NY State Senate Bill 2009-S5078

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Apr 27, 2009	referred to health

2009-S5078 (ACTIVE) - Details

See Assembly Version of this Bill:: A559
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §§1125 & 1103, Pub Health L

2009-S5078 (ACTIVE) - Summary

Relates to the preparation of water supply emergency plans; includes certain persons who supply drinking water to fewer than three thousand three hundred people within the definition of a water supplier which requires such person to file a water supply emergency plan; directs the commissioner of health and the county health departments to provide guidance and assistance to community water systems regarding vulnerability assessments, emergency plans and addressing potential threats to the provision of safe drinking water; and provides greater penalties for violations.

2009-S5078 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5078

 TITLE OF BILL :  An act to amend the public health law, in relation
to preparing water supply emergency plans

 PURPOSE OR GENERAL IDEA OF BILL :  To prepare the state's water
suppliers to deal with emergency situations and enhance penalties for
violating certain department of health regulations. Allows the
department or the courts to recover reparation funds from polluters
who cause permanent and/or substantial damage caused as a result of a
violation.

 SUMMARY OF SPECIFIC PROVISIONS :  Section 1 amends Public Health Law
section 1125 to require the State Department of Health to review all
water supply emergency plans (WSEP) and keep track of all water
suppliers who are required to draft such a plan. It changes the
definition of water supplier from a revenue-based standard to a
population based standard and allows the State and County Health
Departments to select additional water suppliers based on a review of
preexisting annual water supply statements and plans for mutual aid
for water service. It requires the State Department of Health to offer
guidance to water suppliers regarding plan preparation. It also allows
systems to request the assistance and approval of the State Department
of Health in preparing a water supply emergency plan.

Section 2 amends the Public Health law section 1103 to increase

penalties for violations of Department of Health regulations and to
change the structure of penalties. Allows the department or the courts
to recover reparation funds from polluters who cause permanent and/or
substantial damage caused as a result of a violation.

 EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :  Would change
the standard for mandatory preparation of a water supply emergency
plan from a revenue-based standard to a population-based standard.
Would allow the State or County Health Departments to require
additional water suppliers to draft a water supply emergency plan
based on a review of other documents. Would require that in addition
to receiving and approving water supply emergency plans, the State
Department of Health will now also review plans, and keep track of who
must prepare plans. Would require the Health Department to offer
assistance in preparation of water supply emergency plans. Would allow
water suppliers not required to draft water supply emergency plans to
chose to do so and to have the State approve them. Would remove the
distinction between temporary and permanent violations of department
of health regulations relating to contamination of the water supply.
Would apply violations to the result of the act. Would create two
classes of violations, one violating certain departmental regulations
and another, violating certain departmental regulations while
endangering the public health, safety or the environment. Penalties
for such violations would also be increased. Would allow the
department or the courts to recover reparation funds from polluters
who cause permanent and/or substantial damage caused as a result of a
violation.

 JUSTIFICATION :  In February of 2003, the Chairs of the Assembly
Committees on Oversight, Analysis and Investigation, Health and
Environmental Conservation published a report entitled UNCHARTED
WATERS which recounted the results of a multi-year study of water
supply emergency planning in the State. Among the Report's findings
were that:

1. The State Health Department was utilizing a subscriber-based stand-
ard, rather than the statutorily-defined revenue-based standard, in
determining which water suppliers needed to file WSEPs. Federal law
follows a subscriber-based standard.

2. The State Health Department involved County Health Departments in
the water supply emergency planning process. In addition to reviewing
plans and recommending State approval, Counties also determined which
local systems should file a plan. This dual role resulted in
discrepancies between State and County lists of water suppliers.

3. The New York City Water Supply Emergency Plan had not been
submitted to the State Department of Health, and an alternative
procedure had been worked out instead.

4. The State Department of Health's and the County Departments' lists
of covered water suppliers had significant discrepancies.  Among the
Report recommendations were to:

1. Revisit the applicable standard for plan preparation, to determine
whether statutory changes were needed;

2. Consider recognition in statute of the role County Health
Departments play in administering and overseeing this law.

Following issuance of the Report, the Committees met with State Health
officials to discuss these recommendations. Regarding the applicable
standard for plan preparation, it was revealed that changing from a
revenue to the 3300 Federal standard, while providing more uniformity,
would eliminate some water suppliers from those which are currently
required to plan. The Department identified some water suppliers that
would be missed using only the revenue-based standard.  In addition,
several "pass-through" systems in the state also feed into larger
systems. These pass-through systems, while perhaps not directly
serving a population of 3300 or more, may be vital to the operation of
another larger system.

