§ 192-H — Alternate generated power source at retail gasoline outlets

§ 192-h. Alternate generated power source at retail gasoline outlets.\n1. Definitions. When used in this section:\n (a) "Alternate generated power source" means electric generating\nequipment that is of a capacity that is capable of providing adequate\nelectricity to operate all dispensers, dispensing equipment, life safety\nsystems and payment-acceptance equipment located at a retail outlet and\nwhich can operate independent of the local electric utility distribution\nsystem and provide electricity during a general power outage or declared\nenergy or fuel supply emergency to operate the systems named herein.\n (b) "Chain of retail outlets" means a network of subsidiaries or\naffiliates, under direct or indirect common control, that operate ten or\nmore retail outlets located in a single downstate region; provided,\nhowever that this term does not include any franchisor of the brand of\nmotor fuel being sold at such outlet, except if such franchisor owns\nsuch outlet.\n (c) "Controlled access highway" means every highway, street, or\nroadway in respect to which owners or occupants of abutting lands and\nother persons have no legal right of access to or from the same except\nat such points only and in such manner as may be determined by the\npublic authority having jurisdiction over such highway, street, or\nroadway.\n (d) "Diesel motor fuel" means any fuel sold in this state and for use\nin diesel engines which is commercially known or offered for sale as\ndiesel motor fuel.\n (e) "Dispenser" means a device located at a retail outlet that is used\nto pump motor fuel from an above-ground or underground storage tank into\na motor vehicle.\n (f) "Downstate region" means each of the following regions of the\nstate:\n (i) Long Island region: Includes Nassau and Suffolk counties.\n (ii) Lower Mid-Hudson region: Includes Putnam, Rockland and\nWestchester counties.\n (iii) New York city region: Includes Bronx, Kings, New York, Queens\nand Richmond counties.\n (g) "Evacuation route" means those roads designated by each county\nthat are to be used by motorists in case of a hurricane or other natural\ndisaster.\n (h) "Franchisor" means a person or company that grants a franchise to\na franchisee.\n (i) "Gasoline" means any fuel sold in this state for use in internal\ncombustion engines which is commercially known or offered for sale as\ngasoline, whether or not blended with ethanol or other chemicals.\n (j) "Motor fuel" means any petroleum product, including any gasoline\nor diesel motor fuel, which is used for the propulsion of motor\nvehicles.\n (k) "Retailer" means any person who owns, operates, or controls a\nretail outlet that is subject to the requirements of subdivision two of\nthis section, provided however, that any retail outlet located in Putnam\ncounty shall only be subject to the requirements of this section\nprovided that funding and program services are available for such\npurposes under subdivisions twenty and twenty-one of section eighteen\nhundred fifty-four of the public authorities law.\n (l) "Retail outlet" means a facility, including all land, improvements\nand associated structures and equipment, that dispenses motor fuel for\nsale to the general public.\n 2. Prewiring and transfer switch. (a) Retail outlets in the downstate\nregion shall be prewired with an appropriate transfer switch for using\nan alternate generated power source at such retail outlets as follows:\n (i) each retail outlet in operation on the effective date of this\nsection that is located within one-half mile by road measurement from an\nexit road on a controlled access highway or from an evacuation route\nshall be prewired by no later than April first, two thousand fourteen;\n (ii) each retail outlet beginning operation after the effective date\nof this section and before April first, two thousand fourteen that is\nlocated within one-half mile by road measurement from an exit road on a\ncontrolled access highway or from an evacuation route shall be prewired\nby no later than April first, two thousand fifteen;\n (iii) each retail outlet that is located within one-half mile by road\nmeasurement from an evacuation route that is designated as such after\nthe effective date of this section or within one-half mile by road\nmeasurement from an exit road that is established after the effective\ndate of this section shall be prewired within one year of such\ndesignation or establishment provided that funding is available at such\ntime for the program established under subdivision twenty of section\neighteen hundred fifty-four of the public authorities law; and\n (iv) thirty percent of all retail outlets that are part of a chain of\nretail outlets, exclusive of those included in subparagraphs (i), (ii)\nand (iii) of this paragraph, shall be prewired by no later than August\nfirst, two thousand fifteen, provided, however, in the case of an\nexisting retail outlet that becomes part of a chain of retail outlets\nafter the effective date of this section and that has been designated by\nthe chain as an outlet comprising such thirty percent, by no later than\nAugust first, two thousand fifteen or one year after becoming part of\nsuch chain, whichever is later, and provided further, in the case of a\nretail outlet that is part of a chain of retail outlets, is part of such\nthirty percent and is subject to paragraph (b) of this subdivision as\nrequired in paragraph (b) of this subdivision.\n (b) Each retail outlet for which a building permit is issued on or\nafter April first, two thousand fourteen for new construction or for\nsubstantial demolition and reconstruction, shall be prewired with an\nappropriate transfer switch for using an alternate generated power\nsource.