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SECTION 192-H
Alternate generated power source at retail gasoline outlets
Agriculture & Markets (AGM) CHAPTER 69, ARTICLE 16
§ 192-h. Alternate generated power source at retail gasoline outlets.
1. Definitions. When used in this section:

(a) "Alternate generated power source" means electric generating
equipment that is of a capacity that is capable of providing adequate
electricity to operate all dispensers, dispensing equipment, life safety
systems and payment-acceptance equipment located at a retail outlet and
which can operate independent of the local electric utility distribution
system and provide electricity during a general power outage or declared
energy or fuel supply emergency to operate the systems named herein.

(b) "Chain of retail outlets" means a network of subsidiaries or
affiliates, under direct or indirect common control, that operate ten or
more retail outlets located in a single downstate region; provided,
however that this term does not include any franchisor of the brand of
motor fuel being sold at such outlet, except if such franchisor owns
such outlet.

(c) "Controlled access highway" means every highway, street, or
roadway in respect to which owners or occupants of abutting lands and
other persons have no legal right of access to or from the same except
at such points only and in such manner as may be determined by the
public authority having jurisdiction over such highway, street, or
roadway.

(d) "Diesel motor fuel" means any fuel sold in this state and for use
in diesel engines which is commercially known or offered for sale as
diesel motor fuel.

(e) "Dispenser" means a device located at a retail outlet that is used
to pump motor fuel from an above-ground or underground storage tank into
a motor vehicle.

(f) "Downstate region" means each of the following regions of the
state:

(i) Long Island region: Includes Nassau and Suffolk counties.

(ii) Lower Mid-Hudson region: Includes Rockland and Westchester
counties.

(iii) New York city region: Includes Bronx, Kings, New York, Queens
and Richmond counties.

(g) "Evacuation route" means those roads designated by each county
that are to be used by motorists in case of a hurricane or other natural
disaster.

(h) "Franchisor" means a person or company that grants a franchise to
a franchisee.

(i) "Gasoline" means any fuel sold in this state for use in internal
combustion engines which is commercially known or offered for sale as
gasoline, whether or not blended with ethanol or other chemicals.

(j) "Motor fuel" means any petroleum product, including any gasoline
or diesel motor fuel, which is used for the propulsion of motor
vehicles.

(k) "Retailer" means any person who owns, operates, or controls a
retail outlet that is subject to the requirements of subdivision two of
this section.

(l) "Retail outlet" means a facility, including all land, improvements
and associated structures and equipment, that dispenses motor fuel for
sale to the general public.

2. Prewiring and transfer switch. (a) Retail outlets in the downstate
region shall be prewired with an appropriate transfer switch for using
an alternate generated power source at such retail outlets as follows:

(i) each retail outlet in operation on the effective date of this
section that is located within one-half mile by road measurement from an
exit road on a controlled access highway or from an evacuation route
shall be prewired by no later than April first, two thousand fourteen;

(ii) each retail outlet beginning operation after the effective date
of this section and before April first, two thousand fourteen that is
located within one-half mile by road measurement from an exit road on a
controlled access highway or from an evacuation route shall be prewired
by no later than April first, two thousand fifteen;

(iii) each retail outlet that is located within one-half mile by road
measurement from an evacuation route that is designated as such after
the effective date of this section or within one-half mile by road
measurement from an exit road that is established after the effective
date of this section shall be prewired within one year of such
designation or establishment provided that funding is available at such
time for the program established under subdivision twenty of section
eighteen hundred fifty-four of the public authorities law; and

(iv) thirty percent of all retail outlets that are part of a chain of
retail outlets, exclusive of those included in subparagraphs (i), (ii)
and (iii) of this paragraph, shall be prewired by no later than August
first, two thousand fifteen, provided, however, in the case of an
existing retail outlet that becomes part of a chain of retail outlets
after the effective date of this section and that has been designated by
the chain as an outlet comprising such thirty percent, by no later than
August first, two thousand fifteen or one year after becoming part of
such chain, whichever is later, and provided further, in the case of a
retail outlet that is part of a chain of retail outlets, is part of such
thirty percent and is subject to paragraph (b) of this subdivision as
required in paragraph (b) of this subdivision.

(b) Each retail outlet for which a building permit is issued on or
after April first, two thousand fourteen for new construction or for
substantial demolition and reconstruction, shall be prewired with an
appropriate transfer switch for using an alternate generated power
source.

