If a party conducts no quality assurance/sampling and testing, it cannot establish a defense. However, a party can satisfy the periodic sampling and testing element of its defense by demonstrating that its periodic sampling is done at a frequency that is appropriate given all of the circumstances. It is not necessarily required that the product EPA finds to be in violation was actually sampled and tested. However, for parties such as terminals, an adequate sampling frequency may require sampling after each receipt of product. EPA will investigate whether other parties may be liable, but each party must be able to establish a defense.
Question and Answer was originally posted at http://www.epa.gov/otaq/diesel/documents/420b06010.pdf
Under the rule, sampling and testing is voluntary for downstream parties, however, to establish a defense to presumptive liability, they will engage in periodic testing. If a downstream party is not in the midst of periodic testing and is found in possess
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