(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 (1996), which is incorporated herein by reference, prior
to February 16, 2014. Starting February 16, 2014, compliance shall be
determined by ASTM D5186-03 (2009), 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;
(D) 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 subsection
(b)(19); and
(E) Any change of
ownership of the small refiner or small refiner's refinery, within 10 days
after such change of ownership.
(4) Whenever a small refiner fails to provide
records identified in subsection (e)(3)(A) or (B) in accordance with the
requirements of those subsections, the vehicular diesel fuel supplied by the
small refiner from the small refiner's refinery in the time period of the
required records shall be presumed to have been sold or supplied by the small
refiner in violation of section (a)(1)(A).
(5) Offsetting Excess Emissions From Gasoline
Subject to the Small Refiner CaRFG Phase 3 Standards.
(A) Annual elections. No later than December
22 of each calendar year starting with 2002, a small refiner who is also a
qualifying small refiner as defined in the CaRFG regulations (section
2260(a) (28.5))
may by notification to the executive officer make the following elections:
1. Whether the small refiner elects to
produce gasoline subject to the small refiner CaRFG Phase 3 standards in
section
2272(a) in the
coming year;
2. If electing to
produce small refiner CaRFG Phase 3, whether the refiner elects the option of
accepting a reduced exempt volume in the coming year to offset the excess
emissions;
3. If electing to
produce small refiner CaRFG Phase 3 but not to accept a reduced exempt volume,
the refiner must elect for the coming year either (i) to produce offset small
refiner diesel fuel with an exempt volume determined in accordance with section
(b)(4), or (ii) to produce cleaner offset small refiner diesel fuel with an
exempt volume expanded by 25 percent and restrictions on sales of
high-aromatics California nonvehicular diesel fuel.
(B) Effect of election.
1. Election not to produce small refiner
CaRFG Phase 3. If a small refiner does not elect to produce gasoline subject to
the small refiner CaRFG Phase 3 standards for a particular year, no gasoline
sold or supplied from the small refiner's refinery in that year will qualify
for the small refiner CaRFG Phase 3 standards in section
2272(a).
2. Election to accept a reduced exempt volume
for small refiner diesel fuel. If a small refiner elects to accept a reduced
exempt volume under section (f)(5)(A), the executive officer shall assign a
substitute exempt volume for the year that is reduced sufficiently to offset
the excess emissions of hydrocarbons, oxides of nitrogen, and potency-weighted
toxics that would result from production of the small refiner's full qualifying
volume of gasoline subject to the CaRFG Phase 3 standards. In the case of Kern
Oil and Refining Co., its reduced exempt volume of small refiner diesel fuel
would be 825,995 barrels per year (equal to 2263 bpd; 828,258 barrels per year
in leap years) in place of 2,337,825 barrels per year (equal to 6405 bpd;
2,344,230 in leap years).
3.
Election to retain the preexisting exempt volume and produce offset small
refiner diesel fuel. If the small refiner elects to be subject to the exempt
volume determined in accordance with section (b)(4), the executive officer
shall adjust the aromatics and cetane number of the standards applicable to the
small refiner sufficient to offset the potential increased emissions identified
pursuant to section
2272(c)(5). In
the case of Kern Oil and Refining Co., its exempt volume for the year would be
2,337,825 barrels per year (equal to 6405 bpd; 2,344,230 barrels per year in
leap years). Any small refiner diesel fuel it sells or supplies as a certified
alternative formulation equivalent to a 20 percent aromatics reference fuel
must have an aromatic hydrocarbon content that is 2 percentage points lower,
and a cetane number that is 0.5 higher, than is specified for the alternative
formulation. Any small refiner diesel fuel it sells or supplies which is not
designated as a certified alternative formulation must have an aromatic
hydrocarbon content not exceeding 18 percent, or be subject to the designated
alternative limit provisions in subsection (d) with all designated alternative
limits above 18 percent by volume fully offset in accordance with subsection
(d).
4. Election of expanded exempt
volume with requirement for cleaner offset small refiner diesel fuel. If the
small refiner elects to produce offset small refiner diesel fuel with an
expanded exempt volume, its exempt volume for the year will be 125 percent of
its exempt volume determined in accordance with section (b)(4). The executive
officer shall adjust the aromatics and cetane number of the standards
applicable to the potential volume of small refiner sufficient to offset the
potential increased emissions identified pursuant to section
2272(c)(5). The
small refiner will be prohibited during the year from selling or supplying
diesel fuel that it has produced and is intended for nonvehicular applications
in California unless the fuel meets the U.S. EPA's standards for diesel fuel
for use in motor vehicles in 40 CFR sec.
