vvEPA
United States
Environmental Protection
Agency
Air and Radiation EPA420-B-05-009
September 2005
Small Entity Compliance
Guide for "Control of
Emissions from Nonroad
Diesel Engines and Fuel"
(40 CFR Parts 9, 69, et al.
June 29, 2004)
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EPA420-B-05-009
September 2005
for of
(40 CFR Parts 9, 69, et a!. June 29,
Assessment and Standards Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
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Table of Contents
1.0 Introduction 1
2.0 Entities Subject to the Rule 3
3.0 What Does the Regulation Require? 12
4.0 Provisions for Small Entities 16
5.0 Designate and Track requirements 21
6.0 Recordkeeping and reporting requirements 25
7.0 For More Information 40
Appendix A. Highway and Nonroad Diesel Fuel Compliance Dates 41
Appendix B. The Northeast/Mid-Atlantic Area 43
Appendix C. PADD Map 45
NOTICE
This guide was prepared pursuant to section 212 of the Small Business Regulatory
Enforcement Fairness Act of 1996 ("SBREFA"), Public Law 104-121. The statements in
this document are intended solely to aid regulated entities in complying with the
published national regulation "Control of Emissions from Nonroad Diesel Engines and
Fuel" (40 CFR Parts 9, 69, et al. June 29, 2004).
Final authority rests with the regulation and this guide is not intended to replace,
and may not cover all parts of, the regulation. However, in any civil or administrative
action against a small business, small government, or small non-profit organization for
violation of any parts of the aforementioned regulation, the content of this guide may be
considered as evidence of the reasonableness or appropriateness of proposed fines,
penalties, or damages. EPA may decide to revise this guide without public notice to
reflect changes in EPA's approach to implementing Control of Emissions from Nonroad
Diesel Engines and Fuel requirements or to clarify and update text. To determine
whether EPA has revised this guide and/or to obtain copies, contact EPA's Tia Sutton at
(734) 214-4018, sutton.tia@epa.gov.
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Acronyms used throughout this guide:
D&T
LM
NAICS
NOx
NR
NRLM
PADD
Panel
PM
ppm
PTD
RFA
SBA
SBREFA
SER
SIC
TCO
Designate and Track
Locomotive and Marine
North American Industry Classification System
Northeast/Mid-Atlantic
Oxides of Nitrogen
Nonroad
Nonroad, Locomotive, and Marine
Petroleum Administration Districts for Defense
(see SBAR Panel)
Particulate Matter
Parts per million
Product transfer document
Regulatory Flexibility Act
Small Business Administration
Small Business Advocacy Review Panel
Small Business Regulatory Enforcement Fairness Act
Small Entity Representative
Standard Industrial Classification
Temporary Compliance Option
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1.0 Introduction
This document is published by the Environmental Protection Agency (EPA) as our
official compliance guide for small entities, as required by the Small Business
Regulatory Enforcement Fairness Act of 1996. Before you begin using the guide you
should know that the information in this guide was compiled and published on June 29,
2004. EPA is continually improving and upgrading its rules, policies, compliance
programs, and outreach efforts. You can determine whether EPA has revised or
supplemented the information in this guide by checking either the Nonroad Diesel or
main Clean Diesel web pages or
http://www.epa.gov/cleandiesel. respectively) for the rule, any technical amendments,
and related information.
Pollution emitted by nonroad diesel engines contributes greatly to our nation's
continuing air quality problems, the Nonroad Diesel Rule is the latest in a series of
Clean Diesel actions that are designed to reduce emissions from nearly every type of
diesel vehicle and equipment to help mitigate those problems. The nonroad diesel
program combines cleaner engine technologies with cleaner fuel - similar to the on-
highway diesel program - with an end result of significant environmental and public
health benefits. Nonroad diesel equipment currently accounts for 47 percent of diesel
particulate matter (PM) and 25 percent of oxides of nitrogen (NOx) from mobile sources
nationwide, and this program will cut emissions from nonroad diesel engines by over 90
percent. As part of this program, new engine emission standards will begin to take
effect, based on engine horsepower, starting in model year 2008, and will apply to
nonroad diesel highway engines and vehicles.
The sulfur levels of nonroad diesel fuel will be reduced by 99 percent from current
levels (approximately 3,000 parts per million [ppm]) to 15 ppm in 2010. The lower sulfur
fuel will provide immediate public health benefits by reducing PM from engines in
existing nonroad equipment. It will also make it possible for engine manufacturers to
use advanced clean technologies, similar to catalytic technologies used in passenger
cars.
We have estimated that the added cost for low-sulfur fuel will average about 4 cents
per gallon. Therefore, we are providing substantial flexibility, as detailed in this
compliance guide, for small entities in the nonroad diesel fuel distribution system,
namely small refiners.
If you are a small entity for this rule (you meet the small business size criteria
and/or have been approved by the EPA as a "small refiner"), we encourage you to
continue to contact EPA if you should have any further questions or concerns (see
contact information in section 5, below).
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1.1 Who should use this guide?
This guide is mainly for those refiners of nonroad, locomotive, and marine (NRLM)
diesel fuel that qualify as small refiners under the small business size standards as
stated in the rulemaking. If you are not sure whether or not you qualify as a small
refiner, please refer to section 2 of this guide for the criteria. While much of the
information in this guide pertains to small refiners, there is also information here for all
small entities in the fuel production and distribution industry.
The Small Business Regulatory Enforcement Act (SBREFA) requires the EPA to
prepare Small Entity Compliance Guides to help small businesses comply with the
regulation. The regulation has hardship flexibility provisions specific to small entities in
the fuel industry, and this guide should help to clarify those provisions.
1.2 How can I obtain a complete copy of the rule?
A complete copy of the rule can be found in the Federal Register, Vol. 69, No. 124,
p. 38958 (published on June 29, 2004). The rule is also located on the Nonroad Diesel
home page:
1.3 How do I use this guide?
The guide is organized as follows:
1. Introduction and general information
2. Description of entities that are subject to the rule; criteria for qualifying as a
small refiner
3. Overview of the regulatory requirements
4. Small entity-specific provisions and timeline for compliance with the
regulation
5. Discussion of the designate and track concept
6. Recordkeeping and reporting requirements
7. Contact information for further assistance
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2.0 Entities Subject to the Rule
2.1 Entities subject to the nonroad diesel fuel regulations
Table 1, below, lists the NAICS and SIC codes of those entities subject to the rule:
Table 1.
NAICS and SIC Codes
Industry
Petroleum Refiners
Diesel Fuel Marketers and
Distributors
Diesel Fuel Carriers
NAICS a Codes
324110
422710,
422720
484220,
484230
SIC " Codes
2911
5171,
5172
4212,
4213
a- NAICS = North American Industrial Classification System
b- SIC = Standard Industrial Classification
Petroleum refiners producing diesel for nonroad vehicles and certain carriers,
marketers, and other distributors of diesel fuel will be affected by the nonroad diesel
regulations. The following section discusses the small entities directly affected by the
rulemaking (the parties which this guide will mainly apply to).
2.2 Criteria for qualification as a small entity
Although most refining companies are not considered small businesses, several
refining companies were identified that do appear to qualify under the applicable Small
Business Administration (SBA) definition of a small entity. In addition, this rule may
impact diesel fuel carriers, distributors, and marketers - of which several thousand
appear to be small businesses. Table 2 below lists the small business size standards
SBA has established for each type of economic activity under the SIC and NAICS
systems. In this table, the industry categories listed below the "Petroleum Refiners"
category have some role in refining, distributing, and/or marketing nonroad diesel fuel
and are directly affected by the Nonroad Diesel rulemaking.
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Table 2.
Small Business Size Standards
Industry
Petroleum Refiners
Diesel Fuel Marketers and
Distributors
NAICS
Codes
324110
422710,
422720
SIC Codes
2911
5171,
5172
Defined by SBA as Small Business
if:
< 1500 employees corporate-wide
< 100 employees corporate-wide
Who is eligible?
Under this rule, the only small entities that may be significantly impacted by the rule
are small refiners, since they will have to invest in desulfurization technology to produce
low sulfur fuel. Carriers and distributors of nonroad diesel fuel- a vast universe of
entities- may also be affected, but to a lesser degree. The criteria for consideration as a
small business is listed in Table 2, above. In addition to the information in the table,
entities eligible for nonroad diesel small refiner relief must demonstrate that they meet
the following criteria:
produced NRLM diesel from crude at the time the rule was promulgated
have an average of no more than 1,500 employees corporate-wide, based on
the average number of employees for all pay periods from January 1, 2002, to
January 1, 2003 (application date-December 31, 2004)1; and
had a corporate crude oil capacity less than or equal to 155,000 barrels per
calendar day (bpcd) for 2002 (application date- December 31, 2004)2.
For refiners who acquired or reactivated a refinery that was shutdown or was non-
operational between January 1, 2002 and January 1 2003. (80.551 (c) (1) (ii) (application
date- June 1, 2006)), eligibility will be judged under the employment and crude oil
capacity criteria based on the most recent 12 consecutive months of data unless we
conclude from the data provided by the refiner that another period of time is more
appropriate.
Who is not eligible?
The following are not eligible for consideration as a small business under the rule:
As with earlier fuel sulfur programs, the effective dates for the determination of employee count and
for calculation of the crude capacity represent the most recent complete year prior to the issuing of the
proposed rulemaking (2002, in this case).
Ibid.
