STATE OF NEW YORK ________________________________________________________________________ 1103--A 2019-2020 Regular Sessions IN ASSEMBLY January 14, 2019 ___________ Introduced by M. of A. JAFFEE, COOK, STECK, ABINANTI, FAHY, L. ROSEN- THAL, GALEF, JEAN-PIERRE, D'URSO, GOTTFRIED, CAHILL, McDONOUGH, RICH- ARDSON, EPSTEIN, THIELE, WILLIAMS, ROMEO, BUTTENSCHON, SAYEGH, MONTES- ANO, STIRPE, TAYLOR, GRIFFIN, FALL, RIVERA, ARROYO, LAWRENCE, DeSTEFANO, ORTIZ, BARRON, COLTON -- Multi-Sponsored by -- M. of A. DAVILA, DINOWITZ, ENGLEBRIGHT, MORINELLO, PERRY, SIMON, WALKER -- read once and referred to the Committee on Environmental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 amended by section 12 of part T of chapter 57 of the laws of 5 2017, is amended to read as follows: 6 1. The department in conjunction with the commissioner of health shall 7 create and maintain a geographic information system, and associated data 8 storage and analytical systems for purposes of collecting, streamlining, 9 and visualizing integrated data, permits, and relevant sites about 10 drinking water quality including, but not limited to, incorporating 11 supply well and monitoring well data, emerging contaminant data, water 12 quality monitoring data, pertinent data from remediation and landfill 13 sites, permitted discharge locations and other potential contamination 14 risks to water supplies. Such system shall also incorporate information 15 from the source water assessment program collected by the department of 16 health, information collected pursuant to section eleven hundred eleven 17 of the public health law, data from annual water supply statements EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02776-02-9A. 1103--A 2 1 prepared pursuant to section eleven hundred fifty-one of the public 2 health law, information from the database pursuant to title fourteen of 3 article twenty-seven of this chapter, and any other existing data 4 regarding soil and groundwater contamination currently gathered by the 5 department, as well as data on contamination that is readily available 6 from the United States geological survey and other sources determined 7 appropriate by the department. In addition to facilitating interagency 8 coordination and predictive analysis to protect water quality, such 9 system shall provide state agency information to the public through a 10 website, within reasonable limitations to ensure confidentiality and 11 security. 12 § 3. Section 206 of the public health law is amended by adding a new 13 subdivision 31 to read as follows: 14 31. The commissioner is authorized and directed to promulgate rules 15 and regulations to establish standards for the testing of drinking water 16 from privately owned wells. Such standards shall apply to any water 17 wells subject to subdivision eighteen of this section, as added by chap- 18 ter three hundred ninety-five of the laws of nineteen hundred ninety- 19 nine. Such testing shall be to determine the quality, safety and exist- 20 ing level of contamination of drinking water from privately owned wells. 21 § 4. Subdivision 1 of section 1100 of the public health law, as 22 amended by chapter 655 of the laws of 1978, is amended to read as 23 follows: 24 1. The department may make rules and regulations for the protection 25 from contamination of any or all public or private supplies of potable 26 waters and water supplies of the state or United States, institutions, 27 parks, reservations or posts and their sources within the state, and the 28 commissioner of environmental protection of the city of New York and the 29 board of water supply of the city of New York may make such rules and 30 regulations subject to the approval of the department for the protection 31 from contamination of any or all public or private supplies of potable 32 waters and their sources within the state where the same constitute a 33 part of the source of the public or private water supply of said city. 34 § 5. The public health law is amended by adding a new section 1111 to 35 read as follows: 36 § 1111. Private well testing. 1. (a) The department shall promulgate 37 regulations providing for the testing of drinking water from private 38 wells located on real property subject to this section. 39 (b) Any contract for the sale of real property, including a multiple 40 family dwelling as defined in section eight hundred two of the executive 41 law, which is served by a private well that is the potable water supply 42 for such property shall include a provision requiring as a condition of 43 sale, the testing of such water supply for at least the standards 44 prescribed pursuant to this section. Provisions of this section shall 45 not apply to property where the potable water supply has five or more 46 service connections or that regularly serves an average of twenty-five 47 or more individuals daily for at least sixty days out of the year. 48 (c) Water sampling shall be done, preferably by a laboratory certified 49 by the department, in the following manner: 50 (i) if there is no water treatment system in use on the water well 51 being tested, samples shall be collected from a primary cold water, 52 non-aerated spigot or tap that draws from or feeds water to the potable 53 water system from such water; 54 (ii) where a water treatment system is in use on the water supply 55 system, the sample shall be collected as follows:A. 1103--A 3 1 (A) the water treatment system shall be disconnected or otherwise 2 disabled prior to the collection of the water sample; or 3 (B) the sample shall be collected at a location prior to the water 4 treatment system; or 5 (iii) in the case of a new well construction and installation where 6 there is no spigot or tap on the subject property, the sample may be 7 collected directly at the wellhead, utilizing a raw water sample. 