EPA420-R-93-019
August 1993
1993 Diesel Desulfurization
Question and Answer Document
Field Operations and Support Division
Office of Mobile Sources
U.S. Environmental Protection Agency
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PREFACE
This edition of the Diesel Desulfimzation jjuestions and Answers replaces the
Diesel Desulfuxization interim document issued on May 20, 1993 and responds to
additional questions raised through approximately July 15, 1993, concerning the
manner in which the United States Environmental Protection Agency intends to
implement and enforce the diesel desulfurization regulations at 40 CFR §§ 80 and 86.
It was prepared by the Field Operations and Support Division of the Office of Mobile
Sources, United States Environmental Protection Agency.
Regulated parties may use this document to aid in achieving compliance with
the diesel desulfurization regulations. However, it does not in any way alter the
requirements of the diesel desulfiirization regulations. While the answers provided in
this document represent the Agency's interpretation and general plans for enforcement
at this time, some of the responses may be changed as additional information becomes
available or as the Agency reconsiders certain issues.
We will attempt to respond to any additional questions on this subject. Please
send any such questions in writing to Director, Field Operations and Support Division
(6406J), United States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460.
Smith
tor
Field Opera|iojjs*^jid Support Division
Washington, D.C.
August 5, 1993
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TABLE OF CONTENTS
APPLICABILITY OF THE REGULATIONS : . . . y.-. .' 1
TESTING AND SAMPLING METHODOLOGIES 4
TESTING TOLERANCE . . . .'-. . .............. 8
DYEING OF DIESEL FUEL ....................... ...... 10
LIABILITY AND DEFENSES ...... 15
MISFUELING . . . .. 7 25
INSPECTIONS . . '. : 28
NOTIFICATION OF VIOLATIONS . ... 30
REMEDIAL ACTION ....... . . ... . -31
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APPLICABILITY OF THE REGULATIONS
1. Question: What is the definition of diesel fuel?
Answer: "Diesel fuel means any fuel sold in any State and suitable for use in
diesel motor vehicles and diesel motor vehicle engines, and which is commonly or
commercially known or sold as diesel fuel." 40 CFR § 80.2(x).
2. -Question: What is the definition of motor vehicle?
Answer: "The term 'motor vehicle* means any self-propelled vehicle designed
for transporting persons or property on a street or highway." Clean Air Act § 216(2).
3. Question; Does the on-highway diesel fuel requirement extend to other fuels
such as heating fuels, kerosene, jet fuel, and marine or railroad diesel?
Answer: Any petroleum distillate product, produced and distributed
commercially or exclusively for the military, that is suitable for use in diesel motor
vehicles or diesel motor vehicle engines will be treated as diesel fuel. . This includes,
but is not limited to, any diesel fuel, fuel oil, furnace oil, heating oil, kerosene, jet
fuel, JP-4, JP-5, JP-8, marine diesel or railroad diesel that is suitable for use as a
diesel motor vehicle fuel, or is suitable for blending with diesel motor vehicle fuel.
Any such product should comply with the requirements for on-highway diesel, or,
with the exception of the fuels listed below, must be dyed.
Certain fuel grades will be considered exempt from the dyeing requirement.
First, EPA will not require that high sulfur jet fuel be dyed, because of the conflicting
dyeing scheme used to distinguish between aviation gasoline and jet fuel. Under that
scheme, aviation gasoline is dyed blue while jet fuel is undyed, in order to ensure that
jet aircraft are not fueled with aviation gasoline, and that piston-driven aircraft are not
fueled with jet fuel. EPA will not require that heavy petroleum distillate products be
dyed. These heavier fuels are not suitable for dyeing, due to their normal dark color,
or suitable for use in on-highway diesel motor vehicles or on-highway diesel motor
vehicle engines because of their high viscosity and instability. Heavy distillate
products that will be exempt from the dyeing requirement are Fuel Oils Grades No. 4,
No. 5, and No. 6, Diesel Fuel Oil Grade No. 4-D, Marine Fuels Grades DMB,
DMC, and RMA-10 through RML-55, and Gas Turbine Fuel Oils Grades No. 3-GT
and No. 4-GT.
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The exception for jet fuel is strictly limited to the dyeing requirement in 40 CFR §
80»29(b) to fuels maintained in a segregated distribution system and not available at
any time for on-highway use. Any jet fuel or kerosene that is blended with diesel
fuel, for use in diesel motor vehicles must meet the sulfur and cetane (or aromatic)
requirements of 40 CFR § 80.29(a).
4. . Question: May parties continue to blend jet fuel with diesel fuel for certain
seasonal performance requirements?
Answer: EPA recognizes that it has been the practice in the industry to blend
various jet fuels or kerosenes with diesel fuel, in order to improve diesel engine
performance during certain times of the year. All regulated parties involved in the
production, distribution or use of such blends must ensure that final products comply
with the regulations. This may necessitate the use of a low sulfur jet fuel or kerosene,
or the use of a very low sulfur diesel fuel to accommodate the blending of current jet
fuels.
5. Question: Will off-highway users of dieselfuel such as farmers and
construction site operations doing predominantly on-premise field work be required to
use low sulfur diesel to transport equipment from Point A to Point B if on state,
county, or federal roads and highways, or to transport agricultural products from
Point A to Point B prior to transfer to a second party?
Answer: These regulations apply to fuels used by motor vehicles. Diesel
powered trucks and other equipment that meet the definition of motor vehicles are
required to use low sulfur diesel fuel, even if used only in a farm or construction site
setting.
6. Question: What are examples of vehicles or equipment that do not meet the
definition of motor vehicle, and therefore are not required to use low-sulfur diesel
fuel?
Answer: For the purpose of determining the applicability of the motor vehicle
definition, Clean Air Act § 216(2), 40 CFR § 85.1703 states a vehicle which is self-
propelled and capable of transporting a person or persons or any material or any
permanently or temporarily affixed apparatus shall be deemed a motor vehicle, unless
any one or more of the criteria set forth below are met, in which case the vehicle
shall not be deemed a motor vehicle and excluded from the operation of the Act:
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(1) The vehicle cannot exceed a maximum speed of 25 miles per hour over level,
paved surfaces; or
(2) The vehicle lacks features customarily associated with safe and practical street
or highway use, including, but not limited to, a reverse gear (except in the case of
motorcycles), a differential, or safety features required by state and/or federal law; or
(3) The vehicle exhibits features which render its use on a street or highway
. unsafe, impractical, or highly unlikely, including, but not limited to, tracked road
contact means, an inordinate size, or features ordinarily associated with military
combat or tactical vehicles such as armor and/or weaponry.
Examples of vehicles which do not meet the motor vehicle definition include, but
are not limited to, agricultural tractors, combines, backhoes, excavators, and
bulldozers. EPA's Manufacturers Operations Division (MOD) makes determinations
of the applicability of the Act's motor vehicle definition upon written request. .MOD
also maintains a list of vehicles that have been determined to be excluded from the
motor vehicle definition. That .list or an exclusion determination may be obtained by
writing MOD at:
Manufacturers Program Branch
Manufacturers Operations Division (6405J)
U.S. Environmental Protection Agency
Washington, D.C. 20460 .
(202)233-9250,
Requests for determinations of exclusion must contain, at a"minimum, ,"': '""
descriptions, dimensions and photographs or drawings of the.vehicle. ; , . :
Manufacturers often propose the use of speed limiting devices such as governors
to meet the criterion at 85.1703(a)(l) described above. MOD evaluates governors for
their permanence, likelihood of tampering and resistance to tampering.
