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(D) The date, if any, on which the small refiner completes transfer from its small refinery in the period December 31, 2003 through December 31, 2004, and in each subsequent calendar year, of the small refiner's qualifying volume of gasoline produced by the small refiner, calculated as described in section (c)(3), within 5 days after such date;
(E) Within 10 days after project completion, any refinery addition or modification which would affect the qualification of the refiner as a small refiner pursuant to the definition in section 2260(a)(22); and
(F) Any change of ownership of the small refiner or the small refiner's refinery, within 10 days after such change of ownership.
Note: Authority cited: Sections 39600, 39601, 43013, 43018 and 43101, Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975). Reference: Sections 39000, 39001, 39002, 39003, 39010, 39500, 39515, 39516, 40000, 41511, 43016, 43018 and 43101, Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975).
s 2273. Labeling of Equipment Dispensing Gasoline Containing MTBE.
(a) MTBE labeling requirement.All devices dispensing gasoline containing methyl tertiary butyl ether (MTBE) at filling stations, garages or other outlets where petroleum products are sold or offered for retail shall be marked with a conspicuous label at all times the product is offered for retail sale.
(1) The label shall state that the gasoline being dispensed "Contains MTBE. The State of California has determined that the use of this chemical presents a significant risk to the environment."
(2) The label shall be contrasting in color to the gasoline dispensing equipment and have capitalized lettering using not less than one-eighth inch high letters, except that "MTBE" shall have lettering using not less than five-eighth inch high letters with a stroke of not less than one-eighth in width and "Contains" shall have lettering using not less than one-quarter inch high letters.
(3) The label shall be placed on the gasoline dispensing equipment's vertical surface, on each side with gallonage and price meters.
(4) The label shall be conspicuous and legible to a customer when viewed from the driver's position inside the car.
(5) The label shall be capable of withstanding extremes of weather conditions for at least one year and shall be resistant to gasoline, oil, grease, solvents, detergents, and water. Damaged labels that are not legible shall be replaced.
(b)Residual levels of MTBE.
(1) The labeling requirements in section 2273(a) do not apply to equipment dispensing gasoline from a storage tank containing gasoline having an MTBE content of less than 0.6 percent by volume, as determined by American Society of Testing and Materials (ASTM) Test Method D 4815-99, which is incorporated herein by reference, or any other test method determined by the executive officer to give equivalent results.
(2) The labeling requirements in section 2273(a) do not apply where the equipment is dispensing gasoline from a storage tank containing gasoline having an MTBE content of less than 3.0 percent by volume, as determined by a test method identified in section 2273(b)(1), and the operator of the retail outlet demonstrates that the conditions in either section 2273(b)(2)(A), (B), (C) or (D) have occurred.
(A) The gasoline storage tank has been consecutively drained and refilled to at least 95 percent of capacity with gasoline containing less than 0.6 volume percent MTBE as specified in the following table.
The percent of the total gasoline The consecutive number of times the
storage tank capacity that gasoline storage tank must
is emptied prior to refilling be drained and refilled
90% 2
80% 3
70% 3
60% 4
50% 6
40% 8
30% 11
20% 19
10% 60
(B) The gasoline storage tank has been consecutively drained and refilled to at least 95 percent of capacity with gasoline containing less than 0.6 volume percent MTBE according to the following equation.
N = -(0.222)+ log CO)/log (VL/VT
Where:
N = The number of times the gasoline storage tank must be drained and refilled. If the resultant number is not an integer, it shall be rounded up to the nearest integer.
CO = The initial concentration, in volume percent, of MTBE in the gasoline storage tank.
VL = The volume of gasoline (in gallons) left in the gasoline storage tank after each draining.
VT = 95% of the capacity (in gallons) of the gasoline storage tank.
(C) The following equation has been applied to consecutive drainings and fillings of the gasoline in the storage tank, and the equation shows an MTBE content of less than 0.6 percent by volume. The initial MTBE concentration (CO) of the gasoline in the storage tank when the equation is first applied shall be deemed to be 15 volume percent unless the MTBE content is determined in accordance with a testing methodology identified in section 2273(b)(1). For purposes of the equation, [i] the MTBE concentration of gasoline containing less than 0.6 volume percent MTBE shall be deemed to be zero, and [ii] the MTBE concentration of gasoline delivered with an invoice or other documentation stating that the gasoline contains MTBE shall be deemed to be 15 volume percent or, if the concentration of MTBE is stated on the documentation, that stated concentration. The executive officer shall make available upon request a computer program that may be used in applying the equation.
C = CO(VL/(VL+VD)) + CD(VD/(VL +VD))
Where:
C = The final concentration, in volume percent, of MTBE in the gasoline storage tank after the fuel delivery.
CO = The initial concentration, in volume percent, of MTBE in the gasoline storage tank before the fuel delivery.
CD = The concentration, in volume percent, of MTBE in the fuel being delivered to the gasoline storage tank.
VL = The volume of gasoline (in gallons) left in the gasoline storage tank prior to fuel delivery.
VD = The volume of gasoline (in gallons) delivered to the gasoline storage tank.
