NY Nav L § 174 (2021)
2021 New York Laws NAV - Navigation Article 12 - Oil Spill Prevention, Control, and Compensation Part 2 - Oil Spill Cleanup and Removal; Licenses 174 - Licenses.

§ 174. Licenses.  1. No person shall operate or cause to be operated a major facility as defined in this article without (a) a  license  issued by  the  commissioner,  (b)  without paying a license fee if such fee is required by the administrator, pursuant to the provisions  of  paragraph (a)  of  subdivision  four  of  this section, and (c) without paying the surcharge established by paragraph  (b)  of  subdivision  four  of  this section.   2.  Licenses  shall  be  issued for a period not to exceed five years, subject to such terms and conditions as the department may determine are necessary to carry out the purposes of this article.   3. As a condition precedent to the issuance or renewel  of  a  license the  department  shall  require satisfactory evidence that the applicant has implemented or is in the process of implementing state  and  federal plans  and  regulations  for control of discharges of petroleum, and the containment and removal thereof when a discharge occurs.   4. (a) The license fee shall be nine and  one-half  cents  per  barrel transferred,  provided,  however,  that the fee on any barrel, including any products derived therefrom, subject to multiple transfer,  shall  be imposed  only once at the point of first transfer. Provided further, the license fee for major facilities that (i) transfer barrels for their own use, and (ii) do not sell  or  transfer  the  product  subject  to  such license  fee,  shall  be  eight cents. In each fiscal year following any year in which the balance of the account established by paragraph (a) of subdivision two of section one  hundred  seventy-nine  of  this  article equals or exceeds forty million dollars, no license fee shall be imposed unless  (a) the current balance in such account is less than thirty-five million dollars or (b) pending claims against such account exceed  fifty percent  of the existing balance of such account. In the event of either such occurrence and upon certification thereof by the state comptroller, the  administrator  shall  within  ten  days  of  the   date   of   such certification  reimpose  the license fee, which shall take effect on the first day of the month following such relevy. The rate  may  be  set  at less  than  nine  and  one-half  cents  per  barrel  transferred  if the administrator determines that the revenue produced by  such  lower  rate shall  be  sufficient  to  pay  outstanding  claims against such account within one year of such imposition  of  the  license  fee.  Should  such account  exceed  forty  million  dollars,  as  a result of interest, the administrator and the commissioner of environmental  conservation  shall report  to  the  legislature and the governor concerning the options for the use of such interest. The fee established by  this  paragraph  shall not  be  imposed  upon  any  barrel which is transferred to a land based facility but thereafter exported from this state  for  use  outside  the state  and  is  shipped  to  facilities  outside the state regardless of whether the delivery or sale of such petroleum occurs in this state.  (b) The surcharge on the license fee shall  be  four  and  one-quarter cents per barrel for each barrel transferred on or after February first, nineteen hundred ninety.  (c)  The  surcharge  established  by paragraph (b) of this subdivision shall continue to be paid despite the fact that the license fee  imposed pursuant  to  paragraph  (a)  of  this subdivision may, pursuant to said paragraph, no longer be imposed.  (d) The surcharge established by paragraph  (b)  of  this  subdivision shall  be  thirteen  and  three quarters cents per barrel for any barrel that is transferred but thereafter exported  from  this  state  for  use outside  the  state  as  described by paragraph (a) of this subdivision. Twelve and one-quarter cents of such surcharge shall be credited to  the account  established  by paragraph (a) of subdivision two of section one hundred seventy-nine of this article.    5. Every licensee required to pay a major  petroleum  license  fee  or surcharge  pursuant  to paragraph (a) or (b) of subdivision four of this section shall on or before the twentieth day of the month following  the close  of  each  license  fee period certify to the commissioner on such forms  as may be prescribed by the commissioner the number of barrels of petroleum transferred  to  the  licensee's  major  facility  during  the license fee period and at the same time shall pay the full amount of the license  fee and surcharge due except that no licensee shall be required to make such payment until the cumulative amount due equals  or  exceeds one  hundred  dollars.  