N.Y. Agriculture & Markets Law § 192-h: Alternate generated power source at retail gasoline outlets

§ 192-h. Alternate generated power source at retail gasoline outlets.

1. Definitions. When used in this section:

(a) "Alternate generated power source" means electric generating

equipment that is of a capacity that is capable of providing adequate

electricity to operate all dispensers, dispensing equipment, life safety

systems and payment-acceptance equipment located at a retail outlet and

which can operate independent of the local electric utility distribution

system and provide electricity during a general power outage or declared

energy or fuel supply emergency to operate the systems named herein.

(b) "Chain of retail outlets" means a network of subsidiaries or

affiliates, under direct or indirect common control, that operate ten or

more retail outlets located in a single downstate region; provided,

however that this term does not include any franchisor of the brand of

motor fuel being sold at such outlet, except if such franchisor owns

such outlet.

(c) "Controlled access highway" means every highway, street, or

roadway in respect to which owners or occupants of abutting lands and

other persons have no legal right of access to or from the same except

at such points only and in such manner as may be determined by the

public authority having jurisdiction over such highway, street, or

roadway.

(d) "Diesel motor fuel" means any fuel sold in this state and for use

in diesel engines which is commercially known or offered for sale as

diesel motor fuel.

(e) "Dispenser" means a device located at a retail outlet that is used

to pump motor fuel from an above-ground or underground storage tank into

a motor vehicle.

(f) "Downstate region" means each of the following regions of the

state:

(i) Long Island region: Includes Nassau and Suffolk counties.

(ii) Lower Mid-Hudson region: Includes Putnam, Rockland and

Westchester counties.

(iii) New York city region: Includes Bronx, Kings, New York, Queens

and Richmond counties.

(g) "Evacuation route" means those roads designated by each county

that are to be used by motorists in case of a hurricane or other natural

disaster.

(h) "Franchisor" means a person or company that grants a franchise to

a franchisee.

(i) "Gasoline" means any fuel sold in this state for use in internal

combustion engines which is commercially known or offered for sale as

gasoline, whether or not blended with ethanol or other chemicals.

(j) "Motor fuel" means any petroleum product, including any gasoline

or diesel motor fuel, which is used for the propulsion of motor

vehicles.

(k) "Retailer" means any person who owns, operates, or controls a

retail outlet that is subject to the requirements of subdivision two of

this section, provided however, that any retail outlet located in Putnam

county shall only be subject to the requirements of this section

provided that funding and program services are available for such

purposes under subdivisions twenty and twenty-one of section eighteen

hundred fifty-four of the public authorities law.

(l) "Retail outlet" means a facility, including all land, improvements

and associated structures and equipment, that dispenses motor fuel for

sale to the general public.

2. Prewiring and transfer switch. (a) Retail outlets in the downstate

region shall be prewired with an appropriate transfer switch for using

an alternate generated power source at such retail outlets as follows:

(i) each retail outlet in operation on the effective date of this

section that is located within one-half mile by road measurement from an

exit road on a controlled access highway or from an evacuation route

shall be prewired by no later than April first, two thousand fourteen;

(ii) each retail outlet beginning operation after the effective date

of this section and before April first, two thousand fourteen that is

located within one-half mile by road measurement from an exit road on a

controlled access highway or from an evacuation route shall be prewired

by no later than April first, two thousand fifteen;

(iii) each retail outlet that is located within one-half mile by road

measurement from an evacuation route that is designated as such after

the effective date of this section or within one-half mile by road

measurement from an exit road that is established after the effective

date of this section shall be prewired within one year of such

designation or establishment provided that funding is available at such

time for the program established under subdivision twenty of section

eighteen hundred fifty-four of the public authorities law; and

(iv) thirty percent of all retail outlets that are part of a chain of

retail outlets, exclusive of those included in subparagraphs (i), (ii)

and (iii) of this paragraph, shall be prewired by no later than August

first, two thousand fifteen, provided, however, in the case of an

existing retail outlet that becomes part of a chain of retail outlets

after the effective date of this section and that has been designated by

the chain as an outlet comprising such thirty percent, by no later than

August first, two thousand fifteen or one year after becoming part of

such chain, whichever is later, and provided further, in the case of a

retail outlet that is part of a chain of retail outlets, is part of such

thirty percent and is subject to paragraph (b) of this subdivision as

required in paragraph (b) of this subdivision.