(D) The gasoline has been consecutively drained and refilled in accordance with an alternative protocol which the executive officer has previously found in writing provides assurances of MTBE removal equivalent to the conditions in section 2273(b)(2)(A), (B), and (C).
(c) Responsibility for compliance. The operator of the retail gasoline outlet shall be responsible for compliance with the labeling requirements in section 2273(a).
(d) Deliveries of gasoline to retail outlets.
(1) Any person delivering gasoline to a retail gasoline outlet from December 16, 1999 through December 30, 2003 shall provide to the outlet operator or responsible employee, at the time of delivery of the fuel, an invoice, bill of lading, shipping paper, or other documentation which states whether the gasoline does or does not contain 0.6 percent by volume or more MTBE, and which may identify the volumetric amount of MTBE in the gasoline. For purposes of determining compliance with this section 2273(d), the volumetric MTBE content of gasoline shall be determined by ASTM Test Method D 4815-99, which is incorporated herein by reference, or any other test method determined by the executive officer to give equivalent results.
(2) No person shall deliver gasoline containing 0.6 percent by volume or more MTBE to a storage tank at a retail gasoline outlet unless at the time of the delivery either:
(A) All pumps dispensing gasoline from the storage tank are labeled as containing MTBE, or
(B) The party delivering the gasoline, or on whose behalf the delivery is being made, can demonstrate that it has received and is maintaining a nonsuperceded written notification from the operator of the retail gasoline outlet that all of the outlet's gasoline dispensing equipment, or all of the outlet's dispensing equipment dispensing gasoline of the grade being delivered, is labeled as containing MTBE.
Note: Authority cited: Sections 39600, 39601, 43013, 43018 and 43101, Health and Safety Code; andWestern Oil and Gas Ass'n v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975). Reference: Sections 39000, 39001, 39002, 39003, 39010, 39500, 39515, 39516, 41511, 43000, 43016, 43018 and 43101, Health and Safety Code; andWestern Oil and Gas Ass'n v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975).
s 2273.5. Documentation Provided with Delivery of Gasoline to Retail Outlets.
Any person delivering gasoline to a retail gasoline outlet shall provide to the outlet operator or responsible employee, at the time of delivery of the fuel, an invoice, bill of lading, shipping paper, or other documentation which states whether the gasoline does or does not contain ethanol, and which may identify the volumetric amount of ethanol in the gasoline. If neither the outlet operator nor a responsible employee is at the outlet at the time of delivery, the documentation may be left at a reasonably secure location at the outlet.
Note: Authority cited: Sections 39600, 39601, 43013, 43018 and 43101, Health and Safety Code; andWestern Oil and Gas Ass'n v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975). Reference: Sections 39000, 39001, 39002, 39003, 39010, 39500, 39515, 39516, 41511, 43000, 43016, 43018 and 43101, Health and Safety Code; andWestern Oil and Gas Ass'n v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975).
s 2275. Requirements.
s 2276. Other Criteria.
s 2280. Sulfur Content of Motor Vehicle Diesel Fuel Sold in the South Coast Air Basin or Ventura County Before October 1, 1993.
Note: Authority cited: Sections 39600, 39601, 43013, 43018 and 43101, Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal. 3d 411, 121 Cal. Rptr. 249 (1975). Reference: Sections 39000, 39001, 39002, 39003, 39500, 39515, 39516, 39606, 41511, 43000, 43013, 43016, 43018 and 43101, Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal.3d 411, 121 Cal. Rptr. 249 (1975).
s 2281. Sulfur Content of Diesel Fuel.
(a) Regulatory Standard.
(1)500 parts per million sulfur standard.On or after October 1, 1993, no person shall sell, offer for sale, or supply any vehicular diesel fuel which has a sulfur content exceeding 500 parts per million by weight. Once the 15 parts per million sulfur content standard becomes applicable to an activity in accordance with the phase-in schedule in subsection (a)(3), the 500 parts per million sulfur content standard shall no longer apply to that activity.
(2)15 parts per million sulfur standard. Starting June 2006 in accordance with the phase-in schedule in subsection (a)(3), no person shall sell, offer for sale, supply or offer for supply any vehicular diesel fuel having a sulfur content exceeding 15 parts per million by weight.
(3)2006 phase-in schedule.The 15 parts per million sulfur standard in section (a)(2) shall apply in place of the 500 parts per million sulfur standard in section (a)(1):
(A) Starting June 1, 2006 to all sales, supplies or offers of vehicular diesel fuel from the production facility or import facility at which it was produced or imported.
(B) Starting July 15, 2006 to all sales, supplies, or offers of vehicular diesel fuel except for transactions directly involving:
1. The fueling of motor vehicles at a retail outlet or bulk purchaser-consumer facility, or
2. The delivery of vehicular diesel fuel from a bulk plant to a retail outlet or purchaser-consumer facility.
(C) Starting September 1, 2006 to all sales, supplies, offers or movements of vehicular diesel, including transactions directly involving the fueling of motor vehicles at a retail outlet or bulk purchaser-consumer facility.