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entities that do not own or operate a refinery;
entities that do not produce NRLM diesel fuel from crude;
refiners of refineries built or started up after January 1, 2002;
refiners who qualify as small refiners and who subsequently employ more than
1500 people as a result of merger3 with, or acquisition of, another entity, and;
any refiner whose status changes will comply with the 15 ppm-sulfur standard
beginning January 1 of the calendar year following the disqualifying event.
How do I determine the total number of employees/crude oil capacity?
In determining its total number of employees and crude oil capacity, a refiner must
include the number of employees and crude oil capacity of any subsidiary companies,
any parent company and subsidiaries of the parent company, and any joint venture
partners. We define a subsidiary of a company to mean any subsidiary in which the
company has a 50 percent or greater ownership interest.
However, refiners owned and controlled by an Alaska Regional or Village
Corporation organized under the Alaska Native Claims Settlement Act (43 U.S.C. 1626),
are also eligible for small refiner status, based only on the refiner's employees and
crude oil capacity. This exclusion is also being incorporated into the small refiner
provisions of the highway diesel and gasoline sulfur rules, which did not address this
issue.
/ believe that I meet the definition, however I am not already an approved small
refiner with EPA: how do I apply?
A refiner that would like to apply for small refiner status must have applied to EPA
by December 31, 2004. The detailed requirements are located in section V.F.2 of the
preamble to the final rule and § 80.551 (c) of the regulations. The criteria are
summarized in Table 3, below.
Ğr All refiners that believe that they may meet the criteria for small
refiner status must submit an application for small refiner status,
even if you have been approved as a small refiner for a previous fuel
program. Fuel programs in the past have allowed a 'grandfather'
provision, where refiners that qualified as a small entity for a previous
program would not have to reapply for small refiner status for any
subsequent fuel program. However, no such provision has been
3 However, small refiners that merge with another small refiner (and thus do not combine crude oil
processing capacities or gain any financial advantage) may retain their status as a small refiner.
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included in the nonroad diesel rule. Therefore, all potential small
refiners (whether approved under a previous fuel program or not) are
required to submit applications.
Table 3.
Criteria for Small Refiner Applications
For all
The total corporate crude oil capacity- this must be a positive number- of
each refinery as reported to the Energy Information Administration (EIA) of
the U.S. Department of Energy (DOE) for the most recent 12 months of
operation. We will presume that the information submitted to EIA is correct.
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/*"'-' '^ " ''".' ;-.'.';.'.'.'.'.. :-.T -:: - -._'-. l-.ir T: :'. :-.-': .:-' ...'...'.'.-.;
A letter signed by the president, chief operating officer, or chief executive
officer of the company (or a designee) stating that the information
contained in the application is true to the best of his/her knowledge
Contact information for a corporate contact person, including:
Name
Mailing address
Phone and fax numbers
E-mail address
A listing of the name and address of each location where any employee
worked during the 12 months preceding January 1, 2003
The average number of employees at each location based upon the
number of employees for each pay period for the 1 2 months preceding
January 1,2003
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The type of business activities carried out at each location
An indication of the small refiner option(s) the refiner intends to use (for each
refinery):
The ability to delay compliance under § 80.554(a) or (b)
The ability to generate NRLM diesel sulfur credits under § 80.535(b) or (d),
pursuant to the provisions of § 80.554(c)
An adjustment to its small refiner gasoline sulfur standards under §
80.240(a), pursuant to the provisions of § 80.554(d)
For
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Listing of the name and address of each location where any employee
worked during the 12 months preceding January 1, 2000
(In the case of a refiner who acquires or reactivates a refinery that was
shutdown or non-operational between January 1, 1999, and January 1,
2000, this listing should state the where employees worked since the
refiner acquired/reactivated the refinery)
Average number of employees at each location based upon the number of
employees for each pay period for the 12 months preceding January 1 ,
2000
(In the case of a refiner who acquires or reactivates a refinery that was
shutdown or non-operational between January 1, 1999, and January 1,
2000, the average number of employees at each location should be for
each calendar year since the refiner acquired/reactivated the refinery)
The type of business activities carried out at each location
An indication of the small refiner option the refiner intends to use (for each
refinery):
The ability to produce motor vehicle diesel fuel subject to the 500 ppm
sulfur standard under § 80.520(c) or generate credits under § 80.531 ,
pursuant to the provisions of § 80.552(a) or (b); or,
An extension of the duration of its small refiner gasoline sulfur standard
under § 80.553, pursuant to the provisions of § 80.552(c)
Additional 'special case' provisions
For joint ventures:
* The total number of employees includes the combined employee count of
all corporate entities in the venture
For government-owned refiners:
The total employee count includes all government employees
NOTE: Applications for small refiner status must contain the information listed above for the company
seeking small refiner status, plus any subsidiary companies, any parent company and subsidiaries of the
parent company in which the parent has 50 percent or greater ownership, and any joint venture partners.
Applications do not need to be in a specific format. They simply need to convey the
information listed above in a clear and concise manner. Approval of NRLM small refiner
status will be based on such information. EPA will notify refiners of approval or
disapproval of small refiner status by letter. If a refiner is not approved for small refiner
status, the refiner must comply with the general program sulfur standards.
Where do I send my application?
Applications for small refiner status must be sent to one of the following addresses:
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via
U.S. EPA
DC
w'a
U.S. EPA
Attn:
Transportation and Regional Programs Division
131OL Street, NW,, 6th floor
DC
How cfoes a s/r?a// refiner apply for a diesel fuel volume baseline?
To generate NRLM credits or use the small refiner provisions, a
(small) refiner must apply for a NRLM baseline.
The NRLM diesel fuel volume baseline is calculated using the following equation:
Where:
IIAK/
Bt
n
Volume baseline value
Volume of NRLM diesel fuel batch i
Total number of batches of NRLM diesel fuel produced for U.S. use
during January 1, 2003 through December 31, 2005
Individual batch of NRLM diesel fuel produced during January 1, 2003
through December 31, 2005
Number of months in the baseline period (this number is usually 24,
except in the case of startup or reactivation)
Table 4 below lists all required information for baseline applications (which must be
submitted for each refinery/import facility).
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Table. 4
Requirements for Refinery Baseline Applications
A listing of the names and addresses of all refineries or import facilities owned by
the company for which the refiner or importer is applying for a baseline
For purposes of a non-highway baseline volume used in determining compliance
with the provisions of § 80.554 (a) (Small Refiner Delay option) or § 80.554 (d)
(NRLM/Gasoline Compliance Date option), the baseline volume produced during
the three calendar years beginning January 1 , 2003 2004, and 2005, as calculated
using the BNRLM equation noted above
For purposes of a non-highway baseline volume used in determining compliance
with the provisions of § 80.554(b) (Credit option), the baseline volumes produced
during the three calendar years beginning January 1 , 2006, 2007, and 2008, as
calculated under the equation above
A letter signed by the president, chief operating officer, or his/her delegate stating
that the information contained in the application is true to the best of his/her
knowledge
Name, address, phone and fax numbers, and e-mail address of a corporate contact
person
For each batch of diesel fuel produced:
date that production was completed (or importation occurred)
the batch designation or classification
the batch volume
Any other additional appropriate information as requested by EPA
Baseline applications must be sent to one of the following addresses:
<.:,';
U '.: EPA
C'.MII:
Ti
>;/;:. -)6J)
i 2uO
DC
via
U.S. EPA
Attn: Nonroad Diesel Fuel Baseline
Transportation and Regional Programs Division
(6406J)
1 31 OL Street, NW, 6th floor
Washington, DC
2.3 Loss of small refiner status
Refiners that no longer meet the criteria for small refiner status as described above
may lose their status as a small refiner, and thus will be subject to the general program
requirements.
These instances are:
Acquisitions
ğ Refinery owned by small refiner being purchased by 'large' refiner
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A small refinery that is acquired by a 'non-small' refiner will cause the
newly acquired refinery to lose its status as a small refinery. However,
since the acquired refinery was most likely previously subject to the small
refiner standards, we feel that it is necessary for there to be some
additional time afforded to the purchasing refiner to bring the acquired
refinery into compliance with the larger program standards. Therefore, we
are allowing a period of 30 months4 from the purchase date for the
purchasing refiner to bring the previously small refinery into compliance.
In the instance of any sort of technical hardship, we have also provided a
provision in the rule for refiners to apply for up to six months of additional
lead time. Such requests should be provided to EPA in a timely manner
and will be considered on a case-by-case.
ğ Small refiner purchasing another refinery (owned by either a small or non-
small) refiner
If such a transaction causes the refiner's total employee count and/or crude
capacity to exceed the small refiner criteria, then the refiner will lose its
small refiner status (and likewise, the newly acquired small refinery will also
lose its status as a small).
However, a small refiner that exceeds the small refiner employee count or
crude capacity by normal business practice, and not through merger or
acquisition, may retain its small refiner status.
Mergers
ğ The merger of a small refiner with a non-small refiner
A small refiner merging with a non-small refiner is similar to the case of
acquisition by a non-small refiner, and thus we are also affording the 30
months lead time in these situations, as the small refiner would lose its
status as a small in this situation.
(* In the case of a merger of two small refiners/refineries, status as a small
refiner will remain in place for both parties. During discussions with small
refiners, it was brought to our attention that the merging of two small
refiners would not provide any financial benefit to either refiner, and the
original compliance plans of both refiners would not be affected by the
The 30 months may not continue past June 1, 2010 for the 500 ppm NRLM standard and
June 1, 2014 for the 15 ppm NRLM standard.
