N.Y. Agriculture & Markets Law § 192-b: Fuel lead content labelling and requirements

§ 192-b. Fuel lead content labelling and requirements. 1. For purposes

of this section, the following terms shall have the following meanings:

(a) "Distributor" shall mean any person who transports or stores or

causes the transportation or storage of gasoline at any point between

any plant at which gasoline is produced and any retail outlet or

facility of a wholesale purchaser-consumer.

(b) "Gasoline" shall mean any fuel sold for use in motor vehicles and

motor vehicle engines, and commonly or commercially known or sold as

gasoline.

(c) "Lead additive" shall mean any substance containing lead or lead

compounds.

(d) "Leaded gasoline" shall mean gasoline which is produced with the

use of any lead additive or which contains more than five one hundredths

of a gram of lead per gallon or more than five one thousandths of a gram

of phosphorus per gallon.

(e) "Refiner" shall mean any person who owns, leases, operates,

controls or supervises a plant at which gasoline is produced.

(f) "Reseller" shall mean any person who purchases gasoline identified

by the corporate, trade or brand name of a refiner from such refiner or

a distributor and resells or transfers it to retailers or wholesale

purchaser-consumers displaying the refiner's brand, and whose assets or

facilities are not substantially owned, leased or controlled by such

refiner.

(g) "Retail outlet" shall mean any establishment at which gasoline is

sold or offered for sale for use in motor vehicles.

(h) "Retailer" shall mean any person who owns, leases, operates,

controls, or supervises a retail outlet.

(i) "Unleaded gasoline" shall mean gasoline which is produced without

the use of any lead additive and which contains not more than five one

hundredths of a gram of lead per gallon and not more than five one

thousandths of a gram of phosphorus per gallon.

(j) "Wholesale purchaser-consumer" shall mean any organization that is

an ultimate consumer of gasoline and which purchases or obtains gasoline

from a supplier for use in motor vehicles and receives delivery of that

product into a storage tank of at least five hundred fifty gallon

capacity substantially under the control of that organization.

2. No distributor shall sell or transfer to any other distributor,

retailer or wholesale purchaser-consumer any gasoline which is

represented to be unleaded unless such gasoline meets the defined

requirements for unleaded gasoline set forth in subdivision one of this

section.

3. No retailer or employee or agent of a retailer, and no wholesale

purchaser-consumer or employee or agent of a wholesale

purchaser-consumer, shall sell, dispense or offer for sale gasoline

represented to be unleaded unless such gasoline meets the defined

requirements for unleaded gasoline set forth in subdivision one of this

section.

4. Every retailer and wholesale purchaser-consumer shall affix to each

gasoline pump stand in a location so as to be readily visible to the

employees of such retailer or wholesale purchaser-consumer and to person

operating motor vehicles into which gasoline is to be dispensed a

permanent legible label as follows: (i) for gasoline pump stands

containing pumps for introduction of unleaded gasoline into motor

vehicles, the label shall state: "Unleaded gasoline"; and (ii) for

gasoline pump stands containing pumps for introduction of leaded

gasoline into motor vehicles, the label shall state: "Contains lead

anti-knock compounds"; provided, however, that where more than one grade

of unleaded gasoline is offered for sale at a retail outlet, compliance

with this subdivision is required for only one grade.

5. Notwithstanding any other provisions of law to the contrary, in any

proceeding to adjudicate a violation of subdivision four of this

section, a retailer or wholesale purchaser-consumer may be found not to

be liable for violation thereof where it is shown that more than one

grade of gasoline is dispensed from a gasoline pump or pump stand and it

is demonstrated to the satisfaction of the commissioner that an

alternative system of labeling furthers the objectives of such

subdivision.

6. Any violation of subdivision three of this section by a retailer or

wholesale purchaser-consumer shall also be deemed a violation by:

(a) the reseller, if any, and the refiner, where the corporate, trade

or brand name of such refiner or any of its marketing subsidiaries

appears on the pump stand or is displayed at the retail outlet or

wholesale purchaser-consumer facility from which the gasoline was sold,

dispensed or offered for sale. Except as provided in subdivision seven

of this section, the refiner shall be deemed in violation of subdivision

three of this section irrespective of whether any other refiner,

distributor, retailer or wholesale purchaser-consumer may have caused or

permitted the violation; or

(b) the distributor who sold such retailer or wholesale

purchaser-consumer gasoline contained in the storage tank which supplied

the pump from which the gasoline was sold, dispensed or offered for sale

which gave rise to the violation, where the corporate, trade or brand

name of a refiner or any of its marketing subsidiaries does not appear

on the pump stand and is not displayed at the retail outlet or wholesale

purchaser-consumer facility from which the gasoline was sold, dispensed

or offered for sale.