(4)Phase-in of 2006 standard at low-throughput facilities.The 15 parts per million sulfur standard in section (a)(2) shall not apply to transactions directly involving the fueling of motor vehicles at a retail outlet or bulk purchaser-consumer facility, where the person selling, offering, or supplying the diesel fuel demonstrates as an affirmative defense that the exceedance of the pertinent standard was caused by diesel fuel delivered to the retail outlet or bulk purchaser-consumer facility prior to July 15, 2006, or delivered to the retail outlet or bulk purchaser-consumer facility directly from a bulk plant prior to September 1, 2006.
(5)Applicability of standards to California nonvehicular diesel fuel.
(A) Activities involving California nonvehicular diesel fuel (other than diesel fuel offered, sold or supplied solely for use in locomotives or marine vessels) are also subject to this section to the extent required by section 93114, title 17, California Code of Regulations. As adopted, section 93114 requires each air pollution control or air quality management district by December 12, 2004 to treat this section 2281 as applying to California nonvehicular diesel fuel (other than diesel fuel offered, sold or supplied solely for use in locomotives or marine vessels) as if it were vehicular diesel fuel, and to enforce those requirements regarding California nonvehicular diesel fuel, unless the district has proposed its own airborne toxic control measure to reduce particulate emissions from diesel-fueled engines through standards for nonvehicular diesel fuel.
(B) Activities involving California nonvehicular diesel fuel used in harborcraft and most diesel-electric intrastate locomotives are also subject to this section 2281 as if the fuel were vehicular diesel fuel, to the extent required by section 2299, title 13, California Code of Regulations, and section 93117, title 17, California Code of Regulations. As adopted, these regulations make nonvehicular diesel fuel used in most harborcraft in the South Coast Air Quality Management District subject to the requirements of this section 2281 starting January 1, 2006, and make all California nonvehicular diesel fuel used in most harborcraft and diesel-electric intrastate locomotives subject to this section 2281 starting January 1, 2007.
(6) Subsections (a)(1) and (2) shall not apply to a sale, offer for sale, or supply of diesel fuel to a refiner where the refiner further processes the diesel fuel at the refiner's refinery, prior to any subsequent sale, offer for sale, or supply of the diesel fuel.
(b) Definitions.
For the purposes of this section:
(0.2) "Bulk purchaser-consumer" means a person that purchases or otherwise obtains diesel fuel in bulk and then dispenses it into the fuel tanks of motor vehicles owned or operated by the person.
(0.5) "Bulk plant" means an intermediate diesel fuel distribution facility where delivery of diesel fuel to and from the facility is solely by truck.
(0.8) "California nonvehicular diesel fuel" means any diesel fuel that is not vehicular diesel fuel and that is sold or made available for use in engines in California.
(1) "Diesel fuel" means any fuel that is commonly or commercially known, sold or represented as diesel fuel, including any mixture of primarily liquid hydrocarbons - organic compounds consisting exclusively of the elements carbon and hydrogen - that is sold or represented as suitable for use in an internal combustion, compression-ignition engine.
(2) "Executive Officer" means the executive officer of the Air Resources Board, or his or her designee.
(3) "Further process" means to perform any activity on diesel fuel, including distillation, desulfurization, or blending, for the purpose of bringing the diesel fuel into compliance with the standard in subsection (a)(1).
(3.5) "Marine vessel" has the meaning set forth in section 39037.1 of the Health and Safety Code.
(4) "Motor vehicle" has the same meaning as defined in section 415 of the Vehicle Code.
(5) "Produce" means to convert liquid compounds which are not diesel fuel into diesel fuel.
(6) "Producer" means any person who produces vehicular diesel fuel in California.
(7) "Refiner" means any person who owns, leases, operates, controls or supervises a refinery.
(8) "Refinery" means a facility that produces liquid fuels by distilling petroleum.
(9) "Small refiner" means any refiner who owns or operates a refinery in California that:
(A) Has and at all times had since January 1, 1978, a crude oil capacity of not more than 50,000 barrels per stream day;
(B) Has not been at any time since September 1, 1988, owned or controlled by any refiner that at the same time owned or controlled refineries in California with a total combined crude oil capacity of more than 50,000 barrels per stream day; and
(C) Has not been at any time since September 1, 1988, owned or controlled by any refiner that at the same time owned or controlled refineries in the United States with a total combined crude oil capacity of more than 137,500 barrels per stream day.
(10) "Stream day" means 24 consecutive hours of actual operation of a refinery.
(11) "Supply" means to provide or transfer a product to a physically separate facility, vehicle, or transportation system.
(12) "Vehicular diesel fuel" means any diesel fuel (A) which is not conspicuously identified as a fuel which may not lawfully be dispensed into motor vehicle fuel tanks in California; or (B) which the person selling, offering for sale, or supplying the diesel fuel knows will be dispensed into motor vehicle fuel tanks in California; or (C) which the person selling, offering for sale, or supplying the diesel fuel in the exercise of reasonable prudence should know will be dispensed into motor vehicle fuel tanks in California, and that is not the subject of a declaration under penalty of perjury by the purchaser, offeree or recipient stating that s/he will not sell, offer for sale, or transfer the fuel for dispensing, or dispense the fuel, into motor vehicle fuel tanks in California.
(c) Test Method.