80.29 as it existed July 1, 2000. In
the case of Kern Oil and Refining Co., its exempt volume for the year would be
2,922,190 barrels per year (equivalent to 8006 bpd; 2,930,196 in leap years).
Any small refiner diesel fuel it sells or supplies in the year as a certified
alternative formulation equivalent to a 20 percent aromatics reference fuel
must have an aromatic hydrocarbon content that is 3.5 percentage points lower,
and a cetane number that is 0.5 higher, and an additive content that is 0.02
percentage points higher, than is specified for the alternative formulation.
Any small refiner diesel fuel it sells or supplies which is not designated as a
certified alternative formulation shall have an aromatic hydrocarbon content
not exceeding 14 percent.
5.
Additional requirement to sell or supply ultra-low sulfur diesel fuel. In
addition to the requirements in section (f)(5)(B)1. through (f)(5)(B)4., a
small refiner that elects to produce gasoline subject to the CaRFG Phase 3
standards for a year must sell or supply in that year up to 100 bpd of diesel
fuel having a sulfur content not exceeding 30 ppm and an aromatic hydrocarbon
content not exceeding 20 percent, to the extent there are buyers wishing to
acquire that diesel fuel on commercially reasonable terms.
(C) Early opt-in to produce small refiner
CaRFG Phase 3. To the extent that the sale or supply of gasoline subject to the
CaRFG Phase 3 standards before December 31, 2002 is permitted by section
2261(b)(3), a
qualifying small refiner may elect to have to option of producing gasoline
subject to the small refiner CaRFG Phase 3 standards for a full year or the
remainder of a year prior to December 31, 2002. In that case, section
(e)(5)(B)2.-5. would apply on a pro rata basis to the portion of the year on
and after the effective date of the election, and the preexisting requirements
would apply on a pro rata basis to the portion of the year prior to the
effective date of the election.
(f) Testing and Recordkeeping.
(1) Each producer shall sample and test for
aromatic hydrocarbon content each final blend of vehicular diesel fuel which
the producer has produced, in accordance with an applicable test method
identified in subsection (c). If a producer blends diesel fuel components
directly to pipelines, tankships, railway tankcars, or trucks and trailers, the
loading(s) shall be sampled and tested for aromatic hydrocarbon content by the
producer or authorized contractor. The producer shall maintain, for two years
from the date of each sampling, records showing the sample date, product
sampled, container or other vessel sampled, final blend volume, and the
aromatic hydrocarbon content. In the event a producer sells, offers for sale,
or supplies diesel fuel which the producer claims is not vehicular diesel fuel
and which has an aromatic hydrocarbon content exceeding the standard set forth
in subsection (a)(1), such producer shall maintain, for two years from the date
of any sale or supply of the fuel, records demonstrating that the diesel fuel
was not vehicular diesel fuel when it was sold or supplied by the producer. All
diesel fuel produced by the producer and not tested as vehicular diesel fuel by
the producer pursuant to this subsection shall be deemed to have an aromatic
hydrocarbon content exceeding 10 percent, unless the producer demonstrates that
the diesel fuel meets the requirements of subsection (a)(1).
(2) Each importer shall sample and test for
aromatic hydrocarbon content each shipment of vehicular diesel fuel which the
importer has imported by tankship, pipeline, railway tankcars, trucks and
trailers, or other means, in accordance with an applicable test method
identified in subsection (c). The importer shall maintain, for two years from
the date of each sampling, records showing the sample date, product sampled,
container or other vessel sampled, the volume of the shipment, and the aromatic
hydrocarbon content. All diesel fuel imported by the importer and not tested as
vehicular diesel fuel by the importer pursuant to this subsection shall be
deemed to have an aromatic hydrocarbon content exceeding 10 percent, unless the
importer demonstrates that the diesel fuel meets the requirements of subsection
(a)(1).
(3) A producer or importer
shall provide to the executive officer any records required to be maintained by
the producer or importer pursuant to this subsection (d) within 20 days of a
written request from the executive officer if the request is received before
expiration of the period during which the records are required to be
maintained. Whenever a producer or importer fails to provide records regarding
a final blend of vehicular diesel fuel in accordance with the requirements of
this subsection, the final blend of diesel fuel shall be presumed to have been
sold by the producer in violation of subsection (a)(1).
