S T A T E O F N E W Y O R K
________________________________________________________________________
9073
I N A S S E M B L Y
January 21, 2016
___________
Introduced by M. of A. STECK -- read once and referred to the Committee
on Environmental Conservation
AN ACT to amend the public health law, in relation to enacting the
"drinking water protection law"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 11 of the public health law is amended by adding a
new title 5 to read as follows:
TITLE V
DRINKING WATER PROTECTION LAW
SECTION 1170. SHORT TITLE.
1171. LEGISLATIVE FINDINGS.
1172. DEFINITIONS.
1173. NOTIFICATION.
1174. BLAST RECORDS.
1175. RULES AND REGULATIONS.
1176. PRE-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANAL-
YSIS.
1177. POST-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND
ANALYSIS.
1178. PENALTIES.
1179. POWER TO SUSPEND OR MODIFY.
1180. MINES AND WATER WELL DRILLERS.
1181. PREEMPTION.
S 1170. SHORT TITLE. THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS THE
"DRINKING WATER PROTECTION LAW".
S 1171. LEGISLATIVE FINDINGS. THE LEGISLATURE HEREBY FINDS AND DETER-
MINES THAT THE STATE MUST PROTECT SURFACE AND GROUNDWATER WITHIN ITS
BORDERS, PARTICULARLY SURFACE AND GROUNDWATER USED FOR DRINKING WATER.
THE LEGISLATURE HEREBY FURTHER FINDS THAT RECENT DISCLOSURES REGARDING
THE POSSIBLE CONTAMINATION AND/OR THE REDUCTION IN VOLUME/YIELD OF
WELL-WATER THROUGHOUT PARTS OF THE STATE MAY RESULT FROM INDUSTRIAL
ACTIVITIES, INCLUDING BLASTING, AND RAISE CONCERNS THAT UNSUSPECTING
RESIDENTS IN THE STATE UTILIZING PRIVATE WATER SYSTEMS MAY BE ENDANGERED
UNLESS WELL-WATER SAMPLING AND ANALYSIS IS COMPLETED IN ORDER TO IDENTI-
FY AREAS OF WATER CONTAMINATION AND/OR A REDUCTION IN WATER
VOLUME/YIELD.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11187-01-5
A. 9073 2
THE PURPOSE OF THIS TITLE IS TO PROTECT PUBLIC HEALTH AND SAFETY BY
REQUIRING THE COMPLETION OF WELL-WATER SAMPLING AND ANALYSIS PRIOR, AND
SUBSEQUENT, TO ANY BLASTING WITHIN THE STATE THAT MAY AFFECT THE QUALITY
OR VOLUME/YIELD OF SURFACE AND GROUNDWATER DRINKING WATER SUPPLIES WITH-
IN A ONE MILE RADIUS OF THE BLASTING LOCATION.
S 1172. DEFINITIONS. AS USED IN THIS TITLE;
1. "BLASTER" MEANS A PERSON HOLDING A CERTIFICATE OF COMPETENCE ISSUED
PURSUANT TO SECTION FOUR HUNDRED EIGHTY-TWO OF THE GENERAL BUSINESS LAW.
2. "BLAST" MEANS THE RAPID RELEASE OF HEAT AND LARGE QUANTITIES OF
HIGH-PRESSURE GASES THAT EXPAND RAPIDLY WITH SUFFICIENT FORCE TO OVER-
COME CONFINING FORCES RESULTING FROM THE VERY RAPID DECOMPOSITION OF A
CHEMICAL COMPOUND OR MIXTURE INITIATED BY HEAT, SHOCK, IMPACT, FRICTION
OR A COMBINATION OF SUCH CONDITIONS.
3. "BLASTING ENTITY" MEANS A PERSON, A CORPORATION OR OTHER LEGAL
BUSINESS ENTITY THAT BLASTS OR ENGAGES A BLASTER TO BLAST EITHER ON ITS
OWN BEHALF OR ON BEHALF OF ANOTHER PERSON, CORPORATION OR OTHER ENTITY.
4. "BLAST EFFECT AREA" MEANS ALL PROPERTIES WITHIN A ONE MILE RADIUS
OF A BLAST.
5. "BLASTING NOTIFICATION" MEANS THE WRITTEN NOTICE IN WHICH BLAST
INFORMATION IS PROVIDED BY A BLASTER OR BLASTING ENTITY TO INCLUDE, BUT
NOT BE LIMITED TO, THE FOLLOWING: THE BLASTING AREA, THE DATES AND TIMES
OF BLASTING, HOW ACCESS TO THE BLASTING AREA WILL BE CONTROLLED AND THE
TYPES AND PATTERNS OF BLAST WARNINGS, AND SIGNALS THAT WILL BE USED.
