NY Agric & Mkts L § 192-H (2021)
2021 New York Laws AGM - Agriculture and Markets Article 16 - Weights and Measures 192-H - Alternate Generated Power Source at Retail Gasoline Outlets.

§  192-h. Alternate generated power source at retail gasoline outlets. 1.  Definitions. When used in this section:  (a) "Alternate  generated  power  source"  means  electric  generating equipment  that  is  of a capacity that is capable of providing adequate electricity to operate all dispensers, dispensing equipment, life safety systems and payment-acceptance equipment located at a retail outlet  and which can operate independent of the local electric utility distribution system and provide electricity during a general power outage or declared energy or fuel supply emergency to operate the systems named herein.  (b)  "Chain  of  retail  outlets"  means  a network of subsidiaries or affiliates, under direct or indirect common control, that operate ten or more retail outlets located in  a  single  downstate  region;  provided, however  that  this term does not include any franchisor of the brand of motor fuel being sold at such outlet, except  if  such  franchisor  owns such outlet.  (c)  "Controlled  access  highway"  means  every  highway,  street, or roadway in respect to which owners or occupants of  abutting  lands  and other  persons  have no legal right of access to or from the same except at such points only and in such manner  as  may  be  determined  by  the public  authority  having  jurisdiction  over  such  highway, street, or roadway.  (d) "Diesel motor fuel" means any fuel sold in this state and for  use in  diesel  engines  which  is commercially known or offered for sale as diesel motor fuel.  (e) "Dispenser" means a device located at a retail outlet that is used to pump motor fuel from an above-ground or underground storage tank into a motor vehicle.  (f) "Downstate region" means each of  the  following  regions  of  the state:  (i) Long Island region: Includes Nassau and Suffolk counties.  (ii)  Lower  Mid-Hudson  region:  Includes  Rockland  and  Westchester counties.  (iii) New York city region: Includes Bronx, Kings,  New  York,  Queens and Richmond counties.  (g)  "Evacuation  route"  means  those roads designated by each county that are to be used by motorists in case of a hurricane or other natural disaster.  (h) "Franchisor" means a person or company that grants a franchise  to a franchisee.  (i)  "Gasoline"  means any fuel sold in this state for use in internal combustion engines which is commercially known or offered  for  sale  as gasoline, whether or not blended with ethanol or other chemicals.  (j)  "Motor  fuel" means any petroleum product, including any gasoline or diesel motor  fuel,  which  is  used  for  the  propulsion  of  motor vehicles.  (k)  "Retailer"  means  any  person  who owns, operates, or controls a retail outlet that is subject to the requirements of subdivision two  of this section.  (l) "Retail outlet" means a facility, including all land, improvements and  associated  structures and equipment, that dispenses motor fuel for sale to the general public.   2. Prewiring and transfer switch. (a) Retail outlets in the  downstate region  shall  be prewired with an appropriate transfer switch for using an alternate generated power source at such retail outlets as follows:  (i) each retail outlet in operation on  the  effective  date  of  this section that is located within one-half mile by road measurement from an exit  road  on  a  controlled access highway or from an evacuation route shall be prewired by no later than April first, two thousand fourteen;  (ii) each retail outlet beginning operation after the  effective  date of  this  section  and before April first, two thousand fourteen that is located within one-half mile by road measurement from an exit road on  a controlled  access highway or from an evacuation route shall be prewired by no later than April first, two thousand fifteen;  (iii)  each retail outlet that is located within one-half mile by road measurement from an evacuation route that is designated  as  such  after the  effective  date  of  this  section  or within one-half mile by road measurement from an exit road that is established  after  the  effective date  of  this  section  shall  be  prewired  within  one  year  of such designation or establishment provided that funding is available at  such time  for  the  program  established under subdivision twenty of section eighteen hundred fifty-four of the public authorities law; and  (iv) thirty percent of all retail outlets that are part of a chain  of retail  outlets,  exclusive of those included in subparagraphs (i), (ii) and (iii) of this paragraph, shall be prewired by no later  than  August first,  two  thousand  fifteen,  provided,  however,  in  the case of an existing retail outlet that becomes part of a chain  of  retail  outlets after the effective date of this section and that has been designated by the  chain as an outlet comprising such thirty percent, by no later than August first, two thousand fifteen or one year after  becoming  part  of such  chain,  whichever is later, and provided further, in the case of a retail outlet that is part of a chain of retail outlets, is part of such thirty percent and is subject to paragraph (b) of  this  subdivision  as required in paragraph (b) of this subdivision.  (b)  Each  retail  outlet  for which a building permit is issued on or after April first, two thousand fourteen for  new  construction  or  for substantial  demolition  and  reconstruction,  shall be prewired with an appropriate transfer switch  for  using  an  alternate  generated  power source.  (c) Such transfer switch and all associated electrical wiring shall be installed,  operated,  and  maintained in compliance with all applicable provisions of the New York state uniform fire  prevention  and  building code  or any applicable local building code or standard. Installation of appropriate wiring  and  transfer  switches  shall  be  performed  by  a licensed electrical contractor.  (d)  Each  retailer  shall keep on file at the retail outlet a written statement in a  form  approved  by  the  department  and  containing  an attestation  by  a  licensed  electrician  that  the wiring and transfer switch  were   installed   in   accordance   with   the   manufacturer's specifications.  In  addition,  each  such  retailer  shall maintain the wiring  and  transfer  switch  in  accordance  with  the  manufacturer's specifications.  (e)  Each  retail  outlet  in  operation on the effective date of this section that sold less than seventy-five thousand gallons of motor  fuel per  month  on  average for the period they were in operation during the twelve months prior to the effective  date  shall  be  exempt  from  the requirements of this subdivision.   3.  Emergency deployment. In the event that a declaration of an energy or fuel supply emergency issued by the governor, the county executive of a county in the  downstate  region  or  the  mayor  of  a  city  with  a population in excess of one million inhabitants is in effect, a retailer of  a  retail  outlet  within  any  such  county  or city for which such declaration was issued shall deploy and install an  alternate  generated power source as follows:  (a)   For  a  retail  outlet  subject  to  the  requirements  of:  (i) subparagraphs (i), (ii) or (iii) of paragraph (a) of subdivision two  of this  section  or  (ii) paragraph (b) of subdivision two of this section  that is located in the downstate  region  and  that  is  located  within one-half  mile  by  road  measurement  from an exit road on a controlled access highway or from an evacuation route, within twenty-four hours  of such  declaration,  if  such outlet is without power at the time of such declaration. Provided, however, if any such outlet loses power following such declaration and while the declaration is still in effect, then  the alternate  generated power source shall be deployed and installed within twenty-four hours of such loss of power.  (b) For a retail outlet  prewired  pursuant  to  the  requirements  of subparagraph  (iv)  of paragraph (a) of subdivision two of this section, within forty-eight hours of such declaration, if such outlet is  without power  at  the  time of such declaration. Provided, however, if any such outlet loses power following such declaration and while the  declaration is  still  in effect, then the alternate generated power source shall be deployed and installed within forty-eight hours of the loss of power.   3-a. Declaration of energy or fuel supply emergency. Upon issuance  of a  declaration  of  an  energy or fuel supply emergency pursuant to this subdivision, a county executive of a county in the downstate  region  or mayor  of  a city with a population in excess of one million inhabitants who declared such emergency shall promptly notify the president  of  the New   York   state   energy  research  and  development  authority,  the commissioner of homeland security and emergency services,  and  impacted residents using such means as are practicable and efficient.   4. Plan for alternate generated power source. Each retailer subject to subdivision  three of this section shall by the date of the installation of the prewiring and transfer switch required under subdivision  two  of this   section   have   in   place  at  each  applicable  retail  outlet documentation in a form approved by the department demonstrating a  plan to  deploy  and  install  an alternate generated power source located at such retail outlet as required under subdivision three of this  section. Such plan shall take one of the following forms:  (a)  a  receipt or other documentation showing ownership of such power source;  (b) for a retailer subject to paragraph (a) of  subdivision  three  of this  section,  documentation  attesting to participation in the program established under subdivision twenty-one  of  section  eighteen  hundred fifty-four of the public authorities law; or  (c)  a  contract  with  a  supplier of such power source providing for deployment and installation of such power source in compliance with  the requirements  of  this section, or other documentation demonstrating the retailer's ability to comply with  the  requirements  of  this  section, which  may  include  the generator deployment and installation plan of a chain of retail outlets.   5. Inspection;  recordkeeping;  reporting.  The  commissioner  or  the commissioner's  designee  shall  be  authorized  to enter during regular business hours upon a retail  outlet  subject  to  the  requirements  of subdivision   two  of  this  section  for  the  purpose  of  determining compliance with  the  provisions  of  this  section  and  any  rules  or regulations  promulgated  hereunder.  All documents required pursuant to subdivisions two and four of this section shall  be  maintained  at  the applicable  retail  outlet and made available to the commissioner or the commissioner's designee upon request. In addition, each  retailer  of  a retail  outlet,  except  for  retail  outlets  granted  exemptions under paragraph (e) of subdivision two of this section, shall provide  to  the department  by  April  first,  two thousand fourteen and every two years thereafter written documentation in a form approved  by  the  department certifying   that   such   retail  outlet  is  in  compliance  with  the requirements of this section, and any other requirement specified by any  rules or regulations promulgated hereunder; provided, however, that, for each retail outlet that is part of a chain of retail outlets or to which subparagraph (ii)  or  (iii)  of  paragraph  (a)  or  paragraph  (b)  of subdivision two applies, such written documentation shall be provided to the  department  within  ten  days after the date of installation of the prewiring and transfer switch required to be installed under subdivision two of this section and every two years thereafter.   