Any  licensee  whose  cumulative  license fee or surcharge does not equal or exceed one hundred  dollars  annually  shall pay  the  total  amount due on or before the twentieth day following the expiration  date  of  the  license  issued  pursuant  to  this  section. Licensees  who  did  not  have to pay the license fee or surcharge shall certify annually to the commissioner on a form as may be  prescribed  by the  commissioner  on  or  before  the  twentieth  day of April that the barrels of petroleum transferred to the licensee's major  facility  were not subject to the license fee or surcharge.   6.  If  a  certificate  required by this section is not filed, or if a certificate when filed is incorrect or insufficient in  the  opinion  of the  commissioner,  the  amount of license fee or surcharge due shall be determined  by  the  commissioner  from  such  information  as  may   be available.  Notice of such determination, and notice of licensee's right to appeal such determination, shall be given to the licensee liable  for the  payment  of  the license fee or surcharge. Such determination shall finally and irrevocably fix the  fee  or  surcharge  unless  the  person against  whom  it is assessed, within thirty days after receiving notice of such determination, shall apply to the commissioner for a hearing, or unless the commissioner on his own motion shall  redetermine  the  same. After   such   hearing   the  commissioner  shall  give  notice  of  his determination to the person to whom the  license  fee  or  surcharge  is assessed.   7.  Any  licensee  failing  to  file  a  certificate, failing to pay a license  fee  or  surcharge,  or  filing  or  causing  to  be  filed,  a certificate  which  is  willfully  false, or failing to keep any records required by this article or rules  and  regulations  adopted  hereunder, shall,  in addition to any other penalties herein or otherwise provided, be subject to a fine not to exceed two times the annual license  fee  or surcharge, as determined by the commissioner.   8.  Within  three  months  of the effective date of this article every owner or operator of a  major  facility  shall  obtain  a  license.  The department  shall  issue a license upon the showing that such registrant can  provide  necessary  equipment  to  prevent,  contain   and   remove discharges of petroleum.   9.  On  or after June twenty-ninth, nineteen hundred seventy-eight, no person shall operate or cause to be operated any major facility  without a major facility license issued by the commissioner. No license shall be valid  for  more  than  five  years. Each applicant for a major facility license  shall  submit  information,  in  a  form  satisfactory  to  the commissioner, describing the following:  (a)  The  number  of  barrels  or  another  measurement of the storage capacity of the facility;  (b) Average daily throughput of the facility;  (c) A primary and contingency cleanup and removal plan which includes, but is not limited to, an inventory of:  (i) The storage and transfer capacity of the facility;  (ii) The containment and removal equipment, including, but not limited to,  vehicles,  vessels,  pumps,   skimmers,   booms,   chemicals,   and  communication  devices,  to which the facility has access through direct ownership  or  by  contract  or  membership  in  a   discharge   cleanup organization recognized by the departments of environmental conservation and transportation as well as the time lapse following a discharge which precedes such access;  (iii)  The  trained  personnel  which  are  required  and available to operate such containment  and  removal  equipment  and  the  time  lapse following a discharge which precedes such availability;  (iv)  All  equipment  and  trained  personnel  used  or  employed in a capacity at the facility to prevent discharges of petroleum;  (v) The terms of agreement and operation plan of any discharge cleanup organization to which the owner or operator of the facility belongs;  (vi) The type and amount of petroleum transferred, refined,  processed or stored at the facility;  (d) The steps taken to insure prevention of a discharge;   10.  No  portion of fees or surcharges assessed and collected pursuant to this section shall be used for any purpose if such use, under federal law, would preclude the collection of such fee or surcharge.   11. Each owner or operator of a major facility or  vessel  subject  to the  provisions of this article shall designate a person in the state as his legal agent for service of  process  under  this  section  and  such designation  shall  be filed with the secretary of state. In the absence of such designation the secretary of state shall be the designated agent for purposes of service of process under this section.