2006 New York Code - Protection Of Critical Infrastructure; Storage Facilities For Hazardous Substances

 
    §  714.  Protection of critical infrastructure; storage facilities for
  hazardous substances. 1. Notwithstanding any other provision of law  and
  subject  to  the  availability  of an appropriation, the director of the
  office of homeland security shall  conduct  a  review  and  analysis  of
  measures   being  taken  by  the  owners  and  operators  of  facilities
  identified pursuant to paragraph (b) of subdivision two of this  section
  to  protect  the  security  of  critical  infrastructure related to such
  facilities. The director of the office of homeland security  shall  have
  the authority to review all audits or reports related to the security of
  such  critical  infrastructure,  including  all  such  audits or reports
  mandated by  state  and  federal  law  or  regulation,  including  spill
  prevention  reports  and  risk  management  plans,  audits  and  reports
  conducted at the request of the department of environmental conservation
  or at the request  of  any  federal  entity,  or  any  other  agency  or
  authority of the state or any political subdivision thereof, and reports
  prepared  by owners and operators of such facilities as required in this
  subdivision. The owners and  operators  of  such  facilities  shall,  in
  compliance  with  any  federal  and  state  requirements  regarding  the
  dissemination of such information, provide access to the director of the
  office of homeland security to such audits and  reports  regarding  such
  critical infrastructure provided, however, exclusive custody and control
  of  such  audits  and  reports  shall  remain solely with the owners and
  operators of such facilities to the extent  not  inconsistent  with  any
  other  law.  For  the  purposes  of  this  section,  the  term "critical
  infrastructure" has the meaning ascribed to  that  term  in  subdivision
  five of section eighty-six of the public officers law.
    2.  To  effectuate  his  or  her  duties  pursuant to this section and
  identify risks to the public, the director of  the  office  of  homeland
  security shall:
    (a)  within  six  months  of  the  effective  date of this section, in
  consultation with the commissioner of  environmental  conservation,  the
  commissioner  of  health,  and  such  representatives  of  the  chemical
  industry and higher education as may be appropriate, prepare a list that
  identifies toxic or hazardous substances, including but not  limited  to
  those  substances  listed  as  hazardous to public health, safety or the
  environment in regulations promulgated pursuant to article  thirty-seven
  of  the  environmental conservation law, as well as those substances for
  which  the  state  possesses  insufficient  or   limited   toxicological
  information  but  for  which  there exists preliminary evidence that the
  substance or the class of chemicals with similar physical  and  chemical
  properties to which it belongs has the potential to cause death, injury,
  or  serious adverse effects to human health or the environment, based on
  the severity of the threat posed  to  the  public  by  the  unauthorized
  release of such substances. Such list will be promulgated in accord with
  the provisions of the state administrative procedure act;
    (b)  upon completion of the list required pursuant to paragraph (a) of
  this subdivision, but no later than one hundred twenty days  after  such
  date,   in   consultation   with   the   commissioner  of  environmental
  conservation, the commissioner of health and such representatives of the
  chemical industry and any state, local and municipal officials as may be
  appropriate,  identify  facilities,   including   facilities   regulated
  pursuant  to  title  nine  and  title eleven of article twenty-seven and
  article forty of  the  environmental  conservation  law,  but  excluding
  facilities  that hold liquified petroleum gas for fuel at retail sale as
  described in section 112(1)(4)(B)  of  the  Clean  Air  Act  (42  U.S.C.
  section  7412(r)(4)(b))  and those facilities that are defined as "water
  suppliers" in subdivision one of section eleven hundred  twenty-five  of
  the public health law, which because of their storage of or relationship
  to  such  substances  identified  pursuant  to  paragraph  (a)  of  this
  subdivision pose risks to the public should an unauthorized  release  of
  such hazardous substances occur; and
    (c)  require  such  facilities identified pursuant to paragraph (b) of
  this  subdivision,  as  the  director  so  determines,  to   prepare   a
  vulnerability   assessment  of  the  security  measures  taken  by  such
  facilities to  prevent  and  respond  to  the  unauthorized  release  of
  hazardous  substances  as  may  be stored therein, which assessments the
  director of the office of homeland security shall review and consider in
  light of the seriousness of the risk posed  and  vulnerability  of  such
  facility  and,  where  appropriate,  make  recommendations  with respect
  thereto.
    3. (a) On or before June first, two thousand  five,  the  director  of
  homeland  security  shall make a preliminary report to the governor, the
  temporary president of the senate, the  speaker  of  the  assembly,  the
  commissioner  of  environmental conservation, the commissioner of health
  and the chief executive officer of any such affected facility or his  or
  her designee, and on or before December thirty-first, two thousand five,
  and  not  later  than  three years after such date, and every five years
  thereafter, the director of the office of homeland security shall report
  to the governor, the temporary president of the senate, the  speaker  of
  the  assembly,  the  commissioner  of  environmental  conservation,  the
  commissioner of health and the  chief  executive  officer  of  any  such
  affected  facility  or his or her designee. Such report shall review the
  security measures being taken regarding critical infrastructure  related
  to  such  facilities,  assess  the  effectiveness  thereof,  and include
  recommendations to the  legislature,  the  department  of  environmental
  conservation  or  the department of health if the director of the office
  of homeland security determines that additional measures are required to
  be implemented.
    (b) Before the receipt of such report identified in paragraph  (a)  of
  this   subdivision,   each   recipient  of  such  report  shall  develop
  confidentiality protocols which shall be binding upon the recipient  who
  issues  the  protocols  and anyone to whom the recipient shows a copy of
  the report in consultation with the director of the office  of  homeland
  security, for the maintenance and use of such report so as to ensure the
  confidentiality  of  the  report  and all information contained therein,
  provided, however, that such protocols  shall  not  be  binding  upon  a
  person  who  is  provided  access  to  such  report  or  any information
  contained therein pursuant to section eighty-nine of the public officers
  law after a final determination  that  access  to  such  report  or  any
  information   contained   therein   could  not  be  denied  pursuant  to
  subdivision two of section eighty-seven of the public officers law.  The
  director of the office of homeland security shall also develop protocols
  for  such office related to the maintenance and use of such report so as
  to ensure the confidentiality of all sensitive information contained  in
  such  report.  On  each  report,  the director of the office of homeland
  security shall prominently display the following statement: "This report
  may contain information that if disclosed could  endanger  the  life  or
  safety  of  the public, and therefore, pursuant to section seven hundred
  eleven of the executive law, as added by a chapter of the  laws  of  two
  thousand  four,  this  report  is  to be maintained and used in a manner
  consistent with protocols established to preserve the confidentiality of
  the information contained herein in a manner consistent with law."
    (c) The  department  of  environmental  conservation  shall  have  the
  discretion to require that recommendations of the director of the office
  of  homeland  security  be  implemented  by  any  owner or operator of a
  hazardous substances storage facility as defined in this section.