S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4614

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced by M. of A. PARMENT, LIFTON -- Multi-Sponsored by -- M. of A.
  MAGEE  --  read  once  and  referred to the Committee on Environmental
  Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  protection of water supplies

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 23 of the environmental conservation law is amended
by adding a new title 15 to read as follows:
                                TITLE 15
                      PROTECTION OF WATER SUPPLIES
SECTION 23-1501. PROTECTION OF WATER SUPPLIES.
S 23-1501. PROTECTION OF WATER SUPPLIES.
  1. ANY OWNER, DRILLER OR PRODUCER WHO  AFFECTS  A  PUBLIC  OR  PRIVATE
POTABLE  WATER  SUPPLY BY POLLUTION OR DIMINUTION AS DEFINED IN SUBDIVI-
SION 2 OF THIS SECTION SHALL RESTORE OR REPLACE THE AFFECTED SUPPLY WITH
AN ALTERNATE SOURCE OF WATER ADEQUATE IN QUANTITY AND  QUALITY  FOR  THE
PURPOSES SERVED BY THE SUPPLY.
  2.  POLLUTION  SHALL  BE  CONSIDERED  TO HAVE OCCURRED WHEN ANY OF THE
FOLLOWING PARAMETERS SHALL INCREASE BY AN AMOUNT TO CAUSE THE WATER FROM
THE AFFECTED WELL TO EXCEED DRINKING WATER STANDARDS AS  ESTABLISHED  BY
THE  UNITED  STATES  ENVIRONMENTAL  PROTECTION  AGENCY:  CHLORIDES;  PH;
TURBIDITY; IRON; MANGANESE; ALKALINITY; CALCIUM; CONDUCTIVITY; DISSOLVED
SOLIDS; HARDNESS; POTASSIUM; SODIUM; OIL AND GREASE;  SULFATE;  COLIFORM
OR METHANE.
  IN  THE  EVENT  THAT THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DRINKING WATER STANDARDS FAIL TO RECOGNIZE ANY OF THE FOREGOING  PARAME-
TERS,  POLLUTION  SHALL  BE  CONSIDERED  TO HAVE OCCURRED IF A PARAMETER
INCREASES BY TEN PERCENT OR MORE.
  DIMINUTION SHALL BE CONSIDERED TO HAVE OCCURRED  WHEN  THE  VOLUME  OF
WATER  FROM  AN  AFFECTED  WATER  SUPPLY SHALL PRECIPITOUSLY DIMINISH BY
FIFTY PERCENT OR MORE.
  3. ANY LANDOWNER, WATER PURVEYOR OR OTHER PERSON  SUFFERING  POLLUTION
OR  DIMINUTION OF A WATER SUPPLY AS A RESULT OF THE DRILLING, TREATMENT,

