(a) Persons liable—(1) Gasoline non-conformity. Where gasoline contained in any storage tank at any facility owned, leased, operated, controlled or supervised by any gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, or detergent blender, is found in violation of any of the prohibitions specified in §80.155(a), the following persons shall be deemed in violation:

(i) Each gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, or detergent blender, who owns, leases, operates, controls or supervises the facility (including, but not limited to, a truck or individual storage tank) where the violation is found;

(ii) Each gasoline refiner, importer, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, detergent manufacturer, distributor, or blender, who refined, imported, manufactured, sold, offered for sale, dispensed, supplied, offered for supply, stored, detergent additized, transported, or caused the transportation of the detergent-additized gasoline (or the base gasoline component, the detergent component, or the detergent-additized post-refinery component of the gasoline) that is in violation, and each such party that caused the gasoline that is in violation to be present in the gasoline distribution system; and

(iii) Each gasoline carrier who dispensed, supplied, stored, or transported any gasoline in the storage tank containing gasoline found to be in violation, and each detergent carrier who dispensed, supplied, stored, or transported the detergent component of any post-refinery component or gasoline in the storage tank containing gasoline found to be in violation, provided that the EPA demonstrates, by reasonably specific showings by direct or circumstantial evidence, that the gasoline or detergent carrier caused the violation.

(2) Post-refinery component non-conformity. Where detergent-additized PRC contained in any storage tank at any facility owned, leased, operated, controlled or supervised by any gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, is found in violation of the prohibitions specified in §80.155(e), the following persons shall be deemed in violation:

(i) Each gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale-purchaser consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, who owns, leases, operates, controls or supervises the facility (including, but not limited to, a truck or individual storage tank) where the violation is found;

(ii) Each gasoline refiner, importer, distributor, reseller, retailer, wholesale-purchaser consumer, oxygenate blender, detergent manufacturer, distributor, or blender, who sold, offered for sale, dispensed, supplied, offered for supply, stored, detergent additized, transported, or caused the transportation of the detergent-additized PRC (or the detergent component of the PRC) that is in violation, and each such party that caused the PRC that is in violation to be present in the PRC or gasoline distribution systems; and

(iii) Each carrier who dispensed, supplied, stored, or transported any detergent-additized post-refinery component in the storage tank containing post-refinery component in violation, and each detergent carrier who dispensed, supplied, stored, or transported the detergent component of any detergent-additized post-refinery component which is in the storage tank containing detergent-additized post-refinery component found to be in violation, provided that the EPA demonstrates by reasonably specific showings by direct or circumstantial evidence, that the gasoline or detergent carrier caused the violation.

(3) Detergent non-conformity. Where the detergent (prior to additization) contained in any storage tank or container found at any facility owned, leased, operated, controlled or supervised by any gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, is found in violation of the prohibitions specified in §80.155(d), the following persons shall be deemed in violation:

(i) Each gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale-purchaser consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, who owns, leases, operates, controls or supervises the facility (including, but not limited to, a truck or individual storage tank) where the violation is found;

(ii) Each gasoline refiner, importer, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, detergent manufacturer, distributor, or blender, who sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation of the detergent that is in violation, and each such party that caused the detergent that is in violation to be present in the detergent, gasoline, or PRC distribution systems; and

(iii) Each gasoline or detergent carrier who dispensed, supplied, stored, or transported any detergent which is in the storage tank or container containing detergent found to be in violation, providing that EPA demonstrates, by reasonably specific showings by direct or circumstantial evidence, that the gasoline or detergent carrier caused the violation.

(4) Volumetric additive reconciliation. Where a violation of the volumetric additive reconciliation requirements established by §80.155(b) has occurred, the following persons shall be deemed in violation:

(i) Each detergent blender who owns, leases, operates, controls or supervises the facility (including, but not limited to, a truck or individual storage tank) where the violation has occurred; and

(ii) Each gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, or oxygenate blender, and each detergent manufacturer, carrier, distributor, or blender, who refined, imported, manufactured, sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation of the detergent-additized gasoline, the base gasoline component, the detergent component, or the detergent-additized post-refinery component, of the gasoline that is in violation, provided that the EPA demonstrates, by reasonably specific showings by direct or circumstantial evidence, that such person caused the violation.

