§ 174-a. Use of containment booms. 1. The commissioner, after consultation with appropriate federal, state and local governments and agencies, may promulgate regulations requiring the use of containment booms or prestaging of response equipment around or at major facilities and vessels involved in the transfer of petroleum. The commissioner may consult with interested groups and trade associations in developing such regulations. In adopting such regulations, the commissioner shall consider factors, including but not limited to applicable federal laws and regulations, weather conditions, tides, health and safety of workers and product being transferred. 2. Whenever petroleum is transferred after sunset and before sunrise, lighting adequate to detect any petroleum discharge shall be in operation. 3. The deployment of containment booms pursuant to this part shall be the responsibility of the owner, lessee or operator of the vessels involved in a vessel-to-vessel petroleum transfer. The deployment of containment booms pursuant to this part shall be the responsibility of the owner, lessee or operator of the major facility involved in a petroleum transfer between a vessel and a major facility. 4. (a) Any local law or ordinance which is inconsistent with any provision of this part or any rule or regulation promulgated hereunder shall be preempted, except that any local law or ordinance of any county, or of any city of a population of one million or more, which is inconsistent with the provisions of this part or any rules or regulations promulgated hereunder shall not be preempted if such local law or ordinance provides environmental protection equal to or greater than the provisions of this part of any rules or regulations promulgated hereunder, and such county or city files with the department a written declaration of its intent to administer and enforce such local law or ordinance which is approved by the commissioner in written findings which set forth the terms of such approval.

(b) Any owner, lessee or operator violating any provisions of this section or any rule promulgated thereunder shall: (i) if the transfer involves and/or the vessel contains less than one million gallons, be liable for a penalty of not more than twenty-five thousand dollars for each offense in a court of competent jurisdiction; or (ii) if the transfer involves and/or the vessel contains one million gallons or more, be liable for a penalty of not more than fifty thousand dollars for each offense in a court of competent jurisdiction. Every violation of this section shall be a separate and distinct offense, and, in case of a continuing violation, every day's continuance thereof shall be deemed to be a separate and distinct offense.

(c) All penalties and fines imposed under this section shall be credited to the New York environmental protection and spill compensation fund pursuant to paragraph (a) of subdivision two of section one hundred seventy-nine of this chapter.