(1)Test Method for 500 ppm sulfur standard.The sulfur content of diesel fuel limitation of 500 parts per million specified in subsection (a)(1) shall be determined by ASTM Test Method D 2622-94, which is incorporated herein by reference, or any other test method determined by the executive officer to give equivalent results.
(2)Test Method for 15 ppm sulfur standard.The sulfur content of diesel fuel limitation of 15 parts per million specified in subsection (a)(2) shall be determined by ASTM Test Method D 5453-93, which is incorporated herein by reference, or any other test method determined by the executive officer to give equivalent results.
(d)Presumed Sulfur Content of Diesel Fuel Represented As Being for Nonvehicular Use.
(1) All diesel fuel which has been identified or represented as a fuel which may not be dispensed into motor vehicles in California, and which would otherwise be subject to the 500 parts per million by weight sulfur content standard in subsection (a)(1), shall be deemed to have a sulfur content exceeding 500 parts per million by weight, as determined by a test method identified in subsection (c)(1), unless the fuel is tested in accordance with a method identified in subsection (c)(1) and is shown to have a sulfur content of 500 parts per million by weight or less.
(2) All diesel fuel which has been identified or represented as a fuel which may not be dispensed into motor vehicles in California, and which would otherwise be subject to the 15 parts per million by weight sulfur content standard in subsection (a)(2), shall be deemed to have a sulfur content exceeding 15 parts per million by weight, as determined by a test method identified in subsection (c)(2), unless the fuel is tested in accordance with a method identified in subsection (c)(2) and is shown to have a sulfur content of 15 parts per million by weight or less.
(e) Variances.
(1) Any person who cannot comply with the requirements set forth in subsection (a)(1) or (a)(2) as applicable because of reasons beyond the person's reasonable control may apply to the executive officer for a variance. The application shall set forth:
(A) the specific grounds upon which the variance is sought;
(B) the proposed date(s) by which compliance with the provisions of subsection (a)(1) or (a)(2) will be achieved; and
(C) a plan reasonably detailing the method by which compliance will be achieved.
(2) Upon receipt of an application for a variance containing the information required in subsection (e)(1), the executive officer shall hold a hearing to determine whether, or under what conditions and to what extent, a variance from the requirements in subsection (a)(1) or (a)(2) as applicable is necessary and will be permitted. Notice of the time and place of the hearing shall be sent to the applicant by certified mail not less than 20 days prior to the hearing. Notice of the hearing shall also be submitted for publication in the California Regulatory Notice Register and sent to every person who requests such notice, not less than 20 days prior to the hearing.
(3) At least 20 days prior to the hearing, the application for the variance shall be made available to the public for inspection. Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered.
(4) No variance shall be granted unless all of the following findings are made:
(A) that, because of reasons beyond the reasonable control of the applicant, requiring compliance with subsection (a)(1) or (a)(2) as applicable would result in an extraordinary economic hardship;
(B) that the public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants which would result from issuing the variance.
(C) that the compliance plan proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.
(5) Any variance order shall specify a final compliance date by which the requirements in subsection (a)(1) or (a)(2) as applicable will be achieved. Any variance order shall also contain a condition that specified increments of progress necessary to assure timely compliance be achieved, and such other conditions, including limitations on the sulfur content of diesel fuel produced for use in motor vehicles, that the executive officer, as a result of the testimony received at the hearing, finds necessary to carry out the purposes of division 26 of the Health and Safety Code.
(6) The executive officer may require, as a condition of granting a variance, that a cash bond, or a bond executed by two or more good and sufficient sureties or by a corporate surety, be posted by the party to whom the variance was granted to assure performance of any construction, alteration, repair, or other work required by the terms and conditions of the variance. Such bond may providethat, if the party granted the variance fails to perform such work by the agreed date, the cash bond shall be forfeited to the state board, or the corporate surety or sureties shall have the option of promptly remedying the variance default or paying to the state board an amount, up to the amount specified in the bond, that is necessary to accomplish the work specified as a condition of the variance.
(7) No variance from the requirements set forth in subsection (a)(1) or (a)(2) as applicable based on a plan for compliance which includes the installation of major additional equipment shall be issued to a producer where installation of the equipment was not included in a compliance plan or first update submitted pursuant to subsection (f). No such variance shall have a duration of more than three years.
(8) No variance which is issued due to conditions of breakdown, repair, or malfunction of equipment shall have a duration, including extensions, of more than six months.
(9) The executive officer may, after holding a hearing without complying with the provisions of subsections (e)(2) and (e)(3), issue an emergency variance to a person from the requirements of subsections (a)(1) or (a)(2) as applicable upon a showing of reasonably unforeseeable extraordinary hardship and good cause that a variance is necessary. In connection with the issuance of an emergency variance, the executive officer may waive the requirements of subsection (e)(6). No emergency variance may extend for a period of more than 45 days. If the applicant for an emergency variance does not demonstrate that he or she can comply with the provisions of subsection (a)(1) or (a)(2) as applicable within such 45-day period, an emergency variance shall not be granted unless the applicant makes a prima facie demonstration that the findings set forth in subsection (e)(4) should be made. The executive officer shall maintain a list of persons who have informed the executive officer in writing of their desire to be notified by telephone in advance of any hearing held pursuant to this paragraph (e)(9), and shall provide advance telephone notice to any such person.