Any person who modifies an excluded vehicle into a configuration that meets the
definition of "motor vehicle" may be considered to be a manufacturer of new motor
vehicles. The Clean Air Act provides for substantial civil penalties for the
introduction into commerce of new motor vehicles that are not certified to comply
with federal emission requirements.
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7. Question: Do the regulations apply to all 50 states, U.S. possessions and
territories?
Answer: The requirements of § 80.29 apply to all fifty states, U.S.
possessions, and territories. Under Clean Air Act § 211(i)(4) the States of Alaska and
Hawaii may petition for an exemption from these requirements, and such petitions
may be filed under Clean Air Act § 325 on behalf of Guam, American Samoa, the
Virgin Islands, and the Northern Mariana Islands. Thus far, only American Samoa
has been granted a waiver. The state of Alaska has petitioned for a waiver and EPA ,
expects to act on this petition before October 1, 1993. In addition, on May 12, 1993,
Guam- submitted a waiver petition to the Agency.
8. Question: Would EPA consider an enforcement policy during the first month
of the program that would, in effect, "stagger" enforcement down the distribution
system?
Answer: All regulated parties will be expected to be in compliance on October
1, 1993 since the industry will have received over three years of lead time before the
regulations go into effect. However, EPA recognizes that dyed high-sulfur diesel fiiel
may not be readily available until August. If a regulated party is able to demonstrate
that it is customary to stock up on diesel fuel over the summer for fall and/or winter
needs, EPA may exercise its enforcement discretion when clear high sulfur diesel fuel
is discovered at a wholesale purchaser-consumer facility during October and
November, 1993. The regulated party will have to demonstrate that storage of large
quantities of high sulfur diesel is customary, that the undyed product was purchased
prior to September 1, 1993, that this is the normal time of year that such product is
purchased, and that the product is intended exclusively for off-highway purposes only.
However, EPA will not "stagger" enforcement or use enforcement discretion
regarding the sulfur and cetane or aromatics standards for on-highway diesel fuel.
TESTING AND SAMPLING METHODOLOGIES
9. Question: In its analysis of comments on testing of fuel sulfur levels (55
Federal Register 34130, August 21, 1990), EPA states that the Agency will use the
ASTM D 2622 (Standard Test Method for Sulfur in Petroleum Products by X-Ray
Spectrornetry) test method for enforcement purposes. EPA received comments during
the rulemaMng that the equipment necessary to complete ASTM D 2622 is costly, and
EPA should therefore allow use of ASTM D 4294 (Standard Test Method for Sulfur
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in Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectroscopy),
which is essentially as accurate as ASTM D 2622 but costs significantly less. EPA"
decided that for the purposes of establishing a defense to an alleged violation for the
sulfur percentage, a regulated party may use D 4294,/provided that the party has
evidence from the manufacturer or others that it reliably produces results substantially
equivalent to ASTM D 2622, What would EPA consider an appropriate methodology
and/or documentation to validate an alternative analytical technique?
Answer: EPA intends to use the results of tests using ID 2622 as the basis for
enforcement of any sulfur content violations. In a case where a refiner or importer is
presumed liable for a violation of the sulfur standard, one defense element is the
results of tests on the product in question performed using D 2622. The regulations
provide that an alternative sulfur test method is D 4294, provided that the refiner or
importer is able to properly perform this test method, 10 support its data with a quality
control plan, and has data from the manufacturer or a qualified independent or in-
house kboratory that the method reliably produces results substantially equivalent to
the D 2622 method. Only methods D 2622 and D 4294 may satisfy a refiner's or
importer's sulfur test result defense element.
If asked to support sulfur test results generated using the D 4294 method, a "
refiner or importer should be prepared to submit the following: a copy of the actual
analytical procedure used; a copy of the quality assurance/quality control plan that was
used by the laboratory and records demonstrating the actual conduct of this plan;
records that describe the interferences to which the procedure used is subject, if any,
and the corrections which were made to correct for any interferences that are present;
and records which reflect that all standards were prepared in the same matrix as the
sample in question. "Evidence from the manufacturer or others" to show equivalency
of the -D 4294 method with D 2622 would consist of a data correlation program
conducted bj an independent and impartial party in accordance with sound laboratory
and engineering principles. This correlation program should include information and
data regarding the preparation of samples, instrument calibration, quality control, and
data analysis.
Parties other than refiners and importers may use sulfur test methods other than
D 2622 or D 4294 in establishing a defense provided the party is able to demonstrate
that the meth.od was properly performed and correlated with the D 2622 method.
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10. Question: Will EPA approve ASTM D 5186 in place of, or as an alternative
to D 1319 for purposes of measuring die aromatic content of diesel fuel?
.-'- i
Answer: EPA has approved only ASTM method D 1319 for measuring the
aromatic content of diesel fuel, and this is the only method that will be used by EPA
for enforcement purposes. Refiners and importers are required by 40 CFR
§§ 80.30(g)(2)(ii) and (g)(4)(i) to use method D 1319 when establishing a defense."
Parties other than refiners and importers are free to use any test procedure for
determining aromatic content when establishing a defense, so long as the procedure is
approved by ASTM, and the procedure is performed properly and is correlated with
method D 1319.
11. Question: Is EPA willing to participate in round-robin correlation programs?
If so, how must regulated parties participating in such programs incorporate
correlation results? _ i
Answer: EPA is presently unable to participate in round-robin and correlation
programs due to budget constraints i
12. Question: How will the upcoming ASTM round robin study for the proposed
new ASTM DXXX test method for sulfur in petroleum products affect EPA*s
endorsement of D 2622?
Answer: If a new testing method for sulfur content is developed that, produces
results equivalent to ASTM D 2622, EPA will consider adopting the new method as
the approved method. Such a change would be accomplished through rulemaking that
would give all interested parties an opportunity to comment. Because notice and
comment rulemaking is a lengthy process, however, EPA does not anticipate any
changes in the near future.
13. Question: Is EPA aware of any other source of certified di-normal butyl
sulfide other than Phillips Petroleum?
Answer: Phillips Petroleum is the only source of certified di-normal butyl
sulfide (CHCCH^s-S-CCHCH) of which EPA is aware,
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14. Question; Win EPA allow butyl sulfide as a substitute for di-normal butyl
sulfide?
Answer: The D-2622 method specifies use of/certified cU-normal butyl sulfide.
It is not the intention of EPA to require calibration using an unavailable standard
material, however. It is EPA's interpretation that any similar sulfur containing
hydrocarbon with a normal boiling point lying within the distillation range of diesel
fuel may be used as a standard material, provided that the selected compound is of
sufficient purity. A source of non-certified di-normal butyl sulfide is Aldrich
Chemical Company.
15. Question: Will the EPA laboratory make any corrections for the difference in
matrices between mineral oil and diesel fuel? If so, will EPA allow the use of NIST
fuel oil standards in calibration, such as is allowed in ASTM D 4294?
Answer: D 2622 requires that calibration standards be prepared in white oil.
EPA does not expect a shift in the result of the tests, provided that the API gravity of
the white oil used is similar to the gravity of the fuel being tested. If a white oil
cannot be found meeting this requirement, EPA believes it is satisfactory to substitute
any sulfur-free petroleum-based oil with a distillation range similar to the diesel fuel
being tested. EPA also encourages the use of the NIST sulfur
in fuel oil Standard
Reference Materials in verifying the accuracy of the test method. These MIST
NIST standards may
Standard Reference Materials may also be used for calibration
be purchased from:
National institute of Standards and Technology (NIST)
Standard & Reference Materials Program Division
Customer Sales Office . *
Building 202, Room 204
Gaithersburg, MD 20899
Telephone: 301-975-6776
FAX: 301-948-3730
16. Question: How does a regulated party show equivalency with ASTM D. 2622
when using on-Hne analyzers?