8 2. Every water test conducted in accordance with this section shall be 9 conducted by a laboratory certified by the department pursuant to 10 section five hundred two of this chapter to test for drinking water 11 constituents and shall include but not be limited to a test for at least 12 the following constituents: bacteria (total coliform); sodium; nitrites; 13 nitrates; iron; manganese; iron plus manganese; pH; copper; chloride; 14 all volatile organic compounds for which maximum constituent levels have 15 been established pursuant to public health regulations; and lead. 16 3. (a) The department, in consultation with the department of environ- 17 mental conservation, and local health organizations established pursuant 18 to article three of this chapter may require additional testing for 19 constituents that appear on a county or regional basis including but not 20 limited to arsenic, barium, fluoride, mercury, methane, radium, and 21 radon. 22 (b) The department may, by rule or regulation, exclude or limit by 23 geographic area or geologic formation, or based upon well recorded 24 information, any constituent listed in this section deemed by the 25 department as not significant in a county or in any specific area within 26 a county and such area or formation need not be tested as part of any 27 water test conducted in accordance with this section. 28 (c) For each constituent to be tested for in accordance with this 29 section, the department shall establish, by regulation a maximum time 30 period for which a test result shall remain valid for the purposes of 31 this section without necessitating retesting for such constituent; 32 provided, however, such time period shall not exceed twelve months. A 33 retest of the water supply shall not be required pursuant to this 34 section if the contract of sale is entered into within the period of 35 test validity established pursuant to this paragraph. Notwithstanding 36 any provision of this paragraph to the contrary, a buyer and seller 37 subject to the provisions of this section may mutually agree to retest 38 for a constituent even though the maximum time period for test validity 39 for the constituent established pursuant to this section has not 40 expired. 41 4. (a) Any water test results provided by a laboratory to the person 42 or persons requesting the test shall include the maximum constituent 43 levels or other established water quality standards, if any, prescribed 44 by the department for each constituent tested and shall be transmitted 45 on a standardized private well water test reporting form prescribed by 46 the department. The form shall refer the buyer and seller of the real 47 property in question to the appropriate office or person within the 48 department, or the department's website for information regarding reme- 49 diation alternatives. 50 (b) Within ten business days after completion of the water test, a 51 laboratory shall submit the water test results to the department with 52 the following information: 53 (i) a statement that the testing is for the purpose of complying with 54 the "private well testing act"; 55 (ii) the location of the real property, described by block and lot 56 number, street address, municipality, and county;A. 1103--A 4 1 (iii) the name and mailing address of the person or persons making the 2 request for the test; 3 (iv) an affidavit stating the date and time that the water sample was 4 collected and the specific point of collection and the legal name and 5 mailing address of the person or persons collecting the raw water 6 samples; 7 (v) the date and time the sample was analyzed by the laboratory; and 8 (vi) such other information as may be required by the department, in 9 consultation with the department of environmental conservation and 10 appropriate local health organizations established pursuant to article 11 three of this chapter. 12 (c) The department may require laboratories to submit electronically 13 the information required pursuant to paragraph (b) of this subdivision. 14 (d) A laboratory shall not release water test results to any person 15 except the buyer or seller of the real property at issue as provided in 16 subdivision one of this section, the lessor of the real property as 17 provided in subdivision six of this section, any person authorized by 18 the buyer, seller, or lessor, as the case may be, the department, or any 19 person designated by court order. 20 (e) The department shall make the data accumulated from the water test 21 results submitted by laboratories pursuant to this section available to 22 counties, municipalities, or other governmental entities for the 23 purposes of studying groundwater supplies or contamination in the state; 24 provided, however, that identifying information is removed. 