2006 New York Code - 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.