[Code of Federal Regulations]

[Title 40, Volume 16]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR80.28]



[Page 624-627]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 80_REGULATION OF FUELS AND FUEL ADDITIVES--Table of Contents

 

                   Subpart B_Controls and Prohibitions

 

Sec.  80.28  Liability for violations of gasoline volatility controls and 

prohibitions.



    (a) Violations at refineries or importer facilities. Where a 

violation of the applicable standard set forth in Sec.  80.27 is 

detected at a refinery that is not an ethanol blending plant or at an 

importer's facility, the refiner or importer shall be deemed in 

violation.

    (b) Violations at carrier facilities. Where a violation of the 

applicable standard set forth in Sec.  80.27 is detected at a carrier's 

facility, whether in a transport vehicle, in a storage facility, or 

elsewhere at the facility, the following parties shall be deemed in 

violation:

    (1) The carrier, except as provided in paragraph (g)(1) of this 

section;

    (2) The refiner (if he is not an ethanol blender) at whose refinery 

the gasoline was produced or the importer at whose import facility the 

gasoline was imported, except as provided in paragraph (g)(2) of this 

section;

    (3) The ethanol blender (if any) at whose ethanol blending plant the 

gasoline was produced, except as provided in paragraph (g)(6) of this 

section; and

    (4) The distributor and/or reseller, except as provided in paragraph 

(g)(3) of this section.

    (c) Violations at branded distributor facilities, reseller 

facilities, or ethanol blending plants. Where a violation of the 

applicable standard set forth in Sec.  80.27 is detected at a 

distributor facility, a reseller facility, or an ethanol blending plant 

which is operating under the corporate, trade, or brand name of a 

gasoline refiner or any of its marketing subsidiaries, the following 

parties shall be deemed in violation:

    (1) The distributor or reseller, except as provided in paragraph 

(g)(3) or (g)(8) of this section;

    (2) The carrier (if any), if the carrier caused the gasoline to 

violate the applicable standard;

    (3) The refiner under whose corporate, trade, or brand name (or that 

of any of its marketing subsidiaries) the distributor, reseller, or 

ethanol blender is operating, except as provided in paragraph (g)(4) of 

this section; and

    (4) The ethanol blender (if any) at whose ethanol blending plant the 

gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) 

of this section.

    (d) Violations at unbranded distributor facilities or ethanol 

blending plants. Where a violation of the applicable standard set forth 

in Sec.  80.27 is detected at a distributor facility or an ethanol 

blending plant not operating under a refiner's corporate, trade, or 

brand name, or that of any of its marketing subsidiaries, the following 

parties shall be deemcd in violation:

    (1) The distributor, except as provided in paragraph (g)(3) or 

(g)(8) of this section;

    (2) The carrier (if any), if the carrier caused the gasoline to 

violate the applicable standard;

    (3) The refiner (if he is not an ethanol blender) at whose refinery 

the gasoline was produced or the importer at whose import facility the 

gasoline was imported, except as provided in paragraph (g)(2) of this 

section; and

    (4) The ethanol blender (if any) at whose ethanol blending plant the 

gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) 

of this section.

    (e) Violations at branded retail outlets or wholesale purchaser-

consumer facilities. Where a violation of the applicable standard set 

forth in Sec.  80.27 is detected at a retail outlet or at a wholesale 

purchaser-consumer facility displaying the corporate, trade, or brand 

name of a gasoline refiner or any of its marketing subsidiaries, the 

following parties shall be deemed in violation:

    (1) The retailer or wholesale purchaser-consumer, except as provided 

in paragraph (g)(5) or (g)(8) of this section;



[[Page 625]]



    (2) The distributor and/or reseller (if any), except as provided in 

paragraph (g)(3) or (g)(8) of this section;

    (3) The carrier (if any), if the carrier caused the gasoline to 

violate the applicable standard;

    (4) The refiner whose corporate, trade, or brand name (or that of 

any of its marketing subsidiaries) is displayed at the retail outlet or 

wholesale purchaser-consumer facility, except as provided in paragraph 

(g)(4) of this section; and

    (5) The ethanol blender (if any) at whose ethanol blending plant the 

gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) 

of this section.