25 (f) The results of water well tests shall be provided to the depart- 26 ment of environmental conservation for inclusion in the statewide 27 groundwater remediation strategy developed in accordance with section 28 15-3109 of the environmental conservation law and the geographic infor- 29 mation system developed in accordance with section 3-0315 of the envi- 30 ronmental conservation law. 31 5. The department, within ten business days after receiving any report 32 of a water test failure in accordance with this section, shall provide 33 notice of such water test failure to the appropriate local health organ- 34 izations established pursuant to article three of this chapter. The 35 appropriate local health organizations established pursuant to article 36 three of this chapter shall issue a general notice to owners of real 37 property served by private wells or a public water system located in the 38 vicinity of the real property experiencing the water test failure 39 suggesting or recommending that those property owners may wish to have 40 their private wells tested for at least the constituents at issue. The 41 specific address or location of the private well that failed a water 42 test shall not be identified in the notice or by any other means or in 43 any other manner. The department shall establish criteria for notifica- 44 tion which may include, but shall not be limited to, the maximum 45 constituent level, the level of exceedance reported, and the distance or 46 location of the properties or public water supply in the vicinity of the 47 contaminated well for which testing is recommended. 48 6. Within two years after the effective date of this section, and at 49 least once every five years thereafter, the lessor of any real property 50 the potable water supply for which is a private well shall test that 51 water supply in the manner established pursuant to this section for at 52 least the constituents required pursuant to subdivisions two and three 53 of this section. Within thirty days after the receipt of the test 54 results, the lessor shall also provide a written copy thereof to each 55 lessee of a rental unit on the property. The lessor shall also provide aA. 1103--A 5 1 written copy of the most recent test results to a prospective tenant 2 prior to the signing of a lease of a rental unit on the property. 3 7. (a) The department, in consultation with the department of environ- 4 mental conservation, and local health organizations established pursuant 5 to article three of this chapter shall establish a public information 6 and education program to inform the public and appropriate professional 7 disciplines of the enactment of this section and the substance of its 8 provisions and requirements, the potential health effects of consuming 9 water from a private well that does not meet maximum constituent levels 10 and other established water quality standards, the potential presence of 11 radium in at least some potable groundwater supplies in the state, the 12 geographic areas in the state subject to an actual or potential threat 13 of danger from contaminated groundwater, the importance of testing 14 private wells regularly for constituents, and suggested water treatment 15 techniques, equipment strategies and public funding sources available 16 for treating water from private wells that have failed a water test 17 conducted in accordance with this section. 18 (b) The department shall make available to the public a general compi- 19 lation of water test results data arranged or identified by county and 20 municipality or appropriate geographic area therein, but which does not 21 include specific address or location information. 22 8. Within three years of the effective date of this section, the 23 department shall prepare and transmit to the governor and legislature a 24 report on the implementation and operation of this section. Such report 25 shall also describe the benefits and deficiencies realized as a result 26 of this section and include recommendations for any appropriate legisla- 27 tive action. The report shall also be made available to the public and 28 be posted on the department's website. 29 § 6. The real property law is amended by adding a new section 468 to 30 read as follows: 31 § 468. Private well testing requirements. 1. Every contract for the 32 sale of real property, including a multiple family dwelling as defined 33 in section eight hundred two of the executive law, which is served by a 34 private well that is the potable water supply for such property shall 35 include a provision requiring as a condition of sale, the testing of 36 such water supply for at least the standards prescribed pursuant to 37 section eleven hundred eleven of the public health law. Provisions of 38 this section shall not apply to property where the potable water supply 39 has five or more service connections or that regularly serves an average 40 of twenty-five or more individuals daily for at least sixty days out of 41 the year. 42 2. Closing of title on the sale of such real property shall not occur 43 unless both the buyer and the seller have received and reviewed a copy 44 of the water test results. At closing, the buyer and seller both shall 45 certify in writing that they have received and reviewed the water test 46 results. 47 3. The requirements of this section may not be waived. 48 § 7. This act shall take effect on the one hundred eightieth day after 49 it shall have become a law. Effective immediately, the addition, amend- 50 ment and/or repeal of any rule or regulation necessary for the implemen- 51 tation of this act on its effective date are authorized and directed to 52 be made and completed on or before such effective date.