Answer: If the analyzer is hard plumbed into a pipeline, it is reasonable to pull a
sample, for example, once per shift, and analyze the sample on a laboratory version of
ASTM D 4294 for an ongoing comparison. As with all ASTM D 4294 instruments, a
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sample should occasionally be checked against an ASTM D 2672 instrument. It is
also advisable in such a situation to have an alternate inlet to allow an occasional
MIST standard to be injected for further confidence.
.:-".---.-.' /
EPA .decided that for the purposes of establishing a defense to an alleged violation
for the suite percentage, a regulated parry may use D 4294, provided that the party
has evidence from the manufacturer or others that it reliably produces results
substantially equivalent to ASTM D 2622.
17. Question: What brand and type of equipment will EPA use in the field for
determining the sulfur content, cetane index, and aromatics content in diesel fuel?
Answer: EPA is presently investigating the use of various types of field testing
equipment for measuring sulfur content, cetane index and aromatic content. EPA has
not selected any particular instruments at this time, but intends to do so in the near
future^
TESTING TOLERANCE
18. Question: What is the maximum measured sulfur content that EPA plans to
allow, above which possible enforcement action may be taken?
Answer: As a matter of enforcement discretion, EPA will take enforcement
action only when its diesel sulfur test results are 0.055 weight percent or greater.
19. Question: Can test reproducibility for sulfur content of highway diesel fuel be
handled in a manner similar to that for gasoline vapor pressure, whereby the pipeline
may average its test result with that of the refiner's. For example, a refiner tests a
batch of diesel fuel to be below 0.05 weight percent and transfers the product to a
pipeline; the pipeline tests the fuel with a result that is greater than 0.05 weight
percent. If the average of the two tests is equal to or less than 0.05 weight percent,
can the shipment be accepted by the pipeline?
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Answer: If any party downstream of the refiner/importer facility, including a
pipeline, tests the sulfur content of diesel fuel to be 0.055 weight percent or greater,
the product should be considered in violation of the diesel sulfur standard, regardless
of any contradictory test results by the refiner.
20. Question: The regulations state that on-highway diesel
must be 0.05 weight
percent sulfur maximum and meet either the 40 cetane index minimum or 35 volume
percent aromatic maximum. Assuming one batch meets the sulfur maximum and
cetane index minimum, and another batch meets the sulfur and aromatic maximum, it
is conceivable that a blend of two complying fuels will not meet the cetane index
minimum or the aromatic maximum. Will EPA allow mixtures of complying batches?
Answer: EPA is aware of the theoretical potential that when two complying
batches of diesel sulfur fuel are combined, the resulting mixture might not meet all
applicable standards for diesel fuel. EPA believes there is small likelihood that such
mixtures will in fact occur. Only certain mixtures of diesel fuel produced to the
cetane standard and diesel fuel produced to the aromatic standard will yield this
antagonistic result, and the volume of diesel fuel that will be produced to the aromatic
standard likely will be very small.
In the case where diesel fuel is discovered that violates the aromatic and cetane
standard, it is a violation of the regulations. However, EPA may exercise its
enforcement discretion and not pursue an enforcement action where the responsible
party clearly demonstrates that the violation is the result of mixing diesel fuel that met
the standards for cetane with diesel fuel that met the standard
for aromatic content.
Furthermore, EPA does not believe there would be a significant environmental impact
resulting from such a mixture, as there clearly is under the volatility regulations when
10% ethanol gasoline is blended with clear gasoline.
21. Question: What is the minimum measured cetane index that EPA plans to
allow, below which possible enforcement action may be taken?
Answer: As a matter of enforcement discretion. EPA will take enforcement
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action only as a result of a calculated cetane index of less than 39.5.
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22. Question: Many refiners blend a chemical additive into diesel fuel to improve
the fuel's cetane rating. The use of such additives does not change the calculated
cetane index. Would EPA consider a modification to the diesel regulations to adjust
the cetane index for the purpose of compliance with minimum cetane index
requirement to recognize use of such cetane improvers?
Answer: EPA will evaluate compliance with the diesel sulfur cetane
requirement only using the methodology specified in 40 CFR | 80.2(w).
DYEING OF DIESEL FUEL
23. Question: Is 1,4 - dialkylamino-anthraquinone the only blue dye that is
approved for use?
Answer: Yer
24. Question: Is there a minimum blue dye concentration required, or is there a
recommended concentration?
Answer: EPA wiU not recommend specific dye concentrations to be used.
Regulated parties bear the burden of adding sufficient dye to accomplish the goal of
the dyeing program or risk fuel being tested as on-highway foel. Some darker colored
fuels may require that additional dye be added in order for the dye to be visible. Any
diesel fuel which does not show visible evidence of being dyed will be considered to
be available tor use en-highway, and subject to the regulations.
25. Question: Since some high sulfur diesel has a yellow-like color, blue dye wiU
produce a green tint in some high sulfur diesel. WiU this color be recognized as
visible evidence of the presence of blue dye? ]
Answer: EPA is aware that the specific dye required by the regulations will
not normally be blue after being added to some diesel fuels. Due to its characteristic
yellowish color, diesel fuel will often appear green after being dyed. Therefore, EPA
will consider such product as having been dyed, absent any indication to the contrary.
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26. Question: Import terminal operators frequently receive un-dyed, high-sulfur
diesel fuel from abroad. At what point must the required dye be added?
Answer: Importer facilities must add the required dye to the non-complying,
high-sulfur diesel fuel beforeit isintroduced, into .commerce.- { Thus, the dye may be
added to the high-sulfur diesel fuel at the truck rack if one is available or prior to .
release if it is to be sold in bulk. Before the dye is added, importer facilities should
also label the fuel as high sulfur,, not for on-high way use and; have available
documentation to substantiate that the high-sulfur diesel fuel did not leave the facility
without being dyed.
27. Question: Will high sulfur diesel loaded for shipment to non-U.S. locations
require dye?
Answer: EPA' will assume that all diesel fuel found in the United States is
intended for domestic sale and is subject to the requirements pf 40 CFR § 80.29.
However, EPA will exercise enforcement discretion for diesel fuel that is clearly
intended for export only, provided that the product is segregated, is clearly marked as
product for export only that does not comply with ifederal motor vehicle diesel fuel
standards, and supporting documentation substantiates it is for export only. This
exception would not apply if any of the fuel in question is in J fact being sold or offered
for sale, supplied or offered for supply, or is dispensed in any U.S. marketplace.
28. Question: If a low sulfur highway diesel fuel is accidentally dyed blue, can it
still be sold as low sulfur if the sulfur level is documented? What if low sulfur diesel
fuel is accidentally mixed or contaminated with high sulfur diesel fuel and the blend is
found to still be less than 0.05 weight percent sulfur? What proceduiw^ must be
followed to recertify as a low sulfur diesel fuel?
Answer: Although the presence of dyed fuel will be an indicator of off-
highway, or potentially non-complying diesel fuel, it will not be the basis for
enforcement action if the presence of the dye is inadvertent. Enforcement will be
based on actual analysis of diesel fuel samples for compliance with the applicable
requirements according to the ASTM test methods specified in the regulations. Thus,
for example, even if diesel fuel being sold or offered for sale for use in motor
vehicles contains some visible evidence of the blue dye as a result of commingling
dyed and non-dyed product, the fuel will not be in violation if it otherwise complies
with the regulations. It is incumbent upon each party in the distribution system to
ensure that any on-high way diesel fuel meets the applicable requirements.
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29. Question: If off-road diesel must be dyed blue, may on-road diesel be dyed
any color except blue?
f
Answer: Assuming that the on-road fuel complies with the sulfur percentage
and cetane index requirements, the practice of adding any color dye that would not be
confused with blue would not be prohibited. In any case, any alleged violations will
be based on sulfur and cetane analysis, not on color.
