Retailers are not required to show an appropriate sampling and testing program to establish a defense to liability. (See § 80.613(a)(1)(iii).) However, distributors, including truck distributors, who take title to the fuel and deliver product to their retail outlets, must conduct a quality assurance sampling and testing program.

These requirements are the same as in other fuels rules. A truck distributor could rely, in part, on a proper quality assurance sampling and testing program conducted by the terminal. But since there may be opportunities for the trucker to obtain improper product (e.g., 500 ppm fuel instead of the 15 ppm fuel that was ordered), or commingle high sulfur products with 15 ppm product, or otherwise cause violations, sampling at locations downstream from the truck loading terminal would be appropriate.

If a distributor must utilize an outside laboratory to obtain test results, and if it is impossible for the distributor to obtain results quickly, the periodic sampling and testing quality assurance program would still be useful in as much as it would show if any violations are occurring and based on those findings the distributor and retailer should act immediately to prevent future violations, and to remedy the present violation if it still possible to do so by shutting down the affected pump stands until the product meets standards. In this situation, if a violation occurred and is discovered through the quality assurance testing, the distributor and retailer may not be able to establish a defense to the violation based on the delayed test results.

However, EPA may take any such unavoidable delay into account in its evaluation of the case. Moreover, the distributor could, as stated above, limit its exposure, by obtaining as many terminal test results as possible. Whether the distributor and retailer could meet the causation element and PTD element would depend on the specific facts.

Question and Answer was originally posted at Questions and Answers on the Clean Diesel Fuel Rules (PDF)(135 pp, 888 K, EPA420-B-06-010, July 2006, About PDF)