S T A T E O F N E W Y O R K
________________________________________________________________________
4557--A
Cal. No. 337
2009-2010 Regular Sessions
I N A S S E M B L Y
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 S 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 S 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
8 NINETY-NINE. SUCH TESTING SHALL BE TO DETERMINE THE QUALITY, SAFETY AND
9 EXISTING LEVEL OF CONTAMINATION OF DRINKING WATER FROM PRIVATELY OWNED
10 WELLS.
11 S 4. Subdivision 1 of section 1100 of the public health law, as
12 amended by chapter 655 of the laws of 1978, is amended to read as
13 follows:
14 1. The department may make rules and regulations for the protection
15 from contamination of any or all public OR PRIVATE supplies of potable
16 waters and water supplies of the state or United States, institutions,
17 parks, reservations or posts and their sources within the state, and the
18 commissioner of environmental protection of the city of New York and the
19 board of water supply of the city of New York may make such rules and
20 regulations subject to the approval of the department for the protection
21 from contamination of any or all public OR PRIVATE supplies of potable
22 waters and their sources within the state where the same constitute a
23 part of the source of the public OR PRIVATE water supply of said city.
24 S 5. The public health law is amended by adding a new section 1110 to
25 read as follows:
26 S 1110. PRIVATE WELL TESTING. 1. (A) THE DEPARTMENT SHALL PROMULGATE
27 REGULATIONS PROVIDING FOR THE TESTING OF DRINKING WATER FROM PRIVATE
28 WELLS LOCATED ON REAL PROPERTY SUBJECT TO THIS SECTION.
29 (B) ANY CONTRACT FOR THE SALE OF REAL PROPERTY, INCLUDING A MULTIPLE
30 FAMILY DWELLING AS DEFINED IN SECTION EIGHT HUNDRED TWO OF THE EXECUTIVE
31 LAW, WHICH IS SERVED BY A PRIVATE WELL THAT IS THE POTABLE WATER SUPPLY
32 FOR SUCH PROPERTY SHALL INCLUDE A PROVISION REQUIRING AS A CONDITION OF
33 SALE, THE TESTING OF SUCH WATER SUPPLY FOR AT LEAST THE STANDARDS
34 PRESCRIBED PURSUANT TO THIS SECTION. PROVISIONS OF THIS SECTION SHALL
35 NOT APPLY TO PROPERTY WHERE THE POTABLE WATER SUPPLY HAS FIVE OR MORE
36 SERVICE CONNECTIONS OR THAT REGULARLY SERVES AN AVERAGE OF TWENTY-FIVE
37 OR MORE INDIVIDUALS DAILY FOR AT LEAST SIXTY DAYS OUT OF THE YEAR.
38 (C) WATER SAMPLING LOCATIONS SHALL BE DONE, PREFERABLY BY A LABORATORY
39 CERTIFIED BY THE DEPARTMENT, IN THE FOLLOWING MANNER:
40 (I) IF THERE IS NO WATER TREATMENT SYSTEM IN USE ON THE WATER WELL
41 BEING TESTED, SAMPLES SHALL BE COLLECTED FROM A PRIMARY COLD WATER,
42 NON-AERATED SPIGOT OR TAP THAT DRAWS FROM OR FEEDS WATER TO THE POTABLE
43 WATER SYSTEM FROM SUCH WATER;
44 (II) WHERE A WATER TREATMENT SYSTEM IS IN USE ON THE WATER SUPPLY
45 SYSTEM, THE SAMPLE SHALL BE COLLECTED AS FOLLOWS:
46 (A) THE WATER TREATMENT SYSTEM SHALL BE DISCONNECTED OR OTHERWISE
47 DISABLED PRIOR TO THE COLLECTION OF THE WATER SAMPLE; OR
48 (B) THE SAMPLE SHALL BE COLLECTED AT A LOCATION PRIOR TO THE WATER
49 TREATMENT SYSTEM; OR
50 (III) IN THE CASE OF A NEW WELL CONSTRUCTION AND INSTALLATION WHERE
51 THERE IS NO SPIGOT OR TAP ON THE SUBJECT PROPERTY, THE SAMPLE MAY BE
52 COLLECTED DIRECTLY AT THE WELLHEAD, UTILIZING A RAW WATER SAMPLE.
53 2. EVERY WATER TEST CONDUCTED IN ACCORDANCE WITH THIS SECTION SHALL BE
54 CONDUCTED BY A LABORATORY CERTIFIED BY THE DEPARTMENT PURSUANT TO
55 SECTION FIVE HUNDRED TWO OF THIS CHAPTER TO TEST FOR DRINKING WATER
56 CONSTITUENTS AND SHALL INCLUDE BUT NOT BE LIMITED TO A TEST FOR AT LEAST
A. 4557--A 3
1 THE FOLLOWING CONSTITUENTS: BACTERIA (TOTAL COLIFORM); SODIUM; NITRITES;
2 NITRATES; IRON; MANGANESE; IRON PLUS MANGANESE; PH; ALL VOLATILE ORGANIC
