NY Env Conserv L § 27-1205 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 12 - Mitigation and Remediation of Certain Solid Waste Sites and Drinking Water Contamination 27-1205 - Mitigation of Contaminants in Drinking Water.

§ 27-1205. Mitigation of contaminants in drinking water.1.  Whenever  the  commissioner  of health has required a public water   system to take action to reduce exposure to an emerging  contaminant  or   emerging  contaminants  and has determined that the concentration of the   emerging contaminant constitutes an actual or potential threat to public   health based on the best available scientific  information  pursuant  to   section  eleven  hundred twelve of the public health law, the department   in conjunction with the department of health, may, pursuant to the Clean   Water Infrastructure Act of 2017 and within the up to one hundred thirty   million dollars appropriated for such purposes, undertake all reasonable   and necessary additional mitigation measures in any area of the state in   which contamination is known to be present. The department shall  employ   feasible  measures  that can be successfully carried out with available,   implementable and cost effective technology. Such area shall include, at   a minimum, all  properties  served  by  the  public  water  system,  any   individual  onsite  water  supply systems impacted by the contamination,   and any land and any surface or underground water  sources  impacted  by   the  contamination. Such approved measures shall be protective of public   health and may include  but  not  be  limited  to  the  installation  of   treatment  systems  or the provision of alternative water supply sources   to ensure that drinking  water  meets  applicable  standards,  including   maximum   contaminant  levels,  notification  levels,  maximum  residual   disinfectant levels, or action levels established by the  department  of   health.2.  If  the  department  or  the  department of health, as applicable,   determines that a drinking water contamination site poses a  significant   threat  to  the public health or environment from a hazardous waste, the   department shall refer the site to the inactive hazardous waste disposal   site remedial program pursuant to title thirteen of this article.3. Whenever the commissioner of health has  required  a  public  water   system  to  take  action to reduce exposure to emerging contaminants and   has determined  that  the  concentration  of  the  emerging  contaminant   constitutes  an actual or potential threat to public health based on the   best available scientific information pursuant to section eleven hundred   twelve of the public health law:a. the department shall have the authority to  undertake  directly  in   conjunction   with   the  department  of  health,  the  development  and   implementation  of  all  necessary   and   reasonable   mitigation   and   remediation measures of drinking water contamination, as approved by the   department  of  health, to address emerging contaminants in public water   supplies;b. the commissioner may order, after  notice  and  opportunity  for  a   hearing,  the  owner and/or operator of the drinking water contamination   site and/or any person responsible for such contamination  to  undertake   all  reasonable and necessary mitigation and remediation, as approved by   the department of health, to ensure that drinking water meets applicable   standards, including maximum contaminant  levels,  notification  levels,   maximum  residual  disinfectant  levels, or action levels established by   the department of health, and  employ  feasible  measures  that  can  be   successfully   carried   out  with  available,  implementable  and  cost   effective technology, subject to the approval of the department and  the   department of health, at such site, and to implement such program within   reasonable  time  limits specified in the order. Provided, however, that   in the event the commissioner of health shall issue an order pursuant to   subdivision three of section one thousand three hundred eighty-nine-b of   the public health law, such order of the commissioner  of  health  shall   supersede any order issued hereunder. 4.   The   department   shall   have  the  authority  a.  to  delegate   responsibility for a specific drinking water contamination site  to  the   municipality  in  which such site is located and b. to contract with any   other person to perform necessary work in connection with such sites.5.  