10
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merger. Therefore, in the case of a merger of two small refiners, each
refiner (and thus, their respective refineries) may retain its status as a small
refiner.
Approved gasoline sulfur/highway diesel small refiners that grew through
normal business practices and now exceed the NRLM small refiner
criteria
In a few instances, some refiners that were considered small under either the
gasoline sulfur or highway diesel fuel programs grew, through normal business
practices, and now they exceed the small refiner criteria as defined in the
nonroad diesel rule. These refiners are not automatically being considered
small refiners under the nonroad rule (but will still retain the status as a small
refiner for the rule under which it applied).
Under the final nonroad program, such refiners would face the challenge of
having to produce 500 ppm NRLM in 2007 and both 15 ppm highway and
NRLM diesel fuel in 2010. We have provided some relief to those refiners in
the final nonroad rule. For these refiners, they may opt to skip the 500 ppm
NRLM standard and meet the 15 ppm standard for both highway and NR diesel
in 2010 (and LM diesel fuel in 2012).
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3.0 What Does the Regulation Require?
3.1 Requirements for refiners
3.1.1 General refiner requirements
The rule specifies that beginning June 1, 2007, refiners must begin producing
NRLM diesel fuel that meets a maximum sulfur standard of 500 parts per million (ppm).
All 2007 and later model year diesel-fueled nonroad vehicles must be refueled with this
lower sulfur fuel. Beginning June 1, 2010, refiners must begin producing nonroad (NR)
diesel fuel that meets a maximum sulfur standard of 15 ppm; and all 2010 and later
model year vehicles must be fueled with this fuel. Locomotive and marine (LM) diesel
fuel must then meet the 15 ppm sulfur standard beginning June 1, 2012. Any 500 ppm
and 15 ppm fuel produced after its applicable date may only be used in pre-2008 and
pre-2011 nonroad equipment, respectively.
Based on discussions with various parties throughout the fuel refining and
distribution system, we decided to adopt a designate and track (D&T) provision in the
rule. In essence, the D&T provision requires refiners and importers to designate the
volumes of diesel fuel they produce and/or import.
Refiners/importers will designate the type of diesel fuel (highway or NRLM) and the
applicable sulfur level. They may then mix and ship highway and NRLM diesel fuels
that meet the same sulfur specification together, without dyeing their NRLM diesel fuel
at the refinery gate. The designations will follow the fuel through the distribution
system, with some limits placed on the ability of downstream parties to change the
designation of the fuel. The bulk of the designate and track provisions end May 31,
2010 when all highway diesel fuel must meet the 15 ppm sulfur standard.
3.1.2 Small refiner-specific requirements
There are specific provisions for small refiners. These were developed due to the
fact that during the SBREFA process and throughout the development of the rule, some
small refiners indicated that they will have greater difficulty than larger refiners in
complying with the nonroad diesel fuel sulfur standard. The small refiners that
participated in the SBREFA process as Small Entity Representatives (SERs) noted
certain factors and unique circumstances that small refiners generally face with regard
to compliance with environmental programs. It was noted that small refiners generally
lack the resources that are available to larger refining companies, including those large
companies that own small-capacity refineries, to raise capital for investing in
desulfurization equipment, such as shifting of internal funds, securing of financing, or
selling of assets. Small refiners are also likely to have more difficulty in competing for
engineering and construction resources needed for the installation of the desulfurization
12
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equipment which will likely be required to meet the standards finalized in this action.
Based on the above discussions and analyses, the SBAR Panel and we agreed that
small refiners would likely experience a significant and disproportionate financial
hardship in reaching the objectives of our NRLM diesel fuel sulfur program. However,
the Panel also noted that the burden imposed upon the small refiners by the sulfur
requirements varied from refiner to refiner and could not be alleviated with a single
provision. In addition, the small refiners strongly supported having multiple compliance
options. Therefore, three regulatory flexibility options were offered to decrease the
burden on small refiners in complying with the rule, these options are discussed in detail
in Section 4 of this guide.
3.2 Requirements for downstream parties
The nonroad diesel fuel rule contains certain downstream compliance and
enforcement provisions for all entities in the diesel fuel distribution system downstream
of the refinery gate. The delayed compliance dates for downstream parties affords
additional time to these parties to turnover their NRLM tanks to lower sulfur fuel. In
general, the compliance dates for terminals are two months after the applicable dates of
the standard for refiners and importers; similarly, the compliance dates for wholesale
purchaser-consumer facilities/retail stations begin two months following the applicable
dates for terminals.
Under the rule, both 500 ppm and 15 ppm nonroad diesel fuel will be in the
distribution system. We are requiring that at the start of the program, on June 1, 2007,
all NRLM diesel fuel must be marked, or 'designated' as a certain type of fuel and must
then be 'tracked' throughout the distribution system to ensure that it continues to comply
with the standard that it is designated to meet on its product transfer document (PTD),
pump label, and/or any other documentation.
What are the specific compliance dates for downstream parties?
Downstream facilities must meet the following standards by the applicable dates
noted below:
June 1,2007-May31, 2010
Most NRLM fuel produced or imported will begin meeting the 500 ppm sulfur
standard by June 1, 2007; 500 ppm sulfur diesel fuel and high sulfur (above
500 ppm) diesel fuel may still be produced, distributed, and sold for use in
NRLM diesel engines.
ğ Terminals/fuel distributors
All NRLM diesel fuel must meet, at the very least, the 500 ppm sulfur
standard by August 1, 2010.
ğ Retailers and wholesale purchaser-consumers
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All NRLM diesel fuel must meet the 500 ppm standard by October 1, 2010
at wholesale purchaser-consumer facilities and retail stations; NRLM diesel
fuel with a sulfur level higher than 500 ppm cannot legally exist in the fuel
distribution system after this date.
June 1, 2010 - May 31, 2014
Most NRLM fuel produced or imported will begin meeting the 15 ppm sulfur
standard by June 1, 2010; and all NRLM diesel fuel produced or imported will
be required to meet the 500 ppm sulfur standard. Both 15 ppm and 500 ppm
sulfur fuels may still be produced, distributed, and sold for use in NRLM diesel
engines.
ğ Terminals/fuel distributors
At the terminal level, all NRLM diesel fuel must meet the 15 ppm sulfur
standard by August 1, 2014.
ğ Retailers and wholesale purchaser-consumers
All NRLM diesel fuel must meet the 15 ppm standard by October 1, 2014 at
wholesale purchaser-consumer facilities and retail stations; NRLM diesel
fuel with a 500 ppm sulfur level cannot legally exist in the fuel distribution
system after this date.
June 1, 2014 and beyond
By June 1, 2014, only 15 ppm sulfur fuel may be produced/imported by refiners
and importers. However, downstream-generated 500 ppm sulfur diesel fuel
may only be used in nonroad engines until December 1, 2014.
ğ Terminals/fuel distributors
500 ppm sulfur diesel fuel that is produced from product downgrade and
transmix in the distribution system can be distributed and sold for use in
locomotive and marine diesel engines only. Distributors will still be
required to comply with the applicable fuel designation, as both 15 ppm
and 500 ppm LM fuel may still exist in the distribution system.
ğ Retailers and wholesale purchaser-consumers
After June 1, 2014, 500 ppm sulfur fuel may only be sold into the LM and
heating oil markets. We did not set an end date for the downstream
distribution of 500 ppm sulfur LM fuel, however we plan to conduct an
evaluation of this flexibility in 2011, following the implementation of the 15
ppm sulfur NR fuel standard.
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Table 5.
Nonroad Diesel Rule Deadlines and Compliance Dates
500 ppm NRLM
15 ppm NRLM
15 ppm LM
Refiners,
Importers
6/1/2007
6/1/2010
6/1/2012
Credit,
Small refiner
6/1/2010
6/1/2014
6/1/2014
Terminals
8/1/2010
8/1/2014
Retail outlets,
wholesale
purchaser-
consumers, bulk
plants
10/1/2010
10/1/2014
Other locations
12/1/2010
12/1/2014
Are any provisions being provided for off-spec/interface/transmix fuel?
While the rule has set more stringent standards for fuel at the refinery gate, the rule
does provide outlets for off-specification products generated in the distribution system
downstream of the refinery gate. 15 ppm fuel that is contaminated (which thus
becomes 500 ppm fuel) by coming into contact with a higher sulfur fuel and 500 ppm
fuel produced by transmix processors from contaminated fuel, can be marketed as 500
ppm NRLM fuel until June 1, 2014; and 500 ppm LM fuel after that date. And, as stated
before, an end date for the downstream distribution this fuel has not been set, but an
evaluation of a potential end date will take place in 2011.
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4.0 Provisions for Small Entities
4.1 Small refiner-specific provisions
What are the regulatory options that are available to small refiners?
Refiners that seek and are granted small refiner status may choose from the
following three options under the nonroad diesel program.
NRLM Delay Option. A small refiner may delay meeting the 500 ppm and 15
ppm sulfur standards for up to 3 and 4 years, respectively.
The NRLM Delay Option is available for any refiner that qualifies as a small
refiner, and would allow such refiners to continue to produce and sell diesel fuel
at the current uncontrolled sulfur levels standard for three additional years-
through May 31, 2010. Similarly, for the 15 ppm standard that takes effect on
June 1, 2010, small refiners choosing this option will be allowed to continue the
production (and sale of) 500 ppm fuel until June 1, 2014.