(c) Such transfer switch and all associated electrical wiring shall be
installed, operated, and maintained in compliance with all applicable
provisions of the New York state uniform fire prevention and building
code or any applicable local building code or standard. Installation of
appropriate wiring and transfer switches shall be performed by a
licensed electrical contractor.

(d) Each retailer shall keep on file at the retail outlet a written
statement in a form approved by the department and containing an
attestation by a licensed electrician that the wiring and transfer
switch were installed in accordance with the manufacturer's
specifications. In addition, each such retailer shall maintain the
wiring and transfer switch in accordance with the manufacturer's
specifications.

(e) Each retail outlet in operation on the effective date of this
section that sold less than seventy-five thousand gallons of motor fuel
per month on average for the period they were in operation during the
twelve months prior to the effective date shall be exempt from the
requirements of this subdivision.

3. Emergency deployment. In the event that a declaration of an energy
or fuel supply emergency issued by the governor, the county executive of
a county in the downstate region or the mayor of a city with a
population in excess of one million inhabitants is in effect, a retailer
of a retail outlet within any such county or city for which such
declaration was issued shall deploy and install an alternate generated
power source as follows:

(a) For a retail outlet subject to the requirements of: (i)
subparagraphs (i), (ii) or (iii) of paragraph (a) of subdivision two of
this section or (ii) paragraph (b) of subdivision two of this section
that is located in the downstate region and that is located within
one-half mile by road measurement from an exit road on a controlled
access highway or from an evacuation route, within twenty-four hours of
such declaration, if such outlet is without power at the time of such
declaration. Provided, however, if any such outlet loses power following
such declaration and while the declaration is still in effect, then the
alternate generated power source shall be deployed and installed within
twenty-four hours of such loss of power.

(b) For a retail outlet prewired pursuant to the requirements of
subparagraph (iv) of paragraph (a) of subdivision two of this section,
within forty-eight hours of such declaration, if such outlet is without
power at the time of such declaration. Provided, however, if any such
outlet loses power following such declaration and while the declaration
is still in effect, then the alternate generated power source shall be
deployed and installed within forty-eight hours of the loss of power.

3-a. Declaration of energy or fuel supply emergency. Upon issuance of
a declaration of an energy or fuel supply emergency pursuant to this
subdivision, a county executive of a county in the downstate region or
mayor of a city with a population in excess of one million inhabitants
who declared such emergency shall promptly notify the president of the
New York state energy research and development authority, the
commissioner of homeland security and emergency services, and impacted
residents using such means as are practicable and efficient.

4. Plan for alternate generated power source. Each retailer subject to
subdivision three of this section shall by the date of the installation
of the prewiring and transfer switch required under subdivision two of
this section have in place at each applicable retail outlet
documentation in a form approved by the department demonstrating a plan
to deploy and install an alternate generated power source located at
such retail outlet as required under subdivision three of this section.
Such plan shall take one of the following forms:

(a) a receipt or other documentation showing ownership of such power
source;

(b) for a retailer subject to paragraph (a) of subdivision three of
this section, documentation attesting to participation in the program
established under subdivision twenty-one of section eighteen hundred
fifty-four of the public authorities law; or

(c) a contract with a supplier of such power source providing for
deployment and installation of such power source in compliance with the
requirements of this section, or other documentation demonstrating the
retailer's ability to comply with the requirements of this section,
which may include the generator deployment and installation plan of a
chain of retail outlets.

5. Inspection; recordkeeping; reporting. The commissioner or the
commissioner's designee shall be authorized to enter during regular
business hours upon a retail outlet subject to the requirements of
subdivision two of this section for the purpose of determining
compliance with the provisions of this section and any rules or
regulations promulgated hereunder. All documents required pursuant to
subdivisions two and four of this section shall be maintained at the
applicable retail outlet and made available to the commissioner or the
commissioner's designee upon request. In addition, each retailer of a
retail outlet, except for retail outlets granted exemptions under
paragraph (e) of subdivision two of this section, shall provide to the
department by April first, two thousand fourteen and every two years
thereafter written documentation in a form approved by the department
certifying that such retail outlet is in compliance with the
requirements of this section, and any other requirement specified by any
rules or regulations promulgated hereunder; provided, however, that, for
each retail outlet that is part of a chain of retail outlets or to which
subparagraph (ii) or (iii) of paragraph (a) or paragraph (b) of
subdivision two applies, such written documentation shall be provided to
the department within ten days after the date of installation of the
prewiring and transfer switch required to be installed under subdivision
two of this section and every two years thereafter.