7. (a) In any case in which a retailer or wholesale purchaser-consumer

and any refiner or distributor would be in violation or be deemed in

violation of subdivision three of this section, the retailer or

wholesale purchaser-consumer shall not be liable if he or she can

demonstrate by a preponderance of the evidence that the violation was

not caused by such retailer or wholesale purchaser-consumer or his or

her employee or agent.

(b) In any case in which a retailer or wholesale purchaser-consumer

would be in violation of subdivision three of this section, and a

reseller, if any, and any refiner would be deemed in violation under

paragraph (a) of subdivision six of this section, the refiner shall not

be deemed in violation if he or she can demonstrate by a preponderance

of the evidence:

(1) that the violation was not caused by such refiner or his or her

employee or agent, and

(2) that the violation was caused by an act in violation of any law,

other than the provisions of this section, or an act of sabotage,

vandalism, or deliberate commingling of leaded and unleaded gasoline,

whether or not such acts are violations of law in the jurisdiction where

the violation of the requirements of this section occurred, or

(3) that the violation was caused by the action of a reseller or a

retailer supplied by such reseller, in violation of a contractual

undertaking imposed by the refiner on such reseller designed to prevent

such action, and despite reasonable efforts by the refiner to insure

compliance with such contractual obligation, such as periodic sampling,

or

(4) that the violation was caused by the action of a retailer who is

supplied directly by the refiner and not by a reseller, in violation of

a contractual undertaking imposed by the refiner on such retailer

designed to prevent such action, and despite reasonable efforts by the

refiner to insure compliance with such contractual obligation, such as

periodic sampling, or

(5) that the violation was caused by the action of a distributor or

other refiner subject to a contract with the refiner for transportation

of gasoline from a terminal to a distributor, retailer or wholesale

purchaser-consumer, in violation of a contractual undertaking imposed by

the refiner on such distributor designed to prevent such action, and

despite reasonable efforts by the refiner to insure compliance with such

contractual obligation, such as periodic sampling, or

(6) that the violation was caused by a distributor (such as a common

carrier) or other refiner not subject to a contract with the refiner but

engaged by him or her for transportation of gasoline from a terminal to

a distributor, retailer or wholesale purchaser-consumer, despite

reasonable efforts by the refiner to prevent such action, such as

specification or inspection of equipment, or

(7) that the violation occurred at a wholesale purchaser-consumer

facility; provided, however, that if such wholesale purchaser-consumer

was supplied by a reseller, the refiner must demonstrate that the

violation could not have been prevented by such reseller's compliance

with a contractual undertaking imposed by the refiner on such reseller

as provided in subparagraph three of this paragraph.

(8) For purposes of subparagraphs two through six of this paragraph,

the term "was caused" means that the refiner must demonstrate by a

preponderance of the evidence that the violation was caused by another.

(c) In any case in which a retailer or wholesale purchaser-consumer

would be in violation of subdivision three of this section, and a

reseller and any refiner would be deemed in violation under paragraph

(a) of subdivision six of this section, the reseller shall not be deemed

in violation if he or she can demonstrate by a preponderance of the

evidence that the violation was not caused by such reseller or his or

her employee or agent.

(d) In any case in which a retailer or wholesale purchaser-consumer

would be in violation of subdivision three of this section, and any

distributor would be deemed in violation under paragraph (b) of

subdivision six of this section, the distributor will not be deemed in

violation if he or she can demonstrate by a preponderance of the

evidence that the violation was not caused by such distributor or his or

her employee or agent.

