§ 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.

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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.