| HOUSE AMENDED |
| PRIOR PRINTER'S NO. 1087 | PRINTER'S NO. 1400 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY SCARNATI AND M. WHITE, JUNE 4, 2009 |
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| AS REPORTED FROM COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, HOUSE OF REPRESENTATIVES, AS AMENDED, SEPTEMBER 17, 2009 |
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| AN ACT |
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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 | The General Assembly of the Commonwealth of Pennsylvania |
7 | hereby enacts as follows: |
8 | Section 1. Section 3(f) of the act of July 10, 2008 | <-- |
9 | (P.L.1109, No.78), known as the Biofuel Development and In-State |
10 | Production Incentive Act, is amended to read: |
11 | Section 3. Biodiesel content in diesel fuel sold for on-road |
12 | use. |
13 | Section 1. Section 2 of the act of July 10, 2008 (P.L.1109, | <-- |
14 | No.78), known as the Biofuel Development and In-State Production |
15 | Incentive Act, is amended by adding definitions to read: |
16 | Section 2. Definitions. |
17 | The following words and phrases when used in this act shall |
18 | have the meanings given to them in this section unless the |
19 | context clearly indicates otherwise: |
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1 | "American Society for Testing and Materials International" or |
2 | "ASTM." A private organization that utilizes committees of |
3 | industry representatives and regulators to develop product |
4 | quality standards and test methods to be used by industries, |
5 | regulatory agencies and purchasing agents. |
6 | "Annualized basis." The sum of three consecutive months of |
7 | in-State production multiplied by four. |
8 | "ASTM specification." A standard quality specification |
9 | developed and published by the American Society for Testing and |
10 | Materials International. Each specification includes references |
11 | to standard test methods, also developed and published by ASTM. |
12 | * * * |
13 | "Biodiesel blend." A blend of diesel fuel and biodiesel fuel |
14 | to be sold or offered for sale to ultimate consumers in this |
15 | Commonwealth for use in on-road compression ignition engines. |
16 | * * * |
17 | "Consumer." A person that purchases automotive fuel for |
18 | purposes other than resale. |
19 | * * * |
20 | "Diesel fuel." Petroleum diesel fuel that complies with ASTM |
21 | D975 or its successor standard. |
22 | "Distributor." A person that manufactures, refines, receives |
23 | for storage, distributes, sells or uses petroleum products, |
24 | including diesel fuel, biodiesel and biodiesel blend, in this |
25 | Commonwealth for subsequent distribution to another person other |
26 | than the consumer. |
27 | "In-line injection blending." Blending biodiesel with diesel |
28 | fuel through the use of a dispensing device which includes |
29 | Department of Agriculture-approved and National Institute of |
30 | Standard and Technology-approved meters on both the biodiesel |
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1 | and diesel fuel supply and the ability to detect, alarm and |
2 | discontinue loading biodiesel blends that fall outside the |
3 | desired blend ratio by more than 0.5%. |
4 | "Load rack terminals." A location where the commercial |
5 | transfer of petroleum products, including diesel fuel, biodiesel |
6 | and biodiesel blend, at the wholesale level is conducted |
7 | utilizing meters employed in the measurement of product |
8 | delivered to a seller by a buyer. |
9 | "Manufacture." To produce, mix, blend, repackage or further |
10 | process. |
11 | * * * |
12 | "Person." An individual, corporation, partnership, stock |
13 | company, society, association, business unit or agent or |
14 | employee thereof. |
15 | "Producer." A person that purchases component elements and |
16 | blends them to produce automotive fuel, including biodiesel |
17 | blend. |
18 | "Refinery" or "terminal." A petroleum refinery, pipeline |
19 | terminal, river terminal, load rack terminal, storage facility, |
20 | producer facility or other point of origin where petroleum |
21 | products, including diesel fuel, biodiesel and biodiesel blend, |
22 | are manufactured, blended or imported by rail, truck, barge or |
23 | pipe and held, stored, transferred, offered for distribution, |
24 | distributed, offered for sale or sold. |
25 | * * * |
26 | "Retailer." A person that sells automotive fuel, including |
27 | diesel fuel, biodiesel and biodiesel blend, to the consumer. |
28 | "Sale," "sell," "offer for sale" or "sold." To offer for |