(b) Each retail outlet for which a building permit is issued on or

after April first, two thousand fourteen for new construction or for

substantial demolition and reconstruction, shall be prewired with an

appropriate transfer switch for using an alternate generated power

source.

(c) Such transfer switch and all associated electrical wiring shall be

installed, operated, and maintained in compliance with all applicable

provisions of the New York state uniform fire prevention and building

code or any applicable local building code or standard. Installation of

appropriate wiring and transfer switches shall be performed by a

licensed electrical contractor.

(d) Each retailer shall keep on file at the retail outlet a written

statement in a form approved by the department and containing an

attestation by a licensed electrician that the wiring and transfer

switch were installed in accordance with the manufacturer's

specifications. In addition, each such retailer shall maintain the

wiring and transfer switch in accordance with the manufacturer's

specifications.

(e) Each retail outlet in operation on the effective date of this

section that sold less than seventy-five thousand gallons of motor fuel

per month on average for the period they were in operation during the

twelve months prior to the effective date shall be exempt from the

requirements of this subdivision.

3. Emergency deployment. In the event that a declaration of an energy

or fuel supply emergency issued by the governor, the county executive of

a county in the downstate region or the mayor of a city with a

population in excess of one million inhabitants is in effect, a retailer

of a retail outlet within any such county or city for which such

declaration was issued shall deploy and install an alternate generated

power source as follows:

(a) For a retail outlet subject to the requirements of: (i)

subparagraphs (i), (ii) or (iii) of paragraph (a) of subdivision two of

this section or (ii) paragraph (b) of subdivision two of this section

that is located in the downstate region and that is located within

one-half mile by road measurement from an exit road on a controlled

access highway or from an evacuation route, within twenty-four hours of

such declaration, if such outlet is without power at the time of such

declaration. Provided, however, if any such outlet loses power following

such declaration and while the declaration is still in effect, then the

alternate generated power source shall be deployed and installed within

twenty-four hours of such loss of power.

(b) For a retail outlet prewired pursuant to the requirements of

subparagraph (iv) of paragraph (a) of subdivision two of this section,

within forty-eight hours of such declaration, if such outlet is without

power at the time of such declaration. Provided, however, if any such

outlet loses power following such declaration and while the declaration

is still in effect, then the alternate generated power source shall be

deployed and installed within forty-eight hours of the loss of power.

3-a. Declaration of energy or fuel supply emergency. Upon issuance of

a declaration of an energy or fuel supply emergency pursuant to this

subdivision, a county executive of a county in the downstate region or

mayor of a city with a population in excess of one million inhabitants

who declared such emergency shall promptly notify the president of the

New York state energy research and development authority, the

commissioner of homeland security and emergency services, and impacted

residents using such means as are practicable and efficient.

4. Plan for alternate generated power source. Each retailer subject to

subdivision three of this section shall by the date of the installation

of the prewiring and transfer switch required under subdivision two of

this section have in place at each applicable retail outlet

documentation in a form approved by the department demonstrating a plan

to deploy and install an alternate generated power source located at

such retail outlet as required under subdivision three of this section.

Such plan shall take one of the following forms:

(a) a receipt or other documentation showing ownership of such power

source;

(b) for a retailer subject to paragraph (a) of subdivision three of

this section, documentation attesting to participation in the program

established under subdivision twenty-one of section eighteen hundred

fifty-four of the public authorities law; or

(c) a contract with a supplier of such power source providing for

deployment and installation of such power source in compliance with the

requirements of this section, or other documentation demonstrating the

retailer's ability to comply with the requirements of this section,

which may include the generator deployment and installation plan of a

chain of retail outlets.

5. Inspection; recordkeeping; reporting. The commissioner or the

commissioner's designee shall be authorized to enter during regular

business hours upon a retail outlet subject to the requirements of

subdivision two of this section for the purpose of determining

compliance with the provisions of this section and any rules or

regulations promulgated hereunder. All documents required pursuant to

subdivisions two and four of this section shall be maintained at the

applicable retail outlet and made available to the commissioner or the

commissioner's designee upon request. In addition, each retailer of a

retail outlet, except for retail outlets granted exemptions under

paragraph (e) of subdivision two of this section, shall provide to the

department by April first, two thousand fourteen and every two years

thereafter written documentation in a form approved by the department

certifying that such retail outlet is in compliance with the

requirements of this section, and any other requirement specified by any

rules or regulations promulgated hereunder; provided, however, that, for

each retail outlet that is part of a chain of retail outlets or to which

subparagraph (ii) or (iii) of paragraph (a) or paragraph (b) of

subdivision two applies, such written documentation shall be provided to

the department within ten days after the date of installation of the

prewiring and transfer switch required to be installed under subdivision

two of this section and every two years thereafter.