Small refiners producing higher sulfur fuel than the national program dictates
(i.e. producing 1000 ppm sulfur fuel after June 1, 2007 when the national
program goes to a 500 ppm sulfur limit) must limit their production to baseline
volume levels. Any diesel fuel produced over the applicable baseline volume
will be subject to the national program standard applying to non-small refiners:
ğ June 1, 2007 - May 31, 2010
Refiners may produce uncontrolled NRLM fuel up to the 2003-2005 non-
highway baseline volumes. Fuel produced in excess of the baseline will be
subject to the 500 ppm NRLM standard.
ğ June 1, 2010 - May 31, 2014
Refiners may produce 500 ppm NRLM fuel up to the 2006-2008 non-
highway baseline volumes. Fuel produced in excess of this baseline will be
subject to the 15 ppm NRLM standard.
-> 500 ppm LM fuel produced during 2010 to 2012 would be counted
towards meeting this baseline volume
With this option comes the need for marking heating oil to distinguish it from
small refiner high sulfur NRLM fuel. As discussed further later in this guide
(and in depth in the rule), certain areas in PADD 1 will incur a disproportionate
financial burden in using a fuel marker. Therefore, to eliminate the need to
mark heating oil in this area (the "exclusion area", which is defined and
discussed later in this guide), small refiner and credit fuel are not to be used in
the exclusion area to reduce the number of possible grades of fuel in the
distribution system in this area.
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Table 6.
Small Refiner NRLM Diesel Fuel Sulfur Standards
Compliance Dates (in ppmf
Non-Small
Refiners- NR fuel
Non-Small
Refiners- LM fuel
Small Refiners-
NR fuel
Small Refiners-
LM
2006
2007
500
500
...
2008
500
500
2009
500
500
2010
15
500
500
500
2011
15
500
500
500
2012
15
15
500
500
2013
15
15
500
500
2014
15
15
15
15
2015
15
15
15
15
a- new standards will take effect June 1 of the applicable year
NRLM Credit Option. A small refiner that chooses to produce 500 ppm and/or
15 ppm fuel earlier than the small refiner deadlines may generate credits (and
sell them to other refiners) through the broader sulfur credit banking and trading
program.
During the SBREFA process some small refiners informed us of their desire to
produce fuel meeting the NRLM standards earlier than is required for small
refiners. Various reasons were stated, including a limit on the number of fuel
grades that certain distribution systems can handle, producing 500 ppm or 15
ppm fuel on time will be more economically advantageous in a specific market
area, desire to desulfurize NRLM along with the small refiner's highway diesel
fuel, etc. For these refiners, the NRLM Delay Option would not prove to be a
very useful flexibility option, however, the NRLM Credit Option would provide
sufficient regulatory flexibility.
Under this option:
-> credits may be generated for any volume of 500 ppm NRLM diesel fuel
produced from crude oil from June 1, 2006 through May 31, 2010; and,
-> credits may be generated for any volume of 15 ppm NRLM diesel fuel
produced from crude oil from June 1, 2010 through December 31, 2013.
The NRLM Credit Option helps to encourage all refiners to produce 500 ppm
and 15 ppm sulfur fuel as early as possible. Further, generating and selling
credits could provide additional funds to help small refiners defray some of the
costs of compliance with the rule.
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NRLM/Gasoline Compliance Date Option. A small refiner that chooses to
produce 15 ppm sulfur fuel by June 1, 2006 and elects not to generate credits
for early production will receive a relaxation in their small refiner interim
gasoline sulfur standards.
This option is for small refiners that produce greater than 95 percent of their NRLM
diesel fuel at the 15 ppm sulfur standard by June 1, 2006 and elect not to generate
credits for early compliance with the standards. The NRLM/Gasoline Compliance
Date Option allows small refiners to receive a 20 percent increase in its applicable
small refiner annual average and per-gallon cap gasoline sulfur standards for the
duration of the interim program (and the per-gallon gasoline cap cannot exceed 450
ppm). To receive the relaxation in its gasoline sulfur requirements, refiners must
produce a 15 ppm NRLM volume of at least 85 percent of the annual average
volume of nonroad diesel fuel it produced from 2003 to 2005.
If a small refiner choosing this option fails to meet either the NRLM 15 ppm sulfur
standard by June 1, 2006 or the 85 percent minimum volume requirement, then the
refiner's original small refiner interim gasoline sulfur standard will automatically
apply retroactively. Furthermore, the refiner will be required to compensate for the
higher gasoline sulfur levels by either purchasing credits or producing an equivalent
volume of gasoline below the required levels.
Can any of the regulatory options be used in conjunction with another option?
Since a small refiner must produce 95 percent of its NRLM diesel fuel early as 15
ppm under the NRLM/Gasoline Compliance Date option without the use of credits, that
option is not compatible with either the NRLM Delay option or the NRLM Credit option.
So, a refiner that chooses the NRLM/Gasoline Compliance Date option may not choose
either of the other two options. However, the NRLM Delay option and the NRLM Credit
option are compatible with each other, so a small refiner can choose either, or both, of
these options.
What happens if I am not able to comply with the standards, even if I utilize the
small refiner options?
In the nonroad diesel rule, we have provided additional provisions for cases of
extreme unforseen circumstances or hardships. These provisions allow a refiner or
importer to seek temporary relief from the NRLM provisions in rare instances. Waivers
due to extreme unforseen circumstances must be based on a refiner's inability to
comply with the applicable standard due to circumstances out of the refiner's control
(such as fire, tornadoes, floods, etc.). In such cases, the refiner must submit a hardship
waiver application, and we will evaluate the applications- and the resulting relief- on a
case-by-case basis.
Refiners seeking a hardship waiver are required to show that they:
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were not able to avoid the noncompliance;
will make up the air quality detriment associated with the waiver;
will make up the economic benefit from the waiver, and;
will meet the nonroad diesel sulfur standards as expeditiously as possible.
Applicants must apply by June 1, 2005. Further, the application must include the
information detailed below, or else the application may be deemed incomplete and void:
crude oil refining capacity of all diesel fuel products produced at all of the
refiner's refineries
fuel sulfur level(s) of all diesel fuel products produced at all of the refiner's
refineries
technical plan for capital equipment and operating changes to meet the NRLM
diesel fuel sulfur standards
anticipated timing for the overall project, and key milestones to ultimately
produce 100 percent 15 ppm NRLM
the capital requirements for each step of the proposed projects
detailed plans for financing the project, including
ğ financial statements demonstrating the nature and degree of financial
hardship (and how the requested relief would relieve the hardship)
ğ description of the overall financial situation of the company
ğ plans to secure financing
plan demonstrating how the refiner would achieve the standards, including a
timetable for
ğ obtaining the necessary capital
ğ contracting for engineering and construction resources
ğ obtaining necessary permits
ğ beginning/completing construction
description of the market area for the refiner's diesel fuel projects
(optional) could also include a compliance plan stating how fuel will be
segregated through to the end-user, and who those end-users are
4.2 Provisions for other entities
During the SBREFA process, representatives of the fuel distribution and marketing
sectors of the industry commented that the addition of a fuel marker would impose a
substantial burden on those small entities (heating oil marker requirements would force
small terminal operators to install expensive injection equipment and they would not be
able to recoup these costs). Therefore, we finalized a provision to decrease the burden
on these small operators- we are not requiring the addition of a fuel marker to heating
oil for fuel produced and sold in the Northeast/Mid-Atlantic (NEMA) exclusion area. Any
fuel produced in the NEMA area for sale outside of the area must have the fuel marker
present. Also, fuel produced outside of the area (regardless of whether all or only a
portion of the fuel will be sold for use in the exclusion area) must include the fuel
marker.
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While this provision was discussed during the SBREFA process mainly to mitigate
the burden on small entities, the omission of the marker in the NEMA exclusion area
applies to non-small entities as well. A map of the exclusion area, as well as a listing of
the counties in the area, can be found in Appendix B of this guide.
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5.0 Designate and Track requirements
These limits are designed to restrict the inappropriate sale of 500 ppm sulfur NRLM
diesel fuel into the highway market, the inappropriate sale of heating oil into the NRLM
market, the inappropriate sale of 500 ppm sulfur LM into the nonroad market, and to
implement the downgrading restrictions that apply to designate and track approach
includes record keeping and reporting requirements for all parties in the fuel distribution
system, associated with tracking designated fuel volumes through each custodian in the
distribution chain until the fuel exits the terminal. The program also includes
enforcement and compliance assurance provisions to enable the Agency to rapidly and
accurately review for discrepancies the large volume of data collected on fuel volume
hand-offs. As stated before, the bulk of the designate and track provisions end May 31,
2010 when all highway diesel fuel must meet the 15 ppm sulfur standard. However, as
discussed below, scaled back designate and track provisions continue beyond 2010 for
purposes of enforcing against heating oil being used in the NRLM market and to enforce
against 500 ppm LM diesel fuel being used in the nonroad market.
Designation requirements:
Refiners/importers must designate the volume and type of each batch of fuel
that is transferred to another entity; acceptable designations are shown in Table
7, below.
Fuel distributors must clearly designate each batch of fuel that is transferred to
another party; they must also specify the sulfur content of each batch while it is
in their custody between receipt and delivery. Table 8, below states
designation requirements for fuel distributors.