(4) The executive officer may perform any
sampling and testing deemed necessary to determine compliance by any person
with the requirements of subsection (a) and may require that special samples be
drawn and tested at any time.
(5)
The executive officer may enter into a protocol with any producer, importer, or
person who sells, offers for sale, or transfers diesel fuel to a producer for
the purpose of specifying alternative sampling, testing, recordkeeping, or
reporting requirements which shall satisfy the provisions of subsections
(f)(1), (f)(2), or (e)(3). The executive officer may only enter into such a
protocol if s/he reasonably determines that application of the regulatory
requirements under the protocol will be consistent with the state board's
ability effectively to enforce the provisions of subsection (a). Any such
protocol shall include the producer's or importer's agreement to be bound by
the terms of the protocol.
(g) Certified Diesel Fuel Formulations
Resulting in Equivalent Emissions Reductions.
(1) The executive officer, upon application
of any producer or importer, may certify diesel fuel formulations in accordance
with this subsection (g). The applicant shall initially submit a proposed test
protocol to the executive officer. The proposed test protocol shall include:
(A) the identify of the entity proposed to
conduct the tests described in subsection (g)(4);
(B) test procedures consistent with the
requirements of this subsection (g);
(C) test data showing that the candidate fuel
meets the specifications for No. 2-D diesel fuel set forth in ASTM D975-81
(which is incorporated herein by reference), and identifying the
characteristics of the candidate fuel set forth in subsection (g)(2);
(D) test data showing that the fuel to be
used as the reference fuel satisfies the specifications identified in
subsection (g)(3);
(E) reasonably
adequate quality assurance and quality control procedures; and
(F) notification of any outlier
identification and exclusion procedure that will be used, and a demonstration
that any such procedure meets generally accepted statistical principles.
Within 20 days of receipt of a proposed test protocol, the
executive officer shall advise the applicant in writing either that it is
complete or that specified additional information is required to make it
complete. Within 15 days of submittal of additional information, the executive
officer shall advise the applicant in writing either that the information
submitted makes the proposed test protocol complete or that specified
additional information is still required to make it complete. Within 20 days
after the proposed test protocol is deemed complete, the executive officer
shall either approve the test protocol as consistent with this subsection (g)
or advise the applicant in writing of the changes necessary to make the test
protocol consistent with this subsection (g). Any notification of approval of
the test protocol shall include the name, telephone number, and address of the
executive officer's designee to receive notifications pursuant to subsection
(g)(4)(C)(ii). The tests shall not be conducted until the protocol is approved
by the executive officer.
Upon completion of the tests, the applicant may submit an
application for certification to the executive officer. The application shall
include the approved test protocol, all of the test data, a copy of the
complete test log prepared in accordance with subsection (g)(4)(C)(ii), a
demonstration that the candidate fuel meets the requirements for certification
set forth in this subsection (g), and such other information as the executive
officer may reasonably require.
Within 20 days of receipt of an application, the executive
officer shall advise the applicant in writing either that it is complete or
that specified additional information is required to make it complete. Within
15 days of submittal of additional information, the executive officer shall
advise the applicant in writing either that the information submitted makes the
application complete or that specified additional information is still required
to make it complete. Within 30 days after the application is deemed complete,
the executive officer shall grant or deny the application. Any denial shall be
accompanied by a written statement of the reasons for
denial.
(2)
The candidate fuel.
(A)
1. The applicant shall supply the candidate
fuel to be used in the comparative testing pursuant to subsection
(g)(4).
2. The candidate fuel shall
meet the specifications for No. 2-D diesel fuel set forth in ASTM D975-81,
which is incorporated herein by reference, and shall also meet the requirements
in subsections (g)(2)(A)3. and 4.
3.
a.
Except as otherwise provided in subsection (g)(2)(A)3.b., the candidate fuel
shall meet the following specifications, which are identical to the comparable
specifications for the reference fuel identified in subsection (g)(3):
Property |
ASTM
Test Method |
Candidate Fuel
Specifications |
Gravity, API |
D287-82 |
33-39 |
Viscosity at 40°C,
cSt |
D455-83 |
2.0-4.1 |
Flash point, °F,
(min.) |
D93-80 |
130 |
Distillation, °F |
|
|
IBP |
D86-96 |
340-420 |
10% REC. |
|
400-490 |
50% REC. |
|
470-560 |
90% REC. |
|
550-610 |
EP |
|
580-660 |
b.
