§ 192-B — Fuel lead content labelling and requirements

§ 192-b. Fuel lead content labelling and requirements. 1. For purposes\nof this section, the following terms shall have the following meanings:\n (a) "Distributor" shall mean any person who transports or stores or\ncauses the transportation or storage of gasoline at any point between\nany plant at which gasoline is produced and any retail outlet or\nfacility of a wholesale purchaser-consumer.\n (b) "Gasoline" shall mean any fuel sold for use in motor vehicles and\nmotor vehicle engines, and commonly or commercially known or sold as\ngasoline.\n (c) "Lead additive" shall mean any substance containing lead or lead\ncompounds.\n (d) "Leaded gasoline" shall mean gasoline which is produced with the\nuse of any lead additive or which contains more than five one hundredths\nof a gram of lead per gallon or more than five one thousandths of a gram\nof phosphorus per gallon.\n (e) "Refiner" shall mean any person who owns, leases, operates,\ncontrols or supervises a plant at which gasoline is produced.\n (f) "Reseller" shall mean any person who purchases gasoline identified\nby the corporate, trade or brand name of a refiner from such refiner or\na distributor and resells or transfers it to retailers or wholesale\npurchaser-consumers displaying the refiner's brand, and whose assets or\nfacilities are not substantially owned, leased or controlled by such\nrefiner.\n (g) "Retail outlet" shall mean any establishment at which gasoline is\nsold or offered for sale for use in motor vehicles.\n (h) "Retailer" shall mean any person who owns, leases, operates,\ncontrols, or supervises a retail outlet.\n (i) "Unleaded gasoline" shall mean gasoline which is produced without\nthe use of any lead additive and which contains not more than five one\nhundredths of a gram of lead per gallon and not more than five one\nthousandths of a gram of phosphorus per gallon.\n (j) "Wholesale purchaser-consumer" shall mean any organization that is\nan ultimate consumer of gasoline and which purchases or obtains gasoline\nfrom a supplier for use in motor vehicles and receives delivery of that\nproduct into a storage tank of at least five hundred fifty gallon\ncapacity substantially under the control of that organization.\n 2. No distributor shall sell or transfer to any other distributor,\nretailer or wholesale purchaser-consumer any gasoline which is\nrepresented to be unleaded unless such gasoline meets the defined\nrequirements for unleaded gasoline set forth in subdivision one of this\nsection.\n 3. No retailer or employee or agent of a retailer, and no wholesale\npurchaser-consumer or employee or agent of a wholesale\npurchaser-consumer, shall sell, dispense or offer for sale gasoline\nrepresented to be unleaded unless such gasoline meets the defined\nrequirements for unleaded gasoline set forth in subdivision one of this\nsection.\n 4. Every retailer and wholesale purchaser-consumer shall affix to each\ngasoline pump stand in a location so as to be readily visible to the\nemployees of such retailer or wholesale purchaser-consumer and to person\noperating motor vehicles into which gasoline is to be dispensed a\npermanent legible label as follows: (i) for gasoline pump stands\ncontaining pumps for introduction of unleaded gasoline into motor\nvehicles, the label shall state: "Unleaded gasoline"; and (ii) for\ngasoline pump stands containing pumps for introduction of leaded\ngasoline into motor vehicles, the label shall state: "Contains lead\nanti-knock compounds"; provided, however, that where more than one grade\nof unleaded gasoline is offered for sale at a retail outlet, compliance\nwith this subdivision is required for only one grade.\n 5. Notwithstanding any other provisions of law to the contrary, in any\nproceeding to adjudicate a violation of subdivision four of this\nsection, a retailer or wholesale purchaser-consumer may be found not to\nbe liable for violation thereof where it is shown that more than one\ngrade of gasoline is dispensed from a gasoline pump or pump stand and it\nis demonstrated to the satisfaction of the commissioner that an\nalternative system of labeling furthers the objectives of such\nsubdivision.\n 6. Any violation of subdivision three of this section by a retailer or\nwholesale purchaser-consumer shall also be deemed a violation by:\n (a) the reseller, if any, and the refiner, where the corporate, trade\nor brand name of such refiner or any of its marketing subsidiaries\nappears on the pump stand or is displayed at the retail outlet or\nwholesale purchaser-consumer facility from which the gasoline was sold,\ndispensed or offered for sale. Except as provided in subdivision seven\nof this section, the refiner shall be deemed in violation of subdivision\nthree of this section irrespective of whether any other refiner,\ndistributor, retailer or wholesale purchaser-consumer may have caused or\npermitted the violation; or\n (b) the distributor who sold such retailer or wholesale\npurchaser-consumer gasoline contained in the storage tank which supplied\nthe pump from which the gasoline was sold, dispensed or offered for sale\nwhich gave rise to the violation, where the corporate, trade or brand\nname of a refiner or any of its marketing subsidiaries does not appear\non the pump stand and is not displayed at the retail outlet or wholesale\npurchaser-consumer facility from which the gasoline was sold, dispensed\nor offered for sale.