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

1. For purposes of this section, the following terms shall have the following meanings:
1. (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.
2. (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.
3. (c) "Lead additive" shall mean any substance containing lead or lead compounds.
4. (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.
5. (e) "Refiner" shall mean any person who owns, leases, operates, controls or supervises a plant at which gasoline is produced.
6. (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.
7. (g) "Retail outlet" shall mean any establishment at which gasoline is sold or offered for sale for use in motor vehicles.
8. (h) "Retailer" shall mean any person who owns, leases, operates, controls, or supervises a retail outlet.
9. (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.
10. (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:
1. (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
2. (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.
1. (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.
2. (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. (1) that the violation was not caused by such refiner or his or her employee or agent, and
  2. (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. (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. (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. (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. (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. (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. (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.
3. (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.
4. (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.
1. (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.
2. (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.
3. (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.
1. (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.
2. (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.
3. (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.
4. (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.
5. (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.