6. "INDEPENDENT PROVIDER" MEANS ANY PERSON, CORPORATION OR OTHER LEGAL
BUSINESS ENTITY CERTIFIED BY THE DEPARTMENT TO CONDUCT PRE-BLAST AND
POST-BLAST WATER QUALITY SAMPLING AND ANALYSIS, AND REPORTING THEREON
FOR ANY PROPERTY OWNER.
7. "QUALITY", "VOLUME/YIELD", "RECHARGE RATE" AND "PRIVATE DRINKING
WATER SUPPLY AND ANALYSIS" MEAN THE DEFINITIONS OF SUCH TERMS AS
PROVIDED IN THE RULES AND REGULATIONS OF THE COMMISSIONER.
S 1173. NOTIFICATION. 1. (A) ANY BLASTER OR BLASTING ENTITY WHO
INTENDS TO BLAST SHALL PUBLISH A BLASTING NOTIFICATION IN NEWSPAPERS
THAT HAVE GENERAL CIRCULATION WITHIN THE COUNTY IN WHICH THE BLAST IS TO
OCCUR AT LEAST SIXTY DAYS IN ADVANCE OF THE BLASTING. ADDITIONALLY, A
COPY OF THE SCHEDULE SHALL ALSO BE SENT BY CERTIFIED MAIL TO THE COMMIS-
SIONER AND TO ALL PROPERTY OWNERS WITHIN THE BLAST EFFECT AREA AT LEAST
SIXTY DAYS IN ADVANCE OF THE BLASTING. THE SCHEDULE SHALL INCLUDING THE
FOLLOWING INFORMATION: (I) THE SPECIFIC LOCATION OF THE BLAST; (II) THE
DATE AND TIME WHEN EACH BLAST WILL OCCUR; (III) A DESCRIPTION DETAILING
HOW ACCESS TO THE BLAST EFFECT AREA WILL BE CONTROLLED TO PREVENT PROP-
ERTY DAMAGE AND PERSONAL INJURY; AND (IV) THE TYPES AND PATTERNS OF
BLAST WARNINGS AND SIGNALS THAT BLASTING HAS BEEN COMPLETED AND PASSAGE
THROUGH THE BLAST EFFECT AREA IS SAFE.
(B) ANY BLASTER OR BLASTING ENTITY WHO INTENDS TO BLAST SHALL NOTIFY
PROPERTY OWNERS WITHIN THE BLAST EFFECT AREA OF ITS INTENTION IN WRITING
BY CERTIFIED MAIL AT LEAST SIXTY DAYS BEFORE ANY BLASTING OCCURS. THE
DEPARTMENT SHALL PROVIDE A FULL DESCRIPTION OF THE CONTENT REQUIRED FOR
THE MAILED NOTIFICATION IN ITS RULES AND REGULATIONS. THE BLASTER OR
BLASTING ENTITY SHALL, AT A MINIMUM, INCLUDE THE FOLLOWING INFORMATION
IN ITS MAILED NOTIFICATION TO PROPERTY OWNERS WITHIN THE BLAST EFFECT
AREA: (I) AN OFFER TO PROVIDE FREE OF CHARGE TO ANY PROPERTY OWNER AND
AT THE BLASTER'S OR BLASTING ENTITY'S EXPENSE PRE-BLAST PRIVATE DRINKING
WATER SUPPLY SAMPLING AND ANALYSIS CONDUCTED AND REPORTED BY AN INDE-
PENDENT PROVIDER; (II) CONTACT INFORMATION IN ORDER TO SCHEDULE THE
PRE-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANALYSIS; AND (III)
THAT A REPORT DETAILING THE RESULTS OF THE PRE-BLAST PRIVATE DRINKING
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WATER SUPPLY SAMPLING AND ANALYSIS SHALL BE PROVIDED TO THE DEPARTMENT
AND TO THE PROPERTY OWNER WITHIN THIRTY DAYS OF COMPLETION OF THE SAMPL-
ING AND ANALYSIS.
(2) PROPERTY OWNERS WITHIN THE BLAST EFFECT AREA WHO REQUIRE GUIDANCE
REGARDING THE PRE-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANAL-
YSIS MAY CONTACT THE DEPARTMENT AT ITS OFFICE IN ALBANY.