In order to properly track transfers of diesel fuel between facilities, each entity
(regardless of size) in the fuel distribution system, up through and including the point
where fuel is loaded onto trucks for distribution to retailers or wholesale purchaser-
consumers, must register each of its facilities with EPA by December 31, 2005, or six
months prior to handling fuels subject to the designation requirements of today's rule.
An entity's registration must include the following information:
Corporate name and address
Contact name, telephone number, and e-mail address
For each facility operated by the entity:
Type of facility (e.g. refinery, import facility, pipeline, terminal)
Facility name
Physical location
Contact name, telephone number, and e-mail address
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Table 7.
Designation Requirements for Refiners and Importers
Acceptable designations
Highway, nonroad, or locomotive and marine (MVNRLM) diesel fuel
From June 1, 2006 - May 31, 2010
Designate as #1 or #2:
MV diesel fuel (15 ppm, 500 ppm, or high sulfur)
- if red dye is visible, must be designated as NRLM (unless further designated as tax
exempt)
NRLM diesel fuel (15 ppm, 500 ppm, or high sulfur)
- if marked, must be designated as heating oil
June 1, 2010-May21, 2012
Designate as #1 or #2:
undyed 15 ppm MV diesel fuel
dyed NRLM diesel fuel, also specify if
- 15 ppm NR diesel fuel
- 500 ppm LM diesel fuel
NOTE: marked fuel can be designated as LM or heating oil during this timeframe
Until May 31, 2014
Designate as #1 or #2:
undyed 15 ppm MV diesel fuel
dyed 15 ppm NRLM diesel fuel
dyed 500 ppm NRLM small refiner or credit diesel fuel
Heating oil
Jet fuel
Kerosene
No. 4 fuel (mixture of heavy fuel and diesel)
Distillate fuel for export only
Exempt distillate fuels (those with NSE exemptions, R&D fuels, etc.)
Additional restrictions/clarifications:
Prior to June 1, 2009, all 15 ppm MVNRLM must be designated as 15 ppm MV diesel fuel
Beginning June 1, 2010 distillate fuel with a sulfur content over 15 ppm cannot be designated as MV
diesel fuel
Beginning June 1, 2014 distillate fuel with a sulfur content over 15 ppm cannot be designated as
MVNRLM diesel fuel
Any batch of #1D suitable for use as both MVNRLM and kerosene or jet fuel may be designated as
any of these fuel types, as applicable
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Additional clarifications for the NE/MA area:
Beginning June 1, 2007 distillate with a sulfur content over 500 ppm distributed/intended for
distribution in the NE/MA area may not be designated as MVNRLM diesel fuel
From June 1, 2010 through May 31, 2012 distillate with a sulfur content over 15 ppm
distributed/intended for distribution in the NE/MA area may not be designated as NR diesel fuel
Additional clarifications for Alaska:
Beginning June 1, 2007 distillate with a sulfur content over 500 ppm distributed/intended for
distribution in Alaska may not be designated as NRLM unless EPA has approved a compliance plan
for the refiner segregating the fuel from all other types of NRLM diesel fuel from the refinery gate to
the consumer
From June 1, 2012 through May 1, 2014 distillate with a sulfur content over 15 ppm
distributed/intended for distribution in Alaska may not be designated as NRLM unless EPA has
approved a compliance plan for the refiner segregating the fuel from all other types of NRLM diesel
fuel from the refinery gate to the consumer
Beginning June 1, 2014 any distillate with a sulfur content greater than 15 ppm may not be designated
as MVNRLM diesel fuel
Table 8.
Fuel Designations for Fuel Distributors
From June 1, 2006 through May 31, 2009, when a batch of 15 ppm MVNRLM diesel fuel is transferred to
another party, it must be designated as:
#1D 15 ppm MV diesel fuel
#2D 15 ppm MV diesel fuel
From June 1, 2009 through May 31, 2010 when a batch of 15 ppm MVNRLM diesel fuel is transferred to
another party, it must be designated as:
#1D 15 ppm MV diesel fuel
#2D 15 ppm MV diesel fuel
15 ppm NRLM diesel fuel
From June 1, 2006 through May 31, 2010 when a batch of undyed 500 ppm MVNRLM is transferred to
another facility, it must be designated as:
#1D 500 ppm MV diesel fuel
#2D 500 ppm MV diesel fuel
500 ppm NRLM diesel fuel
From June 1, 2007 through May 31, 2010 when a batch of fuel (that is not jet fuel, kerosene, No. 4 fuel, or
fuel for export) greater than 500 ppm is transferred to another party, it must be designated as:
High sulfur NRLM diesel fuel
Heating oil
Exempt distillate fuel
From June 1, 2010 through May 31, 2012 when a batch of fuel (that is not jet fuel, kerosene, No. 4 fuel, or
fuel for export) with a sulfur content greater than 15 ppm is transferred to another party, it must be
designated as:
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500 ppm NR diesel fuel
500 ppm LM diesel fuel
Heating oil
Exempt distillate fuel
From June 1, 2012 through May 31, 2014 when a batch of fuel (that is not jet fuel, kerosene, No. 4 fuel, or
fuel for export) with a sulfur content greater than 15 ppm is transferred to another party, it must be
designated as:
500 ppm NRLM diesel fuel
Heating oil
Exempt distillate fuel
Beginning June 1, 2014 when a batch of fuel (that is not jet fuel, kerosene, No. 4 fuel, or fuel for export)
with a sulfur content greater than 15 ppm is transferred to another party, it must be designated as:
500 ppm LM diesel fuel
Heating oil
Exempt distillate fuel
*" NOTE: Please also §80.598 (b)(9) for additional restrictions and clarifications that may apply to
fuel distributors
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6.0 Recordkeeping and reporting requirements
6.1 Requirements for small refiners under the highway diesel rule
Under the regulatory flexibility options for small refiners, these entities may be
subject to new reporting and recordkeeping requirements to help ensure compliance
with the options and the integrity of 15 ppm diesel fuel as it moves from the refinery gate
to the retail outlet. These requirements are listed below in Table 9.
ğ Registration Reports
Refiners that are either currently producing or supplying highway diesel fuel, or
that expect to do so by June 1, 2006, must register with EPA.
ğ Pre-Compliance Reports
All refiners (including small refiners) and importers must report their progress
toward compliance with the highway diesel fuel sulfur standards to EPA. These
pre-compliance reports are due by June 1 of every year from 2003 through
2005. Generalized data from the reports will be presented each year on a
PADD basis in annual reports following the receipt of the year's pre-compliance
reports (we will maintain the confidentiality of information submitted in pre-
compliance reports). EPA will not hold refiners liable if their actual actions
deviate from these reports- as we fully expect that refiners' plans may change-
therefore, the rule requires that the reports be updated annually through 2005.
ğ Annual Compliance Reports
When the highway diesel sulfur requirements begin on June 1, 2006, refiners
and importers will be required to submit annual reports that demonstrate
compliance with the requirements of the rule. The first annual compliance
report, for the period of June 1, 2006 through December 31, 2006, will be due
by the end of February 2007. The reports will be required annually through
February 2011 (after the end of the extended interim low sulfur gasoline
program for small refiners on December 30, 2010).
ğ Product Transfer Documents
Refiners and importers will be required to provide information on commercial
Product Transfer Documents (PTDs) that identify diesel fuel distributed for use
in motor vehicles and state that the fuel complies with the 15 ppm sulfur
standard. In addition, PTDs will also be required to identify any diesel fuel
having a sulfur content of 500 ppm and must state that its use in motor vehicles
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is limited to pre-2007 motor vehicles. PTDs must also include the volume of
fuel delivered (for each grade, 15 ppm and 500 ppm). With the exception of
transfers to truck carriers, retailers and wholesale purchaser-consumers,
product codes may be used to convey the information (more explicit language
on PTDs to these parties is necessary since employees of such parties are less
likely to be aware of the meaning of product codes). PTDs are not required for
transfers of product into motor vehicles at retail outlets or wholesale purchaser-
consumer facilities. Lastly, PTDs must identify whether or not distillates meet
the 15 ppm standards, and must identify tax-exempt highway fuel.
Since the rule also allows for the production and sale of 500 ppm sulfur diesel
fuel for use in pre-2007 model year vehicles, there are specific requirements for
PTDs regarding additives. These requirements are listed in detail in Table 9,
below.
ğ Recordkeeping Requirements
Refiners that produce (or importers that import) both 500 ppm highway diesel
fuel and 15 ppm highway diesel fuel under the Temporary Compliance Option
(TCO) or any hardship program (i.e., small refiner relief provisions), or that
produce only 15 ppm sulfur content diesel fuel and that wish to generate credits
(including early credits), must maintain records for each batch of highway diesel
fuel produced, the batch designations, and the batch volumes. The refiner
must maintain records regarding credit generation, use, transfer, purchase, or
termination. Recordkeeping information that must be kept is listed in detail in
Table 9. This information must be kept by refinery (separately by refinery and
by PADD of import, for foreign refiners) and by PADD for importers.
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Table 9.
