2023 New York Laws › EXC - Executive › Article 26 - 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, 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.