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A04557 Summary:

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A04557 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4557--A
                                                                Cal. No. 337
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 5, 2009
                                       ___________
 
        Introduced  by  M.  of  A. JAFFEE, SWEENEY, FIELDS, CALHOUN, COOK, KOON,
          SCHIMEL, JEFFRIES,  ROSENTHAL  --  Multi-Sponsored  by  --  M.  of  A.
          BOYLAND, CLARK, DINOWITZ, McDONOUGH, MOLINARO, PEOPLES-STOKES, PHEFFER
          --  read once and referred to the Committee on Environmental Conserva-

          tion -- reported from committee, advanced to a third reading,  amended
          and ordered reprinted, retaining its place on the order of third read-
          ing
 
        AN  ACT  to  amend the environmental conservation law, the public health
          law and the real property law, in relation to  enacting  the  "private
          well testing act"
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "private well testing act".
     3    § 2. Subdivision 1 of section 3-0315 of the environmental conservation
     4  law,  as  added by section 1 of part C of chapter 1 of the laws of 2003,
     5  is amended to read as follows:
     6    1. The department shall create or modify an existing geographic infor-

     7  mation system, and maintain such system for purposes including, but  not
     8  limited  to,  incorporating information from remedial programs under its
     9  jurisdiction, and shall also incorporate  information  from  the  source
    10  water assessment program collected by the department of health, informa-
    11  tion  collected  pursuant  to  section  eleven hundred ten of the public
    12  health law, data from annual water supply statements  prepared  pursuant
    13  to  section  eleven hundred fifty-one of the public health law, informa-
    14  tion from the database pursuant to title fourteen of article twenty-sev-
    15  en of this chapter, and any  other  existing  data  regarding  soil  and
    16  groundwater  contamination currently gathered by the department, as well
    17  as data on contamination that  is  readily  available  from  the  United

    18  States geological survey and other sources determined appropriate by the
    19  department.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07692-06-0
        A. 4557--A                          2
 
     1    §  3.  Section 206 of the public health law is amended by adding a new
     2  subdivision 27 to read as follows:
     3    27.  The  commissioner  is authorized and directed to promulgate rules
     4  and regulations to establish standards for the testing of drinking water
     5  from privately owned wells. Such standards  shall  apply  to  any  water
     6  wells subject to subdivision eighteen of this section, as added by chap-

     7  ter  three  hundred  ninety-five of the laws of nineteen hundred ninety-
     8  nine. Such testing shall be to determine the quality, safety and  exist-
     9  ing level of contamination of drinking water from privately owned wells.
    10    §  4.  Subdivision  1  of  section  1100  of the public health law, as
    11  amended by chapter 655 of the laws  of  1978,  is  amended  to  read  as
    12  follows:
    13    1.  The  department  may make rules and regulations for the protection
    14  from contamination of any or all public or private supplies  of  potable
    15  waters  and  water supplies of the state or United States, institutions,
    16  parks, reservations or posts and their sources within the state, and the
    17  commissioner of environmental protection of the city of New York and the
    18  board of water supply of the city of New York may make  such  rules  and

    19  regulations subject to the approval of the department for the protection
    20  from  contamination  of any or all public or private supplies of potable
    21  waters and their sources within the state where the  same  constitute  a
    22  part of the source of the public or private water supply of said city.
    23    §  5. The public health law is amended by adding a new section 1110 to
    24  read as follows:
    25    § 1110. Private well testing. 1.  (a) The department shall  promulgate
    26  regulations  providing  for  the  testing of drinking water from private
    27  wells located on real property subject to this section.
    28    (b) Any contract for the sale of real property, including  a  multiple
    29  family dwelling as defined in section eight hundred two of the executive

    30  law,  which is served by a private well that is the potable water supply
    31  for such property shall include a provision requiring as a condition  of
    32  sale,  the  testing  of  such  water  supply  for at least the standards
    33  prescribed pursuant to this section. Provisions of  this  section  shall
    34  not  apply  to  property where the potable water supply has five or more
    35  service connections or that regularly serves an average  of  twenty-five
    36  or more individuals daily for at least sixty days out of the year.
    37    (c) Water sampling locations shall be done, preferably by a laboratory
    38  certified by the department, in the following manner:
    39    (i)  if  there  is  no water treatment system in use on the water well

    40  being tested, samples shall be collected  from  a  primary  cold  water,
    41  non-aerated  spigot or tap that draws from or feeds water to the potable
    42  water system from such water;
    43    (ii) where a water treatment system is in  use  on  the  water  supply
    44  system, the sample shall be collected as follows:
    45    (A)  the  water  treatment  system  shall be disconnected or otherwise
    46  disabled prior to the collection of the water sample; or
    47    (B) the sample shall be collected at a location  prior  to  the  water
    48  treatment system; or
    49    (iii)  in  the  case of a new well construction and installation where
    50  there is no spigot or tap on the subject property,  the  sample  may  be
    51  collected directly at the wellhead, utilizing a raw water sample.

