ISSUE ALERT
Chemical Security Legislation Approved
Last week, the Senate introduced and passed anti-terrorism legislation that had been approved by
the State Assembly in June. This bill contains very broad, yet very vague provisions regarding
security requirements at chemical facilities. As the bill received a so-called “message of
necessity” from Governor Pataki (a procedural measure that allows for fast-track approval of new
legislation), its highly likely that this measure will be signed into law. It is currently on the
Governor's desk for review/approval.
An annotated version of the bill text is provided below, with significant provisions underlined. A
summary of this measure is as follows:
- it requires designated facilities to prepare vulnerability assessments of the security measures
taken to prevent and respond to the unauthorized release of hazardous substances that may be
stored on-site.
- these facilities would be designated through a two step process. First, the state office of
homeland security will identify toxic/hazardous materials that have 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. This list is to include,
but not be limited to, the state's CBS list (over 1,100 substances.) Second, the same office will
promulgate a list of facilities that, “because of their storage of or relationship to such [hazardous
substances]” pose risks to the public in the event of an unauthorized release of such hazardous
substances.
- finally, and most significantly, the office of homeland security is empowered to review these
vulnerability assessments and “where appropriate, make recommendations with respect thereto,” and the Department of Environmental Conservation is authorized to require the
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."
There are several major problems with this legislation:
- it establishes no minimum threshold for on-site storage of hazardous materials in order to invoke this assessment/improvement mandate; in fact, the facility doesn't even have to be subject to the state's CBS regulation.
- the bill includes no risk threshold in order to impose this assessment/security upgrade mandate;
facilities can be included in the program if there is any public risk posed by the potential
unauthorized release of hazardous materials. For that matter, the bill doesn't even specify that
potential unauthorized releases be the result of terrorist or criminal acts.
- the bill contains no criteria defining or limiting the scope of security improvements that can be
recommended by the Office of Homeland Security and mandated by the DEC.
- the bill contains no procedural measures by which the DEC would implement — or by which a
facility could challenge — security improvements proposed by the Office of Homeland Security,
nor does it contain any provisions for the enforcement of this requirement.
Unfortunately, at this point in time, there are limited actions available to the business
community: push for a chapter amendment that imposes reasonable criteria on the program or
consider possible legal challenge to the measure.
I would be interested in hearing your comments and concerns regarding this proposal. Please
feel free to contact me via phone or return email. My contact information is provided below.
PART C 3 Section 1. The executive law is amended by adding a new section 714 to 4 read as
follows: 5
§ 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. [Note, that definition is as follows: "critical infrastructure"
means systems, assets, places or things, whether physical or virtual, so vital to the state that the
disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize
the health, safety, welfare or security of the state, its residents or its economy.]
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 6 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 28 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.
§ 2. This act shall take effect immediately.