To address these issues, the bill:

1. Changes the mandatory standard from a revenue-based standard (125K
in gross operating revenues) to a subscriber-based standard (3300
subscribers).

2. Allows a second standard to be applied if the State or County
Health Department; determine that other water suppliers may need to
file a plan. Annual water supply statements and joint mutual aid plans
will assist in this determination. In the case where a County requires
such a WSEP, they must notify the State within 30 days of such
determination. This allows both a firm standard for mandatory
submittal of a water supply emergency plan, without precluding
additional suppliers who may fall outside this mandatory definition,
if circumstances justify.

3. Requires the State Department of Health to review all plans that it
approves.

4. Requires the State Department of Health to maintain a list of all
water suppliers required to file a water supply emergency plan.

The bill also changes the categories of violations of water supplies
under the public health law. The bill raises the penalties for
violations of state health department regulations concerning water
resources, and recognizes in the public health law sanctions available
under the environmental conservation and penal law. The State
Department of Health argued that they needed increased penalties
because the current maximum fine was first established in 1885 and
fails to provide sufficient incentive to potential polluters to comply
with departmental regulations. The bill provisions would increase the
penalties from 200 dollars to 500 dollars and from 500 to 1000
dollars. The bill establishes that each violation may be counted as a
separate violation and that each day of violation may be counted as a
separate offense. The bill also allows as a penalty for each such
violation a misdemeanor with prison time up to one year.  Another
provision of the bill allows for the Department to recover reparations
in relation to contamination of water sources. This was done because
in the case of permanent or substantial damages, cleanup costs could
well exceed the ability to penalize a polluter. Creating a reparations
authority allows for full recovery of damages related to cleaning up
contamination.

It is the Legislature's intent to require New York City and other
water suppliers and administrative agencies to submit all outstanding
materials and/or plans to the State Department of Health. The State
will continue to have the benefit of County Health Departments
expertise as part of the review process. But in the end, it will be
the State Department of Health that must review the plan, and if such
review reveals compliance with PHL Section 1125 provisions, approve
such plan. Meanwhile, the selection responsibility is more clearly
laid out by the provisions of this bill. State DOH has previously said
such selection was left up to the discretion of County health
departments. Linking together the annual water supply statement and
the mutual aid plans will provide health departments with objective
information to consider in the selection process. These water supply
statements and mutual aid plans should also help identify pass through
systems. In addition to these two aforementioned plans, the Department
of Health or county health department may ask for more materials if
needed. This will aid counties and the State when deciding whether to
add other water suppliers below the subscriber-based threshold. Once
decisions are made there will be one list, maintained by the State
Health Department, of water suppliers subject to the Law's
requirement.

This legislation would bring state law into compliance with federal
standards, tighten up the administrative process, and increase the
penalties for contamination, interruption and abuse of our water
resources. It would also allow for recovery of damages relating to
repairing permanent or substantial damage to the environment.

These new provisions of law will seek to close the loop in water
supply emergency planning and allow for reasoned decisions about who
must do what in water supply emergency planning. It is the clear
intent of the Legislature to keep the people of the state safe from
harm and the water supply safe from threats faced in today's world.

 PRIOR LEGISLATIVE HISTORY :  2004 - A11142 - passed the Assembly 2006
- 54630 - REFERRED TO HEALTH

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :  No fiscal
implications

 EFFECTIVE DATE : Immediate.

2009-S5078 (ACTIVE) - Bill Text download pdf

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

                                  5078

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation  to  preparing  water
  supply emergency plans