29 | sale, contract, barter, exchange, distribute or transfer title. |
30 | "Unclassified importer." A person that imports or causes to |
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1 | be imported diesel fuel, biodiesel or biodiesel blend for use, |
2 | distribution or sale in this Commonwealth, but that does not |
3 | qualify as a distributor. |
4 | Section 2. Section 3(a) and (f) of the act are amended to |
5 | read: |
6 | Section 3. Biodiesel content in diesel fuel sold for on-road |
7 | use. |
8 | (a) Volume standards.--The following standards shall apply: |
9 | (1) All diesel fuel sold or offered for sale to ultimate |
10 | consumers in this Commonwealth for use in on-road compression |
11 | ignition engines must [contain] be blended with biodiesel so |
12 | as to achieve a biodiesel blend of at least 2% biodiesel by |
13 | volume one year after the in-State production volume of |
14 | 40,000,000 gallons of biodiesel has been reached and |
15 | sustained for three months on an annualized basis as |
16 | determined by the department. The biodiesel blend shall |
17 | comply with ASTM specification D975 or its successor |
18 | standard. |
19 | (2) All diesel fuel sold or offered for sale to ultimate |
20 | consumers in this Commonwealth for use in on-road compression |
21 | ignition engines must [contain] be blended with biodiesel so |
22 | as to achieve a biodiesel blend of at least 5% biodiesel by |
23 | volume one year after the in-State production volume of |
24 | 100,000,000 gallons of biodiesel has been reached and |
25 | sustained for three months on an annualized basis as |
26 | determined by the department. The biodiesel blend shall |
27 | comply with ASTM specification D975 or its successor |
28 | standard. |
29 | (3) All diesel fuel sold or offered for sale to ultimate |
30 | consumers in this Commonwealth for use in on-road compression |
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1 | ignition engines must [contain] be blended with biodiesel so |
2 | as to achieve a biodiesel blend of at least 10% biodiesel by |
3 | volume one year after the in-State production volume of |
4 | 200,000,000 gallons of biodiesel has been reached and |
5 | sustained for three months on an annualized basis as |
6 | determined by the department. The biodiesel blend shall |
7 | comply with ASTM specification D7467 or its successor |
8 | standard. |
9 | (4) All diesel fuel sold or offered for sale to ultimate |
10 | consumers in this Commonwealth for use in on-road compression |
11 | ignition engines must [contain] be blended with biodiesel so |
12 | as to achieve a biodiesel blend of at least 20% biodiesel by |
13 | volume one year after the in-State production volume of |
14 | 400,000,000 gallons of biodiesel has been reached and |
15 | sustained for three months on an annualized basis as |
16 | determined by the department. The biodiesel blend shall |
17 | comply with ASTM specification D7467 or its successor |
18 | standard. |
19 | * * * |
20 | (f) [Exception] Exceptions.--The requirements of this |
21 | section shall not apply to [aviation]: |
22 | (1) Aviation fuel, home heating fuel or where prohibited |
23 | by law. |
24 | (2) Diesel fuel produced from 100% Pennsylvania grade | <-- |
25 | crude oil by a small refiner, as defined by 40 CFR 80.1101(g) |
26 | (relating to small refinery), through December 31, 2010. |
27 | Section 3. Section 5 of the act is amended by adding | <-- |
28 | subsections to read: |
29 | Section 5. Agency responsibilities. |
30 | * * * |
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1 | (e) Enforcement.-- |
2 | (1) The department is charged with the general |
3 | enforcement of this act. The department may employ all proper |
4 | means for the enforcement of this act, including issuing |
5 | notices and orders, filing violations for criminal |
6 | prosecution, seeking injunctive relief, imposing civil |
7 | penalties and entering into consent agreements. |
8 | (2) Any person that transfers, offers for sale or sells |
9 | biodiesel or biodiesel blend in this Commonwealth for use in |
10 | on-road compression ignition engines shall register with the |
11 | department. If a person has multiple locations where the |
12 | person conducts such activities, each location shall be |
13 | separately registered, but may be submitted in a single |
14 | electronic form. This paragraph includes in-State and out-of- |
15 | State persons, such as refineries, terminals, distributors, |
16 | producers, retailers and unclassified importers, that |
17 | transfer, sell or offer for sale biodiesel and biodiesel |