30. Question: Certain fuel suppliers currently market an on-Mghway diesel fuel
which is dyed green. Can this product continue to be marketed uiider the regulations?
Answer: As stated previously, enforcement of the on-highway fuel
requirements will be based on tests to determine compliance with the sulfur and cetane
or aromatics standards and not fuel color. Since the dye requirement is intended to
identify non-complying product for downstream purchasers, it is up to the suppliers
and their customers to determine whether or not to market this product.
31. Question: If low sulfur diesel fuel is intended to be used for off-highway
purposes only, may it be dyed blue despite the fact that it complies with the standards?
Answer: Yes.
32. Question: Does heating fuel or furnace oil which meets commercial
specifications for those products but does not meet specifications fur diesel fuel as
defined in the regulations need to be dyed blue?
Answer: Any heating fuel or furnace oil that is suitable for use as a fuel for
diesel motor vehicles will be considered a diesel fuel, and subject to the requirements
of 40 CFR § 80.29, and if high sulfur must be dyed.
33. Question; Does high sulfur diesel fuel for railroads need to be dyed blue if it
does not meet the specifications for diesel fuel as defined in the regulations?
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» Answer: Any railroad diesel fuel that is suitable for use as a fuel for diesel
motor vehicles will be considered a diesel fiiel, and subject to the requirements of 40
CFR § 80.29, and if high sulfur must be dyed.
34. Question: Does marine diesel fuel need to be dyed if it does not meet the
specifications for diesel fuel as defined in the regulations? "
Answer: Any marine diesel fuel that is suitable for use as a fuel for diesel
motor vehicles will be considered a diesel fuel, and subject to the requirements of 40
CFR § 80.29, and if high sulfur must be dyed.
35. Question: Does high-sulfur kerosene or Jet-A have to be dyed if intended for
use as a jet fuel?
Answer: High-sulfur kerosene or Jet-A will not have to be dyed provided that:
1) the fuel meets the specification for jet fuel; 2) the fuel is supplied to a customer as
jet fuel; 3) it is reasonable for the supplier to believe the customer has a need for jet
fuel; and 4) the supplier has no reason to believe the customer is using the fuel for use
in diesel motor vehicles. If any of the above are not met, then any party that
supplies, transfers or offers for sale, kerosene or Jet-A could potentially be liable if
EPA discovers such un-dyed high sulfur product available for use in diesel motor
vehicles.
36. Question: Does high-sulfur kerosene or Jet-A, that meets the specification for
jet fuel, have to be dyed if used for purposes other than as a jet fuel?
Answer: Since kerosene and Jet-A are clearly suitable for use in diesel motor
vehicles, they are subject to the regulations and, with the exception for jet fuel use as
described above, should meet the regulatory requirements, or be dyed; High-sulfur
kerosene or Jet-A that meets the specification for jet fuel, will be allowed to remain
undyed provided that: 1) the fuel is delivered to end users for aviation purposes; or 2)
the fuel was part of a fungible batch with published specifications, and parts of the
fungible batch are delivered to end users for aviation purposes.
Each party in the distribution chain will be held responsible for obtaining
reasonable assurance that there is a valid downstream market for aviation fuel, which
permits the fuel to remain undyed. At the first level in the distribution system that
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there are no longer any aviation destinations out of a common stream, the dye
must be added.
For example, a refiner transporting high-sulfur kerosene or Jet-A in a pipeline,
which meets specifications for jet fuel, intended for use as a jet fuel and other non-
highway purposes, would not have to dye the fuel. The terminal receiving the fuel
would dye the fuel upon receipt if there were no aviation customers. In the case of
pipelines, product in a fungible batch meeting the specifications for jet fuel would not
have to be dyed. Terminals receiving this fungible product would have to add dye
into the tank unless they have aviation users loading at their racks. In that case,
terminals would have to dye at the rack all non-aviation loads and have documentation
available upon inspection which demonstrate controls and procedures used for loading
the product. I
In any of the above cases, any undyed high-sulfur kerosene or Jet-A should
AT ALL TjMES be segregated from any low-sulfur diesel fuel used on-highway and
supported by appropriate documentation that clearly demonstrates that its intended use
is as an off-highway fuel that does not comply with the regulations.
37, Question: Diesel fuels sometimes are blended with kerosene or jet fuel for
use in extremely cold areas. If inadequate supplies of low sulfur kerosene exist, will
an allowance be made for the use of 51 grade (0.12 weight percent sulfur) kerosene in
diesel fuel blending?
Answer: Any blends of kerosene or jet fuel and diesel fuel will be considered
diesel fueli as defined in 40 CFR 80.2(x), and will be subject to the requirements of
40 CFR | 80.29. No exceptions will be made for diesel fuel used in cold climates.
38. Question: If a regulated party purchases kerosene and uses it in its bus fleet, is
it a violation if the kerosene is above the 0.05% sulfur limit? Is the supplier liable for
the misuse of the product?
Answer: Kerosene that is used as a fuel for buses, which are diesel motor
vehicles, is considered diesel fuel that must meet the requirements of 40 CFR § 80.29.
Use of high sulfur kerosene to fuel buses would constitute a violation of the diesel
sulfur requirement, for which the fleet operator and the supplier would be presumed
liable.
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39. Question: In all instances where compliance fuel contains some 1,4 -
dialkylamino-anthraquinone dye, is this to be reported in the EPA "Fuel
Manufacturers Quarterly Report for Motor Vehicle Diesel Fuel?"
""'.-.. . ' * *
Answer: Any low sulfur diesel fuel that is inadvertently dyed with 1,4-
dialkylamino-anthraquinone should have already been included in the overall low
sulfur, on-highway diesel fuel production figures that are reported to EPA each
quarter.
40. - Question: Are properly coded blendstocks and/or feedstocks moving between
refineries (that meet diesel fuel specifications except for sulfur) required to be dyed?
Answer: Non-complying distillate intermediates and distillate blendstocks that
are ONLY transported between refineries for further processing do not have to be
dyed provided the product will be segregated and documented throughout the
distribution system as being an intermediate or blendstock, not a finished fuel and not
suitable for use on-highway. The following restrictions apply:
(A) The source location and the ultimate destination must both be refineries.
(B) The product must be shipped segregated.
(C) The pipeline product codes must identify the material as unfinished
distillate intermediate or distillate blendstock, which is not suitable for
on-highway diesel use (e.g., "Unfinished distillate - not suitable for sale
or use as an on-highway diesel fueP). Product codes for intermediates
and distillate blendstocks must be distinctively different from current
finished middle distillate codes.
(D) If the product is delivered into holding tanks for further shipment, it
must not be available to a truck loading rack. The responsibility for
making sure that this does not happen would rest with the owner of the
product and holding tanks.
LIABILITY AND DEFENSES
. ;
41. Question: Where one refiner supplies diesel fuel to its branded retail outlet
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which was obtained in exchange from a terminal operated by another refiner, and a
violation is detected at thejetail outlet, who is liable?
Answer: The regulations provide for presumptive liability on the part of both
parties to the exchange, one party as the "branded" refiner and the other as a
distributor. :'' ::T---T' ':- . - --:._.:.:_.' -.... ;.= ; >...;- -...
42. Question: For violations found at branded or unbranded distributor facilities,
will EPA seek to hold liable only the distributor in custody of the product at the time
of the violation or will all distributors in the prior chain of tide be considered
vicariously liable? : :;- . .....
Answer; All distributors will be presumed liable.
43. Question: For violations found at branded or unbranded retail outlets or
wholesale-purchaser consumer facilities, will EPA presume liable all distributors in the
prior chain of title to that product?