(10) A variance shall cease to be effective upon failure of the party to whom the variance was granted substantially to comply with any condition.
(11) Upon the application of any person, the executive officer may review and for good cause modify or revoke a variance from the requirements of subsection (a)(1) or (a)(2) as applicable after holding a hearing in accordance with the provisions of subsections (e)(2) and (e)(3).
(g) Submittal of Compliance Plan.Each producer shall, by September 1, 2004, submit to the executive officer a plan showing the producer's schedule for achieving compliance with subsection (a)(2). Each producer shall, by July 1, 2005, submit an update of the plan.
Note: Authority cited: Sections 39600, 39601, 39667, 43013, 43018, and 43101 of the Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal. 3d 411, 121 Cal. Rptr. 249 (1975). Reference: Sections 39000, 39001, 39002, 39003, 39010, 39500, 39515, 39516, 39667, 41511, 43000, 43016, 43018, and 43101, Health and Safety Code; and Western Oil and Gas Ass'n. v. Orange County Air Pollution Control District, 14 Cal. 3d 411, 121 Cal. Rptr. 249 (1975).
s 2282. Aromatic Hydrocarbon Content of Diesel Fuel.
(a) Regulatory Standard.
(1) On or after October 1, 1993, except as otherwise provided in this subsection (a), no person shall sell, offer for sale, or supply any vehicular diesel fuel unless:
(A) The aromatic hydrocarbon content does not exceed 10 percent by volume; or
(B) The vehicular diesel fuel has been reported in accordance with all of the requirements of subsection (d), and:
1. The aromatic hydrocarbon content does not exceed the designated alternative aromatic hydrocarbon limit, and
2. Where the designated alternative aromatic hydrocarbon limit exceeds 10 percent by volume, the excess aromatic hydrocarbon content is fully offset in accordance with subsection (d); or
(C) The vehicular diesel fuel has been reported in accordance with all of the requirements of subsection (g)(7), and meets all of the specifications for a certified diesel fuel formulation identified in an applicable Executive Order issued pursuant to subsection (g)(6); or
(D) The vehicular diesel fuel has been reported in accordance with all of the requirements of subsection (h)(2), and meets all of the designated equivalent limits set forth in subsection (h)(1); or
(E) The vehicular diesel fuel is exempt under subsection (e) and:
1. The aromatic hydrocarbon content does not exceed 20 percent by volume; or
2. The vehicular diesel fuel has been reported in accordance with all of the requirements of subsection (d) and
a. The aromatic hydrocarbon content does not exceed the designated alternative limit, and
b. Where the designated alternative limit exceeds 20 percent by volume, the excess aromatic hydrocarbon content is fully offset in accordance with subsection (d), treating all references in subsection (d) to 10 percent by volume as references to 20 percent by volume; or
3. The vehicular diesel fuel has been reported in accordance with all of the requirements of subsection (g)(7), and meets all of the specifications for a certified diesel fuel formulation identified in an applicable Executive Order issued pursuant to subsections (g)(6) and (g)(8).
(2)Applicability of standards to California nonvehicular diesel fuel.
(A) Activities involving California nonvehicular diesel fuel (other than diesel fuel offered, sold or supplied solely for use in locomotives or marine vessels) are also subject to this section to the extent required by section 93114, title 17, California Code of Regulations. As adopted, section 93114 requires each air pollution control or air quality management district by December 12, 2004 to treat this section 2282 as applying to California nonvehicular diesel fuel (other than diesel fuel offered, sold or supplied solely for use in locomotives or marine vessels) as if it were vehicular diesel fuel, and to enforce those requirements regarding California nonvehicular diesel fuel, unless the district has proposed its own airborne toxic control measure to reduce particulate emissions from diesel-fueled engines through standards for nonvehicular diesel fuel.
(B) Activities involving California nonvehicular diesel fuel used in harborcraft and most diesel-electric intrastate locomotives are also subject to this section 2282 as if the fuel were vehicular diesel fuel, to the extent required by section 2299, title 13, California Code of Regulations, and section 93117, title 17, California Code of Regulations. As adopted, these regulations make nonvehicular diesel fuel used in most harborcraft in the South Coast Air Quality Management District subject to the requirements of this section 2282 starting January 1, 2006, and make all California nonvehicular diesel fuel used in most harborcraft and diesel-electric intrastate locomotives subject to this section 2282 starting January 1, 2007.
(3) Subsection (a)(1) shall not apply to a sale, offer for sale, or supply of vehicular diesel fuel to a refiner where the refiner further processes the diesel fuel at the refiner's refinery prior to any subsequent sale, offer for sale, or supply of the diesel fuel.
(b) Definitions.
For the purposes of this section:
(0.5) "Aromatic hydrocarbon" has the same meaning as "total aromatic hydrocarbons."
(0.7) "California nonvehicular diesel fuel" means any diesel fuel that is not vehicular diesel fuel and that is sold or made available for use in engines in California.
(1) "Chemical composition" means the name and percentage by weight of each compound in an additive and the name and percentage by weight of each element in an additive.