Recordkeeping and Reporting Requirements
for Highway Diesel Small Refiners
Registration Requirements
Corporate name and address of the refiner or importer and any parent
companies and a contact person
Name and address of all refineries or import facilities (including, for
importers, the port of entry and PADD)
Contact person
Location of records
Business activity (refiner or importer)
Capacity of each refinery in barrels of crude oil per calendar day
Application for small refiner relief, including average number of
employees for all pay periods from 1/1/99 to 1/1/00 for the company, all
parent companies, and all subsidiaries or joint ventures
Which small refiner option(s) the refiner expects to use at each refinery
Pre-Compliance Reports
Any changes in the basic corporate or facility information since
registration
Estimates of the volumes (in gallons) of 15 ppm fuel (and, if applicable,
500 ppm fuel) to be produced from crude oil in each refinery, as well as
the volumes of each grade of highway diesel fuel produced from other
resources
Estimates of numbers of credits to be earned and/or used (for entities
expecting to participate in the credit program)
Information regarding engineering plans (e.g., design and
construction), the status of obtaining any necessary permits, and
capital commitments for making the necessary modifications to
produce low sulfur highway diesel fuel, and actual construction
progress; reports due in 2004 and 2005 must provide an update of the
progress in each of these areas
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Additional information required for the small refiner options:
500 ppm Option- the refiner must make a showinq that sufficient
sources of 1 5 ppm fuel will likely exist in the area; if after 2003 the
sources of 15 ppm fuel decrease, the pre-compliance reports for 2004
and/or 2005 must identify this change and include a supplementary
showing that the sources of 15 ppm fuel are still sufficient
Small Refiner Credit Option- the requirement for this option is the same
as that for the 500 ppm Option, with the additional requirement that the
refiner also report on any credits it expects to generate and sell
Diesel/Gasoline Compliance Date Option- the refiner must provide
information showing that diesel desulfurization plans are on track; the
refiner also needs to reasonably show that it will be in a position by
June 1 , 2006 to produce 1 00 percent of its highway diesel fuel at 1 5
ppm sulfur at a volume at least 85 percent of its baseline highway
diesel volume
Compliance Reports
(Information must be included for each refinery)
The volumes of 1 5 ppm and 500 ppm sulfur highway diesel fuel
produced from crude oil during the compliance period, as well as the
volumes of each grade of highway diesel fuel produced from other
sources
The number of credits, if any, used to demonstrate compliance with the
80 percent requirement for 15 ppm sulfur fuel, and their source(s)
The number of credits, if any, generated
Additional information required for the small refiner options:
500 ppm Option- small refiners need to show that the volume of
highway diesel fuel they produce meeting the 500 ppm sulfur standard
meets the lesser of the following values: (1) 105 percent of the average
highway diesel volume produced in calendar years 1998 and 1999, or
(2) the average highway diesel volume produced from crude oil in
calendar years 2004 and 2005
Small Refiner Credit Option- same as requirements for the 500 ppm
Option
Diesel/Gasoline Compliance Date Option- refiner must, in each annual
compliance report, confirm that it continues to produce 100 percent of
its highway diesel fuel at 15 ppm sulfur and that its highway diesel
volume continues to be at least 85 percent of its baseline volume
PTDs
Must identify 500 ppm fuel as such and state that its use in motor
vehicles is limited to pre-2007 motor vehicles
Must include the volume of fuel delivered (for each grade, 1 5 ppm and
500 ppm)
Must identify distillates as meeting the 15 ppm standard
Dyed, tax-exempt highway diesel fuel must be identified
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Requirements for additives:
for additives that have a sulfur content not exceeding 1 5 ppm, the PTD
must state: "The sulfur content of this additive does not exceed 15
ppm."
for additives that may have a sulfur content exceeding 1 5 ppm, the
additive manufacturer's PTD, and PTDs accompanying all subsequent
transfers, must provide: a warning that the additive's sulfur content
exceeds 15 ppm; the maximum sulfur content of the additive; the
appropriate amount of additive to blend to highway diesel fuel, stated
as gallon of additive per gallon of diesel fuel; and the increase in sulfur
concentration of the fuel the additive will cause when used at the
specified concentration
Recordkeeping Requirements
The total volume of highway diesel fuel produced or imported
The total volume of highway diesel fuel produced or imported meeting
the 500 ppm sulfur standard
The total volume of highway diesel fuel produced or imported meeting
the 1 5 ppm sulfur standard
A statement of the baseline volume and whether the volume of 15 ppm
fuel produced or imported is at least equal to 85 percent of the baseline
volume
The percentage of highway diesel fuel produced or imported meeting
the 15 ppm sulfur standard before inclusion of credits
The volume of 15 ppm highway diesel fuel represented by credits
The percentage of 15 ppm highway diesel fuel produced or imported
that is represented by credits
The number of credits in the refinery's or importer's possession at the
beginning of the compliance period, separately by early credits and all
other credits
The number of credits generated during the compliance period
The number of credits used, separately by early credits and all other
credits
If any credits were obtained from or transferred to other parties, for
each other party, its name, its EPA refiner or importer registration
number, and the number of credits obtained from or transferred to the
other party, provided separately for early credits and all other credits
The percentage of compliance with the 1 5 ppm motor vehicle diesel 80
percent volume requirement by use of credits (provided separately for
early credits and all other credits)
The number of credits that will carry over to the next averaging period,
provided separately for early credits and all other credits
Records regarding test results, including mandatory quality assurance
tests
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Contracts or other commercial documents that establish each transfer
of credits
6.2 Requirements for small refiners under the nonroad rule
Under the regulatory flexibility options for small refiners, these entities may be
subject to new reporting and recordkeeping requirements to help ensure
compliance with the options and the integrity of 15 ppm diesel fuel as it moves from
the refinery gate to the retail outlet. These requirements are listed below in Table
10.
ğ Registration Reports
Refiners that are either currently producing or supplying NRLM diesel fuel, or
that expect to do so by June 1, 2007, must register with EPA by December 31,
2005.
ğ Pre-Compliance Reports
All refiners (including small refiners) and importers must report their progress
toward compliance with the highway diesel fuel sulfur standards to EPA. These
pre-compliance reports are due by June 1 of every year from 2005 through
2011, or until the refiner or importer produces or imports NR or NRLM diesel
fuel meeting the 15 ppm sulfur standard. Generalized data from the reports will
be presented each year on a PADD basis in annual reports following the receipt
of the year's pre-compliance reports (we will maintain the confidentiality of
information submitted in pre-compliance reports). EPA will not hold refiners
liable if their actual actions deviate from these reports- as we fully expect that
refiners' plans may change- therefore, the rule requires that the reports be
updated annually through 2011.
ğ Annual Compliance Reports
Beginning with the annual compliance period that begins June 1, 2007, or the
first period during which NRLM diesel fuel is produced under a small refiner
compliance option (whichever is earlier), refiners and importers will be required
to submit annual reports that demonstrate compliance with the requirements of
the rule. The first annual compliance report, for the period of June 1, 2007
through June 30, 2008, will be due by the end of February 2009. The reports
will be required annually through February 2011 (after the end of the extended
interim low sulfur gasoline program for small refiners on December 30, 2010).
ğ Product Transfer Documents
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Refiners and importers will be required to provide information on commercial
Product Transfer Documents (PTDs) that identify diesel fuel distributed for use
in NRLM applications, and state whether the fuel complies with the 15 ppm
sulfur standard, 500 ppm sulfur standard, or contains more than 500 ppm
sulfur. PTDs must also include the volume of fuel delivered for each grade (15
ppm, 500 ppm, and >500 ppm). With the exception of transfers to truck
carriers, retailers and wholesale purchaser-consumers, product codes may be
used to convey the information (more explicit language on PTDs to these
parties is necessary since employees of such parties are less likely to be aware
of the meaning of product codes). PTDs are not required for transfers of
product into motor vehicles at retail outlets or wholesale purchaser-consumer
facilities. Lastly, PTDs must identify tax-exempt highway fuel.
Since the nonroad rule allows for concurrent production and sale of 15 ppm and
500 ppm sulfur NRLM diesel fuel, there are specific requirements for PTDs
regarding sulfur levels in additives. These requirements are listed in detail in
Table 10, below.
ğ Recordkeeping Requirements
Refiners and importers of distillate fuel must maintain several records for each
batch of highway diesel fuel produced or imported. The records will be used to
check compliance with the designate and track requirements, sulfur test
method requirements and credit generation and usage. Recordkeeping
information is listed in detail in Table 10. This information must be kept by
refinery and by import facility for importers.
Table 10.
Recordkeeping and Reporting Requirements
for NRLM Diesel Small Refiners
Registration Requirements
Corporate name and address of the refiner or importer and any parent
companies and a contact person
Name and address of all refineries or import
importers, the port of entry and PADD)
facilities (including, for
Location of records
An indication of which option the refiner is applying for at each of its
refineries
Business activity (refiner or importer)
Capacity of each refinery in barrels of crude
oil per calendar day
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Application for small refiner relief, including average number of
employees for all pay periods from 1/1/02 to 1/1/03 for the company, all
parent companies, and all subsidiaries or joint ventures
Which small refiner option(s) the refiner expects to use at each refinery
Pre-Compliance Reports
All refiners and importers planning to produce or import NR or NRLM
diesel fuel must submit pre-compliance reports beginning on June 1 ,
2005, and for each year until June 1 , 201 1 , or until the entity produces
or imports NR or NRLM diesel fuel meeting the 1 5 ppm sulfur standard.
Any changes in the basic corporate or facility information since
registration.
An estimate of the average daily volumes (in gallons) of each sulfur
grade of motor vehicle and NRLM diesel fuel produced (or imported) at
each refinery (or import facility). These volume estimates must be
provided both for fuel produced from crude oil, as well as any fuel
produced from other sources, and must be provided for the periods of
June 1 , 201 0 through December 31 , 201 0, calendar years 201 1
through 2013, January 1, 2014 through May 31, 2014, and June 1,
2014 through December 31, 2014.