Answer: Yes, all parties in distribution are presumed liable.
44. Question: In a situation where a violation is detected at a branded retail outlet
which is supplied from a branded distributor which, in turn, receives diesel fuel
through a pipeline which transports the commingled product of the refiner whose
brand appears, plus one or more other refiners, are all the refiners liable? How could
the refiners;establish a defense? '';!'"'":; ' "~:"'--< ' ./.--:.";,:. .....
Answer: The refiner whose brand name appears at the retail outlet would be
liable. In order to establish a defense, it would have to show each of the elements of
the refiner's branded facility defense in,40 CFR § 80.30(g)(4). The other refiner(s)
whose commingled product was delivered to the retail outlet may be liable if they
meet the definition of another regulated party (e.g., distributor).
45. . Question: If a violation is found at a terminal, where the terminal operator
does not own the diesel fuel, who would be liable?
Answer: The owner or operator of a terminal which stores diesel fuel without
taking title to or otherwise owning the fuel and without altering either the quality or
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the quantity of the fuel, is defined by the regulations .as a 'carrier" (see 40 CFR
§ 80.2(t)). As a carrier, this party would be presumed liable because the high sulfur
diesel fuel was found at that carrier's facility. In addition, the/refiner or importer _..
who'prbduced or imported the diesel fuel would be presumed liable.
46. Question: What should a carrier do if it would be in breach of a contract with
the company supplying the product by refusing to transport or stcre product that does
not meet the standard?
Answer: Where high sulfur diesel fuel is found at a carrier facility (including a
terminal which does not take title to the product), the carrier is presumed liable for
violating the regulations. We believe carriers can, and should, negotiate contracts
which are drafted in such a way that the carrier is not obligated to transport or store
product in violation of the regulations. *"
47, Question: In a case where more than one party is presumed liable for a
violation, and more than one of the parties is unable to establish a defense, is each
party liable for a separate penalty?
Answer: Each party who is liable for a violation, and who is unable to
establish a defense, is liable for a separate penalty.
48. Question: What documentation is needed to prove that a diesel fuel is not
intended for highway use? '."".' _ ';' ' :::;':": '-"-"-^ -';.-.:- ,-:-, ,>.- ,:^....... ~.__,"..;.,.^
Answer: Any diesel foel that is not dyed blue'will be considered .to be "-I V
available for use in diesel motor vehicles and motor vehicle engines and subject to the
provisions of 40 CFR 80.29(a). In the case of diesel fuel that does not meet .the on-
highway standards and is dyed blue, it is also prudent to retain commercial " '*
documentation such as invoices and bills of lading that indicate the diesel fuel is "for
off-highway use" only and that the product is only being sold to customers for non-
highway use. . '' ' " ' '; - -'.'.. ".:.:.. ,- :"'
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49. Question: What kind of documentation or other evidence must a party provide
to establish that it (or its employees or agents) did not cause a violation?
Answer: All factors cannot be listed because factual circumstances differ and
because EPA cannot anticipate all the types of evidence that may show non-causation.
For all parties, however, in meeting the non-causation portion of their defense, the
regulations provide that the party must show, by reasonably specific showings, by"
direct or circumstantial evidence, that the party (or the party's employee or agent) did
not cause the violation. In many instances the cause of the violation will be evident
from the inspection results and related documentation.
In the case of a refiner or importer, providing results of the sampling and
testing of the diesel fuel in question, conducted in accordance with the approved test
methods, before it left the refinery or importer's facility would be a strong factor in
determining whether the refiner or importer caused the violation. However, because
the refiner or importer could have caused the violation despite acceptable test results,
additional evidence may be required. For example, a refiner could ship to its own
downstream terminal two products with different sulfur levels intended for different
purposes. If these products become commingled after leaving the refinery, the
product intended for low sulfur use could be out of compliance. The refiner thus '
could have "caused" this violation even though the product was in compliance when it
left the refinery.
For distributors, resellers, and carriers, the best evidence to show they did not
cause the violation is evidence of who caused the violation and how. Other strong
evidence would be test results showing the particular fuel in question met the
standards when it was delivered from these parties to the next person in the
distribution chain. Evidence consisting of the other defense elements (e.g., receipt of
product which was incompliance, an oversight program (as discussed in greater detail
in the next question) with periodic test results, etc.) would assist in showing the
violation must have been caused by another, but this is not necessarily conclusive.
Where no cause can be established for a violation, and no person in die distribution
chain will accept responsibility, the showing necessary for each person in the chain to
establish it did not cause the violation will be more difficult.
It is not sufficient for a distributor to show that it did not handle the diesel fuel,
because there are ways to cause a violation without actually touching the fuel (e.g., by
misrouting high sulfur diesel fuel to a location where it is ultimately used in a motor
vehicle). Moreover, other elements of the defense still must be met. ,
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In the case of a retailer, the following types of evidence are examples of
relevant factors relating, to whether the retailer caused a violation:
1) records evidencing whether or not all diesel fuel purchased by the retailer
complied with the standard;
2) any evidence regarding whether the retailer knew or had reason to believe
that the diesel fuel did not meet the standard; e.g. the fuel sold at the station is dyed
blue;
3) any evidence regarding alteration of diesel fuel stored in his tanks by the
retailer; . '
4) any evidence that the retailer may have received fuel from another
supplier(s).
50. Question: What criteria will EPA use to evaluate oversight programs; is
sampling and testing required, and if so how much? What type of service station
monitoring is considered acceptable? Is there a minimum percentage of shipments
which must be tested? What constitutes an acceptable oversight program for a diesel
manufacturer supplying (1) branded jobbers selling under that manufacturer's brand,
(2) another independent or unbranded jobber? As part of its oversight program, must
a branded refiner perform periodic sampling and testing at their non-owned terminals
which supply the branded refiner's dealers pursuant to an exchange agreement, where
the non-owned terminals carry out their own periodic sampling and testing program?
Is a retail sampling program required for an adequate defense against an incident of
noncompliance at a branded retail outlet? If so, what is an adequate retail sampling
program? Please detail oversight responsibilities for jobbers.
(
Answer: For a distributor, reseller or carrier (when the violation is found at
the carrier facility) to establish a defense, these parties must show (in addition to other
elements) an oversight program such as periodic sampling and testing to monitor the
product being sold, supplied, or transported by that party. This program would thus
monitor the quality of product in the possession or ownership of the party, and not of
product which has passed downstream. The diesel regulations do not require that an
oversight program consist of sampling and testing, but EPA is not aware of an
effective oversight program which would not include some periodic sampling and
testing.
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The frequency of periodic testing which would satisfy this requirement will
depend upon several factors, including the following: a) the results of previous
sampling; b) the volume of product in a particular batch (the larger the volume, the
greater the justification for sampling and testing that batch); c) the degree of
confidence in the quality of the product which was received; and d) the opportunity
for increased sulfur content while the product is in the possession of the party (e.g.,
higher sulfur product present which could be commingled). ; -
In the case of refiners, two types of sampling and testing are required (in
addition to other requirements) in order to establish a defense where a violation is
found downstream and they are presumed liable. The refiner is required to show
^through the approved sampling and testing methodologies that the diesel fuel in
question was in compliance with the standard when transported from the refinery.
