§ 27-1205 — Mitigation of contaminants in drinking water

§ 27-1205. Mitigation of contaminants in drinking water.\n 1. Whenever the commissioner of health has required a public water\nsystem to take action to reduce exposure to an emerging contaminant or\nemerging contaminants and has determined that the concentration of the\nemerging contaminant constitutes an actual or potential threat to public\nhealth based on the best available scientific information pursuant to\nsection eleven hundred twelve of the public health law, the department\nin conjunction with the department of health, may, pursuant to the Clean\nWater Infrastructure Act of 2017 and within the up to one hundred thirty\nmillion dollars appropriated for such purposes, undertake all reasonable\nand necessary additional mitigation measures in any area of the state in\nwhich contamination is known to be present. The department shall employ\nfeasible measures that can be successfully carried out with available,\nimplementable and cost effective technology. Such area shall include, at\na minimum, all properties served by the public water system, any\nindividual onsite water supply systems impacted by the contamination,\nand any land and any surface or underground water sources impacted by\nthe contamination. Such approved measures shall be protective of public\nhealth and may include but not be limited to the installation of\ntreatment systems or the provision of alternative water supply sources\nto ensure that drinking water meets applicable standards, including\nmaximum contaminant levels, notification levels, maximum residual\ndisinfectant levels, or action levels established by the department of\nhealth.\n 2. If the department or the department of health, as applicable,\ndetermines that a drinking water contamination site poses a significant\nthreat to the public health or environment from a hazardous waste, the\ndepartment shall refer the site to the inactive hazardous waste disposal\nsite remedial program pursuant to title thirteen of this article.\n 3. Whenever the commissioner of health has required a public water\nsystem to take action to reduce exposure to emerging contaminants and\nhas determined that the concentration of the emerging contaminant\nconstitutes an actual or potential threat to public health based on the\nbest available scientific information pursuant to section eleven hundred\ntwelve of the public health law:\n a. the department shall have the authority to undertake directly in\nconjunction with the department of health, the development and\nimplementation of all necessary and reasonable mitigation and\nremediation measures of drinking water contamination, as approved by the\ndepartment of health, to address emerging contaminants in public water\nsupplies;\n b. the commissioner may order, after notice and opportunity for a\nhearing, the owner and/or operator of the drinking water contamination\nsite and/or any person responsible for such contamination to undertake\nall reasonable and necessary mitigation and remediation, as approved by\nthe department of health, to ensure that drinking water meets applicable\nstandards, including maximum contaminant levels, notification levels,\nmaximum residual disinfectant levels, or action levels established by\nthe department of health, and employ feasible measures that can be\nsuccessfully carried out with available, implementable and cost\neffective technology, subject to the approval of the department and the\ndepartment of health, at such site, and to implement such program within\nreasonable time limits specified in the order. Provided, however, that\nin the event the commissioner of health shall issue an order pursuant to\nsubdivision three of section one thousand three hundred eighty-nine-b of\nthe public health law, such order of the commissioner of health shall\nsupersede any order issued hereunder.\n 4. The department shall have the authority a. to delegate\nresponsibility for a specific drinking water contamination site to the\nmunicipality in which such site is located and b. to contract with any\nother person to perform necessary work in connection with such sites.\n 5. Section eight of the court of claims act or any other provision of\nlaw to the contrary notwithstanding, the state shall be immune from\nliability and action with respect to any act or omission done in the\ndischarge of the department's aforesaid responsibility pursuant to this\ntitle; provided, however, that this subdivision shall not limit the\nliability which may otherwise exist for unlawful, willful, or malicious\nacts or omissions on the part of the state, state agencies, or their\nofficers, employees or agents; or for the ownership or responsibility\nfor the disposal of such contaminant, including liability for the cost\nof remediation, pursuant to this section.\n 6. Whenever the commissioner of health, after investigation, finds:\n a. that a public drinking water contamination site represents an\nactual or potential threat to the public health; and\n b. the threat makes it prejudicial to the public interest to delay\naction until a hearing can be held pursuant to this title, the\ndepartment may, pursuant to paragraph a of subdivision three of this\nsection and within the funds available to the department from the\ndrinking water response program, develop and implement, in conjunction\nwith the department of health, all reasonable and necessary mitigation\nand remedial measures to address drinking water contamination for such\nsite to ensure that drinking water meets applicable standards, including\nmaximum contaminant levels, notification levels, maximum residual\ndisinfectant levels or action levels established by the department of\nhealth. Findings required pursuant to this subdivision shall be in\nwriting and may be made by the commissioner of health on an ex parte\nbasis subject to judicial review.\n 7. Any order issued pursuant to paragraph b of subdivision three of\nthis section shall be issued only after notice and the opportunity for a\nhearing is provided to persons who may be the subject of such order. The\ncommissioner or the commissioner of health shall determine which persons\nare responsible pursuant to said subdivision according to applicable\nprinciples of statutory or common law liability. Such persons shall be\nentitled to raise any defense set forth in section 27-1211 of this title\nor common law defense at any such hearing and such defenses shall have\nthe same force and effect at such hearings as they would have in a court\nof law. In the event a hearing is held, no order shall be issued by the\ncommissioner under subdivision three of this section until a final\ndecision has been rendered. Any such order shall be reviewable pursuant\nto article seventy-eight of the civil practice law and rules within\nthirty days after service of such order. The commissioner or the\ncommissioner of health may request the participation of the attorney\ngeneral in such hearings.