NY Agric & Mkts L § 192-B (2021)
2021 New York Laws AGM - Agriculture and Markets Article 16 - Weights and Measures 192-B - 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.