Estimates of numbers of credits to be earned and/or used (for entities
expecting to participate in the credit program).
Information on project schedule by quarter of known or projected
completion date by the stage of the project, for example, following the
five project phases described in EPA's June 2002 Highway Diesel
Progress Review report (EPA420-R-02-016,
http://www.epa.gov/otaq/regs/hd2007/420r0201 6.pdf): Strategic
planning, Planning and front-end engineering, Detailed engineering
and permitting, Procurement and construction, and Commissioning and
startup.
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Additional information required for the small refiner options:
NRLM delay option (option 1) - An approved NRLM small refiner may
produce NRLM diesel fuel from crude oil that contains more than 500
ppm sulfur (HSNRLM) from June 1 , 2007 through May 31 , 201 0, for a
volume of HSNRLM diesel that may not exceed 1 05% of its refinery's
baseline volume. The refiner must submit a compliance plan to EPA
detailing how the refiner will segregate its HSNRLM diesel, from the
refinery through to the ultimate consumer, from fuel having any other
designations and from fuel produced by any other refiner. The
compliance plan must also identify all ultimate consumers to whom the
refiner supplies such HSNRLM diesel fuel.
NRLM delay option (option 2) - An approved NRLM small refiner may
produce NR diesel fuel from June 1, 2010 through May 31, 2014, and
NRLM diesel fuel from June 1, 2012 through May 31, 2014 from crude
oil that meets the 500 ppm sulfur standard, subject to refinery baseline
volume limitations. The refiner must submit a compliance plan to EPA
detailing how the refiner will segregate its 500 ppm diesel, from its
refinery through to the ultimate consumer, from fuel having any other
designations and from fuel produced by any other refiner. The
compliance plan must also identify all ultimate consumers to whom the
refiner supplies such diesel fuel.
NRLM credit option (Option 3) -The requirement for this option is the
same as that for the Options 1 or 2, with the additional requirement that
the refiner also report on any credits it expects to generate and sell
NRLM/Gasoline Compliance Date Option (Option 4) - the refiner must
provide information showing that refinery diesel desulfurization plans
are on track; the refiner also needs to reasonably show that each
refinery will be in a position by June 1 , 2006 to produce 95 percent of
its NRLM diesel fuel at 15 ppm sulfur at a volume at least 85 percent of
the refinery baseline NRLM diesel volume
Compliance Reports
(Information must be included for each refinery)
For each batch of NRLM diesel fuel and heating oil (if applicable)
produced or imported and delivered during the compliance periods
from June 1 , 2007 through May 31 , 201 0, by each refinery or import
facility, the batch number, volume, date of production or importation,
and whether the batch was dyed red or marked with the heating oil
marker.
The number of credits, if any, used to demonstrate compliance with the
500 ppm and/or 15 ppm NRLM standards, and their source(s)
The number of credits, if any, generated
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Additional information required for the small refiner options:
NRLM delay option (option 1) - from June 1 , 2007 throuqh May 31 ,
201 0, small refiners need to show for each of their refineries that the
volume of HSNRLM diesel fuel they produce does not exceed 1 05
percent of the refinery baseline volume.
NRLM delay option (option 2) - small refiners need to show for each of
their refineries that the volume of 500 ppm NR diesel fuel they produce
does not exceed 1 13 percent of the refinery NRLM baseline volume
from June 1, 2010 through June 30, 2011, and 96 percent of the
refinery NRLM baseline volume from July 1 , 201 1 through May 31 ,
2012, less any volume of LM diesel fuel produced
NRLM delay option (option 2) - small refiners need to show for each of
their refineries that the volume of 500 ppm NRLM diesel fuel they
produce does not exceed 1 1 3 percent of the refinery NRLM baseline
volume from June 1 , 201 2 through June 30, 201 3, and 96 percent of
the refinery NRLM baseline volume from July 1 , 201 3 through May 31 ,
2014
Diesel/Gasoline Compliance Date Option- refiner must, in each annual
compliance report, confirm that each refinery continues to produce 95
percent of its NRLM diesel fuel at 1 5 ppm sulfur and that each
refinery's NRLM diesel volume continues to be at least 85 percent of
the refinery baseline volume
P7Ds
Names and addresses of transferor and transferee
Volume, and the sulfur content for MVNRLM, of the diesel fuel/distillate
being transferred
Location of the fuel at the time of the transfer
Date of the transfer
Beginning June 1 , 2006, fuel with any given designation must also include:
the transferor's facility registration number
clear statement of the applicable designation and/or classification, and
whether or not the fuel is dyed and/or marked
For transfers of title or custody to a facility where fuel or distillates are taxed,
dyed, or marked an accurate statement on the PTD should be provided for
each of the following fuel types:
Undyed 1 5 ppm sulfur diesel fuel
Dyed 1 5 ppm sulfur diesel fuel
Undyed 500 ppm sulfur diesel fuel
Dyed 500 ppm sulfur diesel fuel
Dyed High Sulfur NRLM diesel fuel
Please see § 80.590 (7)(i)-(vi) for the applicable statement that must appear
on a PTD for each of the above designations
If fuel is dyed and/or marked after a PTD is issued, a new PTD must be
prepared (following the guidelines listed above for dyed/marked fuel)
and must be provided to all subsequent transferees
Product codes may not be used to convey information on PTD in
transfers to truck carriers, retailers, or wholesale purchaser-consumers
34
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A fuel designation can be stated only as a sub-designation if that sub-
designation accurately identifies the fuel type (i.e. fuel designated as
NR diesel fuel, does not also need to be designated as NRLM or
MVNRLM)
Recordkeeping Requirements
All applicable PTDs
Records for each batch must be kept that state:
the batch number (with an indication of whether the batch was received
or delivered
date and time custody was transferred
the designation and volume (in gallons)
the name and EPA entity and facility registration number of each party
for MV diesel fuel- whether the batch was received or delivered with or
without taxes paid
for NRLM diesel fuel- whether the batch was received or delivered with
or without dye added
for heating oil and LM diesel fuel- whether the batch was received or
delivered with or without the fuel marker added
Records for any sampling and testing that was performed, which must
include the following information:
location, date, time, and identification of the storage tank/truck for each
sample collected
name and title of the person(s) who collected the sample and
performed the testing
the results of the test(s) and the volume of the product in the storage
tank/container from which the sample was taken
Records for beginning and end inventory volume must be kept, and
must state if adjustments are made to the inventory (detailing amount,
type of, and reason for the adjustment)
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For the purposes of D&T, the following records must also be kept by facility:
for any fuel received or distributed from June 1, 2006 through May 31,
2007- records must be kept for each batch designated as #1D or #2D
15 ppm sulfur MV diesel fuel or 500 ppm #2D MV or NRLM diesel fuel
for any fuel received or delivered from June 1, 2007 through May 31,
2010- records must be kept for each batch designated as #1D or #2D
15 ppm sulfur MV diesel fuel; #1D or #2D 500 ppm sulfur MV diesel
fuel; 15 ppm, 500 ppm, or high sulfur NRLM diesel fuel; or heating oil
for any unmarked diesel fuel received or delivered from June 1, 2010
through May 31, 2012- records must be kept for fuel designated as 500
ppm sulfur NR or LM diesel fuel, or heating oil
for unmarked fuel received and designated as heating oil from June 1,
2012 through May 31, 2014- records must be kept for fuel received or
delivered that is designated as 500 ppm sulfur NRLM diesel fuel or
heating oil
for unmarked fuel received and designated as heating oil from June 1,
2012 through May 31, 2014- records must be kept for fuel received or
delivered that is designated as 500 ppm sulfur NRLM diesel fuel or
heating oil
For Alaska:
for any unmarked high sulfur diesel fuel received or delivered from
June 1, 2007 through May 31, 2010- records must be kept for fuel
designated as high sulfur NRLM diesel fuel or heating oil
for any unmarked high sulfur diesel fuel received or delivered from
June 1, 2010 through May 31, 2012- records must be kept for fuel
designated as 500 ppm sulfur NR diesel fuel, 500 ppm sulfur LM diesel
fuel, or heating oil
for any unmarked high sulfur diesel fuel received or delivered from
June 1, 2012 through May 31, 2014- records must be kept for fuel
designated as 500 ppm sulfur NRLM diesel fuel or heating oil
6.3 Requirements for downstream parties
Consistent with other fuel programs, the rule imposes some new recordkeeping
requirements for diesel marketers and distributors, specifically PTDs that track transfers
of diesel fuel. However, such transfer records are currently maintained by most parties
for business and/or tax reasons, so the new requirements should not impose any
significant burden on these entities. Information on commercial PTDs identifying diesel
fuel distributed for use in motor vehicles and stating that the fuel is compliant with the 15
ppm sulfur standard must be provided. PTDs must also identify any 500 ppm fuel and
state that the fuel's use in motor vehicles is restricted to pre-2007 motor vehicles.
Lastly, PTDs must include the volume of each fuel grade (15 ppm and 500 ppm)
delivered. The specific recordkeeping requirements for these entities are detailed in
Table 11 below.
The retention period for all records required to be kept by the rule is 5 years. This
is the same period of time required in other fuels rules, and it coincides with the
applicable statute of limitations. This retention period applies to PTDs and records of
36
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any test results performed by any regulated party for quality assurance purposes or
otherwise (along with supporting documentation such as date of sampling and testing,
batch number, tank number, and volume of product). Business records regarding
actions taken in response to any violations discovered are also required to be
maintained for 5 years.
