If a refiner sends RFG to an intermediate party who inadvertently sends it to a region with stricter parameters, is the refiner liable provided the refiner otherwise meets all the elements of its defense?
In a case where a party (Party A) delivers RFG to another party (Party B), and the gasoline when delivered meets all applicable standards and is accompanied with product transfer documents as required under § 80.77 that inform Party B of the proper time and place of use for the gasoline, Party A normally would not be responsible if Party B later uses this gasoline in a time or place that is not proper. Party A could be liable for this later improper use by Party B, however, if Party A either knew or reasonably should have known of the improper use by Party B, and did not take steps to prevent the violation.
For example, consider a case where a large volume of non-VOC controlled RFG is delivered to a terminal on April 30, and a violation of the VOC standard is discovered on May 1. In this case the distributor who sold this gasoline to the terminal would be liable for the violation (in addition to the terminal-distributor), because the seller-distributor knew or should have known the delivery would result in a violation.
Another example would be a case where a terminal-distributor located in Philadelphia - which is in VOC-control Region 2 - intends to dispense gasoline that is properly identified for that Region into a truck for retail delivery. If the truck loading documents identify a delivery location in Baltimore - which is VOC-control Region 1 - the terminal-distributor would know or reasonably should know of the impending improper gasoline use. If the terminal-distributor nevertheless dispenses the gasoline, the terminal-distributor would be liable for this violation.
These examples illustrate EPA's requirement that parties may not operate in a manner that will cause violations by other parties, and may not supply gasoline to another party if it is known (or reasonably should be known) that party will use the gasoline in a manner that violates the regulations. In a situation where a party knows or should know that gasoline in its control has been or will be used in violation of the regulations, EPA requires the party take affirmative steps to prevent the violation. If another person refuses to cooperate in the violation prevention, the party should discontinue doing business with that person. (7/1/94)
This question and answer was posted at List of Reformulated Gasoline and Anti-Dumping Questions and Answers: July 1, 1994 through November 10, 1997 (pdf)