6. Rules and regulations; notification of applicability. The
commissioner shall have the authority, with the assistance of the
commissioner of transportation, the commissioner of homeland security
and emergency services, the president of the New York state energy
research and development authority, the secretary of state and the chair
of the public service commission, to promulgate such rules and
regulations as the commissioner shall deem necessary to effectuate the
purposes of this section. The commissioner shall by June first, two
thousand thirteen: (a) notify by first class mail all existing retail
outlets that appear to meet the criteria specified in subdivision two of
this section of the requirements of this section and include with such
notification any other information deemed necessary by the commissioner,
including information regarding applicability criteria, compliance
measures and potential grant assistance; (b) provide a list of all such
retail outlets to the governor, the temporary president of the senate
and the speaker of the assembly; and (c) post such list on the
department's website. If approval of federal mitigation funds or other
approved resources for the program established under subdivision twenty
of section eighteen hundred fifty-four of the public authorities law
occurs after June first, two thousand thirteen, the commissioner shall
provide additional notification of such approval within thirty days. Any
retailer of a retail outlet specified on such list shall be subject to
the requirements of this section unless he or she provides written
documentation to the department by August first, two thousand thirteen
proving that such outlet does not qualify, or is eligible for an
exemption pursuant to paragraph (e) of subdivision two of this section.
The commissioner shall update such list every five years thereafter and
notify all new retail outlets that become subject to the requirements of
this section; provided, however, that compliance with the requirements
of this section is not conditioned on such notification.

7. Violations and penalties. Any retailer who violates any provision
of this section, or any rule or regulation promulgated hereunder, shall
be liable to the people of the state for a civil penalty of up to one
thousand five hundred dollars per day for every such violation, to be
assessed by the commissioner, after a hearing or opportunity to be heard
upon due notice and with the right to representation by counsel. In
determining the amount of civil penalty, the commissioner shall take
into consideration mitigating factors, such as the availability of
gasoline at the retail outlet, provided that the retailer did not refuse
such delivery, and the extent to which the retailer's action or inaction
contributed to the violation. Such penalty may be recovered in an action
brought by the attorney general at the request and in the name of the
commissioner in any court of competent jurisdiction. Such civil penalty
may be released or compromised by the commissioner before the matter has
been referred to the attorney general. Additionally, after such hearing
and a finding that such retailer has violated the provisions of this
section, or of any rule or regulation promulgated thereunder, the
commissioner may issue and cause to be served upon such person an order
enjoining such person from violating such provisions and taking all
necessary actions for such person to come into compliance with such
provisions. Any such order of the commissioner may be enforced in an
action brought by the attorney general at the request and in the name of
the commissioner in any court of competent jurisdiction.

Notwithstanding the foregoing, such retailer shall not be in violation
of subdivision three of this section if he or she is unable to deploy,
install or operate an alternate generated power source because of
uncontrollable circumstances, including but not limited to, restrictions
imposed by public safety officers to address an emergency situation or
that such retail station is made unsafe or unable to operate due to acts
of God, fires, floods, explosions or the safety of personnel needed to
operate such retail outlet. Additionally, such retailer shall not be in
violation of subdivision three of this section if he or she is a
participant in the program established under subdivision twenty-one of
section eighteen hundred fifty-four of the public authorities law and a
generator is not provided to the retailer due to the prioritization
allowed under such subdivision or through no fault of the retailer.

8. This section shall not be construed to require any retailer to
maintain set business hours in the event of an energy or fuel supply
emergency.

9. The provisions of this section shall supersede all local laws or
ordinances in the downstate region relating to the installation and
deployment of an alternate generated power source or any related
electrical or other equipment at any retail outlet.

10. The requirements of this section shall be contingent on the
approval of federal mitigation funds or other approved resources for the
program established under subdivision twenty of section eighteen hundred
fifty-four of the public authorities law. In the event such approval
does not occur as of June first, two thousand thirteen, all deadlines
with a date of April first, two thousand fourteen shall be delayed by
the amount of time such approval is delayed past June first, two
thousand thirteen.