2010 New York Code
EXC - Executive
Article 26 - (709 - 717) DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES
714 - 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 commissioner of the
  division  of  homeland  security  and emergency services 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  commissioner  of  the  division  of  homeland
  security  and  emergency services 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 commissioner of the division of homeland security
  and emergency  services  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  commissioner  of  the  division  of
  homeland security and emergency services 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  commissioner  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
  commissioner of the division of homeland security and emergency services
  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 commissioner of
  the division of homeland security and emergency services  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  commissioner  of
  the division of homeland security and emergency services 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  commissioner  of  the
  division  of  homeland  security  and emergency services 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  commissioner  of  the  division  of
  homeland security and emergency services, 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 commissioner of the division  of  homeland  security  and  emergency
  services  shall  also develop protocols for such division 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 commissioner of the division  of  homeland  security  and  emergency
  services 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, 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  commissioner  of  the
  division  of  homeland security and emergency services be implemented by
  any owner or operator of a  hazardous  substances  storage  facility  as
  defined in this section.