(5) Product transfer document. Where a violation of §80.155(c) is found at a facility owned, leased, operated, controlled, or supervised by any gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale purchaser-consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, the following persons shall be deemed in violation: each gasoline refiner, importer, carrier, distributor, reseller, retailer, wholesale-purchaser consumer, oxygenate blender, detergent manufacturer, carrier, distributor, or blender, who owns, leases, operates, control or supervises the facility (including, but not limited to, a truck or individual storage tank) where the violation is found.

(b) Branded refiner vicarious liability. Where any violation of the prohibitions specified in §80.155 has occurred, with the exception of violations of §80.155(c), a refiner will also be deemed liable for violations occurring at a facility operating under such refiner's corporate, trade, or brand name or that of any of its marketing subsidiaries. For purposes of this section, the word facility includes, but is not limited to, a truck or individual storage tank.

(c) Defenses.

(1) In any case in which a gasoline refiner, importer, distributor, carrier, reseller, retailer, wholesale-purchaser consumer, oxygenate blender, detergent distributor, carrier, or blender, is in violation of any of the prohibitions of §80.155, pursuant to paragraphs (a) or (b) of this section as applicable, the regulated party shall be deemed not in violation if it can demonstrate:

(i) That the violation was not caused by the regulated party or its employee or agent (unless otherwise provided in this paragraph (c));

(ii) That product transfer documents account for the gasoline, detergent, or detergent-additized post-refinery component in violation and indicate that the gasoline, detergent, or detergent-additized post-refinery component satisfied relevant requirements when it left their control; and

(iii) That the party has fulfilled the requirements of paragraphs (c) (2) or (3) of this section, as applicable.

(2) Branded refiner.

(i) Where a branded refiner, pursuant to paragraph (b) of this section, is in violation of any of the prohibitions of §80.155 as a result of violations occurring at a facility (including, but not limited to, a truck or individual storage tank) which is operating under the corporate, trade or brand name of a refiner or that of any of its marketing subsidiaries, the refiner shall be deemed not in violation if it can demonstrate, in addition to the defense requirements stated in paragraph (c)(1) of this section, that the violation was caused by:

(A) An act in violation of law (other than these regulations), or an act of sabotage or vandalism, whether or not such acts are violations of law in the jurisdiction where the violation of the prohibitions of §80.155 occurred; or

(B) The action of any gasoline refiner, importer, reseller, distributor, oxygenate blender, detergent manufacturer, distributor, blender, or 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 the implementation of an oversight program, including, but not limited to, periodic review of product transfer documents by the refiner to ensure compliance with such contractual obligation; or

(C) The action of any gasoline or detergent carrier, or other gasoline or detergent distributor not subject to a contract with the refiner but engaged by the refiner for transportation of gasoline, post-refinery component, or detergent, to a gasoline or detergent distributor, oxygenate blender, detergent blender, gasoline retailer or wholesale purchaser consumer, despite specification or inspection of procedures or equipment by the refiner which are reasonably calculated to prevent such action.

(ii) In this paragraph (c)(2), 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.

(3) Detergent blender. In any case in which a detergent blender is liable for violating any of the prohibitions of §80.155, the detergent blender shall not be deemed in violation if it can demonstrate, in addition to the defense requirements stated in paragraph (c)(1) of this section, the following:

(i) That it obtained or supplied, as appropriate, prior to the detergent blending, accurate written instructions from the detergent manufacturer or other party with knowledge of such instructions, specifying the detergent's minimum recommended concentration (lowest additive concentration) pursuant to §80.141(c)(3) and, if applicable, the limitations of this concentration for use in leaded product.