\n (c) Such transfer switch and all associated electrical wiring shall be\ninstalled, operated, and maintained in compliance with all applicable\nprovisions of the New York state uniform fire prevention and building\ncode or any applicable local building code or standard. Installation of\nappropriate wiring and transfer switches shall be performed by a\nlicensed electrical contractor.\n (d) Each retailer shall keep on file at the retail outlet a written\nstatement in a form approved by the department and containing an\nattestation by a licensed electrician that the wiring and transfer\nswitch were installed in accordance with the manufacturer's\nspecifications. In addition, each such retailer shall maintain the\nwiring and transfer switch in accordance with the manufacturer's\nspecifications.\n (e) Each retail outlet in operation on the effective date of this\nsection that sold less than seventy-five thousand gallons of motor fuel\nper month on average for the period they were in operation during the\ntwelve months prior to the effective date shall be exempt from the\nrequirements of this subdivision.\n 3. Emergency deployment. In the event that a declaration of an energy\nor fuel supply emergency issued by the governor, the county executive of\na county in the downstate region or the mayor of a city with a\npopulation in excess of one million inhabitants is in effect, a retailer\nof a retail outlet within any such county or city for which such\ndeclaration was issued shall deploy and install an alternate generated\npower source as follows:\n (a) For a retail outlet subject to the requirements of: (i)\nsubparagraphs (i), (ii) or (iii) of paragraph (a) of subdivision two of\nthis section or (ii) paragraph (b) of subdivision two of this section\nthat is located in the downstate region and that is located within\none-half mile by road measurement from an exit road on a controlled\naccess highway or from an evacuation route, within twenty-four hours of\nsuch declaration, if such outlet is without power at the time of such\ndeclaration. Provided, however, if any such outlet loses power following\nsuch declaration and while the declaration is still in effect, then the\nalternate generated power source shall be deployed and installed within\ntwenty-four hours of such loss of power.\n (b) For a retail outlet prewired pursuant to the requirements of\nsubparagraph (iv) of paragraph (a) of subdivision two of this section,\nwithin forty-eight hours of such declaration, if such outlet is without\npower at the time of such declaration. Provided, however, if any such\noutlet loses power following such declaration and while the declaration\nis still in effect, then the alternate generated power source shall be\ndeployed and installed within forty-eight hours of the loss of power.\n 3-a. Declaration of energy or fuel supply emergency. Upon issuance of\na declaration of an energy or fuel supply emergency pursuant to this\nsubdivision, a county executive of a county in the downstate region or\nmayor of a city with a population in excess of one million inhabitants\nwho declared such emergency shall promptly notify the president of the\nNew York state energy research and development authority, the\ncommissioner of homeland security and emergency services, and impacted\nresidents using such means as are practicable and efficient.\n 4. Plan for alternate generated power source. Each retailer subject to\nsubdivision three of this section shall by the date of the installation\nof the prewiring and transfer switch required under subdivision two of\nthis section have in place at each applicable retail outlet\ndocumentation in a form approved by the department demonstrating a plan\nto deploy and install an alternate generated power source located at\nsuch retail outlet as required under subdivision three of this section.\nSuch plan shall take one of the following forms:\n (a) a receipt or other documentation showing ownership of such power\nsource;\n (b) for a retailer subject to paragraph (a) of subdivision three of\nthis section, documentation attesting to participation in the program\nestablished under subdivision twenty-one of section eighteen hundred\nfifty-four of the public authorities law; or\n (c) a contract with a supplier of such power source providing for\ndeployment and installation of such power source in compliance with the\nrequirements of this section, or other documentation demonstrating the\nretailer's ability to comply with the requirements of this section,\nwhich may include the generator deployment and installation plan of a\nchain of retail outlets.\n 5. Inspection; recordkeeping; reporting. The commissioner or the\ncommissioner's designee shall be authorized to enter during regular\nbusiness hours upon a retail outlet subject to the requirements of\nsubdivision two of this section for the purpose of determining\ncompliance with the provisions of this section and any rules or\nregulations promulgated hereunder. All documents required pursuant to\nsubdivisions two and four of this section shall be maintained at the\napplicable retail outlet and made available to the commissioner or the\ncommissioner's designee upon request. In addition, each retailer of a\nretail outlet, except for retail outlets granted exemptions under\nparagraph (e) of subdivision two of this section, shall provide to the\ndepartment by April first, two thousand fourteen and every two years\nthereafter written documentation in a form approved by the department\ncertifying that such retail outlet is in compliance with the\nrequirements of this section, and any other requirement specified by any\nrules or regulations promulgated hereunder; provided, however, that, for\neach retail outlet that is part of a chain of retail outlets or to which\nsubparagraph (ii) or (iii) of paragraph (a) or paragraph (b) of\nsubdivision two applies, such written documentation shall be provided to\nthe department within ten days after the date of installation of the\nprewiring and transfer switch required to be installed under subdivision\ntwo of this section and every two years thereafter.