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

  Section 1. Section 1125 of the public health law, as amended by  chap-
ter 405 of the laws of 2002, paragraph (b) of subdivision 1 and subdivi-
sion  5 as amended and subdivision 8 as added by chapter 317 of the laws
of 2007, is amended to read as follows:
  S 1125. Water supply emergency plans. 1. Definitions. As used in  this
title:
  (a)  "Water  supply  emergency  plan"  shall  mean a plan REVIEWED AND
approved by the commissioner and filed with  the  department.  The  plan
shall follow a form which shall be specified by the department and which
shall  include,  but  not  be limited to, those items enumerated in this
section, and shall address those actions to be taken by a water supplier
OR COMMUNITY WATER SUPPLIER PURSUANT TO PARAGRAPH (B) OF  THIS  SUBDIVI-
SION  to  anticipate  emergencies  and  respond responsibly to emergency
situations.  THE DEPARTMENT SHALL RETAIN A RECORD OF ALL WATER SUPPLIERS
REQUIRED TO FILE SUCH A PLAN UNDER SUBPARAGRAPHS ONE AND  TWO  OF  PARA-
GRAPH (B) OF THIS SUBDIVISION.
  (b)  "Water supplier" shall mean (1) any person who owns or operates a
community water system that supplies drinking water to [more than] three
thousand three hundred people OR MORE; OR (2) ANY  PERSON  WHO  OWNS  OR
OPERATES  A  COMMUNITY WATER SYSTEM THAT SUPPLIES FEWER THAN THREE THOU-
SAND THREE HUNDRED PEOPLE, WHO HAS  BEEN  REQUIRED  BY  THE  APPROPRIATE
COUNTY  HEALTH  DEPARTMENT  OR THE STATE HEALTH DEPARTMENT TO COMPLETE A
WATER SUPPLY EMERGENCY PLAN. SUCH REQUIREMENT SHALL BE BASED ON A REVIEW
OF THE ANNUAL DRINKING  WATER  SUPPLY  STATEMENT  PREPARED  PURSUANT  TO
SECTION  ELEVEN  HUNDRED  FIFTY-ONE OF THIS ARTICLE, ANY PLAN FOR MUTUAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01201-01-9

S. 5078                             2

AID FOR WATER SERVICE PREPARED PURSUANT TO SECTION ONE HUNDRED  TWENTY-U
OF  THE  GENERAL MUNICIPAL LAW, WHICH SHALL BE MADE AVAILABLE FOR REVIEW
AT THE REQUEST OF THE COUNTY OR STATE HEALTH DEPARTMENT, AND OTHER ADDI-
TIONAL  MATERIALS  THAT THE STATE OR COUNTY HEALTH DEPARTMENT SHALL NEED
TO MAKE SUCH A DETERMINATION. AFTER SUCH REVIEW,  THE  STATE  OR  COUNTY
HEALTH  DEPARTMENT  MAY,  AT  THE DISCRETION OF EITHER ENTITY, REQUIRE A
WATER SUPPLY EMERGENCY PLAN BE FILED BY SUCH PERSON. IN THE EVENT THAT A
COUNTY HEALTH DEPARTMENT REQUIRES A PLAN UNDER THIS  SUBPARAGRAPH,  SUCH
COUNTY  DEPARTMENT  SHALL  NOTIFY THE STATE HEALTH DEPARTMENT IN WRITING
WITH THE REASONS FOR SUCH DETERMINATION.
  2. All water suppliers shall prepare a water  supply  emergency  plan;
provided,  however,  if  more than one water supplier is responsible for
the same system, such plan shall be submitted jointly  by  such  two  or
more  water  suppliers.  The  plan  shall identify and outline the steps
necessary to ensure that potable  water  is  available  during  a  water
supply emergency. The water supply emergency plan shall include, but not
be limited to, the following:
  (a)  establishment  of  criteria  and procedures to determine critical
water levels or safe yield of system,
  (b) identification of existing  and  future  sources  of  water  under
normal conditions and emergency conditions,
  (c)  system  capacity  and  ability to meet peak demand and fire flows
concurrently,
  (d) storage capacities,
  (e) current condition of present interconnections  and  identification
of additional interconnections to meet a water supply emergency,
  (f) specific action plan to be followed during a water supply emergen-
cy including a phased implementation of the plan,
  (g) general water conservation programs and water use reduction strat-
egies for water supply emergencies,
  (h) prioritization of water users,
  (i)  identification  and  availability  of  emergency equipment needed
during a water supply emergency,
  (j) public notification program coordinated with the phased  implemen-
tation schedule, and
  (k)  a  vulnerability  analysis  assessment,  including an analysis of
vulnerability to terrorist attack, which shall be made  after  consulta-
tion with local and state law enforcement agencies.
  3.  All  water  suppliers  shall, prior to the final submission of the
water supply emergency plan, publish a notice in a newspaper of  general
circulation  in  the  area  served by the community water system stating
that the proposed water emergency  plan  is  available  for  review  and
comment;  provided,  however,  a water supplier shall exempt from public
disclosure for public review and comment any information  it  determines
to  pose  a  security risk to operation of the water supply system. Such
notice shall be printed at least once in each of  two  successive  weeks
and the water supplier shall accept public comment for at least fourteen
days  following  the  date  of the first publication. The water supplier
shall submit all public comments with the water emergency  plan  to  the
department.
  4. Water supply emergency plans shall be submitted to the commissioner
on  or  before December thirty-first, nineteen hundred ninety. All water
suppliers who have previously submitted  emergency  water  supply  plans
which  were  approved by the commissioner prior to the effective date of
this title are exempt from  the  provisions  of  this  subdivision.  The
commissioner shall retain a copy of each water supply emergency plan.

