The facility where the violation is found and all parties in the distribution system upstream of that facility will be presumed liable. However, each party has the opportunity to establish a defense to the presumptive liability. For example, an upstream distributor who takes custody of a fuel would be presumed liable, and would need to demonstrate that it did not cause the violation- that product transfer documents account for the fuel and show that the fuel was apparently in compliance when it was in its custody and that it has an adequate periodic sampling and testing program (regardless of whether or not it tested that specific batch of fuel). However, if the fuel custodian is a retailer or wholesale purchaser-consumer, they would not be required to have a periodic sampling and testing program in order to establish a defense.
Question and Answer was originally posted at http://www.epa.gov/otaq/diesel/documents/420b06010.pdf
EPA appears to focus enforcement on the custodian of the fuel, even though a compliance violation may well have occurred further upstream. Will EPA automatically require custodians to raise a defense and overcome a presumption of liability for simply poss
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