Table 11.
Reporting and Recordkeeping Requirements for Downstream Parties
PTDs
Names and addresses of transferor and transferee
Volume, and the sulfur content for MVNRLM, of the diesel fuel/distillate
being transferred
Location of the fuel at the time of the transfer
Date of the transfer
Beginning June 1 , 2006, fuel with any given designation must also include:
the transferor's facility registration number
clear statement of the applicable designation and/or classification, and
whether or not the fuel is dyed and/or marked
For transfers of title or custody to a facility where fuel or distillates are taxed,
dyed, or marked an accurate statement on the PTD should be provided for each
of the following fuel types:
Undyed 1 5 ppm sulfur diesel fuel
Dyed 1 5 ppm sulfur diesel fuel
* Undyed 500 ppm sulfur diesel fuel
Dyed 500 ppm sulfur diesel fuel
Dyed High Sulfur NRLM diesel fuel
Please see § 80.590 (7)(i)-(vi) for the applicable statement that must appear on
a PTD for each of the above designations
If fuel is dyed and/or marked after a PTD is issued, a new PTD must be
prepared (following the guidelines listed above for dyed/marked fuel) and
must be provided to all subsequent transferees
Product codes may not be used to convey information on PTD in transfers
to truck carriers, retailers, or wholesale purchaser-consumers
For mobile refuelers, each visit to a location to dispense fuel is considered
a separate occasion where title/custody of fuel is transferred, and the PTDs
must accurately reflect that
* A fuel designation can be stated only as a sub-designation if that sub-
designation accurately identifies the fuel type (i.e. fuel designated as NR
diesel fuel, does not also need to be designated as NRLM or MVNRLM)
Recordkeeping requirements
All applicable PTDs
37
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Any actions taken, if any, to stop the sale or distribution of noncompliant
fuel
Records for any sampling and testing that was performed, which must include
the following information:
location, date, time, and identification of the storage tank/truck for each
sample collected
name and title of the person(s) who collected the sample and performed
the testing
the results of the test(s) and the volume of the product in the storage
tank/container from which the sample was taken
For the purposes of D&T, the following records must also be kept by facility:
for any fuel received or distributed from June 1, 2006 through May 31,
2007- records must be kept for each batch designated as #1D or#2D 15
ppm sulfur MV diesel fuel or 500 ppm #2D MV or NRLM diesel fuel
for any fuel received or delivered from June 1, 2007 through May 31, 2010-
records must be kept for each batch designated as #1D or #2D 15 ppm
sulfur MV diesel fuel; #1D or #2D 500 ppm sulfur MV diesel fuel; 15 ppm,
500 ppm, or high sulfur NRLM diesel fuel; or heating oil
* for any unmarked diesel fuel received or delivered from June 1. 2010
through May 31, 2012- records must be kept for fuel designated as 500
ppm sulfur NR or LM diesel fuel, or heating oil
for unmarked fuel received and designated as heating oil from June 1, 2012
through May 31, 2014- records must be kept for fuel received or delivered
that is designated as 500 ppm sulfur NRLM diesel fuel or heating oil
for unmarked fuel received and designated as heating oil from June 1, 2012
through May 31. 2014- records must be kept for fuel received or delivered
that is designated as 500 ppm sulfur NRLM diesel fuel or heating oil
For Alaska:
for any unmarked high sulfur diesel fuel received or delivered from June 1,
2007 through May 31, 2010- records must be kept for fuel designated as
high sulfur NRLM diesel fuel or heating oil
* for any unmarked high sulfur diesel fuel received or delivered from June 1.
2010 through May 31, 2012- records must be kept for fuel designated as
500 ppm sulfur NR diesel fuel, 500 ppm sulfur LM diesel fuel, or heating oil
for any unmarked high sulfur diesel fuel received or delivered from June 1,
2012 through May 31, 2014- records must be kept for fuel designated as
500 ppm sulfur NRLM diesel fuel or heating oil
Records for each batch must be kept that state:
the batch number (with an indication of whether the batch was received or
delivered
date and time custody was transferred
the designation and volume (in gallons)
the name and EPA entity and facility registration number of each party
for MV diesel fuel- whether the batch was received or delivered with or
without taxes paid
for NRLM diesel fuel- whether the batch was received or delivered with or
without dye added
for heating oil and LM diesel fuel- whether the batch was received or
delivered with or without the fuel marker added
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Records for beginning and end inventory volume must be kept, and must
state if adjustments are made to the inventory (detailing amount, type of,
and reason for the adjustment)
39
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7.0 For More Information
Who can I contact if I have questions or need further assistance?
General questions about small refiner relief:
Anne Pastorkovich- (202) 564-8987, pastorkovich.anne-marie@epa.gov
Tia Sutton- (734) 214-4018, sutton.tia@epa.gov
Questions about small refiner status/applications:
Larry Haslett- (202) 343-9728, haslett.larry@epa.gov
Compliance/enforcement questions:
Erv Pickell- (303) 236-9506, pickell.erv@epa.gov
Recordkeeping/reporting questions:
John Weihrauch- (202) 343-9477, weihrauch.john@epa.gov
Where can I find rulemakina documents?
All rulemaking documents and information regarding the nonroad diesel rule
can be found on the Nonroad Diesel home page at:
http://www.epa.gow/nonroad-diesel
ğ Preamble and regulations:
http://www.epa.gow/otaq/url-fr/fr29jn04.pdf
ğ Regulatory Impact Analysis:
Additional information on all of EPA's clean diesel programs can be found on
the Clean Diesel home page at:
http://www.epa.goY/cIeandieseI
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Appendix A. Highway and Nonroad Diesel Fuel Compliance Dates
Table A-1.
Highway and Nonroad Diesel Fuel
Standards
Who
Large
Refiners/
Importers
Large
Refiners/
Importers
Small
Refiners
Transmix
Processor
& In-use
Transmix
Processor
& In-use
Covered Fuel
Highway
Diesel Fuel
NR
2006
2007
2008
2009
80% 1 5 ppm/
20% 500 ppm
LM
NRLM w/ credits (not
inNEorAK)
NRLM
(not in NE,
w/ approval in AK)
NR
(not in NE or AK)
LM
(not in NE or AK)
for Ju
wholesale
500
500
HS
HS
HS
HS
500
500
HS
HS
HS
HS
500
500
HS
HS
HS
HS
2010
2011
2012
2013
2014
100% 15 ppm
(including small refiner fuel)
15
500
500
500
500
500
15
500
500
500
500
500
15
15
500
500
500
500
15
15
500
500
500
500
15
15
15
15
15
500
fie f for refiners, July 15 for downstream 1 for
for MR June 1 for refiners, August 1 for terminals, October 1 for retailers, and
1 for In-use
** Anti-downgrading provisions begin October 1, 2006 **
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Table A-2.
Diesel Fuel Dye and Marker Requirements
October
1993
Highway Diesel
Fuel
>15ppm
(undyed,
unmarked)
June
2006
June
2007
Highway Diesel
80% 15 ppm/ 20% 500 ppm
(undyed, unmarked)
All
Nonroad Diesel
> 500 ppm *
NR Diesel
500 ppm
Small & Credit
~ 3000 ppm *
LM Diesel
500 ppm
Transmix/
Downgrade
> 500 ppm *
June
2010
June
2012
June2014/
Post-2014
All Highway Diesel
15 ppm
NR Diesel
15 ppm
Small & Credit
500 ppm
LM Diesel
500 ppm **
Small
500 ppm
LM Diesel
15 ppm
Transmix/Downgrade
500 ppm
All NRLM Diesel
15 ppm
Transmix/
Downgrade
500 ppm LM ONLY
Heating Oil **
* The red dye requirement applies at the refinery gate until 2010; and at the terminal thereafter.
** The yellow marker requirement applies at the terminal.
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Appendix B. The Northeast/Mid-Atlantic Area
As previously discussed, the NEMA area is excluded from the marker requirement.
In addition, the sale of NRLM diesel fuel produced or imported under the credit and
hardship provisions (including the small refiner provisions) or from the downstream
downgrade provisions is prohibited.
In most cases, whole states in PADD I were assigned to the NEMA area, since it
was projected that the level of heating oil use in these states would be high, and the
lack of significant concern regarding the elimination of the program's flexibilities to
produce high sulfur NRLM diesel fuel in these states. A few counties in eastern West
Virginia were also assigned to the Northeast/Mid-Atlantic area based on similar supply
patterns in these areas. Likewise, some counties in western New York and
Pennsylvania were not assigned to the NEMA area due to the need to maintain
flexibilities for refiners serving this area.
Figure B-1.
The Northeast/Mid-Atlantic Exclusion Area
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Table B-1.
The Northeast/Mid-Atlantic Exclusion Area
(these areas are shaded in Figure A-1.)
Connecticut
Delaware
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
North Carolina
Rhode Island
Vermont
Virginia
Washington D.C.
West Virginia's eight easternmost counties-Jefferson, Berkely, Morgan, Hampshire, Mineral, Hardy,
Grant, and Pendleton
New York (except for: Allegany, Cattaraugus, and Chautauqua counties)
Pennsylvania (except for: Beaver, Cameron, Clarion, Crawford, Elk, Erie, Forest, Greene, Jefferson,
Lawrence, Me Kean, Mercer, Potter, Venango, Warren, and Washington counties)
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Appendix C. PADD Map
Figure C-1.
lor
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