This generally would require mat all product be tested. In addition, when the
violation is found at a branded facility downstream, the refiner also must show a
quality assurance program at its downstream branded facilities, such program to
include periodic sampling and testing. The frequency of periodic sampling and testing
which would satisfy this requirement will depend upon factors such as the following:
a) the volume of product being handled at a particular facility; b) the opportunity for
violations to occur (e.g., the presence of high sulfur product which could cause a ,
violation through commingling); c) the results of previous sampling at that facility and
at facilities upstream and downstream from the facility found in violation; d) there is
reason to believe the downstream facilities may not be in compliance with the
contractually imposed requirements designed to prevent violations; and e) the results
of sampling and testing in the market area where the violation occurred. A branded
refiner may use other parties to conduct periodic sampling and testing downstream.
However, if the branded refiner is to meet the oversight portion of its defense, it
cannot simply rely on another party's oversight; the refiner must have an appropriate
contract with the party and maintain oversight with regard to that party's program. If
the other party's sampling or testing is inadequate, the branded refiner will not be able
to meet its defense.
51. Question: What must a refiner do to meet the "contract defense," as set forth
in 40 CFR § 80.30(g)(4)?
Answer: The defenses set forth in 40 CFR § 80.30(g)(4) relate to violations
discovered at branded distributor or reseller facilities (40 CFR § 80,30(c)) and at
branded retail outlets and wholesale purchaser-consumer facilities
(40 CFR § 80.30(e)).
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In such cases the refiner must meet all the elements of the defense in 40 CFR
§§ 80.30(g)(4)(i) and (ii), and must meet one of the additional elements in 40 CFR
§ 80.30(g)(4)(iM).
' - '' *
First, the refiner must demonstrate the existence of a contract with the
appropriate entity. This contract must have been designed to prevent the specific
circumstances which caused the particular violation.
Second, there must be an adequate oversight program, such as periodic
sampling and testing, to ensure compliance with the contractual obligation, This
oversight defense element has been discussed in response to other questions in this
section.
With regard to the contract itself, we feel it is inappropriate for EPA to set
forth specific requirements regarding the necessary provisions of such contracts.
Rather, such contracts will be evaluated on a case-by-case basis. However, the
following is a partial list of broad areas that a contract should address: ;
1) The amount of sampling and testing that must be done by the entity with
whom the contract is in place (e.g., distributor).
2) Specific procedures and other specific requirements to ensure that high
sulfur diesel fuel or blendstock is not commingled with low. sulfur diesel fuel. The
specific requirements must be aimed at the circumstances as they exist with each
entity. They must be more than mere recitals that the entity must avoid violating the
diesel regulations.
3) Required training regarding the regulations, product handling and any other
procedures and requirements outlined in the contract to prevent violations.
4) Appropriate responses if diesel fuel having excessive sulfur or an
insufficient cetane index is identified by periodic sampling and testing or by any other
means, including (where appropriate) reporting, corrective actions, steps to prevent
future violations, steps to identify the cause of the violation, resampling and testing,
increased sampling and testing, retraining, etc.
5) Appropriate responses if it is discovered that a person with whom a contract
is in place is not in compliance with the contract provisions. Such responses should
include affirmative actions which are reasonably calculated to compel the person to
comply with the contract provisions.
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52. Question: How long will records have to be saved?
Answer: The regulations do not mandate record retention. However, it is in
the regulated party's best interests to maintain records for five years in case it
becomes necessary to establish a defense if a violation is discovered.
53. Question: How long must regulated parties retain diesel samples taken in
conjunction with an oversight program?
Answer: The Agency's policy with regard to sample retention has not
changed. As in the past, the Agency will evaluate the adequacy of a refiner's test data
and any party's oversight program on the basis of records of sampling and testing,
rather than by evaluation of samples of diesel. A retained sample could conceivably
be useful in resolving a discrepancy between a company's and EPA's test results.
54. Question: Can a party rely on tests done by another party or by an
independent laboratory? Will a third party company assume any liability if their
actions lead to violations? . ' "
ii
Answer: Under certain circumstances tests performed by another party or
laboratory may be acceptable, especially where the reliability of the tests is high (e.g.,
where a carrier contracts to have a supplier sample and test product immediately after
delivery)* Liability is not transferred to the third party who conducts the tests,
however; the burden remains on the regulated party to demonstrate that any testing is
performed in accordance with the regulatory requirements, and that sampling methods
and frequency are adequate.
55. Question: Among the defenses available to a carrier found to be in violation is
the ability to provide "any other evidence that shows that care was taken to avoid
blending the diesel fuel with anything which would change its cetane index or sulfur
percentage". What, in EPA's view, might constitute such evidence? For example,
would copies of field operating instructions requiring operators to make "clean"
pipeline cuts constitute such evidence? What about clearly stated product codes
requiring shippers to ship only complying fuel (i.e., max. .05% sulfur, min 40 cetane
only) under a specified product code reserved solely for on-highway diesel?
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Answer: The two examples of evidence given in the above question would
constitute evidence which would be relevant to a carrier's defense. Other examples of
steps a carrier can take to ensure the quality of diesel fuel in its possession include the
following: contractual agreements between the carrier and other parties that include,.
requirements that are designed to preserve the quality of diesel fuel; and product
handling procedures that are reasonably calculated to preserve the integrity of diesel
fuel, together with employee training on the procedures and measures to ensure the
procedures are followed. EPA looks at these matters on a case-by-case basis. .
56. Question: What must a diesel fuel retailer do to establish a defense against
presumptive liability if non-complying fuel is detected at a retail outlet?
Answer: In a case where high sulfur diesel is discovered at a retail outlet, the
retailer must show it did not cause the violation in order to establish a defense. If the
diesel fuel is dyed blue, the retailer will normally not be able to escape liability,
because it is incumbent upon a retailer to check the color of any diesel fuel that is
delivered (or of thr fuel in the storage tank following delivery of new product). If the
violating diesel fuel is not dyed blue, the retail outlet would be expected to have bills
of lading that represent all of the diesel in the storage tank, and that represent that the
diesel fuel complies with the standards.
57. Question: If a retailer also owns/operates a bulk plant for heating oil (but does
not supply the retail outlet from the bulk plant), does this place any additional burden
on the retailer to establish a defense against presumptive liability for a violation at a
retail outlet? : ..,.,-. , .1;,
Answer: Since this situation creates a significant potential for violations, the
retailer should maintain thorough records to demonstrate that the heating oil is not
being supplied or offered for sale for on-highway use. . :
58. Question: Is it necessary for regulated parties to keep pipeline tickets, bills of
lading and other pertinent documents on shipments of high-sulfur jet fuel and
kerosene, which could be blended into diesel fuel?
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Answer: EPA does not mandate any specific record retention. In establishing
a defense, however, a regulated party should have documents available to demonstrate
compliance, particularly regarding the destination of any high sulfur products which
could be used as diesel fuel. It would also be important for any high sulfur fuel
shipping documents to clearly state "for off-highway use only."
59. Question: If EPA determines that noncomplying fuel has been sold, but cannot
determine the number of sale transactions, how will EPA determine the number of
violations?
Answer: EPA is in the process of developing a penalty policy for these
regulations, which will likely consider similar factors as provided in the RVP penalty
policy.
60. Question: Are there any additional measures that a distributor can take
(beyond sampling and testing and certifications on each bill of lading) to strengthen its
defense if a retail outlet is found to be selling high sulfur diesel at motor vehicle diesel
pumps? s ' , -
Answer: If it is determined that a distributor provided high sulfur fuel to a
motor vehicle diesel pump where a violation is discovered, then there is no defense
that would absolve the distributor of liability. However, other distributors or
terminals that supply fuel to that retailer are also potentially liable. For those parties,
ensuring that all high sulfur diesel fuel that leaves a terminal is dyed blue, so mat
downstream parties can visibly identify non-complying diesel fuel and marking all
high sulfur product delivery documents as "off-highway use only" will further
strengthen a defense if a violation is alleged. In addition, distributors should routinely
review invoices and bills of lading to identify any suspect deliveries that might result
in high-sulfur fuel being used on-highway and take appropriate actions if violations
seem likely.
