80.79—Liability for violations of the prohibited activities.
(a) Persons liable.
Where the gasoline contained in any storage tank at any facility owned, leased, operated, controlled or supervised by any refiner, importer, oxygenate blender, carrier, distributor, reseller, retailer, or wholesale purchaser-consumer is found in violation of the prohibitions described in § 80.78(a), the following persons shall be deemed in violation:
(1)
Each refiner, importer, oxygenate blender, carrier, distributor, reseller, retailer, or wholesale purchaser-consumer who owns, leases, operates, controls or supervises the facility where the violation is found;
(2)
Each refiner or importer whose corporate, trade, or brand name, or whose marketing subsidiary's corporate, trade, or brand name, appears at the facility where the violation is found;
(3)
Each refiner, importer, oxygenate blender, distributor, and reseller who manufactured, imported, sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation of any gasoline which is in the storage tank containing gasoline found to be in violation; and
(4)
Each carrier who dispensed, supplied, stored, or transported any gasoline which is in the storage tank containing gasoline found to be in violation, provided that EPA demonstrates, by reasonably specific showings by direct or circumstantial evidence, that the carrier caused the violation.
(5)
Notwithstanding the provisions in paragraphs (a)(1) through (a)(4) of this section: (i) Only a retailer or wholesale purchaser-consumer shall be deemed in violation for combining gasolines in a manner that is inconsistent with § 80.78(a)(8)(ii) or (iii), or for gasoline which does not comply with the VOC minimum standard under § 80.41 after the retailer or wholesale purchaser-consumer combines or causes the combining of compliant gasolines in a manner inconsistent with § 80.78(a)(8)(ii) or (iii) ;
(ii)
No person shall be deemed in violation for gasoline which does not comply with the VOC minimum standard under § 80.41 where the non-compliance is solely due to the combining of compliant gasolines by a retailer or wholesale purchaser-consumer in a manner that is consistent with § 80.78(a)(8)(ii) and (iii).
(b) Defenses for prohibited activities.
(1)
In any case in which a refiner, importer, oxygenate blender, carrier, distributor, reseller, retailer, or wholesale purchaser-consumer would be in violation under paragraph (a) of this section, it shall be deemed not in violation if it can demonstrate:
(ii)
That product transfer documents account for all of the gasoline in the storage tank found in violation and indicate that the gasoline met relevant requirements; and
(iii)
(A)
That it has conducted a quality assurance sampling and testing program, as described in paragraph (c) of this section; except that
(B)
A carrier may rely on the quality assurance program carried out by another party, including the party that owns the gasoline in question, provided that the quality assurance program is carried out properly.
(2)
(i)
Where a violation is found at a facility which is operating under the corporate, trade or brand name of a refiner, that refiner must show, in addition to the defense elements required by paragraph (b)(1) of this section, that the violation was caused by:
(A)
An act in violation of law (other than the Act or this part), or an act of sabotage or vandalism;
(B)
The action of any reseller, distributor, oxygenate blender, carrier, or a retailer or wholesale purchaser- consumer supplied by any of these persons, in violation of a contractual undertaking imposed by the refiner designed to prevent such action, and despite periodic sampling and testing by the refiner to ensure compliance with such contractual obligation; or
(C)
The action of any carrier or other distributor not subject to a contract with the refiner but engaged by the refiner for transportation of gasoline, despite specification or inspection of procedures and equipment by the refiner which are reasonably calculated to prevent such action.
(ii)
In this paragraph (b), to show that the violation “was caused” by any of the specified actions the party must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that the violation was caused or must have been caused by another.
(c) Quality assurance program.
In order to demonstrate an acceptable quality assurance program for reformulated gasoline at all points in the gasoline distribution network, other than at retail outlets and wholesale purchaser-consumer facilities, a party must present evidence of the following.
(1)
Of a periodic sampling and testing program to determine if the applicable maximum and/or minimum standards for oxygen, benzene, RVP, or VOC emission performance are met. For gasoline subject to the provisions in § 80.81, a party is not required to conduct periodic sampling and testing to determine compliance with the oxygen minimum standard.
(2)
That on each occasion when gasoline is found in noncompliance with one of the requirements referred to in paragraph (c)(1) of this section:
(i)
The party immediately ceases selling, offering for sale, dispensing, supplying, offering for supply, storing, transporting, or causing the transportation of the violating product; and
(ii)
The party promptly remedies the violation (such as by removing the violating product or adding more complying product until the applicable standards are achieved).
(3)
An oversight program conducted by a carrier under paragraph (c)(1) of this section need not include periodic sampling and testing of gasoline in a tank truck operated by a common carrier, but in lieu of such tank truck sampling and testing the common carrier shall demonstrate evidence of an oversight program for monitoring compliance with the requirements of § 80.78 relating to the transport or storage of gasoline by tank truck, such as appropriate guidance to drivers on compliance with applicable requirements and the periodic review of records normally received in the ordinary course of business concerning gasoline quality and delivery.