8. (a) The commissioner or the commissioner's designee, or the

director of a municipal consumer affairs office or the director's

designee, and/or a municipal director of weights and measures or the

director's designee, upon presentation of appropriate credentials, shall

be authorized to enter during regular business hours upon or through the

business premises of any person who sells or offers for sale automotive

gasoline or other petroleum products for use in motor vehicles or any

place where such gasoline or petroleum product is stored, for the

purposes of making inspections, taking samples and conducting tests to

determine compliance with the provisions of this section or any rules or

regulations promulgated hereunder and under section one hundred

seventy-nine of this chapter.

(b) Whenever the commissioner, or the director of a municipal consumer

affairs office and/or a municipal director of weights and measures, has

reason to believe that a violation of this section or any rule or

regulation adopted pursuant to this section has occurred, he or she

shall be authorized to make such investigation as he or she shall deem

necessary, and to the extent necessary for this purpose, he or she may

examine any person and may compel the production of all relevant

records.

(c) Any person subject to the provisions of this section shall

maintain such written records as the commissioner, or the director of a

municipal consumer affairs office and/or a municipal director of weights

and measures, may prescribe by regulation.

9. (a) Any person who violates the provisions of this section or any

rules or regulations promulgated thereunder shall be liable for a civil

penalty of not less than five hundred dollars nor more than ten thousand

dollars.

(b) In the case of a violation through continuing failure to comply

with any of the provisions of this section or any rules or regulations

promulgated thereunder, each day of the continuance of such failure

shall be treated as a separate violation.

(c) The civil penalties prescribed by the provisions of this

subdivision may be imposed by the commissioner, or by the director of a

municipal consumer affairs office or a municipal director of weights and

measures, as the case may be, after due notice and an opportunity to be

heard have been provided or may be recovered in a civil action in the

name of the state, or the municipality, as the case may be, commenced in

a court of competent jurisdiction. A right of action for the recovery of

a liability for the civil penalties incurred as provided in this section

may be released, settled or compromised by the commissioner or the

director of a municipal consumer affairs office or municipal director of

weights and measures before the matter is referred to the attorney

general as provided in section forty-four of this chapter, or by the

attorney for the municipality, as the case may be, and thereafter may be

released, settled or compromised by the attorney general or the attorney

for the municipality, as the case may be, either before or after an

action is brought to recover such penalty. The commissioner or a

director of a municipal consumer affairs office or a municipal director

of weights and measures may apply for an injunction to restrain any

person subject to the provisions of this section from the further

violation of such provisions or for such other relief as the court deems

proper. Any plaintiff seeking such relief shall not be required to

furnish security and the costs of the application may be granted in the

discretion of the court.

(d) Notwithstanding the foregoing, the commissioner, or the director

of a municipal consumer affairs office and/or a municipal director of

weights and measures, as the case may be, in a manner consistent with

the rules, regulations or policies of such commissioner or director or

directors, as the case may be, shall cause to be published once each

month the name and business location of any person, firm or corporation

that has been found to have violated any provision of this section

during the month immediately preceding.

(e) The provisions of sections thirty-nine, forty and forty-one of

this chapter shall not apply to a violation described in this

subdivision.

10. The provisions of this section and the regulations promulgated

thereunder may be enforced concurrently by the director of a municipal

consumer affairs office and/or a municipal director of weights and

measures, except that nothing in this section or in subdivision three,

twelve or nineteen of section one hundred seventy-nine of this article

or in section one hundred ninety-two-a or one hundred ninety-two-c or

one hundred ninety-two-d of this article shall be construed to prohibit

a political subdivision of the state from also continuing to implement

and enforce any local law and regulations that were in effect prior to

the date this section took effect, and any subsequent amendments

thereto, provided such local law and regulations or amendments thereto

are not inconsistent with requirements imposed by the provisions of this

section or by regulations adopted pursuant to this section.

Notwithstanding the provisions of section forty-five of this chapter,

all moneys collected hereunder at the instance of a municipal

enforcement officer shall be retained by the municipality.

11. Nothing in this section shall be deemed to limit or restrict the

authority of the commissioner of environmental conservation to adopt

rules and regulations that affect the composition, storage, transport,

handling or commerce of petroleum products for the purpose of preventing

or decreasing pollution pursuant to the environmental conservation law.

12. The commissioner shall have the authority to promulgate such rules

and regulations as the commissioner shall deem necessary to effectuate

the purposes of this section, consistent with its provisions.