6.  Rules  and  regulations;  notification   of   applicability.   The commissioner  shall  have  the  authority,  with  the  assistance of the commissioner of transportation, the commissioner  of  homeland  security and  emergency  services,  the  president  of  the New York state energy research and development authority, the secretary of state and the chair of  the  public  service  commission,  to  promulgate  such  rules   and regulations  as  the commissioner shall deem necessary to effectuate the purposes of this section. The commissioner  shall  by  June  first,  two thousand  thirteen:  (a)  notify by first class mail all existing retail outlets that appear to meet the criteria specified in subdivision two of this section of the requirements of this section and include  with  such notification any other information deemed necessary by the commissioner, including   information  regarding  applicability  criteria,  compliance measures and potential grant assistance; (b) provide a list of all  such retail  outlets  to  the governor, the temporary president of the senate and the speaker  of  the  assembly;  and  (c)  post  such  list  on  the department's  website.  If approval of federal mitigation funds or other approved resources for the program established under subdivision  twenty of  section  eighteen  hundred  fifty-four of the public authorities law occurs after June first, two thousand thirteen, the  commissioner  shall provide additional notification of such approval within thirty days. Any retailer  of  a retail outlet specified on such list shall be subject to the requirements of this section  unless  he  or  she  provides  written documentation  to  the department by August first, two thousand thirteen proving that such outlet  does  not  qualify,  or  is  eligible  for  an exemption  pursuant to paragraph (e) of subdivision two of this section. The commissioner shall update such list every five years thereafter  and notify all new retail outlets that become subject to the requirements of this  section;  provided, however, that compliance with the requirements of this section is not conditioned on such notification.   7. Violations and penalties. Any retailer who violates  any  provision of  this section, or any rule or regulation promulgated hereunder, shall be liable to the people of the state for a civil penalty of  up  to  one thousand  five  hundred  dollars per day for every such violation, to be assessed by the commissioner, after a hearing or opportunity to be heard upon due notice and with the right  to  representation  by  counsel.  In determining  the  amount  of  civil penalty, the commissioner shall take into consideration mitigating  factors,  such  as  the  availability  of gasoline at the retail outlet, provided that the retailer did not refuse such delivery, and the extent to which the retailer's action or inaction contributed to the violation. Such penalty may be recovered in an action brought  by  the  attorney general at the request and in the name of the commissioner in any court of competent jurisdiction. Such civil  penalty may be released or compromised by the commissioner before the matter has been  referred to the attorney general. Additionally, after such hearing and a finding that such retailer has violated  the  provisions  of  this section,  or  of  any  rule  or  regulation  promulgated thereunder, the commissioner may issue and cause to be served upon such person an  order enjoining  such  person  from  violating  such provisions and taking all necessary actions for such person to  come  into  compliance  with  such provisions.  Any  such  order  of the commissioner may be enforced in an  action brought by the attorney general at the request and in the name of the commissioner in any court of competent jurisdiction.   Notwithstanding the foregoing, such retailer shall not be in violation of  subdivision  three of this section if he or she is unable to deploy, install or operate  an  alternate  generated  power  source  because  of uncontrollable circumstances, including but not limited to, restrictions imposed  by  public safety officers to address an emergency situation or that such retail station is made unsafe or unable to operate due to acts of God, fires, floods, explosions or the safety of personnel  needed  to operate  such retail outlet. Additionally, such retailer shall not be in violation of subdivision three of  this  section  if  he  or  she  is  a participant  in  the program established under subdivision twenty-one of section eighteen hundred fifty-four of the public authorities law and  a generator  is  not  provided  to  the retailer due to the prioritization allowed under such subdivision or through no fault of the retailer.   8. This section shall not be construed  to  require  any  retailer  to maintain  set  business  hours  in the event of an energy or fuel supply emergency.   9. The provisions of this section shall supersede all  local  laws  or ordinances  in  the  downstate  region  relating to the installation and deployment of  an  alternate  generated  power  source  or  any  related electrical or other equipment at any retail outlet.   10.  The  requirements  of  this  section  shall  be contingent on the approval of federal mitigation funds or other approved resources for the program established under subdivision twenty of section eighteen hundred fifty-four of the public authorities law. In  the  event  such  approval does  not  occur  as of June first, two thousand thirteen, all deadlines with a date of April first, two thousand fourteen shall  be  delayed  by the  amount  of  time  such  approval  is  delayed  past June first, two thousand thirteen.