(2) "Designated alternative limit" means an alternative aromatic hydrocarbon limit, expressed in percent aromatic hydrocarbon content by volume, which is assigned by a producer or importer to a final blend of vehicular diesel fuel pursuant to subsection (d).
(3) "Diesel fuel" means any fuel that is commonly or commercially known, sold or represented as diesel fuel, including any mixture of primarily liquid hydrocarbons - organic compounds consisting exclusively of the elements carbon and hydrogen - that is sold or represented as suitable for use in an internal combustion, compression-ignition engine.
(4) "Exempt volume" means:
(A) Except as otherwise provided in subsection (b)(4)(B), 65 percent of the average of the three highest annual production volumes of distillate fuel reported for a small refiner's California refinery in the period 1983 to 1987, inclusive, to the California Energy Commission (CEC) as required by the Petroleum Industry Information Reporting Act of 1980 (Public Resources Code Sections 25350 et seq.); provided that for any small refiner that reported no distillate fuel production for two or more years in the 1983-1987 period and that has installed hydrotreating processes which allow the production of diesel fuel with a sulfur content of 500 parts per million or less, exempt volume may be calculated as 65 percent of the average annual production volumes of distillate fuel reported for the small refiner's California refinery for 1989 and 1990.
(B) In the case of a small refiner who, in an application or amended application submitted pursuant to subsection (e)(2), notifies the executive officer of its election to be subject to this subsection (b)(4)(B), a volume determined in accordance with the following four steps:
1. First, the barrel per calendar day "operable crude oil capacity" of the small refiner's refinery for 1991 and 1992 is identified, based on data which are reported to the Executive Officer from the CEC and are derived from "Monthly Refining Reports" (EIA 810, Revised 1/89) submitted to the CEC no later than June 20, 1994. If the CEC is unable to derive such data from the "Monthly Refining Reports" for a particular small refiner, the executive officer shall determine the small refiner's operable crude oil capacity for 1991 and 1992 based on other publicly available and generally recognized sources.
2. Second, this operable crude oil capacity is multiplied by 0.9011, representing the overall refinery utilization rate (crude oil run divided by operable crude oil capacity) in the California refining industry for 1991 and 1992, as derived from reports of crude oil run and operable capacity in the "Quarterly Oil Reports" issued by the CEC.
3. Third, the resulting crude throughput volume is multiplied by the average of the refinery's two highest ratios of distillate produced to crude oil distilled in the period 1988 through 1992, based on distillate production data recorded by the CEC from MO-7 reporting forms (Revised 11-87) submitted to the CEC no later than June 30, 1994 and from crude oil run data derived by the CEC from "Monthly Refining Reports" submitted to the CEC no later than June 30, 1994, and is further multiplied by 365 to identify an annualized value.
4. Fourth, the resulting annual volume of distillate production is multiplied by a fraction determined in accordance with this subsection (b)(4)(B)4., which represents the average proportion of small refiners' distillate production that has been sold as diesel fuel for use in motor vehicles in California from 1988 through 1992. The fraction shall be based on the activities of all small refiners who during October 1, 1993 through June 30, 1994 lawfully produced and supplied vehicular diesel fuel. With respect to each such small refiner, the executive officer shall calculate a single fraction representing the average of the refiner's two highest annual ratios of [a] diesel fuel produced by the small refiner and sold for use in California motor vehicles to [b] distillate produced, over the period 1988 through 1992. In calculating these ratios, distillate production shall be based on distillate production data recorded by the CEC from MO-7 reporting forms (Revised 11-87) submitted to the CEC no later than June 30, 1994, and the volume of diesel fuel produced by the small refiner and sold for use in California motor vehicles shall be derived from sales data certified by authorized representatives of the small refiners and such other information from the small refiners deemed necessary by the executive officer. The executive officer shall then combine the single fractions for each such small refiner. The annual distillate production volume identified pursuant to subsection (b)(4)(B)3. shall be multiplied by the fraction that represents the average of the single fractions for each small refiner.
(5) "Executive Officer" means the executive officer of the Air Resources Board, or his or her designee.
(6) "Final blend" means a distinct quantity of diesel fuel which is introduced into commerce in California without further alteration which would tend to affect the fuel's aromatic hydrocarbon content.
(7) "Formulation" means the composition of a diesel fuel represented by a test fuel submitted pursuant to subsection (g).
(8) "Further process" means to perform any activity on diesel fuel, including distillation, treating with hydrogen, or blending, for the purpose of bringing the diesel fuel into compliance with the standards in subsection (a)(1).
(9) "Hydrodearomatization process" means a type of hydrotreating process in which hydrogen is used in the presence of heat, pressure, and catalysts to saturate aromatic hydrocarbons in order to produce low-aromatic hydrocarbon content diesel fuel.
(10) "Importer" means any person who first accepts delivery in California of vehicular diesel fuel.
(11) "Import facility" means the facility at which imported diesel fuel is first received in California, including, in the case of diesel fuel imported by cargo tank and delivered directly to a facility for dispensing diesel fuel into motor vehicles, the cargo tank in which the diesel fuel is imported.