The candidate fuel's value for one or more of the properties listed in the
subsection (g)(2)(A)3.a. table may be outside the specification in the table if
the applicant is specifying the property and candidate fuel's value pursuant to
subsection (g)(2)(C).
4.
a. Except for a property to which subsection
(g)(2)(A)3.b applies, the gravity, viscosity, flash point and distillation
values of the candidate fuel may not differ from the corresponding values of
the reference fuel used in the engine emissions testing by more than one-half
of the permitted range for the property. For example, if the API gravity of the
reference fuel is 33, then the API gravity of the candidate fuel may not exceed
36.
b. The candidate fuel's value
for one or more of the properties listed in the subsection (g)(2)(A)3.a. table
may differ from the corresponding value of the reference fuel used in the
engine emissions testing by more than one-half of the permitted range for the
property if the applicant is specifying the property and candidate fuel's value
pursuant to subsection (g)(2)(C).
(B) The following characteristics of the
candidate fuel shall be determined as the average of three tests conducted in
accordance with the referenced test method (the ASTM methods are incorporated
herein by reference):
1.
a. For formulations certified prior to August
14, 2004, sulfur content (not to exceed 500 ppm) by ASTM D2622-94;
b. For formulations certified on or after
August 14, 2004, sulfur content (not to exceed 15 ppm) by ASTM
D5453-93;
2. Total
aromatic hydrocarbon content, by ASTM D5186-96 (1996) (prior to February 16,
2014) and by ASTM D5186-03(2009) (starting February 16, 2014);
3. Polycyclic aromatic hydrocarbon content,
by ASTM D5186-96 (1996) (prior to February 16, 2014) and by ASTM D5186-03(2009)
(starting February 16, 2014);
4.
Nitrogen content, by ASTM D4629-96 (1996) (prior to February 16, 2014) and by
ASTM D5186-03(2009) (starting February 16, 2014);
5. Cetane number, by ASTM D613-84;
6. Identity and concentration of each
additive, by a test method specified by the applicant and determined by the
executive officer to adequately determine the presence and concentration of the
additive.
(C) The
applicant may also specify any other parameters for the candidate fuel in
addition to those listed in subsection (g)(2)(B), along with the test method
for determining the parameters. The applicant shall provide the chemical
composition of each additive in the candidate fuel, except that if the chemical
composition of an additive is not known to either the applicant or to the
manufacturer of the additive (if other), the applicant may provide a full
disclosure of the chemical process of manufacture of the additive in lieu of
its chemical composition.
(3)
The reference fuel.
(A) The reference fuel used in the
comparative testing described in subsection (g)(4) shall be produced from
straight-run California diesel fuel by a hydrodearomatization process and shall
have the characteristics set forth below under "General Reference Fuel
Specifications" (the listed ASTM methods are incorporated herein by reference):
Reference Fuel Specifications
Property |
ASTM
Test Method |
General Reference Fuel
Specifications |
Small Refiner Reference
Fuel Specifications |
Sulfur Content
.......................... |
D2622-941.......................... |
500
ppm
max.1.......................... |
500
ppm max.1
|
|
D5453-932.......................... |
15
ppm
max.2.......................... |
15
ppm max.2
|
Aromatic Hydrocarbon Content, Vol.
%.......................... |
D5186-96.......................... |
10%
max........................... |
20% max. |
|
(prior to February 16, 2014)
D5186-03(2009).......................... |
10%
max........................... |
20% max. |
|
(starting February 16,
2014) |
|
|
Polycyclic Aromatic Hydrocarbon Content,
WT.