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05936-01-9

A. 4614                             2

ALTERATION OR OPERATION OF AN OIL OR GAS WELL MAY SO NOTIFY THE  DEPART-
MENT  AND REQUEST THAT AN INVESTIGATION BE CONDUCTED. WITHIN TEN DAYS OF
SUCH NOTIFICATION, THE DEPARTMENT SHALL INVESTIGATE ANY SUCH  CLAIM  AND
SHALL,  WITHIN  FORTY-FIVE  DAYS FOLLOWING NOTIFICATION, MAKE A DETERMI-
NATION. IF THE DEPARTMENT FINDS THAT THE  POLLUTION  OR  DIMINUTION  WAS
CAUSED  BY  THE DRILLING, TREATMENT, ALTERATION OR OPERATION ACTIVITIES,
OR IF IT  PRESUMES  THE  OWNER,  DRILLER  OR  PRODUCER  RESPONSIBLE  FOR
POLLUTION  OR  DIMINUTION PURSUANT TO SUBDIVISION 4 OF THIS SECTION THEN
IT SHALL ISSUE SUCH ORDERS TO THE OWNER,  DRILLER  OR  PRODUCER  AS  ARE
NECESSARY  TO  ASSURE  COMPLIANCE  WITH SUBDIVISION ONE OF THIS SECTION.
SUCH ORDERS MAY INCLUDE ORDERS REQUIRING THE  TEMPORARY  REPLACEMENT  OF
WATER SUPPLY WHERE IT IS DETERMINED THAT THE POLLUTION OR DIMINUTION MAY
BE OF LIMITED DURATION.
  4. UNLESS REBUTTED BY ONE OF THE FIVE DEFENSES ESTABLISHED IN SUBDIVI-
SION  5  OF THIS SECTION, IT SHALL BE PRESUMED THAT AN OWNER, DRILLER OR
PRODUCER IS RESPONSIBLE FOR THE POLLUTION OR DIMINUTION OF VOLUME  OF  A
WATER  SUPPLY  THAT  IS WITHIN ONE THOUSAND FEET OF THE DRILLING, ALTER-
ATION OR OPERATION ACTIVITIES, WHERE THE POLLUTION OCCURRED  WITHIN  SIX
MONTHS  OR  THE  DIMINUTION  OF VOLUME OCCURRED WITHIN FORTY-EIGHT HOURS
AFTER THE COMPLETION OF DRILLING, TREATMENT OR ALTERATION OF SUCH WELL.
  5. IN ORDER TO REBUT  THE  PRESUMPTION  OF  LIABILITY  ESTABLISHED  IN
SUBDIVISION  4  OF  THIS  SECTION,  THE  OWNER, DRILLER OR PRODUCER MUST
AFFIRMATIVELY PROVE ONE OF THE FOLLOWING FIVE DEFENSES:
  A. THE POLLUTION EXISTED PRIOR TO THE DRILLING,  OPERATION,  TREATMENT
OR  ALTERATION  ACTIVITY AS DETERMINED BY A PREDRILLING, PRETREATMENT OR
PREALTERATION SURVEY.
  B. THE LANDOWNER OR WATER PURVEYOR REFUSED TO ALLOW THE OWNER, DRILLER
OR PRODUCER ACCESS TO CONDUCT A PREDRILLING OR PREALTERATION  SURVEY  OF
AN  ACTIVE  WATER  SUPPLY.  IF  A  LANDOWNER  OR WATER PURVEYOR FAILS TO
RESPOND WITHIN THIRTY DAYS TO A NOTIFICATION SENT BY CERTIFIED OR REGIS-
TERED MAIL, ADDRESSED TO THE OWNER OF RECORD AS RECORDED IN  THE  OFFICE
OF  THE  COUNTY  CLERK, MADE BY THE OWNER, OPERATOR OR DRILLER DECLARING
THE INTENTION OF THE OWNER, OPERATOR OR DRILLER TO CONDUCT  A  PREDRILL-
ING,  PRETREAMENT OR PREALTERATION SURVEY, IT SHALL BE PRESUMED THAT THE
LANDOWNER HAS REFUSED TO ALLOW THE OWNER, PRODUCER OR DRILLER TO CONDUCT
A PREDRILLING OR PREALTERATION SURVEY OF AN ACTIVE WATER SUPPLY.
  C. THE WATER SUPPLY IS NOT WITHIN ONE THOUSAND FEET OF  THE  DRILLING,
ALTERATION OR OPERATION ACTIVITIES.
  D.  THE  POLLUTION  OCCURRED  MORE THAN SIX MONTHS AFTER COMPLETION OF
DRILLING, TREATMENT OR ALTERATION ACTIVITIES.
  E. THE POLLUTION OCCURRED AS THE RESULT OF SOME CAUSE OTHER  THAN  THE
DRILLING, TREATMENT, OPERATION OR ALTERATION ACTIVITY.
  6.  ANY  OWNER,  DRILLER OR PRODUCER ELECTING TO PRESERVE ITS DEFENSES
UNDER PARAGRAPH A OR B OF SUBDIVISION 5 OF THIS SECTION SHALL RETAIN THE
SERVICES OF AN INDEPENDENT CERTIFIED LABORATORY TO CONDUCT THE PREDRILL-
ING OR PREALTERATION SURVEY OF WATER SUPPLIES. A COPY OF THE RESULTS  OF
ANY  SUCH SURVEY SHALL BE SUBMITTED TO THE DEPARTMENT AND THE LANDOWNER,
WATER PURVEYOR OR OTHER PERSON IN MANNER PRESCRIBED BY THE DEPARTMENT.
  7. NOTHING IN THIS SECTION SHALL PREVENT ANY LANDOWNER, WATER PURVEYOR
OR OTHER PERSON WHO CLAIMS POLLUTION OR DIMINUTION  OF  A  WATER  SUPPLY
FROM SEEKING ANY OTHER REMEDY THAT MAY BE PROVIDED AT LAW OR IN EQUITY.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.