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SECTION 174
Licenses
Navigation (NAV) CHAPTER 37, ARTICLE 12, PART 2
§ 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.