\n 8. The commissioner shall make all reasonable efforts, in accordance\nwith the requirements of subdivision six of section ninety-seven-b of\nthe state finance law, to recover all mitigation costs incurred pursuant\nto subdivisions one and three of this section from the owner and/or\noperator of the drinking water contamination site.\n 9. When a municipality develops and implements remediation to address\na drinking water contamination site, determined pursuant to subdivision\nfour of this section, and the plan is approved by the department, in\nconjunction with the department of health, which is owned or has been\noperated by such municipality or when the department, in conjunction\nwith the department of health, pursuant to an agreement with a\nmunicipality, develops and implements such remediation, the commissioner\nshall, in the name of the state, agree in such agreement to provide from\nthe drinking water response program, within the limitations of\nappropriations therefor, seventy-five percent of the eligible design and\nconstruction costs of such program for which such municipality is liable\nsolely because of its ownership and/or operation of such site and which\nare not recovered from or reimbursed or paid by a responsible party or\nthe federal government.\n 10. Nothing contained within this section shall be construed as\nimpairing or in any manner affecting the right or jurisdiction of the\nattorney general to seek appropriate relief pursuant to his or her\nstatutory or common law authority.\n 11. Moneys for actions taken or to be taken by the department, the\ndepartment of health or any other state agency pursuant to this title\nshall be payable directly to such agencies from the drinking water\nresponse program pursuant to section ninety-seven-b of the state finance\nlaw.\n 12. a. Every person shall, upon the written request of the\ncommissioner or a designee, permit a duly designated officer or employee\nof the department at all reasonable times to have access to and to copy\nall books, papers, documents and records pertinent to an ongoing\ninvestigation of drinking water contamination identified in section\n27-1203 of this title.\n b. The commissioner may sign and issue subpoenas in the name of the\ndepartment requiring the production of books, papers, documents and\nother records and may take testimony by depositions under oath of any\nperson relating to the ongoing investigation of a drinking water\ncontamination identified in this title. Such subpoenas and depositions\nshall be regulated by the state of New York's civil practice law and\nrules. The commissioner may invoke the powers of the supreme court of\nthe state of New York to compel compliance with any such subpoena or any\nrequest to take such depositions.\n c. When the department has substantial evidence that such drinking\nwater contamination site is causing or substantially contributing to the\ncontamination of drinking water, and subject to the applicable notice\nprovisions set forth in paragraph d of this subdivision, any duly\ndesignated officer or employee of the department, or of any state\nagency, and any agent, consultant, contractor, or other person,\nincluding an employee, agent, consultant, or contractor of a responsible\nperson acting at the direction of the department, so authorized in\nwriting by the commissioner, may enter any drinking water contamination\nsite and areas near such site and inspect and take samples of wastes,\nsoil, air, surface water, and groundwater. In order to take such\nsamples, the department or authorized person may utilize or cause to be\nutilized such sampling methods as it determines to be necessary\nincluding, but not limited to, soil borings and monitoring wells.\n d. The department or authorized person shall not take any samples\ninvolving the substantial disturbance of the ground surface of any\nproperty unless it has made a reasonable effort to identify the owner of\nthe property and to notify such owner of the intent to take such\nsamples. If the owner can be identified, the department shall provide\nsuch owner with a minimum of ten days' written notice of the intent,\nunless such owners and occupants consent to an earlier date, to take\nsuch samples, unless the commissioner makes a written determination that\nsuch ten day notice will not allow the department to protect the\nenvironment or public health, in which case two days' written notice\nshall be sufficient. Any inspection of the property and each such taking\nof samples shall take place at reasonable times and shall be commenced\nand completed with reasonable promptness. If any officer, employee,\nagent, consultant, contractor, or other person so authorized in writing\nby the commissioner obtains any samples prior to leaving the premises,\nhe or she shall give to the owner or operator a receipt describing the\nsample obtained and, if requested, a portion of such sample equal in\nvolume or weight to the portion retained. If any analysis is made of\nsuch samples, a copy of the results of such analysis shall be furnished\npromptly to the owner or operator. Upon the completion of all sampling\nactivities, the department or authorized person shall remove, or cause\nto be removed, all equipment and well machinery and return the ground\nsurface of the property to its condition prior to such sampling, unless\nthe department or authorized person, and the owner of the property shall\notherwise agree.\n e. The expense of any such mitigation by the department or the\ndepartment of health shall be paid by the drinking water response\nprogram, but may be recovered from any responsible person in any action\nor proceeding brought pursuant to the state finance law, this title,\nother state or federal statute, or common law if the person so\nauthorized in writing is an employee, agent, consultant, or contractor\nof a responsible person acting at the direction of the department, then\nthe expense of any such sampling and analysis shall be paid by the\nresponsible person.\n f. Any duly designated officer or employee of the department or any\nother state agency, and any agent, consultant, contractor, or other\nperson acting at the direction of the department, authorized in writing\nby the commissioner, may enter any drinking water contamination site and\nareas near such site to undertake all reasonable and necessary\nmitigation and remediation for such site, provided: (a) the commissioner\nhas sent a written notice to the owners of record or any known occupants\nof such site or nearby areas of the intended entry and work at least ten\ndays prior to such initial entry unless such owners and occupants\nconsent to an earlier date; and (b) the department has substantial\nevidence that such drinking water contamination site is causing or\nsubstantially contributing to the contamination of drinking water. In\nthe event the commissioner of health makes a written determination that\nsuch ten day notice will not be sufficient to protect public health, two\ndays' written notice shall be sufficient.\n