(ii) That it has implemented a quality assurance program that includes, but is not limited to, a periodic review of its supporting product transfer and volume measurement documents to confirm the correctness of its product transfer and volumetric additive reconciliation documents created for all products it additized.

(4) Detergent manufacturer—(i) Presumptive liability affirmative defense. Notwithstanding the provisions of paragraph (c)(1) of this section, in any case in which a detergent manufacturer is liable for violating any of the prohibitions of §80.155, the detergent manufacturer shall be deemed not in violation if it can demonstrate each of the following:

(A) Product transfer documents which account for the detergent component of the product in violation and which indicate that such detergent satisfied all relevant requirements when it left the detergent manufacturer's control; and

(B) Written blending instructions which, pursuant to §80.141(c)(3)(ii), were supplied by the detergent manufacturer to its customer who purchased or obtained from the manufacturer the detergent component of the product determined to be in violation. The written blending instructions must have been supplied by the manufacturer prior to the customer's use or sale of the detergent. The instructions must accurately identify the minimum recommended concentration (lowest additive concentration) specified in the detergent's 40 CFR part 79 registration, and must also accurately identify if the detergent, at that concentration, is only registered as effective for use in leaded gasoline.

(C) If the detergent batch used in the noncomplying product was produced less than one year before the manufacturer was notified by EPA of the possible violation, then the manufacturer must provide FTIR or other test results for the batch of detergent used in the noncomplying product, performed in accordance with the detergent testing procedure submitted by the manufacturer, or available for submission, pursuant to §80.141(f).

(1) The analysis may have been conducted on the subject detergent batch at the time it was manufactured, or may be conducted on a sample of that batch which the manufacturer retained for such purpose at the time the batch was manufactured.

(2) The test results must accurately establish that, when it left the manufacturer's control, the detergent component of the product determined to be in violation was in conformity with the chemical composition and concentration specifications reported pursuant to §80.141(c)(1);

(D) If the detergent batch used in the noncomplying product was produced more than one year prior to the manufacturer's notification by EPA of the possible violation, then the manufacturer must provide either:

(1) Test results for the batch in question as specified in the paragraph (c)(4)(i)(C) of this section; or

(2) The following materials:

(i) Documentation of the measured viscosity, density, and basic nitrogen content of the detergent batch in question, or any other such physical parameters which the manufacturer normally uses to ensure production quality control, which establishes conformity with the manufacturer's quality control standards for such parameters; and

(ii) If the detergent registration identifies polymeric component(s) of the detergent package as the product(s) of other chemical reactants, documentation that the reagents used to synthesize the detergent batch in question were the same as those specified in the registration and that they met the manufacturer's normal acceptance criteria for such reagents, reported pursuant to §80.162(b)(1).

(ii) Detergent manufacturer causation liability. In any case in which a detergent manufacturer is liable for a violation of §80.155, and the manufacturer establishes an affirmative defense to such liability pursuant to paragraph (c)(4)(i) of this section, the detergent manufacturer will nonetheless be deemed liable for the violation of §80.155 if EPA can demonstrate, by reasonably specific showings by direct or circumstantial evidence, that the detergent manufacturer caused the violation.

(5) Defense against liability where more than one party may be liable for VAR violations. In any case in which a party is presumptively or vicariously liable for a violation of §80.155 due to a failure to meet the VAR requirements §80.157, except for the VAR record requirements pursuant to §80.157(g), such party shall not be deemed liable if it can establish the following:

(i) Prior to the violation it had entered into a written contract with another potentially liable detergent blender party (“the assuming party”), under which that other party assumed legal responsibility for fulfilling the VAR requirement that had been violated;

(ii) The contract included reasonable oversight provisions to ensure that the assuming party fulfilled its VAR responsibilities (including, but not limited to, periodic review of VAR records) and the oversight provision was actually implemented by the party raising the defense;

(iii) The assuming party is fiscally sound and able to pay its penalty for the VAR violation; and

(iv) The employees or agents of the party raising the defense did not cause the violation.