(12) "Marine vessel" has the meaning set forth in section 39037.1 of the Health and Safety Code.
(13) "Motor vehicle" has the same meaning as defined in Section 415 of the Vehicle Code.
(14) "Polycyclic aromatic" (also referred to as "polynuclear aromatic hydrocarbons" or "PAH") means an organic compound containing two or more aromatic rings.
(15)(A) "Produce" means to convert liquid compounds which are not diesel fuel into diesel fuel. When a person blends volumes of blendstocks which are not diesel fuel with volumes of diesel fuel acquired from another person, and the resulting blend is diesel fuel, the person conduction such blending has produced only the portion of the blend which was not previously diesel fuel. When a person blends diesel fuel with other volumes of diesel fuel, without the addition of blendstocks which are not diesel fuel, the person does not produce diesel fuel.
(B) Subsection (b)(15)(A) notwithstanding, for the purposes of subsection (e) only, a small refiner who blends volumes of blendstocks which are not diesel fuel, or volumes of diesel fuel having an aromatic hydrocarbon content exceeding 20 percent by volume, with diesel fuel acquired from another person, in order to make diesel fuel having an aromatic hydrocarbon content not exceeding 20 percent by volume, shall be deemed to have produced the entire volume of the resulting blend and the person who initially converted non-diesel compounds into the acquired iesel fuel has also produced the volume of acquired diesel fuel.
(16) "Producer" means any person who produces vehicular diesel fuel in California.
(17) "Refiner" means any person who owns, leases, operates, controls or supervises a refinery.
(18) "Refinery" means a facility that produces liquid fuels by distilling petroleum. A small refiner's refinery includes all bulk storage and bulk distribution facilities jointly owned or leased with the facility that produces liquid fuels by distilling petroleum.
(19) "Small refiner" means any refiner who owns or operates a refinery in California that:
(A) Has and at all times had since January 1, 1978, a crude oil capacity of not more than 55,000 barrels per stream day;
(B) Has not been at any time since September 1, 1988, owned or controlled by any refiner that at the same time owned or controlled refineries in California with a total combined crude oil capacity of more than 55,000 barrels per stream day; and
(C) Has not been at any time since September 1, 1988, owned or controlled by any refiner that at the same time owned or controlled refineries in the United States with a total combined crude oil capacity of more than 137,500 barrels per stream day.
(20) "Straight-run California diesel fuel" means diesel fuel produced from crude oil which is commercially available in California by distillation, without the use of cracking or other chemical conversion processes.
(21) "Stream day" means 24 consecutive hours of actual operation of a refinery.
(22) "Supply" means to provide or transfer a product to a physically separate facility, vehicle, or transportation system.
(23) "Vehicular diesel fuel" means any diesel fuel (A) which is not conspicuously identified as a fuel which may not lawfully be dispensed into motor vehicle fuel tanks in California; or (B) which the person selling, offering for sale, or supplying the diesel fuel knows will be dispensed into motor vehicle fuel tanks in California; or (C) which the person selling, offering for sale, or supplying the diesel fuel in the exercise of reasonable prudence should know will be dispensed into motor vehicle fuel tanks in California, and that is not the subject of a declaration under penalty of perjury by the purchaser, offeree or recipient stating that s/he will not sell, offer for sale, or transfer the fuel for dispensing, or dispense the fuel, into motor vehicle fuel tanks in California.
(c) Test Method. Compliance with the aromatic hydrocarbon content limitations specified in this section 2282 shall be determined by ASTM Test Method D 5186- 96, which is incorporated herein by reference. The following correlation equation shall be used to convert the SFC results in mass percent to volume percent.
Correlation Equation: Aromatic Hydrocarbons expressed in % by volume = 0.916x (Aromatic Hydrocarbons expressed in % by weight) + 1.33
(d) Designated Alternative Limit Designated Alternative Aromatic Hydrocarbon Limit.
(1) A producer or importer may assign a designated alternative limit in accordance with this subsection (d) to a final blend of vehicular diesel fuel produced or imported by the producer or importer. In no case may the designated alternative limit be less than the aromatic hydrocarbon content of the final blend shown by the sample and test conducted pursuant to subsection (f).
(2) The producer or importer shall notify the executive officer of the volume (in gallons) and the designated alternative limit of the final blend. This notification shall be received by the executive officer before the start of physical transfer of the diesel fuel from the production or import facility, and in no case less than 12 hours before the producer either completes physical transfer or comingles the final blend.
(3) Within 90 days before or after the start of physical transfer of any final blend of vehicular diesel fuel to which a producer or importer has assigned a designated alternative limit exceeding 10 percent, the producer or importer shall complete physical transfer from the production or import facility of vehicular diesel fuel in sufficient quantity and with a designated alternative limit sufficiently below the limit specified in subsection (a)(1)(A) to offset the volume of aromatic hydrocarbons in the diesel fuel reported in excess of the limit.
(4) If, through no intentional or negligent conduct, a producer or importer cannot report within the time period specified in subsection (d)(2), then the producer or importer shall notify the executive officer of the required data as soon as reasonably possible and shall provide a written explanation of the cause of the delay in reporting. If, based on the written explanation and the surrounding circumstances, the executive officer determines that the conditions of this subsection (d)(4) are met, timely notification shall be deemed to have occurred.