S. 5078                             3

  5.  Every  water  supplier  shall review, and if necessary, revise its
water supply emergency plan and report its findings to the  commissioner
by  December  thirty-first,  nineteen  hundred  ninety-five.  Any  water
supplier whose water supply emergency plan does not include an  analysis
of  vulnerability  to  terrorist attack, shall revise its emergency plan
and report its findings to the commissioner by January first, two  thou-
sand  three.  Every water supplier shall keep its water supply emergency
plan up to date, shall provide updated  communication  and  notification
information  to the commissioner by December thirty-first of every year,
and shall submit its water supply emergency plan to the commissioner for
review at least once every five years and within thirty days after major
water facility infrastructure changes have been made.
  6. (A) THE COMMISSIONER SHALL, AND A  COUNTY  HEALTH  DEPARTMENT  MAY,
PROVIDE GUIDANCE AND ASSISTANCE TO COMMUNITY WATER SYSTEMS ON CONDUCTING
VULNERABILITY  ASSESSMENTS,  PREPARING  WATER SUPPLY EMERGENCY PLANS AND
ADDRESSING THREATS FROM TERRORIST ATTACKS OR OTHER  INTENTIONAL  ACTIONS
DESIGNED TO DISRUPT THE PROVISION OF SAFE DRINKING WATER OR SIGNIFICANT-
LY AFFECT THE PUBLIC HEALTH OR SIGNIFICANTLY AFFECT THE SAFETY OR SUPPLY
OF DRINKING WATER PROVIDED TO COMMUNITIES OR INDIVIDUALS.
  (B)  A  COMMUNITY WATER SYSTEM THAT IS NOT A WATER SUPPLIER AS DEFINED
UNDER PARAGRAPH (B) OF SUBDIVISION ONE OF  THIS  SECTION  MAY  ELECT  TO
COMPLETE  A WATER SUPPLY EMERGENCY PLAN. SUCH COMMUNITY WATER SYSTEM MAY
ELECT TO SUBMIT THE PLAN TO THE COMMISSIONER FOR  APPROVAL.  IN  SUCH  A
CASE,  THE  COMMISSIONER SHALL SUBJECT THE PLAN TO SUCH APPROVAL PROCESS
AS DESCRIBED UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION.
  7. The commissioner, in his OR HER discretion, may provide an opportu-
nity for public hearing for persons served by a community water system.
  [7] 8.  The commissioner shall make such rules and  regulations  which
may be necessary to effectuate the purposes of this title.
  [8] 9.  The commissioner shall keep confidential: (a) all vulnerabili-
ty  analysis  assessments and all information derived therefrom; and (b)
all information determined by a water supplier to pose a  security  risk
to the operation of a water supply system. Such assessments and informa-
tion  shall  be  exempt  from disclosure under article six of the public
officers law. A person who, without authorization,  discloses  any  such
assessment  or information to another person who has not been authorized
to receive such assessment or information is guilty of a class A  misde-
meanor.
  S  2. Section 1103 of the public health law, as amended by chapter 528
of the laws of 2008, is amended to read as follows:
  S 1103. Violation; penalties. 1.  If  a  person  or  entity  willfully
violates  any  rule or regulation OF THE DEPARTMENT promulgated pursuant
to section one thousand one hundred of this title relating to  a  tempo-
rary  or  permanent  source  or  act  of  contamination, OR RESULTING IN
CONTAMINATION OF  ANY  PUBLIC  SUPPLIES  OF  POTABLE  WATERS  AND  WATER
SUPPLIES  OF  THE  STATE OR UNITED STATES, INSTITUTIONS, PARKS, RESERVA-
TIONS OR POSTS AND THEIR SOURCES WITHIN THE STATE, such person or entity
violating such rule or regulation shall be liable to prosecution  for  a
misdemeanor for every such violation, and on conviction thereof shall be
punished by a fine not exceeding one thousand dollars PER DAY, or impri-
sonment  not  exceeding one year, or both. EACH DAY ON WHICH A VIOLATION
OCCURS SHALL CONSTITUTE A SEPARATE INCIDENT.
  2. [If a person or entity violates any rule or regulation  promulgated
pursuant to section one thousand one hundred of this title relating to a
temporary  or  permanent  source or act of contamination, the department
may impose a civil penalty for the violation thereof or  the  noncompli-