61. Question: What should a distributor do if a retailer wishes to purchase off-
highway diesel fuel?
Answer: If a retail outlet requests delivery of off-highway diesel, the
distributor should deliver the product only if the retailer has a legitimate need for off-
highway fuel and the retailer has procedures in place to prevent off-highway diesel
fuel from being used in motor vehicles. The primary means of preventing misfueling
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violations would be to ensure that the pumps dispensing high sulfur product are clearly
labelled for off-highway use only or display appropriate warnings regarding the
federal prohibition for misfueling diesel motor vehicles. In addition, any .off-highway
diesel should be dyed and the product transfer document should clearly identify the
product as "off-highway fuel, not legal for motor vehicle use." If the above are not in
place, the distributor would be risking liability for misfueling if EPA discovers a
violation. *
MISFUELING
62. Question: How does EPA plan to enforce the misfueling prohibition?
Answer: EPA will enforce the misfueling prohibition primarily through
inspections at retail outlets and wholesale purchaser-consumer facilities, samples from
vehicles, and records checks at wholesale purchaser-consumer facilities.
63, Question: In a case where a wholesale purchaser-consumei uses high sulfur
diesel to fuel motor vehicles, who would be liable for this violation?
Answer: The use of diesel fuel that does not meet the on-highway standard to
fuel a motor vehicle is prohibited by 40 CFR § 80.29(a), which states that no person
may dispense any diesel fuel for use in motor vehicles unless the fuel meets the on-
highway standards. In addition, diesel misfueling is specifically prohibited by Clean
Air Act § 211(g), which provides as follows:
Beginning October 1, 1993, no person shall introduce or cause or
allow the introduction into any motor vehicle of diesel fuel which such
person knows or should know contains a concentration of sulfur in
excess of 0.05 percent (by weight) or. which fails to meet a cetane index
minimum of 40 or such equivalent alternative aromatic level as
prescribed by the Administrator....
In a case where diesel fuel that does not meet the requirements of 40 CFR
§ 80.29 is used by a wholesale purchaser-consumer (WPC) or its employee to fuel a
motor vehicle, this party would be liable for the violation. The only possible defense
would be proof that the WPC ordered and paid for on-highway diesel fuel, but the
distributor instead delivered un-dyed high sulfur diesel fuel which was documented as
on-highway diesel fuel.
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If the WPC's employee knowingly misfueled a motor vehicle with high sulfur
diesel, that employee also would be individually liable.
In such a WPC misfueling case, the diesel fuel distributor or reseller might also
be liable for a misfueling violation. In order to establish a defense, the distributor or
reseller would be required to show it did not cause the violation, EPA believes the
distributor or reseller would be unable to establish this "did not cause" defense -
element if the distributor or reseller either knew, or should have known that the WPC
was misfueling, yet failed to take reasonable steps to stop the violations,
.-For example, a distributor would know, or should know, that misfueling
violations are occurring if the distributor, or its employee, actually sees motor vehicles
being fueled from the WPC's pump that is supplied with high sulfur diesel by the
distributor. Similarly, in a case where a distributor has historically supplied a WPC
with diesel fuel used to fuel fleet motor vehicles, such as a bus fleet, and subsequent
to October 1, 1993 the WPC orders a similar volume of high sulfur diesel, the
distributor would, or should, know of the high potential for misfueling violations.
In the situation where a distributor or reseller knows or should know of an
occasional misfueling by a WPC, it would be reasonable for the distributor or reseller
to inform the WPC of the violations. A pattern of misfueEng violations might require
the distributor to refuse to supply high sulfur fuel to the WPC until appropriate
assurances are made and measures are undertaken to ensure misfueling violations will
not recur.
The same responsibilities would apply to a track carrier that supples high
sulfur diesel to a WPC, where the carrier knows or should know of misfueling
violations.
64. Question: What penalties will be sought for misfueling violations?
Answer: The Clean Air Act specifies a penalty of up to $25,000 per day per
violation plus any economic benefit or savings resulting from the violation(s). EPA is
in the process of developing a penalty policy which will specify the proposed penalties
for various types of violations, including misfueling.
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65. Question: Must retail pumps be labelled at facilities that carry both low-sulfur
and high-sulfur diesel products?
Answer: If a retailer elects to sell both low-sulfur and high-sulfur diesel fuel,
the retailer must be particularly careful because of the heightened chance of
misfueling, and the resulting exposure to liability. While the regulations do not
mandate pump labelling, it normally would be essential to avoid: roisfueling. Other
steps include, but are not limited to, selling high-sulfur diesel fuel from part of the
station different from other fuels and monitoring of each sale that takes place. EPA
believes that it would be very difficult for a retailer to establish any defense against
liability for a misfueling violation that occurs from an "off-highway" pump at the
retailer's facility.
In addition, a distributor that delivers high sulfur diesel fuel into a retail outlet
storage tank that supplies a pump not properly labeled would be liable for misfueling
violations that occur at that pump.
66. Question: May persons other than retailers, wholesale purchaser-consumers,
distributors, resellers, carriers, and refiners be held liable for misfueling motor
vehicles with high sulfur diesel fuel.
Answer: Section 211(g) of the Clean Air Act prohibits any person from
introducing into a motor vehicle diesel fuel which the person knows or should know
does not meet the on-highway diesel standards. As a result, any individual who fuels
a motor vehicle from a pump that is labeled as containing off-highway diesel, or who
otherwise should know the fuel is off-highway diesel, would be liable. For example,
this prohibition clearly would apply to operators of motor vehicles or trucks.
67. Question: Are there any implications for Canadian or Mexican based trucks
entering the U.S. with non-U.S. grade diesel fuel?
Answer: As long as the vehicle entering the United States is only being
powered by high sulfur diesel fuel purchased outside the United States, there will be
no liability. However, if high sulfur diesel fuel is being transported for any of the
purposes outlined in the regulations, then that person/entity must comply with the
regulations.
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68. Question: Since foreign based trucks are registered out of the United States,
will these trucks be able to refuel in the United States using non-highway grades of
fuel?
Answer: No.
69. Question: If a U.S. based truck delivering goods into Canada purchases non-
U.S. grade diesel fuel in Canada, and then returns to the U.S. with that fuel in his
tank, will he be subject to the misfueling provisions outlined in the final rule?
Answer: The purchase of non-U.S. grade diesel fuel in Canada by a U.S.
based truck and used by the same truck in order to return to the U.S. is not a
violation of the misfueling provisions of 40 CFR § 80.29 and Clean Air Act
§ 211(g)(2). However, the introduction of high-sulfur diesel fuel could void the
manufacturer's warranty.
70. Question: Will EPA be primarily taking samples from on-road diesel vehicles
for enforcement purposes?
Answer: EPA will be collecting samples from all regulated parties that supply
or use diesel fuel, however, the specifics of EPA's enforcement strategy have not yet
been mapped out.
INSPECTIONS
71. Question: Where will EPA focus its enforcement efforts; how will EPA target
particular facilities for inspection; and who will conduct EPA sampling?
Answer: EPA conducts inspections at all regulated facilities; including
refineries, terminals, WPCs, retail outlets and trucks. Inspections are conducted
primarily by authorized contractor personnel and EPA staff on a random basis,
however, inspectors will respond to complaints that suggest a violation.
72. Question: Will EPA conduct audits of upstream facilities, including pipeline
terminals? Will refineries be audited first?
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Answer: Sampling and testing by EPA and its contractors is the primary
means of monitoring compliance. EPA will supplement the field inspections with
audits of any regulated facility during investigations of noncompliance to determine
the fuU extent and source of violations, or based on any other indications of possible
violations.