18 | blend products for ultimate on-road use by consumers in this |
19 | Commonwealth. |
20 | (3) (i) Any time biodiesel blend is sold or transferred |
21 | from a refinery, terminal, shipper or any person, for |
22 | sale to ultimate consumers in this Commonwealth, either |
23 | directly or through a retailer or other person, a bill of |
24 | lading or shipping manifest shall be provided to the |
25 | person that receives the biodiesel blend. The shipping |
26 | manifest or bill of lading shall accompany the biodiesel |
27 | blend to the retailer. For direct consumer sales of |
28 | biodiesel blend by a terminal or refinery, such bills of |
29 | lading or shipping manifest shall be retained at the |
30 | point of sale. A copy of such records shall be retained |
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1 | by the refinery, terminal, distributor, producer, |
2 | unclassified importer or person responsible for a period |
3 | of one year from delivery of the biodiesel blend product |
4 | or for a longer period of time if part of an enforcement |
5 | action. |
6 | (ii) For biodiesel blend, the bill of lading or |
7 | shipping manifest shall contain and disclose the |
8 | following information: |
9 | (A) The Pennsylvania registration number, name |
10 | and location of the terminal, refinery, distributor, |
11 | producer, unclassified importer or person that |
12 | created the biodiesel blend. |
13 | (B) The biodiesel content, stating volume |
14 | percentage, based upon gallons of biodiesel per |
15 | gallons of diesel fuel base-stock, or an ASTM “Bxx” |
16 | designation where “xx” denotes the volume percentage |
17 | biodiesel included in the blended product. |
18 | (C) The ASTM specification of the biodiesel used |
19 | in the biodiesel blend. |
20 | (D) The grade and ASTM specification of the |
21 | diesel fuel. |
22 | (E) The ASTM specification of the biodiesel |
23 | blend. |
24 | (F) The total gallons of biodiesel blend sold, |
25 | shipped or transferred. |
26 | (G) A certification signed by the refinery, |
27 | terminal, distributor, producer, unclassified |
28 | importer or other person, that created the biodiesel |
29 | blend stating the information contained in the bill |
30 | of lading or shipping manifest is true and correct |
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1 | subject to the penalties of 18 Pa.C.S. § 4904 |
2 | (relating to unsworn falsification to authorities). |
3 | (iii) Retailers offering a biodiesel blend product |
4 | for ultimate sale to consumers in this Commonwealth for |
5 | use in on-road compression ignition engines shall assure |
6 | they receive and retain for their records a copy of the |
7 | bills of lading and shipping manifests required by |
8 | subparagraphs (i) and (ii). These records shall be |
9 | retained for a period of one year from receipt of the |
10 | biodiesel blend product or for a longer period of time if |
11 | part of an enforcement action either at the facility |
12 | where the product is sold or at the corporate |
13 | headquarters, so long as the bills of lading and shipping |
14 | manifests remain at the facility where the product is |
15 | sold until such time as that product is sold or is no |
16 | longer present at the facility. Notwithstanding the |
17 | provisions of this subsection, no retailer shall be found |
18 | in violation of this act for failure to make the records |
19 | required by subparagraphs (i) and (ii) immediately |
20 | available to the department upon inspection of the |
21 | facility where the product is sold, provided that the |
22 | records are submitted to the department within two |
23 | business days. |
24 | (iv) Any time biodiesel is sold or transferred from |
25 | any person to be sold or offered for sale to ultimate |
26 | consumers in this Commonwealth for use in on-road |
27 | compression ignition engines as part of a biodiesel |
28 | blend, a certification shall be provided to the person |
29 | that receives the biodiesel. The certification shall |
30 | accompany the biodiesel to the person that blends the |
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1 | biodiesel with diesel fuel and shall accompany the |
2 | biodiesel blend into which the biodiesel has been |
3 | incorporated to the retailer. The certification shall be |
4 | signed by the person selling or transferring the |
5 | biodiesel and state that the biodiesel is compliant with |
6 | the definition and quality standards for biodiesel under |
7 | this act, including ASTM D-6751-02, or its successor |
8 | standard, and be made subject to the penalties of 18 |
