The preamble is correct- a party that is presumed liable must establish all three elements (except for retailers and wholesale purchaser-consumers, which are not required to have a periodic sampling and testing program). This is consistent with all of the fuels rules in Part 80, and was corrected in a recent technical amendment (July 7, 2005). For example, where a truck distributor drops 500 ppm sulfur content fuel into a retailer storage tank that supplies a 15 ppm pump stand, both parties will be presumed liable. However, the retailer may establish a defense- even if it subsequently sold the fuel as 15 ppm fuel- if it can demonstrate that it did not cause the violation and that the PTDs account for the fuel as being 15 ppm fuel, and thus show the fuel to be in violation. (In this example, if the party in question was not a retailer, it would also need to demonstrate- regardless of whether or not it tested that specific batch of fuel- that it has an adequate sampling and testing program in place). If the product transfer document stated that the fuel was 500 ppm fuel, then the retailer cannot establish a defense unless it immediately stopped sale and took actions (probably in association with the distributor) to remedy the violation. If the retailer sells the product as 15 ppm fuel even though the product transfer document shows 500 ppm fuel was dropped, then it cannot meet the second element of its defense.
Question and Answer was originally posted at http://www.epa.gov/otaq/diesel/documents/420b06010.pdf
The rule states that a party that is initially deemed liable for a violation of the rule will not be deemed liable if the party demonstrates: (1) the violation was not caused by the party; (2) product transfer documents show that the violating product was
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