(6) Defense to liability for gasoline non-conformity violations caused solely by the addition of misadditized ethanol or other PRC to the gasoline. In any case in which a party is presumptively or vicariously liable for a gasoline non-conformity violation of §80.155(a) caused solely by another party's addition of misadditized ethanol or other PRC to the gasoline, the former party shall not be deemed liable for the violation provided that it can establish that is has fulfilled the requirements of paragraphs (c)(1)(i) and (ii) of this section.

(7) Detergent tank transitioning defenses. The commingling of two detergents in the same detergent storage tank will not be deemed to violate or cause violations of any of the provisions of this subpart, provided the following conditions are met:

(i) The commingling must occur during a legitimate detergent transitioning event, i.e., a shift from the use of one detergent to another through the delivery of the new detergent into the same tank that contains the original detergent; and

(ii) If the new detergent is restricted to use in leaded gasoline, then such restriction must be applied to the combined detergents; and

(iii) The commingling event must be documented, either on the VAR formula record or on attached supporting records; and

(iv) Notwithstanding any contrary provisions in §80.157, a VAR formula record must be created for the combined detergents. The VAR compliance period must begin no later than the time of the commingling event. However, at the blender's option, the compliance period may begin earlier, thus including use of the uncombined original detergent within the same period, provided that the 31-day limitation pursuant to §80.157(a)(6) is not exceeded; and

(v) The VAR formula record must also satisfy the requirements in one of the following paragraphs (c)(7)(v)(A) through (C) of this section, whichever applies to the commingling event. If neither paragraph (c)(7)(v)(A) nor (B) of this section initially applies, then the blender may drain and subsequently redeliver the original detergent into the tank in restricted amounts, in order to meet the conditions of paragraph (c)(7)(v)(A) or (B) of this section. Otherwise, the blender must comply with paragraph (c)(7)(v)(C) of this section.

(A) If both detergents have the same LAC, and the original detergent accounts for no more than 20 percent of the tank's total delivered volume after addition of the new detergent, then the VAR formula record is required to identify only the use of the new detergent.

(B) If the two detergents have different LACs and the original detergent accounts for 10 percent or less of the tank's total delivered volume after addition of the new detergent, then the VAR formula record is required to identify only the use of the new detergent, and must attain the LAC of the new detergent. If the original detergent's LAC is greater than that of the new detergent, then the compliance period may begin earlier than the date of the commingling event (pursuant to paragraph (c)(7)(iv) of this section) only if the original detergent does not exceed 10 percent of the total detergent used during the compliance period.

(C) If neither of the preceding paragraphs (c)(7)(v)(A) or (B) of this section applies, then the VAR formula record must identify both of the commingled detergents, and must use and attain the higher LAC of the two detergents. Once the commingled detergent has been depleted by an amount equal to the volume of the original detergent in the tank at the time the new detergent was added, subsequent VAR formula records must identify and use the LAC of only the new detergent.

(8) Defense to liability for noncompliance with leaded-only use restrictions. A party shall not be deemed liable for violations of §80.155(a) or (e) caused solely by the additization or use of gasoline or PRC in violation of leaded-only use restrictions, provided that the conditions specified in §80.169(c)(9) are met.

(d) Detergent manufacturer causation liability. In any case in which a detergent manufacturer is liable for a violation of §80.155 pursuant to paragraph (a) of this section, and the manufacturer establishes affirmative defense to such liability pursuant to paragraph (c) of this section, the detergent manufacturer will be liable for the violation of §80.155 pursuant to this paragraph (d) of this section, provided that EPA can demonstrate, by reasonably specific showings by direct or circumstantial evidence, that the detergent manufacturer caused the violation.

[59 FR 54706, Nov. 1, 1994, as amended at 61 FR 35358, July 5, 1996]