%.......................... |
D5186-96.......................... |
1.4%
max........................... |
4% max. |
|
(prior to February 16, 2014)
D5186-03(2009).......................... |
1.4%
max........................... |
4% max. |
|
(starting February 16,
2014) |
|
|
Polycyclic
Aromatic.......................... |
Nitrogen Content |
D4629-96.......................... |
10 ppm
max........................... |
90 ppm max. |
|
Natural Cetane
Number.......................... |
D613-84.......................... |
48
minimum.......................... |
47 minimum |
Gravity,
API.......................... |
D287-82.......................... |
33-39.......................... |
33-39 |
Viscosity at 40°C,
cSt.......................... |
D445-83.......................... |
2.0-4.1.......................... |
2.0-4.1 |
Flash point, °F,
(min.).......................... |
D93-80.......................... |
130.......................... |
130 |
Distillation, °F
.......................... |
D86-96.......................... |
|
|
|
IBP.......................... |
340-420.......................... |
340-420 |
|
10 %
REC.......................... |
400-490.......................... |
400-490 |
|
50 %
REC.......................... |
470-560.......................... |
470-560 |
|
90 %
REC.......................... |
550-610.......................... |
550-610 |
|
EP.......................... |
580-660.......................... |
580-660 |
1 This test method and sulfur
content maximum applies to all reference fuels used for formulations certified
prior to August 14, 2004.
2 This test method and sulfur
content maximum applies to all reference fuels used for formulations certified
on or after August 1, 2004.
(B) Where the candidate fuel's value for one
or more properties is outside the specification in the table in subsection
(g)(2)(A)3.a as permitted by subsection (g)(2)(A)3.b., the reference fuel's
value for that property may not be on the opposite side of the mid-point of the
range shown in the table.
(4)
(A)
Exhaust emission tests using the candidate fuel and the reference fuel shall be
conducted in accordance with the "California Exhaust Emission Standards and
Test Procedures for 1985 and Subsequent Model Heavy-Duty Diesel-Powered Engines
and Vehicles," as incorporated by reference in Title 13, California Code of
Regulations, Section
1956.8(b). The
tests shall be performed using a Detroit Diesel Corporation Series-60 engine,
or, if the executive officer determines that the Series-60 is no longer
representative of the post-1990 model year heavy-duty diesel engine fleet,
another engine found by the executive office to be representative of such
engines. A determination by the executive officer that an engine is no longer
representative shall not affect the certification of a diesel fuel formulation
based on prior tests using that engine pursuant to a protocol approved by the
executive officer.
(B) The
comparative testing shall be conducted by a party or parties that are mutually
agreed upon by the executive officer and the applicant. The applicant shall be
responsible for all costs of the comparative testing.
(C)
1. The
applicant shall use one of the following test sequences:
a. If both cold start and hot start exhaust
emission tests are conducted, a minimum of five exhaust emission tests shall be
performed on the engine with each fuel, using either of the following
sequences, where "R" is the reference fuel and "C" is the candidate fuel: RC RC
RC RC RC and (continuing in the same order), or RC CR RC CR RC (and continuing
in the same order).
The engine mapping procedures and a conditioning transient
cycle shall be conducted with the reference fuel before each cold start
procedure using the reference fuel. The reference cycle used for the candidate
shall be the same cycle as that used for the fuel preceding
it.
b. If only hot start
exhaust emission tests are conducted, one of the following test sequences shall
be used throughout the testing, where "R" is the reference fuel and "C" is the
candidate fuel:
Alternative 1: RC CR RC CR (continuing in the same order
for a given calendar day; a minimum of twenty individual exhaust emission tests
must be completed with each fuel)
Alternative 2: RR CC RR CC (continuing in the same order
for a given calendar day; a minimum of twenty individual exhaust emission tests
must be completed with each fuel)
Alternative 3: RRR CCC RRR CCC (continuing in the same
order for a given calendar day; a minimum of twenty-one individual exhaust
emission tests must be completed with each fuel)
For all alternatives, an equal number of tests shall be
conducted using the reference fuel and the candidate fuel on any given calendar
day. At the beginning of each calendar day, the sequence of testing shall begin
with the fuel that was tested at the end of the preceding day. The engine
mapping procedures and a conditioning transient cycle shall be conducted after
every fuel change and/or at the beginning of each day. The reference cycle
generated from the reference fuel for the first test shall be used for all
subsequent tests. For alternatives 2 and 3, each paired or triplicate series of
individual tests shall be averaged to obtain a single value which would be used
in the calculations conducted pursuant to section
(g)(5)(C).