73. Question: How are EPA inspections conducted?
t
Answer: The authorized EPA inspectors will clearly identify themselves,
present their credentials and state the purpose and nature of the inspection before
beginning their procedure. Inspectors will make all reasonable efforts not to impede
the normal conduct of business at the facility and will adhere to any local safety
procedures if so requested. Generally, one sample per storage tank of finished
product will be screened in the field for compliance. If the field screening test
indicates a potential violation, a laboratory sample will be collected and analyzed in
accordance with the regulatory procedure.
74. Question: What information can refiners and other regulated parties provide to
expedite inspections?
Answer: At the start of an inspection, a party can advise EPA concerning
applicable safety requirements for obtaining samples from the storage tanks. It can
also provide information concerning the location, product quantities and type of
storage tanks in which the finished product is stored (e.g., floating roof tank or fixed
roof tank) and the type of gauge tubes that are used (perforated or solid). At the time
of the inspection, a party should provide documentation and other evidence indicating
whether product is blendstock or finished diesel fuel and the intended destination of
the product.
75. Question: How will EPA inspect unmanned terminals that are entered with
"keys" by various purchasers lifting products from common storage?
Answer: EPA will coordinate with the terminal owner/operator to gain access
to the terminal and records relating to product stored at the terminal.
76. Question: Will EPA cooperate with other federal agencies when enforcing the
diesel desulfiirkation regulations?
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Answer: Yes. In the past, EPA has cooperated with other federal, state and
local agencies when enforcing other motor vehicle fuels rales, such as under the lead
phased own and gasoline volatility programs. For example,, EPA has conducted joint
investigations, including search warrant inspections, with the Internal Revenue
Service. EPA has also conducted joint inspections and audits with the U.S. Customs
Service. EPA intends to use the same types of cooperative efforts, where possible,
when enforcing the diesel desulfurization regulations. ;
NOTIFICATION OF VIOLATIONS
77. Question: What procedure will EPA follow to notify companies of violations;
to resolve violations?
Answer: EPA generally will inform all identifiable parties who have potential
liability when a field test indicates diesel fuel may be in violation of the standard.
Inspectors will provide the person(s) in charge with fact sheets that address the
specific findings and advise appropriate actions for the parties involved. If laboratory
analysis confirms a violation, EPA will subsequently issue a Notice of Violation to the
presumptively liable party(s) identifying the violation and setting forth a proposed
penalty amount. Each party then may present additional facts and/or evidence to
establish that the violation did not occur or to support a defense as set forth in the
regulations. If a party meets its defense, EPA will drop the action. If not, EPA will
attempt to negotiate a settlement with the party. If negotiations for settlement fail,
depending on the nature and magnitude of the case, EPA will either initiate an
administrative action, which affords the liable party an opportunity for a hearing
before an administrative law judge, or refer the case to the Department of Justice with
a recommendation that a complaint be filed in federal district court to recover the
maximum statutory penalty.
78. Question: How quickly will EPA notify parties of violations?
Answer: EPA will inform the operator of the inspected facility immediately
when field test results indicate noncompliance. If parties request, EPA will provide
the results of laboratory tests as soon as completed. The Notice of Violation is issued
as soon as possible after laboratory verification of the violation.
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79. Question: What are the penalties for a diesel violation? Will the amount of a
penalty take into account the sulfur level, cetane index and volume of product in
violation? .
'*._,_-, ..-.,.",."., \' . '-' ' *
Answer: The statutory penalty for violations of § 211 of the Clean Air Act,
under the authority of which the diesel regulations are promulgated, is up to $25,000
per day per violation and the amount of the economic benefit or savings resulting from
the violations. Although not yet complete, EPA's diesel penalties will likely be based
upon the gravity of the violation (amount of sulfur over the standard or degree of
deficiency in cetane index), the volume of product in violation, business size, and in
certain cases, any history of prior violations.
REMEDIAL ACTION
80. Question: What should a party do if it discovers product not complying with
the regulations during the course of an oversight program? How may a party remedy
such a violation? Can the high sulfur fuel be transported or sold? Will EPA allow or
require reblending? Will EPA close the facility? Will EPA initiate an enforcement
action based upon the violation? Is the party required to notify EPA? What if the
product is already downstream?
Answer: If at any time, whether in the course of an oversight program or
through any other means, a regulated party discovers non-complying product, it
should promptly take steps to remedy both the violation and the conditions which
caused the violation. The nature of the remedial action will depend on the location
and circumstances of the non-compliance. For example, if non-compliance is found at
a retail outlet or a WPC facility, the product should immediately be removed from
sale or no longer dispensed for use in diesel motor vehicles. It would be appropriate
to contact the fuel supplier and make arrangements to have the product removed or
reblended into compliance. Similar actions would be appropriate if non-compliance
were discovered at a terminal loading rack. The tank should be immediately closed
from the loading rack, or the pumps turned off, and signs should be posted clearly
identifying the tank as off-spec and unavailable for sale as on-highway fuel. The
violation should be remedied by blending lower sulfur product with the high sulfur
fuel and the tank then sampled to ensure that the product is in compliance before the
tank is reopened for sale. If the tank cannot be blended into compliance, the product
should be shipped to another facility, and/or designated for use as an off-highway fuel,
and dyed in accordance with the regulations. If the non-compliance is discovered at a
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bulk storage facility, arrangements should be made to blend the product into '.' ."-'.""
compliance if feasible or the product redesignated as an off-highway fuel and dyed in
accordance with the regulations. In any of the above scenarios, the regulated parry
should ascertain the cause of the violation and make efforts to prevent reoccurrence or
its continuance. If any non-complying product has already been transported to a
downstream facility, the regulated party should inform the downstream recipients of
the nonHZomplying jproduct and take steps to recover the non-complying product or :
rebleiid it into compliance. Any efforts to remedy non-compliance should be
documented and retained for review by EPA if necessary. At no time should a
regulated party continue to transport or offer for sale or dispense a non-complying
product as an on-highway fuel. The above are intended to be general guidelines,
each case should be assessed individually.
Regulated parties are not required under the regulations to inform EPA of self-
identified non-compliance. However, if EPA discovers a violation such as those
described above, and a regulated party has not initiated remedial actions, EPA will
consider such inaction in determining the proposed penalty in any Notice of Violation.
EPA has no authority to require any of these remedial actions, or to close a
facility. EPA may exercise its discretion and not initiate an enforcement action on the
basis of high sulfur diesel fuel discovered by a regulated party if it has completely
corrected the violation.
81. Question; What should a company do if it is notified that EPA has discovered a
violation? Will any remedial action affect the penalty? :> . :.- ;
Answer: The company should immediately take remedial actions to correct the
violation and the conditions .which caused the violation (as described > the previous
question)/ Such actions will be considejed by EPA in partially mitigating any penalty
imposed because of the violation. ."
82. ' Question: What will the Agency's procedure be for allowing (or not allowing)
diesel sales when high sulfur fuel is indicated by the field test instrument? "-/:
Answer: When EPA inspectors inform a company that a diesel field test shows
diesel fuel exceeds the sulfur standard, the Agency views this as notice to the
company of a possible violation of the regulations. While the regulations do not give
EPA the authority to stop the sale of non-complying product, if the EPA laboratory
confirms the diesel fuel does not meet the standard, the company vvill be entitled to
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jal penalty mitigation only if appropriate remedial action was taken as soon as the
jrnpany was told of the failed field test.
83. Question: What is the procedure to verify that a tank is back in compliance
once corrective action has been taken?
Answer: Appropriate sampling and testing in accordance with the regulatory
methods is the only means of ensuring compliance.
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