2023 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  Putnam,  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, provided however, that any retail outlet located in Putnam
county  shall  only  be  subject  to  the  requirements  of this section
provided that funding  and  program  services  are  available  for  such
purposes  under  subdivisions  twenty and twenty-one of section eighteen
hundred fifty-four of the public authorities law.
(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.