9 | Pa.C.S. § 4904. A copy of the certification shall be |
10 | retained by the person selling or transferring the |
11 | biodiesel, the person blending the biodiesel with diesel |
12 | fuel and by the retailer for a period of one year from |
13 | delivery of the biodiesel or biodiesel blend, as |
14 | applicable, or for a longer period of time if part of an |
15 | enforcement action. With regard to a retailer, a copy of |
16 | the certification may be retained at the corporate |
17 | headquarters so long as the certification remains at the |
18 | facility where the product is sold until such time as |
19 | that product is sold or is no longer present at the |
20 | facility. Notwithstanding the provisions of this |
21 | subsection, no retailer shall be found in violation of |
22 | this act for failure to make the records required by |
23 | subparagraphs (i) and (ii) immediately available to the |
24 | department upon inspection of the facility where the |
25 | product is sold, provided that the records are submitted |
26 | to the department within two business days. |
27 | (4) The department shall have the following authority: |
28 | (i) To conduct unannounced random inspections of any |
29 | person or establishment located in this Commonwealth that |
30 | stores, holds, blends, sells or offers for sale diesel |
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1 | fuel, biodiesel or biodiesel blend. Inspections shall |
2 | include the premises, tanks, storage facilities, |
3 | transportation and storage vehicles, dispensing devices |
4 | and any other place where diesel fuel, biodiesel or |
5 | biodiesel blend is stored, held, blended, sold or offered |
6 | for sale. |
7 | (ii) To take samples of and test the diesel fuel, |
8 | biodiesel and biodiesel blend being stored, held, |
9 | blended, sold or offered for sale. |
10 | (iii) To audit the books and records, including |
11 | copying, pertaining to the diesel fuel, biodiesel or |
12 | biodiesel blend being stored, held, sold or offered for |
13 | sale, and its component parts, including: |
14 | (A) Delivery invoices, bills of lading and |
15 | shipping manifests. |
16 | (B) Sales invoices, bills of lading and shipping |
17 | manifests. |
18 | (C) Inventory records. |
19 | (D) Contracts and agreements between suppliers, |
20 | buyers and sellers. |
21 | (5) The department is authorized to access, during |
22 | regular business hours, the premises, including the tanks, |
23 | storage facilities, transportation and storage vehicles, |
24 | dispensing devices and any other place where diesel fuel, |
25 | biodiesel or biodiesel blend is stored, held, blended, sold |
26 | or offered for sale, and the records of any establishment, |
27 | located in this Commonwealth, where diesel fuel, biodiesel or |
28 | biodiesel blend is stored, held, processed, distributed, |
29 | offered or exposed for sale or sold in this Commonwealth for |
30 | the purpose of investigation and enforcement of this act, |
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1 | including auditing records and taking samples of diesel fuel, |
2 | biodiesel or biodiesel blend from tanks, storage facilities, |
3 | transportation and storage vehicles, dispensing devices and |
4 | any other place where diesel fuel, biodiesel or biodiesel |
5 | blend is stored, held, blended, sold or offered for sale. A |
6 | person that willfully and intentionally interferes with an |
7 | employee of the department in the performance of duties or |
8 | activities authorized under this act commits a misdemeanor of |
9 | the third degree. |
10 | (6) The department shall have the authority to issue |
11 | stop-sale orders with respect to all biodiesel and biodiesel |
12 | blend stored, held, blended, sold or offered for sale to |
13 | ultimate consumers in this Commonwealth for use in on-road |
14 | compression ignition engines where the department determines, |
15 | after sampling and analysis, that the biodiesel or biodiesel |
16 | blend does not comply with the standards established by this |
17 | act or the regulations promulgated under this act and would |
18 | be detrimental to the operation of on-road compression |
19 | ignition engines if used for its intended use. The department |
20 | shall release the noncompliant biodiesel or biodiesel blend |
21 | for sale only when the department determines the biodiesel or |
22 | biodiesel blend is either brought into compliance with this |
23 | act or regulations promulgated under this act or it would no |
24 | longer be detrimental to the operation of on-road compression |
