2023 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; and
b.  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.