(5) The executive officer may enter into a protocol with any individual producer or importer for the purposes of specifying how the requirements in subsections (d)(2) and (3) shall be applied to the producer's or importer's particular operations, as long as the executive officer reasonably determines that application of the regulatory requirements under the protocol is not less stringent or enforceable than application of the express terms of subsections (d)(2) and (3). Any such protocol shall include the producer's or importer's agreement to be bound by the terms of the protocol.
(6) No person shall sell, offer for sale, or supply vehicular diesel fuel, in a final blend to which a producer or importer has assigned a designated alternative limit exceeding 10 percent aromatics content, where the total volume of the final blend sold, offered for sale, or supplied exceeds the volume reported to the executive officer pursuant to subsection (d)(2) or (5).
(7) No person shall sell, offer for sale or supply vehicular diesel fuel, in a final blend to which a producer or importer has assigned a designated alternative limit less than 10 percent aromatics content, where the total volume of the final blend sold, offered for sale, or supplied is less than the volume reported to the executive officer pursuant to subsection (d)(2) or (5).
(8) Whenever the final blend of a producer includes volumes of diesel fuel the producer has produced and volumes it has no produced, the producer's designated alternative limit shall apply only to the volume of diesel fuel the producer has produced. In such a case, the producer shall report to the ARB in accordance with subsection (d)(2) both the volume of diesel fuel produced and the total volume of the final blend.
(e) Small Refiner Diesel Fuel.
(1) The provisions of subsection (a)(1)(A), (B), and (C) shall not apply to the diesel fuel that is produced by a small refiner at the small refiner's California refinery and that is first consecutively supplied from the refinery as vehicular diesel fuel in each calendar year, up to the small refiner's exempt volume (up to one quarter of the small refiner's exempt volume for the period from October 1, 1993-December 31, 1993). Diesel fuel which is designated by the small refiner as not exempt under this section (e), and which is reported to the executive officer pursuant to a protocol entered into between the small refiner and the executive officer, shall not be counted against the exempt volume and shall not be exempt under this subsection (e). This exemption shall not apply to any diesel fuel supplied from a small refiner's refinery in any calendar quarter in which less than 25 percent of the diesel fuel supplied from the refinery was produced from the distillation of crude oil at the refinery. The foregoing notwithstanding in the case of any small refiner that pursuant to subsection (a)(4) has not been subject to subsection (a)(1) until October 1, 1994, all vehicular diesel fuel produced by the small refiner at the small refiner's California refinery and supplied from the refinery from October 1, 1994 through December 31, 1994, shall be exempt from the provisions of subsection (a)(1)(A), (B) and (C), up to the quarterly volume limits imposed by the executive officer in connection with issuance of suspension orders pursuant to section 2281(g). These quarterly volume limits are as follows: Kern Oil & Refining, 714,100 barrels; Paramount Petroleum, 1,064,700 barrels; and Powerine Oil Company, 1,419,600 barrels.
(2) To qualify for an exemption under this subsection (e), a refiner shall submit to the executive officer an application for exemption executed in California under penalty of perjury, on the Air Resources Board's ARB/SSD/CPB Form 89-9-1, for each of the small refiner's California refineries. The application shall specify the crude oil capacity of the refinery at all times since January 1, 1978, the crude oil capacities of all the refineries in California and the United States which are owned or controlled by, or under common ownership or control with, the small refiner since September 1, 1988, data demonstrating that the refinery has the capacity to produce liquid fuels by distilling petroleum, and copies of the reports made to the California Energy Commission as required by the Petroleum Industry Reporting Act of 1980 (Public Resources Code sections 25350 et seq.) showing the annual production volumes of distillate fuel at the small refiner's California refinery for 1983 through 1987. Within 90 days of receipt of the application, the executive officer shall grant or deny the exemption in writing. The exemption shall be granted if the executive officer determines that the applicant has demonstrated that s/he meets the provisions of subsection (b)(19), and shall identify the small refiner's exempt volume. The exemption shall immediately cease to apply at any time the refiner ceases to meet the definition of small refiner in subsection (b)(19).
(3) In addition to the requirements of subsection (f) below, each small refiner who is covered by an exemption shall submit to the executive officer reports containing the information set forth below for each of the small refiner's California refineries. The reports shall be executed in California under penalty of perjury, and must be received within the time indicated below:
(A) The quantity, ASTM grade, aromatic hydrocarbon content, and batch identification of all diesel fuel, produced by the small refiner, that is supplied from the small refinery in each month as vehicular diesel fuel, within 15 days after the end of the month;
(B) For each calendar quarter, a statement whether 25 percent or more of the diesel fuel transferred from the small refiner's refinery was produced by the distillation of crude oil at the small refiner's refinery, within 15 days after the close of such quarter;
(C) The date, if any, on which the small refiner completes transfer from its small refinery in a calendar year of the maximum amount of vehicular diesel fuel which is exempt from subsection (a)(1)(A) and (B) pursuant to subsection (e), within 5 days after such date; (continued)