6. Rules and regulations; notification of applicability. The

commissioner shall have the authority, with the assistance of the

commissioner of transportation, the commissioner of homeland security

and emergency services, the president of the New York state energy

research and development authority, the secretary of state and the chair

of the public service commission, to promulgate such rules and

regulations as the commissioner shall deem necessary to effectuate the

purposes of this section. The commissioner shall by June first, two

thousand thirteen: (a) notify by first class mail all existing retail

outlets that appear to meet the criteria specified in subdivision two of

this section of the requirements of this section and include with such

notification any other information deemed necessary by the commissioner,

including information regarding applicability criteria, compliance

measures and potential grant assistance; (b) provide a list of all such

retail outlets to the governor, the temporary president of the senate

and the speaker of the assembly; and (c) post such list on the

department's website. If approval of federal mitigation funds or other

approved resources for the program established under subdivision twenty

of section eighteen hundred fifty-four of the public authorities law

occurs after June first, two thousand thirteen, the commissioner shall

provide additional notification of such approval within thirty days. Any

retailer of a retail outlet specified on such list shall be subject to

the requirements of this section unless he or she provides written

documentation to the department by August first, two thousand thirteen

proving that such outlet does not qualify, or is eligible for an

exemption pursuant to paragraph (e) of subdivision two of this section.

The commissioner shall update such list every five years thereafter and

notify all new retail outlets that become subject to the requirements of

this section; provided, however, that compliance with the requirements

of this section is not conditioned on such notification.

7. Violations and penalties. Any retailer who violates any provision

of this section, or any rule or regulation promulgated hereunder, shall

be liable to the people of the state for a civil penalty of up to one

thousand five hundred dollars per day for every such violation, to be

assessed by the commissioner, after a hearing or opportunity to be heard

upon due notice and with the right to representation by counsel. In

determining the amount of civil penalty, the commissioner shall take

into consideration mitigating factors, such as the availability of

gasoline at the retail outlet, provided that the retailer did not refuse

such delivery, and the extent to which the retailer's action or inaction

contributed to the violation. Such penalty may be recovered in an action

brought by the attorney general at the request and in the name of the

commissioner in any court of competent jurisdiction. Such civil penalty

may be released or compromised by the commissioner before the matter has

been referred to the attorney general. Additionally, after such hearing

and a finding that such retailer has violated the provisions of this

section, or of any rule or regulation promulgated thereunder, the

commissioner may issue and cause to be served upon such person an order

enjoining such person from violating such provisions and taking all

necessary actions for such person to come into compliance with such

provisions. Any such order of the commissioner may be enforced in an

action brought by the attorney general at the request and in the name of

the commissioner in any court of competent jurisdiction.

Notwithstanding the foregoing, such retailer shall not be in violation

of subdivision three of this section if he or she is unable to deploy,

install or operate an alternate generated power source because of

uncontrollable circumstances, including but not limited to, restrictions

imposed by public safety officers to address an emergency situation or

that such retail station is made unsafe or unable to operate due to acts

of God, fires, floods, explosions or the safety of personnel needed to

operate such retail outlet. Additionally, such retailer shall not be in

violation of subdivision three of this section if he or she is a

participant in the program established under subdivision twenty-one of

section eighteen hundred fifty-four of the public authorities law and a

generator is not provided to the retailer due to the prioritization

allowed under such subdivision or through no fault of the retailer.

8. This section shall not be construed to require any retailer to

maintain set business hours in the event of an energy or fuel supply

emergency.

9. The provisions of this section shall supersede all local laws or

ordinances in the downstate region relating to the installation and

deployment of an alternate generated power source or any related

electrical or other equipment at any retail outlet.

10. The requirements of this section shall be contingent on the

approval of federal mitigation funds or other approved resources for the

program established under subdivision twenty of section eighteen hundred

fifty-four of the public authorities law. In the event such approval

does not occur as of June first, two thousand thirteen, all deadlines

with a date of April first, two thousand fourteen shall be delayed by

the amount of time such approval is delayed past June first, two

thousand thirteen.