25 | ignition engines if used for its intended use. All such |
26 | biodiesel or biodiesel blend must be properly labeled as to |
27 | its noncompliant characteristics if released and permitted to |
28 | be sold without being brought into compliance with this act |
29 | or regulations promulgated under this act. A person who |
30 | knowingly sells or offers for sale biodiesel or biodiesel |
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1 | blend subject to a stop-sale order in this Commonwealth for |
2 | use by ultimate consumers in on-road compression ignition |
3 | engines commits a misdemeanor of the third degree. |
4 | (f) Penalties.-- |
5 | (1) (i) The department may assess a civil penalty of |
6 | not less than $100 nor more than $1,000 per day for each |
7 | knowing violation of this act or a regulation promulgated |
8 | under this act. |
9 | (ii) The department shall provide written notice of |
10 | the penalty amount as well as the general factual and |
11 | legal basis for the penalty and shall advise the affected |
12 | person that, within 15 days of receipt of the notice, the |
13 | person may file with the Secretary of Agriculture a |
14 | written request for an administrative hearing. Unless a |
15 | timely request has been filed, the written notice shall |
16 | become final. If a written request for a hearing is |
17 | timely filed, the hearing on the penalty assessment shall |
18 | be held in accordance with the provisions of 2 Pa.C.S. |
19 | Chs. 5 Subch. A (relating to practice and procedure of |
20 | Commonwealth agencies) and 7 Subch. A (relating to |
21 | judicial review of Commonwealth agency action). |
22 | (iii) In cases of inability to collect the civil |
23 | penalty or failure of any person to pay all or a portion |
24 | of the penalty, the department may refer the matter to |
25 | the Office of General Counsel or the Office of Attorney |
26 | General, which shall institute an action in the |
27 | appropriate court to recover the penalty. |
28 | (2) A person who knowingly violates a provision of this |
29 | act or a rule or regulation adopted or order issued under |
30 | this act: |
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1 | (i) Unless otherwise specified in this act, for the |
2 | first offense, commits a summary offense and shall, upon |
3 | conviction, be sentenced to pay a fine of not less than |
4 | $100 nor more than $500 plus costs of prosecution or to |
5 | imprisonment for not more than 90 days, or both. |
6 | (ii) For a subsequent offense at a registered |
7 | location that occurs within two years of sentencing for |
8 | the prior violation, commits a misdemeanor of the third |
9 | degree and shall, upon conviction, be sentenced to pay a |
10 | fine of not less than $500 nor more than $1,000 plus |
11 | costs of prosecution or to imprisonment of not more than |
12 | one year, or both. |
13 | (3) A person creating a biodiesel blend by means other |
14 | than in-line injection blending or another blending process |
15 | approved by the department as a substantial equivalent, |
16 | either through regulations promulgated under this act or upon |
17 | application to the department for approval pursuant to this |
18 | subsection, shall be found in violation of this act's |
19 | biodiesel percentage requirements for creating a biodiesel |
20 | blend that does not conform to this act's biodiesel |
21 | percentage requirements without proof of having knowingly |
22 | violated this act. |
23 | (4) In addition to any other remedies set forth under |
24 | this act, a violation of this act or a regulation promulgated |
25 | under this act shall be abatable in the manner provided by |
26 | law or equity. In cases where the circumstances require it, a |
27 | mandatory preliminary injunction, special injunction or |
28 | temporary restraining order may be issued upon the terms |
29 | prescribed by the court, provided notice of the application |
30 | has been given to the respondent in accordance with the rules |
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1 | of equity practice. In any proceeding, the court shall issue |
2 | a prohibitory or mandatory injunction if it finds that the |
3 | respondent is engaging in unlawful conduct as defined under |
4 | this act or is engaging in conduct which is causing immediate |
5 | and irreparable harm to the public. In addition to the |
6 | injunction, the court, in the equity proceeding, may assess |
7 | civil penalties in accordance with this section. |
8 | Section 2 4. This act shall take effect in 60 days. | <-- |
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