\n 7. (a) In any case in which a retailer or wholesale purchaser-consumer\nand any refiner or distributor would be in violation or be deemed in\nviolation of subdivision three of this section, the retailer or\nwholesale purchaser-consumer shall not be liable if he or she can\ndemonstrate by a preponderance of the evidence that the violation was\nnot caused by such retailer or wholesale purchaser-consumer or his or\nher employee or agent.\n (b) In any case in which a retailer or wholesale purchaser-consumer\nwould be in violation of subdivision three of this section, and a\nreseller, if any, and any refiner would be deemed in violation under\nparagraph (a) of subdivision six of this section, the refiner shall not\nbe deemed in violation if he or she can demonstrate by a preponderance\nof the evidence:\n (1) that the violation was not caused by such refiner or his or her\nemployee or agent, and\n (2) that the violation was caused by an act in violation of any law,\nother than the provisions of this section, or an act of sabotage,\nvandalism, or deliberate commingling of leaded and unleaded gasoline,\nwhether or not such acts are violations of law in the jurisdiction where\nthe violation of the requirements of this section occurred, or\n (3) that the violation was caused by the action of a reseller or a\nretailer supplied by such reseller, in violation of a contractual\nundertaking imposed by the refiner on such reseller designed to prevent\nsuch action, and despite reasonable efforts by the refiner to insure\ncompliance with such contractual obligation, such as periodic sampling,\nor\n (4) that the violation was caused by the action of a retailer who is\nsupplied directly by the refiner and not by a reseller, in violation of\na contractual undertaking imposed by the refiner on such retailer\ndesigned to prevent such action, and despite reasonable efforts by the\nrefiner to insure compliance with such contractual obligation, such as\nperiodic sampling, or\n (5) that the violation was caused by the action of a distributor or\nother refiner subject to a contract with the refiner for transportation\nof gasoline from a terminal to a distributor, retailer or wholesale\npurchaser-consumer, in violation of a contractual undertaking imposed by\nthe refiner on such distributor designed to prevent such action, and\ndespite reasonable efforts by the refiner to insure compliance with such\ncontractual obligation, such as periodic sampling, or\n (6) that the violation was caused by a distributor (such as a common\ncarrier) or other refiner not subject to a contract with the refiner but\nengaged by him or her for transportation of gasoline from a terminal to\na distributor, retailer or wholesale purchaser-consumer, despite\nreasonable efforts by the refiner to prevent such action, such as\nspecification or inspection of equipment, or\n (7) that the violation occurred at a wholesale purchaser-consumer\nfacility; provided, however, that if such wholesale purchaser-consumer\nwas supplied by a reseller, the refiner must demonstrate that the\nviolation could not have been prevented by such reseller's compliance\nwith a contractual undertaking imposed by the refiner on such reseller\nas provided in subparagraph three of this paragraph.\n (8) For purposes of subparagraphs two through six of this paragraph,\nthe term "was caused" means that the refiner must demonstrate by a\npreponderance of the evidence that the violation was caused by another.\n (c) In any case in which a retailer or wholesale purchaser-consumer\nwould be in violation of subdivision three of this section, and a\nreseller and any refiner would be deemed in violation under paragraph\n(a) of subdivision six of this section, the reseller shall not be deemed\nin violation if he or she can demonstrate by a preponderance of the\nevidence that the violation was not caused by such reseller or his or\nher employee or agent.\n (d) In any case in which a retailer or wholesale purchaser-consumer\nwould be in violation of subdivision three of this section, and any\ndistributor would be deemed in violation under paragraph (b) of\nsubdivision six of this section, the distributor will not be deemed in\nviolation if he or she can demonstrate by a preponderance of the\nevidence that the violation was not caused by such distributor or his or\nher employee or agent.\n 8. (a) The commissioner or the commissioner's designee, or the\ndirector of a municipal consumer affairs office or the director's\ndesignee, and/or a municipal director of weights and measures or the\ndirector's designee, upon presentation of appropriate credentials, shall\nbe authorized to enter during regular business hours upon or through the\nbusiness premises of any person who sells or offers for sale automotive\ngasoline or other petroleum products for use in motor vehicles or any\nplace where such gasoline or petroleum product is stored, for the\npurposes of making inspections, taking samples and conducting tests to\ndetermine compliance with the provisions of this section or any rules or\nregulations promulgated hereunder and under section one hundred\nseventy-nine of this chapter.