S. 5078                             4

ance  therewith,  not  exceeding  two  hundred  dollars  for  every such
violation or noncompliance] IF A PERSON VIOLATES SUBDIVISION ONE OF THIS
SECTION AND AS A RESULT THEREOF, SUCH CONTAMINATION ENDANGERS THE PUBLIC
HEALTH, SAFETY OR THE ENVIRONMENT, SUCH PERSON SHALL BE LIABLE TO PROSE-
CUTION  FOR  A  MISDEMEANOR  FOR EVERY SUCH VIOLATION, AND ON CONVICTION
THEREOF SHALL BE PUNISHED BY A FINE NOT EXCEEDING ONE  THOUSAND  DOLLARS
PER  DAY,  OR  IMPRISONMENT NOT EXCEEDING ONE YEAR, OR BOTH. EACH DAY ON
WHICH SUCH VIOLATION OCCURS SHALL CONSTITUTE A SEPARATE INCIDENT.
  3. For purposes of calculating the applicable civil penalty under this
section, each day on which such violation occurred may be  considered  a
separate  incident. In addition, a court may order such person or entity
to make reparations for any permanent and/or substantial  damage  caused
as a direct result of such violation. For purposes of subdivision one of
this  section,  restitution  and reparation may be ordered in accordance
with applicable provisions of the criminal procedure law.
  4. IN ADDITION TO ANY PENALTY  IMPOSED  UPON  A  PERSON  FOUND  GUILTY
PURSUANT  TO SUBDIVISION TWO OF THIS SECTION, SUCH PERSON MAY BE ORDERED
BY THE COMMISSIONER OR THE COURT TO MAKE REPARATIONS FOR  ANY  PERMANENT
AND/OR  SUBSTANTIAL  DAMAGE  CAUSED  AS A RESULT OF SUCH VIOLATION. SUCH
REPARATIONS SHALL BE OF SUCH KIND, NATURE AND EXTENT AS WILL  REASONABLY
RESTORE  THE AREA AFFECTED BY THE VIOLATION TO ITS CONDITION IMMEDIATELY
BEFORE THE VIOLATION AND MAY BE MADE BY PHYSICAL RESTORATION OR  BY  THE
ASSESSMENT OF A MONETARY PAYMENT TO MAKE SUCH RESTORATION, OR BOTH.
  5.  NOTHING  IN THIS SECTION SHALL PRECLUDE PROSECUTION OR ENFORCEMENT
ACTION UNDER ANY OTHER LAW, RULE OR REGULATION, INCLUDING BUT NOT LIMIT-
ED TO ARTICLE SEVENTY-ONE  OF  THE  ENVIRONMENTAL  CONSERVATION  LAW  OR
SECTION 145.20 OF THE PENAL LAW.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law. Effective immediately,
the  addition,  amendment, or repeal of any rule or regulation necessary
for the implementation of the provisions of this act is authorized to be
made and completed on or before such effective date.

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Senate Bill S5078

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

2009-S5078 (ACTIVE) - Details

2009-S5078 (ACTIVE) - Summary

2009-S5078 (ACTIVE) - Sponsor Memo

2009-S5078 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5078

Share this bill

Sponsored By

Jeffrey D. Klein

Archive: Last Bill Status - In Senate Committee Health Committee

2009-S5078 (ACTIVE) - Details

2009-S5078 (ACTIVE) - Summary

2009-S5078 (ACTIVE) - Sponsor Memo

2009-S5078 (ACTIVE) - Bill Text download pdf

Comments