§ 714 — Protection of critical infrastructure; storage facilities for hazardous substances

§ 714. Protection of critical infrastructure; storage facilities for\nhazardous substances. 1. Notwithstanding any other provision of law and\nsubject to the availability of an appropriation, the commissioner of the\ndivision of homeland security and emergency services shall conduct a\nreview and analysis of measures being taken by the owners and operators\nof facilities identified pursuant to paragraph (b) of subdivision two of\nthis section to protect the security, and cyber security, of critical\ninfrastructure related to such facilities. The commissioner of the\ndivision of homeland security and emergency services shall have the\nauthority to review all audits or reports related to the security of\nsuch critical infrastructure, including all such audits or reports\nmandated by state and federal law or regulation, including spill\nprevention reports and risk management plans, audits and reports\nconducted at the request of the department of environmental conservation\nor at the request of any federal entity, or any other agency or\nauthority of the state or any political subdivision thereof, and reports\nprepared by owners and operators of such facilities as required in this\nsubdivision. The owners and operators of such facilities shall, in\ncompliance with any federal and state requirements regarding the\ndissemination of such information, provide access to the commissioner of\nthe division of homeland security and emergency services to such audits\nand reports regarding such critical infrastructure provided, however,\nexclusive custody and control of such audits and reports shall remain\nsolely with the owners and operators of such facilities to the extent\nnot inconsistent with any other law. For the purposes of this section,\nthe term "critical infrastructure" has the meaning ascribed to that term\nin subdivision five of section eighty-six of the public officers law.\n 2. To effectuate his or her duties pursuant to this section and\nidentify risks to the public, the commissioner of the division of\nhomeland security and emergency services shall:\n (a) within six months of the effective date of this section, in\nconsultation with the commissioner of environmental conservation, the\ncommissioner of health, and such representatives of the chemical\nindustry and higher education as may be appropriate, prepare a list that\nidentifies toxic or hazardous substances, including but not limited to\nthose substances listed as hazardous to public health, safety or the\nenvironment in regulations promulgated pursuant to article thirty-seven\nof the environmental conservation law, as well as those substances for\nwhich the state possesses insufficient or limited toxicological\ninformation but for which there exists preliminary evidence that the\nsubstance or the class of chemicals with similar physical and chemical\nproperties to which it belongs has the potential to cause death, injury,\nor serious adverse effects to human health or the environment, based on\nthe severity of the threat posed to the public by the unauthorized\nrelease of such substances. Such list will be promulgated in accord with\nthe provisions of the state administrative procedure act;\n (b) upon completion of the list required pursuant to paragraph (a) of\nthis subdivision, but no later than one hundred twenty days after such\ndate, in consultation with the commissioner of environmental\nconservation, the commissioner of health and such representatives of the\nchemical industry and any state, local and municipal officials as may be\nappropriate, identify facilities, including facilities regulated\npursuant to title nine and title eleven of article twenty-seven and\narticle forty of the environmental conservation law, but excluding\nfacilities that hold liquified petroleum gas for fuel at retail sale as\ndescribed in section 112(1)(4)(B) of the Clean Air Act (42 U.S.C.\nsection 7412(r)(4)(b)) and those facilities that are defined as "water\nsuppliers" in subdivision one of section eleven hundred twenty-five of\nthe public health law, which because of their storage of or relationship\nto such substances identified pursuant to paragraph (a) of this\nsubdivision pose risks to the public should an unauthorized release of\nsuch hazardous substances occur; and\n (c) require such facilities identified pursuant to paragraph (b) of\nthis subdivision, as the commissioner so determines, to prepare a\nvulnerability assessment of the security measures taken by such\nfacilities to prevent and respond to the unauthorized release of\nhazardous substances as may be stored therein, which assessments the\ncommissioner of the division of homeland security and emergency services\nshall review and consider in light of the seriousness of the risk posed\nand vulnerability of such facility and, where appropriate, make\nrecommendations with respect thereto.\n 3. (a) On or before June first, two thousand five, the commissioner of\nthe division of homeland security and emergency services shall make a\npreliminary report to the governor, the temporary president of the\nsenate, the speaker of the assembly, the commissioner of environmental\nconservation, the commissioner of health and the chief executive officer\nof any such affected facility or his or her designee, and on or before\nDecember thirty-first, two thousand five, and not later than three years\nafter such date, and every five years thereafter, the commissioner of\nthe division of homeland security and emergency services shall report to\nthe governor, the temporary president of the senate, the speaker of the\nassembly, the commissioner of environmental conservation, the\ncommissioner of health and the chief executive officer of any such\naffected facility or his or her designee. Such report shall review the\nsecurity measures being taken regarding critical infrastructure related\nto such facilities, assess the effectiveness thereof, and include\nrecommendations to the legislature, the department of environmental\nconservation or the department of health if the commissioner of the\ndivision of homeland security and emergency services determines that\nadditional measures are required to be implemented.\n (b) Before the receipt of such report identified in paragraph (a) of\nthis subdivision, each recipient of such report shall develop\nconfidentiality protocols which shall be binding upon the recipient who\nissues the protocols and anyone to whom the recipient shows a copy of\nthe report in consultation with the commissioner of the division of\nhomeland security and emergency services, for the maintenance and use of\nsuch report so as to ensure the confidentiality of the report and all\ninformation contained therein, provided, however, that such protocols\nshall not be binding upon a person who is provided access to such report\nor any information contained therein pursuant to section eighty-nine of\nthe public officers law after a final determination that access to such\nreport or any information contained therein could not be denied pursuant\nto subdivision two of section eighty-seven of the public officers law.\nThe commissioner of the division of homeland security and emergency\nservices shall also develop protocols for such division related to the\nmaintenance and use of such report so as to ensure the confidentiality\nof all sensitive information contained in such report. On each report,\nthe commissioner of the division of homeland security and emergency\nservices shall prominently display the following statement: "This report\nmay contain information that if disclosed could endanger the life or\nsafety of the public, and therefore, pursuant to section seven hundred\neleven of the executive law, this report is to be maintained and used in\na manner consistent with protocols established to preserve the\nconfidentiality of the information contained herein in a manner\nconsistent with law."\n (c) The department of environmental conservation shall have the\ndiscretion to require that recommendations of the commissioner of the\ndivision of homeland security and emergency services be implemented by\nany owner or operator of a hazardous substances storage facility as\ndefined in this section.\n