    52    2. Every water test conducted in accordance with this section shall be
    53  conducted  by  a  laboratory  certified  by  the  department pursuant to
    54  section five hundred two of this chapter  to  test  for  drinking  water
    55  constituents and shall include but not be limited to a test for at least
    56  the following constituents: bacteria (total coliform); sodium; nitrites;
        A. 4557--A                          3
 
     1  nitrates; iron; manganese; iron plus manganese; pH; all volatile organic
     2  compounds  for  which  maximum  constituent levels have been established
     3  pursuant to public health regulations; and lead.
     4    3. (a) The department, in consultation with the department of environ-

     5  mental conservation, and local health organizations established pursuant
     6  to  article  three  of this chapter may recommend additional testing for
     7  constituents that appear on a county or regional basis including but not
     8  limited to arsenic, barium,  fluoride,  mercury,  methane,  radium,  and
     9  radon.
    10    (b)  The  department  may,  by rule or regulation, exclude or limit by
    11  geographic area or geologic  formation,  or  based  upon  well  recorded
    12  information,  any  constituent  listed  in  this  section  deemed by the
    13  department as not significant in a county or in any specific area within
    14  a county and such area of formation need not be tested as  part  of  any
    15  water test conducted in accordance with this section.

    16    (c)  For  each  constituent  to  be tested for in accordance with this
    17  section, the department shall establish, by regulation  a  maximum  time
    18  period  for  which  a test result shall remain valid for the purposes of
    19  this section  without  necessitating  retesting  for  such  constituent;
    20  provided,  however,  such  time period shall not exceed twelve months. A
    21  retest of the water supply  shall  not  be  required  pursuant  to  this
    22  section  if  the  contract  of sale is entered into within the period of
    23  test validity established pursuant to this paragraph.    Notwithstanding
    24  any  provision  of  this  paragraph  to the contrary, a buyer and seller
    25  subject to the provisions of this section may mutually agree  to  retest

    26  for  a constituent even though the maximum time period for test validity
    27  for the  constituent  established  pursuant  to  this  section  has  not
    28  expired.
    29    4.  (a)  Any water test results provided by a laboratory to the person
    30  or persons requesting the test shall  include  the  maximum  constituent
    31  levels  or other established water quality standards, if any, prescribed
    32  by the department for each constituent tested and shall  be  transmitted
    33  on  a  standardized private well water test reporting form prescribed by
    34  the department. The form shall refer the buyer and seller  of  the  real
    35  property  in  question  to  the  appropriate office or person within the
    36  department, or the department's website for information regarding  reme-

    37  diation alternatives.
    38    (b)  Within  ten  business  days after completion of the water test, a
    39  laboratory shall submit the water test results to  the  department  with
    40  the following information:
    41    (i)  a statement that the testing is for the purpose of complying with
    42  the "private well testing act";
    43    (ii) the location of the real property, described  by  block  and  lot
    44  number, street address, municipality, and county;
    45    (iii) the name and mailing address of the person or persons making the
    46  request for the test;
    47    (iv)  an affidavit stating the date and time that the water sample was
    48  collected and the specific point of collection and the  legal  name  and

    49  mailing  address  of  the  person  or  persons  collecting the raw water
    50  samples;
    51    (v) the date and time the sample was analyzed by the laboratory; and
    52    (vi) such other information as may be required by the  department,  in
    53  consultation  with  the  department  of  environmental  conservation and
    54  appropriate local health organizations established pursuant  to  article
    55  three of this chapter.
        A. 4557--A                          4
 
     1    (c)  The  department may require laboratories to submit electronically
     2  the information required pursuant to paragraph (b) of this subdivision.
     3    (d)  A  laboratory  shall not release water test results to any person

     4  except the buyer or seller of the real property at issue as provided  in
     5  subdivision  one  of  this  section,  the lessor of the real property as
     6  provided in subdivision six of this section, any  person  authorized  by
     7  the buyer, seller, or lessor, as the case may be, the department, or any
     8  person designated by court order.
     9    (e) The department shall make the data accumulated from the water test
    10  results  submitted by laboratories pursuant to this section available to
    11  counties,  municipalities,  or  other  governmental  entities  for   the
    12  purposes of studying groundwater supplies or contamination in the state;
    13  provided, however, that identifying information is removed.
    14    (f)  The  results of water well tests shall be provided to the depart-

