2023 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.