Section eight of the court of claims act or any other provision of   law to the contrary notwithstanding, the  state  shall  be  immune  from   liability  and  action  with  respect to any act or omission done in the   discharge of the department's aforesaid responsibility pursuant to  this   title;  provided,  however,  that  this  subdivision shall not limit the   liability which may otherwise exist for unlawful, willful, or  malicious   acts  or  omissions  on  the part of the state, state agencies, or their   officers, employees or agents; or for the  ownership  or  responsibility   for  the  disposal of such contaminant, including liability for the cost   of remediation, pursuant to this section.6. Whenever the commissioner of health, after investigation, finds:a. that a public  drinking  water  contamination  site  represents  an   actual or potential threat to the public health; andb.  the  threat  makes  it prejudicial to the public interest to delay   action until  a  hearing  can  be  held  pursuant  to  this  title,  the   department  may,  pursuant  to  paragraph a of subdivision three of this   section and within the  funds  available  to  the  department  from  the   drinking  water  response program, develop and implement, in conjunction   with the department of health, all reasonable and  necessary  mitigation   and  remedial  measures to address drinking water contamination for such   site to ensure that drinking water meets applicable standards, including   maximum  contaminant  levels,  notification  levels,  maximum   residual   disinfectant  levels  or  action levels established by the department of   health. Findings required pursuant  to  this  subdivision  shall  be  in   writing  and  may  be  made by the commissioner of health on an ex parte   basis subject to judicial review.7. Any order issued pursuant to paragraph b of  subdivision  three  of   this section shall be issued only after notice and the opportunity for a   hearing is provided to persons who may be the subject of such order. The   commissioner or the commissioner of health shall determine which persons   are  responsible  pursuant  to  said subdivision according to applicable   principles of statutory or common law liability. Such persons  shall  be   entitled to raise any defense set forth in section 27-1211 of this title   or  common  law defense at any such hearing and such defenses shall have   the same force and effect at such hearings as they would have in a court   of law. In the event a hearing is held, no order shall be issued by  the   commissioner  under  subdivision  three  of  this  section until a final   decision has been rendered. Any such order shall be reviewable  pursuant   to  article  seventy-eight  of  the  civil practice law and rules within   thirty days after  service  of  such  order.  The  commissioner  or  the   commissioner  of  health  may  request the participation of the attorney   general in such hearings.8. The commissioner shall make all reasonable efforts,  in  accordance   with  the  requirements  of subdivision six of section ninety-seven-b of   the state finance law, to recover all mitigation costs incurred pursuant   to subdivisions one and three of this  section  from  the  owner  and/or   operator of the drinking water contamination site.9.  When a municipality develops and implements remediation to address   a drinking water contamination site, determined pursuant to  subdivision   four  of  this  section,  and the plan is approved by the department, in   conjunction with the department of health, which is owned  or  has  been   operated  by  such  municipality  or when the department, in conjunction   with  the  department  of  health,  pursuant  to  an  agreement  with  a   municipality, develops and implements such remediation, the commissioner    shall, in the name of the state, agree in such agreement to provide from   the   drinking   water  response  program,  within  the  limitations  of   appropriations therefor, seventy-five percent of the eligible design and   construction costs of such program for which such municipality is liable   solely  because of its ownership and/or operation of such site and which   are not recovered from or reimbursed or paid by a responsible  party  or   the federal government.10.  Nothing  contained  within  this  section  shall  be construed as   impairing or in any manner affecting the right or  jurisdiction  of  the   attorney  general  to  seek  appropriate  relief  pursuant to his or her   statutory or common law authority.11. Moneys for actions taken or to be taken  by  the  department,  the   department  of  health  or any other state agency pursuant to this title   shall be payable directly to  such  agencies  from  the  drinking  water   response program pursuant to section ninety-seven-b of the state finance   law.12.   a.   Every  person  shall,  upon  the  written  request  of  the   commissioner or a designee, permit a duly designated officer or employee   of the department at all reasonable times to have access to and to  copy   all  books,  papers,  documents  and  records  pertinent  to  an ongoing   investigation of drinking  water  contamination  identified  in  section   27-1203 of this title.b.  