N.Y. Executive Law § 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, and cyber 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.