3 COMPOUNDS FOR WHICH MAXIMUM CONSTITUENT LEVELS HAVE BEEN ESTABLISHED
4 PURSUANT TO PUBLIC HEALTH REGULATIONS; AND LEAD.
5 3. (A) THE DEPARTMENT, IN CONSULTATION WITH THE DEPARTMENT OF ENVIRON-
6 MENTAL CONSERVATION, AND LOCAL HEALTH ORGANIZATIONS ESTABLISHED PURSUANT
7 TO ARTICLE THREE OF THIS CHAPTER MAY RECOMMEND ADDITIONAL TESTING FOR
8 CONSTITUENTS THAT APPEAR ON A COUNTY OR REGIONAL BASIS INCLUDING BUT NOT
9 LIMITED TO ARSENIC, BARIUM, FLUORIDE, MERCURY, METHANE, RADIUM, AND
10 RADON.
11 (B) THE DEPARTMENT MAY, BY RULE OR REGULATION, EXCLUDE OR LIMIT BY
12 GEOGRAPHIC AREA OR GEOLOGIC FORMATION, OR BASED UPON WELL RECORDED
13 INFORMATION, ANY CONSTITUENT LISTED IN THIS SECTION DEEMED BY THE
14 DEPARTMENT AS NOT SIGNIFICANT IN A COUNTY OR IN ANY SPECIFIC AREA WITHIN
15 A COUNTY AND SUCH AREA OF FORMATION NEED NOT BE TESTED AS PART OF ANY
16 WATER TEST CONDUCTED IN ACCORDANCE WITH THIS SECTION.
17 (C) FOR EACH CONSTITUENT TO BE TESTED FOR IN ACCORDANCE WITH THIS
18 SECTION, THE DEPARTMENT SHALL ESTABLISH, BY REGULATION A MAXIMUM TIME
19 PERIOD FOR WHICH A TEST RESULT SHALL REMAIN VALID FOR THE PURPOSES OF
20 THIS SECTION WITHOUT NECESSITATING RETESTING FOR SUCH CONSTITUENT;
21 PROVIDED, HOWEVER, SUCH TIME PERIOD SHALL NOT EXCEED TWELVE MONTHS. A
22 RETEST OF THE WATER SUPPLY SHALL NOT BE REQUIRED PURSUANT TO THIS
23 SECTION IF THE CONTRACT OF SALE IS ENTERED INTO WITHIN THE PERIOD OF
24 TEST VALIDITY ESTABLISHED PURSUANT TO THIS PARAGRAPH. NOTWITHSTANDING
25 ANY PROVISION OF THIS PARAGRAPH TO THE CONTRARY, A BUYER AND SELLER
26 SUBJECT TO THE PROVISIONS OF THIS SECTION MAY MUTUALLY AGREE TO RETEST
27 FOR A CONSTITUENT EVEN THOUGH THE MAXIMUM TIME PERIOD FOR TEST VALIDITY
28 FOR THE CONSTITUENT ESTABLISHED PURSUANT TO THIS SECTION HAS NOT
29 EXPIRED.
30 4. (A) ANY WATER TEST RESULTS PROVIDED BY A LABORATORY TO THE PERSON
31 OR PERSONS REQUESTING THE TEST SHALL INCLUDE THE MAXIMUM CONSTITUENT
32 LEVELS OR OTHER ESTABLISHED WATER QUALITY STANDARDS, IF ANY, PRESCRIBED
33 BY THE DEPARTMENT FOR EACH CONSTITUENT TESTED AND SHALL BE TRANSMITTED
34 ON A STANDARDIZED PRIVATE WELL WATER TEST REPORTING FORM PRESCRIBED BY
35 THE DEPARTMENT. THE FORM SHALL REFER THE BUYER AND SELLER OF THE REAL
36 PROPERTY IN QUESTION TO THE APPROPRIATE OFFICE OR PERSON WITHIN THE
37 DEPARTMENT, OR THE DEPARTMENT'S WEBSITE FOR INFORMATION REGARDING REME-
38 DIATION ALTERNATIVES.
39 (B) WITHIN TEN BUSINESS DAYS AFTER COMPLETION OF THE WATER TEST, A
40 LABORATORY SHALL SUBMIT THE WATER TEST RESULTS TO THE DEPARTMENT WITH
41 THE FOLLOWING INFORMATION:
42 (I) A STATEMENT THAT THE TESTING IS FOR THE PURPOSE OF COMPLYING WITH
43 THE "PRIVATE WELL TESTING ACT";
44 (II) THE LOCATION OF THE REAL PROPERTY, DESCRIBED BY BLOCK AND LOT
45 NUMBER, STREET ADDRESS, MUNICIPALITY, AND COUNTY;
46 (III) THE NAME AND MAILING ADDRESS OF THE PERSON OR PERSONS MAKING THE
47 REQUEST FOR THE TEST;
48 (IV) AN AFFIDAVIT STATING THE DATE AND TIME THAT THE WATER SAMPLE WAS
49 COLLECTED AND THE SPECIFIC POINT OF COLLECTION AND THE LEGAL NAME AND
50 MAILING ADDRESS OF THE PERSON OR PERSONS COLLECTING THE RAW WATER
51 SAMPLES;
52 (V) THE DATE AND TIME THE SAMPLE WAS ANALYZED BY THE LABORATORY; AND
53 (VI) SUCH OTHER INFORMATION AS MAY BE REQUIRED BY THE DEPARTMENT, IN
54 CONSULTATION WITH THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND
55 APPROPRIATE LOCAL HEALTH ORGANIZATIONS ESTABLISHED PURSUANT TO ARTICLE
56 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 S 6. The real property law is amended by adding a new section 468 to
17 read as follows:
18 S 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 S 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.