferes

with an employee of the department in the performance of the

duties conferred upon the department under the provisions of

this act commits a misdemeanor of the third degree.

(f)  Penalties.--

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

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

knowing violation of this act or a regulation promulgated

under this act.

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

penalty assessed against the person, the department may

refer the matter to the Office of General Counsel or the

Office of Attorney General, which shall institute an

action in the appropriate court to recover the penalty.

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

act or a rule or regulation adopted or order issued under

this act:

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

first offense, commits a summary offense and shall, upon

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

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

imprisonment for not more than 90 days, or both.

(ii)  For a subsequent offense at one location that

occurs within two years of sentencing for the prior

violation at the same location, commits a misdemeanor of

the third degree and shall, upon conviction, be sentenced

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

plus costs of prosecution or to imprisonment of not more

than one year, or both.

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

violation of this act or a regulation promulgated under this

act shall be abatable in any manner provided by law or

equity. In addition to any remedy ordered in an equity

proceeding, the court may assess civil penalties in

accordance with this act.

(g)  Account.--

(1)  There is established a restricted account within the

State Treasury to be known as the Biofuel Development

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

continuing basis to the department for the enforcement and

administration of this act.

(2)  The following shall be deposited in the Biofuel

Development Account:

(i)  Federal and State funds appropriated to the

department for implementation and administration of this

act.

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

3733 (relating to deposits into account) and 3733.1

(relating to surcharge), all fines, judgments and

penalties, including administrative, civil and criminal

penalties, and interest on the foregoing collected by the

department under this act.

(iii)  Interest and any other earnings on money in

the account.

(iv)  Funds from any other source, including gifts

and other contributions from public and private sources.

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