2. The
applicant shall submit a test schedule to the executive officer at least one
week prior to commencement of the tests. The test schedule shall identify the
days on which the tests will be conducted, and shall provide for conducting the
test consecutively without substantial interruptions other than those resulting
from the normal hours of operations at the test facility. The executive officer
shall be permitted to observe any tests. The party conducting the testing shall
maintain a test log which identifies all tests conducted, all engine mapping
procedures, all physical modifications to or operational tests of the engine,
all recalibrations or other changes to the test instruments, and all
interruptions between tests and the reason for each such interruption. The
party conducting the tests or the applicant shall notify the executive officer
by telephone and in writing of any unscheduled interruption resulting in a test
delay of 48 hours or more, and of the reason for such delay. Prior to
restarting the test, the applicant or person conducting the tests shall provide
the executive officer with a revised schedule for the remaining tests. All
tests conducted in accordance with the test schedule, other than any tests
rejected in accordance with an outlier identification and exclusion procedure
included in the approved test protocol, shall be included in the comparison of
emissions pursuant to subsection (g)(5).
(D) In each test of a fuel, exhaust emissions
of oxides of nitrogen (NOx) and particulate matter (PM) shall be measured. In
addition, for each test the soluble organic fraction (SOF) of the particle
matter in the exhaust emissions shall be determined in accordance with the Air
Resources Board's "Test Method for Soluble Organic Fraction (SOF) Extraction"
dated April 1989, which is incorporated herein by
reference.
(5) The
average emissions during testing with the candidate fuel shall be compared to
the average emissions during testing with the reference fuel, applying
one-sided Student's t statistics as set forth in Snedecar and Cochran,
Statistical Methods (7th ed.), page 91, Iowa State University
Press, 1980, which is incorporated herein by reference. The executive officer
shall issue a certification pursuant to this paragraph only if he or she makes
all of the determinations set forth in subsections (g)(5)(A) and (B) below,
after applying the criteria in subsection (g)(5)(C).
(A) The average individual emissions of NOx,
PM, and SOF, respectively, during testing with the candidate fuel do not exceed
the average individual emissions of NOx, PM, and SOF, respectively, during
testing with the reference fuel.
(B) Use of any additive identified pursuant
to subsection (g)(2)(B)6. in heavy-duty engines will not increase emissions of
noxious or toxic substances which would not be emitted by such engines
operating without the additive.
(C)
In order for the determinations in subsection (g)(5)(A) to be made, for each
referenced pollutant the candidate fuel shall satisfy the following
relationship:
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(6) If the executive officer finds that a
candidate fuel has been properly tested in accordance with this subsection (g),
and makes the determinations specified in subsection (g)(5), then he or she
shall issue an Executive Order certifying the diesel fuel formulation
represented by the candidate fuel. The Executive order shall identify all of
the characteristics of the candidate fuel determined pursuant to subsection
(g)(2). The Executive Order shall provide that the certified diesel fuel
formulation has the following specifications:
(1) a sulfur content, total aromatic
hydrocarbon content, polycyclic aromatic hydrocarbon content, and nitrogen
content not exceeding that of the candidate fuel,
(2) a cetane number not less than that of the
test fuel,
(3) any additional fuel
specification required under subsection (g)(2)(A)3.b, and
(4) presence of all additives that were
contained in the candidate fuel, in a concentration not less than in the test
fuel, except for an additive demonstrated by the applicant to have the sole
effect of increasing cetane number. All such characteristics shall be
determined in accordance with the test methods identified in subsection (g)(2).
The Executive Order shall assign an identification name to the specific
certified diesel fuel formulation.
(7) In order for a producer or importer of a
final blend to comply with subsection (a) through the sale, offer for sale or
supply of a certified diesel fuel formulation, the producer or importer shall
notify the executive officer in accordance with this subsection (g)(7). The
notification shall identify the final blend and the identification name of the
certified diesel fuel formulation. The notification shall be received by the
executive officer at least 12 hours before start of physical transfer of the
final blend from the production or import facility. A producer or importer
intending to have a series of its final blends be a specific certified
formulation may enter into a protocol with the executive officer for reporting
such blends as long as the executive officer reasonably determines the
reporting under the protocol would provide at least as much notice to the
executive officer as notification pursuant to the express terms of this
subsection (g)(7).
(8) A small
refiner may apply for certification of a diesel fuel formulation to be sold
pursuant to subsection (a)(1)(C). All of the provisions of this subsection (g)
shall apply to certification of such a diesel fuel formulation, except the
reference fuel in the comparative testing described in subsection (g)(4) shall
have the characteristics set forth under "Small Refiner Reference Fuel
Specifications" in the table in subsection (g)(3).