    (f) Violations at unbranded retail outlets or wholesale purchaser-

consumer facilities. Where a violation of the applicable standard set 

forth in Sec.  80.27 is detected at a retail outlet or at a wholesale 

purchaser-consumer facility not displaying the corporate, trade, or 

brand name of a refiner or any of its marketing subsidiaries, the 

following parties shall be deemed in violation:

    (1) The retailer or wholesale purchaser-consumer, except as provided 

in paragraph (g)(5) or (g)(8) of this section;

    (2) The distributor (if any), except as provided in paragraph (g)(3) 

or (g)(8) of this section;

    (3) The carrier (if any), if the carrier caused the gasoline to 

violate the applicable standard;

    (4) The ethanol blender (if any) at whose ethanol blending plant the 

gasoline was produced, except as provided in paragraph (g)(6) of this 

section; and

    (5) The refiner (if he is not an ethanol blender) at whose refinery 

the gasoline was produced and/or the importer at whose import facility 

the gasoline was imported, except as provided in paragraph (g)(2) of 

this section.

    (g) Defenses. (1) In any case in which a carrier would be in 

violation under paragraph (b)(1) of this section, the carrier shall not 

be deemed in violation if he can demonstrate:

    (i) That the violation was not caused by him or his employee or 

agent; and

    (ii) Evidence of an oversight program conducted by the carrier, such 

as periodic sampling and testing of incoming gasoline, for monitoring 

the volatility of gasoline stored or transported by that carrier.

    (iii) An oversight program under paragraph (g)(1)(ii) 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 volatility 

requirements of Sec.  80.27 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.

    (2) In any case in which a refiner or importer would be in violation 

under paragraphs (b)(2), (d)(3), or (f)(5) of this section, the refiner 

or importer shall not be deemed in violation if he can demonstrate:

    (i) That the violation was not caused by him or his employee or 

agent; and

    (ii) Test results using the sampling methodology set forth in Sec.  

80.8 and the testing methodology set forth in Sec.  80.46(c), or any 

other test method where adequate correlation to Sec.  80.46(c) is 

demonstrated, which show evidence that the gasoline determined to be in 

violation was in compliance with the applicable standard when it was 

delivered to the next party in the distribution system.

    (3) In any case in which a distributor or reseller would be in 

violation under paragraph (b)(4), (c)(1), (d)(1), (e)(2), or (f)(2) of 

this section, the distributor or reseller shall not be deemed in 

violation if he can demonstrate:

    (i) That the violation was not caused by him or his employee or 

agent; and

    (ii) Evidence of an oversight program conducted by the distributor 

or reseller, such as periodic sampling and testing of gasoline, for 

monitoring the volatility of gasoline that the distributor or reseller 

sells, supplies, offers for sale or supply, or transports.

    (4) In any case in which a refiner would be in violation under 

paragraphs (c)(3) or (e)(4) of this section, the refiner shall not be 

deemed in violation if



[[Page 626]]



he can demonstrate all of the following:

    (i) Test results using the sampling methodology set forth in Sec.  

80.8 and the testing methodology set forth in Sec.  80.46(c), or any 

other test method where adequate correlation to Sec.  80.46(c) is 

demonstrated, which show evidence that the gasoline determined to be in 

violation was in compliance with the applicable standard when 

transported from the refinery.

    (ii) That the violation was not caused by him or his employee or 

agent; and

    (iii) That the violation:

    (A) Was caused by an act in violation of law (other than the Act or 

this part), or an act of sabotage or vandalism, whether or not such acts 

are violations of law in the jurisdiction where the violation of the 

requirements of this part occurred, or

    (B) Was caused by the action of a reseller, an ethanol blender, or a 

retailer supplied by such reseller or ethanol blender, in violation of a 

contractual undertaking imposed by the refiner on such reseller or 

ethanol blender designed to prevent such action, and despite reasonable 

efforts by the refiner (such as periodic sampling and testing) to insure 

compliance with such contractual obligation, or

    (C) 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 (such as 

periodic sampling and testing) to insure compliance with such 

contractual obligation, or

    (D) Was caused by the action of a distributor or an ethanol blender 

subject to a contract with the refiner for transportation of gasoline 

from a terminal to a distributor, ethanol blender, retailer or wholesale 

purchaser-consumer, in violation of a contractual undertaking imposed by 

the refiner on such distributor or ethanol blender designed to prevent 

such action, and despite reasonable efforts by the refiner (such as 

periodic sampling and testing) to insure compliance with such 

contractual obligation, or

    (E) Was caused by a carrier or other distributor not subject to a 

contract with the refiner but engaged by him for transportation of 

gasoline from a terminal to a distributor, ethanol blender, retailer or 

wholesale purchaser-consumer, despite reasonable efforts by the refiner 

(such as specification or inspection of equipment) to prevent such 

action, or

    (F) Occurred at a wholesale purchaser-consumer facility: Provided, 

however, That if such wholesale purchaser-consumer was supplied by a 

reseller or ethanol blender, the refiner must demonstrate that the 

violation could not have been prevented by such reseller's or ethanol 

blender's compliance with a contractual undertaking imposed by the 

refiner on such reseller or ethanol blender as provided in paragraph 

(g)(4)(iii)(B) of this section.