    15  ment of  environmental  conservation  for  inclusion  in  the  statewide
    16  groundwater  remediation  strategy  developed in accordance with section
    17  15-3109 of the environmental conservation law and the geographic  infor-
    18  mation  system  developed in accordance with section 3-0315 of the envi-
    19  ronmental conservation law.
    20    5. The department, within ten business days after receiving any report
    21  of a water test failure in accordance with this section,  shall  provide
    22  notice of such water test failure to the appropriate local health organ-
    23  izations  established  pursuant  to  article  three of this chapter. The
    24  appropriate local health organizations established pursuant  to  article
    25  three  of  this  chapter  shall issue a general notice to owners of real

    26  property served by private wells located in the  vicinity  of  the  real
    27  property  experiencing the water test failure suggesting or recommending
    28  that those property owners may wish to have their private  wells  tested
    29  for at least the constituents at issue. The specific address or location
    30  of  the private well that failed a water test shall not be identified in
    31  the notice or by any other means or in any other manner. The  department
    32  shall  establish  criteria for notification which may include, but shall
    33  not be limited to, the maximum constituent level, the  level  of  excee-
    34  dance  reported,  and  the distance or location of the properties in the
    35  vicinity of the contaminated well for which testing is recommended.

    36    6. Within two years after the effective date of this section,  and  at
    37  least  once every five years thereafter, the lessor of any real property
    38  the potable water supply for which is a private  well  shall  test  that
    39  water  supply  in the manner established pursuant to this section for at
    40  least the constituents required pursuant to subdivisions two  and  three
    41  of  this  section.  Within  thirty  days  after  the receipt of the test
    42  results, the lessor shall also provide a written copy  thereof  to  each
    43  lessee of a rental unit on the property. The lessor shall also provide a
    44  written copy of the most recent test results to a new lessee of a rental
    45  unit on the property.
    46    7. (a) The department, in consultation with the department of environ-

    47  mental conservation, and local health organizations established pursuant
    48  to  article  three  of this chapter shall establish a public information
    49  and education program to inform the public and appropriate  professional
    50  disciplines  of  the  enactment of this section and the substance of its
    51  provisions and requirements, the potential health effects  of  consuming
    52  water  from a private well that does not meet maximum constituent levels
    53  and other established water quality standards, the potential presence of
    54  radium in at least some potable groundwater supplies in the  state,  the
    55  geographic  areas  in the state subject to an actual or potential threat
    56  of danger from  contaminated  groundwater,  the  importance  of  testing

        A. 4557--A                          5
 
     1  private  wells regularly for constituents, and suggested water treatment
     2  techniques, equipment strategies and public  funding  sources  available
     3  for  treating  water  from  private  wells that have failed a water test
     4  conducted in accordance with this section.
     5    (b) The department shall make available to the public a general compi-
     6  lation  of  water test results data arranged or identified by county and
     7  municipality or appropriate geographic area therein, but which does  not
     8  include specific address or location information.
     9    8.  Within  three  years  of  the  effective date of this section, the
    10  department shall prepare and transmit to the governor and legislature  a

    11  report  on the implementation and operation of this section. Such report
    12  shall also describe the benefits and deficiencies realized as  a  result
    13  of this section and include recommendations for any appropriate legisla-
    14  tive  action.  The report shall also be made available to the public and
    15  be posted on the department's website.
    16    § 6. The real property law is amended by adding a new section  468  to
    17  read as follows:
    18    §  468.  Private well testing requirements.  1. Every contract for the
    19  sale of real property, including a multiple family dwelling  as  defined
    20  in  section eight hundred two of the executive law, which is served by a
    21  private well that is the potable water supply for  such  property  shall

    22  include  a  provision  requiring  as a condition of sale, the testing of
    23  such water supply for at least  the  standards  prescribed  pursuant  to
    24  section  eleven hundred ten of the public health law. Provisions of this
    25  section shall not apply to property where the potable water  supply  has
    26  five  or more service connections or that regularly serves an average of
    27  twenty-five or more individuals daily for at least sixty days out of the
    28  year.
    29    2. Closing of title on the sale of such real property shall not  occur
    30  unless  both  the buyer and the seller have received and reviewed a copy
    31  of the water test results. At closing, the buyer and seller  both  shall
    32  certify  in  writing that they have received and reviewed the water test

    33  results.
    34    3. The requirements of this section may not be waived.
    35    § 7. This act shall take effect on the one hundred eightieth day after
    36  it shall have become a law. Effective immediately, the addition,  amend-
    37  ment and/or repeal of any rule or regulation necessary for the implemen-
    38  tation  of this act on its effective date are authorized and directed to
    39  be made and completed on or before such effective date.