The  commissioner  may sign and issue subpoenas in the name of the   department requiring the production  of  books,  papers,  documents  and   other  records  and  may take testimony by depositions under oath of any   person relating  to  the  ongoing  investigation  of  a  drinking  water   contamination  identified  in this title. Such subpoenas and depositions   shall be regulated by the state of New York's  civil  practice  law  and   rules.  The  commissioner  may invoke the powers of the supreme court of   the state of New York to compel compliance with any such subpoena or any   request to take such depositions.c. When the department has substantial  evidence  that  such  drinking   water contamination site is causing or substantially contributing to the   contamination  of  drinking  water, and subject to the applicable notice   provisions set forth in  paragraph  d  of  this  subdivision,  any  duly   designated  officer  or  employee  of  the  department,  or of any state   agency,  and  any  agent,  consultant,  contractor,  or  other   person,   including an employee, agent, consultant, or contractor of a responsible   person  acting  at  the  direction  of  the department, so authorized in   writing by the commissioner, may enter any drinking water  contamination   site  and  areas  near such site and inspect and take samples of wastes,   soil, air, surface  water,  and  groundwater.  In  order  to  take  such   samples,  the department or authorized person may utilize or cause to be   utilized  such  sampling  methods  as  it  determines  to  be  necessary   including, but not limited to, soil borings and monitoring wells.d.  The  department  or  authorized  person shall not take any samples   involving the substantial disturbance  of  the  ground  surface  of  any   property unless it has made a reasonable effort to identify the owner of   the  property  and  to  notify  such  owner  of  the intent to take such   samples. If the owner can be identified, the  department  shall  provide   such  owner  with  a  minimum of ten days' written notice of the intent,   unless such owners and occupants consent to an  earlier  date,  to  take   such samples, unless the commissioner makes a written determination that   such  ten  day  notice  will  not  allow  the  department to protect the   environment or public health, in which case  two  days'  written  notice   shall be sufficient. Any inspection of the property and each such taking   of  samples  shall take place at reasonable times and shall be commenced   and completed with reasonable  promptness.  If  any  officer,  employee,    agent,  consultant, contractor, or other person so authorized in writing   by the commissioner obtains any samples prior to leaving  the  premises,   he  or  she shall give to the owner or operator a receipt describing the   sample  obtained  and,  if  requested, a portion of such sample equal in   volume or weight to the portion retained. If any  analysis  is  made  of   such  samples, a copy of the results of such analysis shall be furnished   promptly to the owner or operator. Upon the completion of  all  sampling   activities,  the  department or authorized person shall remove, or cause   to be removed, all equipment and well machinery and  return  the  ground   surface  of the property to its condition prior to such sampling, unless   the department or authorized person, and the owner of the property shall   otherwise agree.e. The expense of  any  such  mitigation  by  the  department  or  the   department  of  health  shall  be  paid  by  the drinking water response   program, but may be recovered from any responsible person in any  action   or  proceeding  brought  pursuant  to the state finance law, this title,   other state  or  federal  statute,  or  common  law  if  the  person  so   authorized  in  writing is an employee, agent, consultant, or contractor   of a responsible person acting at the direction of the department,  then   the  expense  of  any  such  sampling  and analysis shall be paid by the   responsible person.f. Any duly designated officer or employee of the  department  or  any   other  state  agency,  and  any  agent, consultant, contractor, or other   person acting at the direction of the department, authorized in  writing   by the commissioner, may enter any drinking water contamination site and   areas   near  such  site  to  undertake  all  reasonable  and  necessary   mitigation and remediation for such site, provided: (a) the commissioner   has sent a written notice to the owners of record or any known occupants   of such site or nearby areas of the intended entry and work at least ten   days prior to such  initial  entry  unless  such  owners  and  occupants   consent  to  an  earlier  date;  and  (b) the department has substantial   evidence that such drinking  water  contamination  site  is  causing  or   substantially  contributing  to  the contamination of drinking water. In   the event the commissioner of health makes a written determination  that   such ten day notice will not be sufficient to protect public health, two   days' written notice shall be sufficient.