\n (b) Whenever the commissioner, or the director of a municipal consumer\naffairs office and/or a municipal director of weights and measures, has\nreason to believe that a violation of this section or any rule or\nregulation adopted pursuant to this section has occurred, he or she\nshall be authorized to make such investigation as he or she shall deem\nnecessary, and to the extent necessary for this purpose, he or she may\nexamine any person and may compel the production of all relevant\nrecords.\n (c) Any person subject to the provisions of this section shall\nmaintain such written records as the commissioner, or the director of a\nmunicipal consumer affairs office and/or a municipal director of weights\nand measures, may prescribe by regulation.\n 9. (a) Any person who violates the provisions of this section or any\nrules or regulations promulgated thereunder shall be liable for a civil\npenalty of not less than five hundred dollars nor more than ten thousand\ndollars.\n (b) In the case of a violation through continuing failure to comply\nwith any of the provisions of this section or any rules or regulations\npromulgated thereunder, each day of the continuance of such failure\nshall be treated as a separate violation.\n (c) The civil penalties prescribed by the provisions of this\nsubdivision may be imposed by the commissioner, or by the director of a\nmunicipal consumer affairs office or a municipal director of weights and\nmeasures, as the case may be, after due notice and an opportunity to be\nheard have been provided or may be recovered in a civil action in the\nname of the state, or the municipality, as the case may be, commenced in\na court of competent jurisdiction. A right of action for the recovery of\na liability for the civil penalties incurred as provided in this section\nmay be released, settled or compromised by the commissioner or the\ndirector of a municipal consumer affairs office or municipal director of\nweights and measures before the matter is referred to the attorney\ngeneral as provided in section forty-four of this chapter, or by the\nattorney for the municipality, as the case may be, and thereafter may be\nreleased, settled or compromised by the attorney general or the attorney\nfor the municipality, as the case may be, either before or after an\naction is brought to recover such penalty. The commissioner or a\ndirector of a municipal consumer affairs office or a municipal director\nof weights and measures may apply for an injunction to restrain any\nperson subject to the provisions of this section from the further\nviolation of such provisions or for such other relief as the court deems\nproper. Any plaintiff seeking such relief shall not be required to\nfurnish security and the costs of the application may be granted in the\ndiscretion of the court.\n (d) Notwithstanding the foregoing, the commissioner, or the director\nof a municipal consumer affairs office and/or a municipal director of\nweights and measures, as the case may be, in a manner consistent with\nthe rules, regulations or policies of such commissioner or director or\ndirectors, as the case may be, shall cause to be published once each\nmonth the name and business location of any person, firm or corporation\nthat has been found to have violated any provision of this section\nduring the month immediately preceding.\n (e) The provisions of sections thirty-nine, forty and forty-one of\nthis chapter shall not apply to a violation described in this\nsubdivision.\n 10. The provisions of this section and the regulations promulgated\nthereunder may be enforced concurrently by the director of a municipal\nconsumer affairs office and/or a municipal director of weights and\nmeasures, except that nothing in this section or in subdivision three,\ntwelve or nineteen of section one hundred seventy-nine of this article\nor in section one hundred ninety-two-a or one hundred ninety-two-c or\none hundred ninety-two-d of this article shall be construed to prohibit\na political subdivision of the state from also continuing to implement\nand enforce any local law and regulations that were in effect prior to\nthe date this section took effect, and any subsequent amendments\nthereto, provided such local law and regulations or amendments thereto\nare not inconsistent with requirements imposed by the provisions of this\nsection or by regulations adopted pursuant to this section.\nNotwithstanding the provisions of section forty-five of this chapter,\nall moneys collected hereunder at the instance of a municipal\nenforcement officer shall be retained by the municipality.\n 11. Nothing in this section shall be deemed to limit or restrict the\nauthority of the commissioner of environmental conservation to adopt\nrules and regulations that affect the composition, storage, transport,\nhandling or commerce of petroleum products for the purpose of preventing\nor decreasing pollution pursuant to the environmental conservation law.\n 12. The commissioner shall have the authority to promulgate such rules\nand regulations as the commissioner shall deem necessary to effectuate\nthe purposes of this section, consistent with its provisions.\n