Section 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 one cent per barrel transferred until
  the balance in such account established by paragraph (a) of  subdivision
  two  of  section  one  hundred  seventy-nine  of  this article equals or
  exceeds twenty-five million dollars, 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. In each fiscal year following any year in which the balance of
  such  account  equals or exceeds twenty-five million dollars, no license
  fee shall be imposed unless (a) the current balance in such  account  is
  less  than  twenty  million  dollars  or (b) pending claims against such
  account exceed fifty percent of the existing balance  of  such  account.
  The provisions of the foregoing notwithstanding, should claims paid from
  such  account  not  exceed five million dollars within three years after
  the license fee is first imposed, the license fee shall be one cent  per
  barrel  transferred  until the balance in such account equals or exceeds
  eighteen million dollars, and thereafter shall not  be  imposed  unless:
  (1)  the  current  balance  in such account is less than fifteen million
  dollars or (2) 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. In the event of a major discharge or
  series of discharges resulting in claims against such account  exceeding
  the  existing  balance of such account, the license fee shall be imposed
  at the rate of eight cents per barrel transferred until the  balance  in
  such  account  equals  pending  claims  against  such account; provided,
  however, that the rate may be set at less than eight  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  eighteen  million  dollars or twenty-five
  million dollars, as herein  provided,  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 two and one-half cents
  per barrel for each barrel transferred on or after June first,  nineteen
  hundred   eighty-five   but  before  February  first,  nineteen  hundred

  eighty-eight. Such surcharge shall  be  three  and  one-half  cents  per
  barrel  for each barrel transferred on or after February first, nineteen
  hundred  eighty-eight,  but  before  February  first,  nineteen  hundred
  ninety.  Such  surcharge  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 one and one-half 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.
    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.