(9)
(A) If
the executive officer determines that a commercially available diesel fuel
blend meets all of the specifications of a certified diesel fuel formulation
set forth in an Executive Order issued pursuant to subsection (g)(6), but does
not meet the criteria in subsection (g)(5) when tested in accordance with
subsection (g)(4), the executive officer shall modify the certification order
as is necessary to assure that diesel fuel blends sold commercially pursuant to
the certification will meet the criteria set forth in subsection (g)(5). The
modifications to the order may include additional specifications or conditions,
or a producer of the commercially available diesel fuel blend found not to meet
the criteria.
(B) The executive
officer shall not modify a prior certification order without the consent of the
applicant and of the producer of the commercially available diesel fuel blend
found not to meet the criteria, unless the applicant and producer are first
afforded an opportunity for a hearing in accordance with Title 17, California
Code of Regulations, Part III, Chapter 1, Subchapter 1, Article 4 (commencing
with Section 60040). If the executive officer determines that a producer would
be unable to comply with this regulation as a direct result of an order
modification pursuant to this subsection, the executive officer may delay the
effective date of such modification for such period of time as is necessary to
permit the producer to come into compliance in the exercise of all reasonable
diligence.
(10) Any
diesel fuel formulation certified in accordance with this subsection (g) as it
existed before the amendments effective 12/26/91 shall no longer be considered
certified after 12/26/91 unless the executive officer determines that the test
data submitted with the application demonstrates that the diesel fuel
formulation satisfies the criteria for certification in subsection (g) as
amended effective 12/26/91.
(h) Designated Equivalent Limits.
(1)
Designated equivalent
limits. The designated equivalent limits under this section
2282 are set forth in the
following table. Compliance with the limits for the properties shall be
determined by the specified ASTM methods, which are incorporated herein by
reference.
Property |
Equivalent
Limit |
Test Method |
Aromatic Hydrocarbon |
[LESS THAN EQUAL
TO]21.0 |
ASTM D5186-96 |
Content (% by wt.) |
|
(1996)(prior to
February 16, 2014) |
|
|
ASTM D5186-03 (2009) (starting
February 16, 2014) |
Content (% by wt.) |
|
|
PAH Content (% by wt.) |
[LESS THAN EQUAL
TO]3.5 |
ASTM D5186-96 (1996)(prior to February 16, 2014) |
|
|
ASTM D5186-03 (2009) (starting
February 16, 2014) |
API Gravity |
>=36.9 |
ASTM
D287-82 |
Cetane Number |
>=53 |
ASTM
D613-84 |
Nitrogen Content (ppmw) |
[LESS THAN EQUAL
TO]500 |
ASTM D4629-96 |
Sulfur Content (ppmw) |
[LESS THAN EQUAL TO]160
before 6/1/06 |
ASTM D2262-94 before 6/1/06 |
|
[LESS THAN EQUAL TO]15 starting
6/1/06 |
ASTM D5453-93 starting 6/1/06 |
(2)
Notification requirements. In order for a producer or importer
of a final blend to comply with subsection (a) through the sale, offer for sale
or supply of diesel fuel subject to all of the designated equivalent limits in
subsection (h)(1), the producer or importer shall notify the executive officer
in accordance with this subsection (h)(2). The notification shall identify the
final blend subject to the designated equivalent limits and must be received by
the executive officer at least 12 hours before start of physical transfer of
the final blend from the production or import facility. A producer or importer
intending to have a series of its final blends be subject to the designated
equivalent limits may enter into a protocol with the executive officer for
reporting such blends as long as the executive officer reasonably determines
the reporting under the protocol would provide at least as much notice to the
executive officer as notification pursuant to the express terms of this
subsection (h)(2).
(i)
Variances.
(1) Any person who cannot comply
with the requirements set forth in subsection (a)(1) 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) 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 (i)(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) 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 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) 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) 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 aromatic hydrocarbon
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 of
conditions of the variance.
Such bond may provide that, 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) [Reserved]
(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 (i)(2) and
(i)(3), issue an emergency variance to a person from the requirements of
subsections (a)(1) 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 (i)(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) 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 (i)(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 subsection (i)(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) after holding a hearing in
accordance with the provisions of subsections (i)(2) and
(i)(3).
(j) Whenever this
section provides for the use of a specified test method, another test method
may be used following a determination by the executive officer that the other
method produces results equivalent to the results with the specified
method.