    (iv) In paragraphs (g)(4)(iii)(A) through (E) of this section, the 

term ``was caused'' means that the refiner must demonstrate by 

reasonably specific showings, by direct or circumstantial evidence, that 

the violation was caused or must have been caused by another.

    (5) In any case in which a retailer or wholesale purchaser-consumer 

would be in violation under paragraphs (e)(1) or (f)(1) of this section, 

the retailer or wholesale purchaser-consumer shall not be deemed in 

violation if he can demonstrate that the violation was not caused by him 

or his employee or agent.

    (6) In any case in which an ethanol blender would be in violation 

under paragraphs (b)(3), (c)(4), (d)(4), (e)(5) or (f)(4) of this 

section, the ethanol blender shall not be deemed in violation if he can 

demonstrate:

    (i) That the violation was not caused by him or his employee or 

agent; and

    (ii) Evidence of an oversight program conducted by the ethanol 

blender, such as periodic sampling and testing of gasoline, for 

monitoring the volatility of gasoline that the ethanol blender sells, 

supplies, offers for sale or supply or transports; and

    (iii) That the gasoline determined to be in violation contained no 

more than 10% ethanol (by volume) when it was delivered to the next 

party in the distribution system.

    (7) In paragraphs (g)(1)(i), (g)(2)(i), (g)(3)(i), (g)(4)(ii), 

(g)(5), and (g)(6)(i) of



[[Page 627]]



this section, the respective party must demonstrate by reasonably 

specific showings, by direct or circumstantial evidence, that it or its 

employee or agent did not cause the violation.

    (8) In addition to the defenses provided in paragraphs (g)(1) 

through (g)(6) of this section, in any case in which an ethanol blender, 

distributor, reseller, carrier, retailer, or wholesale purchaser-

consumer would be in violation under paragraphs (b), (c), (d), (e) or 

(f), of this section, as a result of gasoline which contains between 9 

and 10 percent ethanol (by volume) but exceeds the applicable standard 

by more than one pound per square inch (1.0 psi), the ethanol blender, 

distributor, reseller, carrier, retailer or wholesale purchaser-consumer 

shall not be deemed in violation if such person can demonstrate, by 

showing receipt of a certification from the facility from which the 

gasoline was received or other evidence acceptable to the Administrator, 

that:

    (i) The gasoline portion of the blend complies with the Reid vapor 

pressure limitations of Sec.  80.27(a); and

    (ii) The ethanol portion of the blend does not exceed 10 percent (by 

volume); and

    (iii) No additional alcohol or other additive has been added to 

increase the Reid vapor pressure of the ethanol portion of the blend.



In the case of a violation alleged against an ethanol blender, 

distributor, reseller, or carrier, if the demonstration required by 

paragraphs (g)(8)(i), (ii), and (iii) of this section is made by a 

certification, it must be supported by evidence that the criteria in 

paragraphs (g)(8)(i), (ii), and (iii) of this section have been met, 

such as an oversight program conducted by or on behalf of the ethanol 

blender, distributor, reseller or carrier alleged to be in violation, 

which includes periodic sampling and testing of the gasoline or 

monitoring the volatility and ethanol content of the gasoline. Such 

certification shall be deemed sufficient evidence of compliance provided 

it is not contradicted by specific evidence, such as testing results, 

and provided that the party has no other reasonable basis to believe 

that the facts stated in the certification are inaccurate. In the case 

of a violation alleged against a retail outlet or wholesale purchaser-

consumer facility, such certification shall be deemed an adequate 

defense for the retailer or wholesale purchaser-consumer, provided that 

the retailer or wholesale purchaser-consumer is able to show 

certificates for all of the gasoline contained in the storage tank found 

in violation, and, provided that the retailer or wholesale purchaser-

consumer has no reasonable basis to believe that the facts stated in the 

certifications are inaccurate.



[54 FR 11885, Mar. 22, 1989; 54 FR 27017, June 27, 1989, as amended at 

56 FR 64711, Dec. 12, 1991; 58 FR 14484, Mar. 17, 1993; 62 FR 68205, 

Dec. 31, 1997; 67 FR 8736, Feb. 26, 2002]