\n 6. Rules and regulations; notification of applicability. The\ncommissioner shall have the authority, with the assistance of the\ncommissioner of transportation, the commissioner of homeland security\nand emergency services, the president of the New York state energy\nresearch and development authority, the secretary of state and the chair\nof the public service commission, to promulgate such rules and\nregulations as the commissioner shall deem necessary to effectuate the\npurposes of this section. The commissioner shall by June first, two\nthousand thirteen: (a) notify by first class mail all existing retail\noutlets that appear to meet the criteria specified in subdivision two of\nthis section of the requirements of this section and include with such\nnotification any other information deemed necessary by the commissioner,\nincluding information regarding applicability criteria, compliance\nmeasures and potential grant assistance; (b) provide a list of all such\nretail outlets to the governor, the temporary president of the senate\nand the speaker of the assembly; and (c) post such list on the\ndepartment's website. If approval of federal mitigation funds or other\napproved resources for the program established under subdivision twenty\nof section eighteen hundred fifty-four of the public authorities law\noccurs after June first, two thousand thirteen, the commissioner shall\nprovide additional notification of such approval within thirty days. Any\nretailer of a retail outlet specified on such list shall be subject to\nthe requirements of this section unless he or she provides written\ndocumentation to the department by August first, two thousand thirteen\nproving that such outlet does not qualify, or is eligible for an\nexemption pursuant to paragraph (e) of subdivision two of this section.\nThe commissioner shall update such list every five years thereafter and\nnotify all new retail outlets that become subject to the requirements of\nthis section; provided, however, that compliance with the requirements\nof this section is not conditioned on such notification.\n 7. Violations and penalties. Any retailer who violates any provision\nof this section, or any rule or regulation promulgated hereunder, shall\nbe liable to the people of the state for a civil penalty of up to one\nthousand five hundred dollars per day for every such violation, to be\nassessed by the commissioner, after a hearing or opportunity to be heard\nupon due notice and with the right to representation by counsel. In\ndetermining the amount of civil penalty, the commissioner shall take\ninto consideration mitigating factors, such as the availability of\ngasoline at the retail outlet, provided that the retailer did not refuse\nsuch delivery, and the extent to which the retailer's action or inaction\ncontributed to the violation. Such penalty may be recovered in an action\nbrought by the attorney general at the request and in the name of the\ncommissioner in any court of competent jurisdiction. Such civil penalty\nmay be released or compromised by the commissioner before the matter has\nbeen referred to the attorney general. Additionally, after such hearing\nand a finding that such retailer has violated the provisions of this\nsection, or of any rule or regulation promulgated thereunder, the\ncommissioner may issue and cause to be served upon such person an order\nenjoining such person from violating such provisions and taking all\nnecessary actions for such person to come into compliance with such\nprovisions. Any such order of the commissioner may be enforced in an\naction brought by the attorney general at the request and in the name of\nthe commissioner in any court of competent jurisdiction.\n Notwithstanding the foregoing, such retailer shall not be in violation\nof subdivision three of this section if he or she is unable to deploy,\ninstall or operate an alternate generated power source because of\nuncontrollable circumstances, including but not limited to, restrictions\nimposed by public safety officers to address an emergency situation or\nthat such retail station is made unsafe or unable to operate due to acts\nof God, fires, floods, explosions or the safety of personnel needed to\noperate such retail outlet. Additionally, such retailer shall not be in\nviolation of subdivision three of this section if he or she is a\nparticipant in the program established under subdivision twenty-one of\nsection eighteen hundred fifty-four of the public authorities law and a\ngenerator is not provided to the retailer due to the prioritization\nallowed under such subdivision or through no fault of the retailer.\n 8. This section shall not be construed to require any retailer to\nmaintain set business hours in the event of an energy or fuel supply\nemergency.\n 9. The provisions of this section shall supersede all local laws or\nordinances in the downstate region relating to the installation and\ndeployment of an alternate generated power source or any related\nelectrical or other equipment at any retail outlet.\n 10. The requirements of this section shall be contingent on the\napproval of federal mitigation funds or other approved resources for the\nprogram established under subdivision twenty of section eighteen hundred\nfifty-four of the public authorities law. In the event such approval\ndoes not occur as of June first, two thousand thirteen, all deadlines\nwith a date of April first, two thousand fourteen shall be delayed by\nthe amount of time such approval is delayed past June first, two\nthousand thirteen.\n