S 1174. BLAST RECORDS. RECORDS OF ALL BLASTS SHALL BE MAINTAINED BY
THE BLASTERS OR BLASTING ENTITIES FOR A PERIOD OF AT LEAST FIVE YEARS
FROM THE DATE OF THE BLAST OR THE DATE OF THE LAST BLAST, IF MORE THAN
ONE BLAST OCCURS IN A BLASTING PROGRAM. THESE RECORDS SHALL BE MADE
AVAILABLE FOR INSPECTION, UPON WRITTEN REQUEST BY AND AT NO COST TO, THE
PUBLIC.
S 1175. RULES AND REGULATIONS. THE COMMISSIONER IS AUTHORIZED AND
DIRECTED TO PROMULGATE ANY RULES AND REGULATIONS, AND TAKE ANY AND ALL
ACTIONS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
S 1176. PRE-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANALYSIS.
BLASTERS OR BLASTING ENTITIES SHALL BE RESPONSIBLE FOR THE REASONABLE
COSTS OF THE PRE-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANALY-
SIS REQUESTED BY PROPERTY OWNERS AND CONDUCTED BY AN INDEPENDENT PROVID-
ER PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ELEVEN
HUNDRED SEVENTY-THREE OF THIS TITLE.
S 1177. POST-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANALY-
SIS. 1. PROPERTY OWNERS WITHIN A BLAST EFFECT AREA WHO SUSPECT
POST-BLAST PRIVATE DRINKING WATER SUPPLY CONTAMINATION OR A REDUCTION IN
WATER VOLUME/YIELD MAY FILE A FORMAL COMPLAINT WITH THE DEPARTMENT WITH-
IN SIX MONTHS OF THE DATE OF A BLAST, OR THE DATE OF THE LAST BLAST, IF
MORE THAN ONE BLAST OCCURS IN A BLASTING PROGRAM.
2. THE COMMISSIONER IS AUTHORIZED TO INITIATE AN INVESTIGATION UPON
RECEIPT OF A FORMAL COMPLAINT FROM A PROPERTY OWNER WITHIN A BLAST
EFFECT AREA AND TAKE ANY AND ALL REASONABLE SUPPRESSION, ABATEMENT AND
REMEDIATION ACTIONS THAT HE OR SHE DEEMS NECESSARY AND PROPER TO PROTECT
AN INDIVIDUAL OR PUBLIC HEALTH AND SAFETY. BLASTERS OR BLASTING ENTITIES
SHALL MAKE THEIR BLAST RECORDS AVAILABLE TO THE DEPARTMENT FOR ANY PROP-
ERTY OWNER WHO HAS FILED A FORMAL COMPLAINT.
3. UPON RECEIPT OF A FORMAL COMPLAINT FROM A PROPERTY OWNER WITHIN A
BLAST EFFECT AREA, THE DEPARTMENT MAY REQUIRE THE BLASTER AND/OR BLAST-
ING ENTITY TO PAY FOR POST-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING
AND ANALYSIS TO BE PERFORMED WITHIN THIRTY DAYS OF THE REQUEST DATE, AND
REPORTED, BY AN INDEPENDENT PROVIDER. THE REPORT DETAILING THE RESULTS
OF THE POST-BLAST PRIVATE DRINKING WATER SUPPLY SAMPLING AND ANALYSIS
SHALL BE PROVIDED TO THE DEPARTMENT AND TO THE PROPERTY OWNER WITHIN
THIRTY DAYS OF COMPLETION OF THE SAMPLING AND ANALYSIS.
S 1178. PENALTIES. 1. IF THE DEPARTMENT FINDS AND DETERMINES THAT ANY
BLASTER OR BLASTING ENTITY FAILED TO MEET THE PRE-BLAST NOTIFICATION
REQUIREMENTS IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ELEVEN
HUNDRED SEVENTY-THREE OF THIS TITLE, SUCH VIOLATION SHALL BE PUNISHABLE
BY A CIVIL PENALTY NOT TO EXCEED FIFTEEN THOUSAND DOLLARS PER VIOLATION.
2. (A) NO BLASTER OR BLASTING ENTITY SHALL CONDUCT A BLAST THAT
REDUCES THE QUALITY OF A DRINKING WATER SUPPLY, RESULTS IN THE PRESENCE
IN A DRINKING WATER SUPPLY OF ANY HAZARDOUS SUBSTANCE, AS DEFINED IN THE
RULES AND REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
OR WHICH SHALL INCREASE THE TURBIDITY OF SUCH DRINKING WATER SUPPLY.
(B) NO BLASTER OR BLASTING ENTITY SHALL CONDUCT A BLAST THAT RESULTS
IN THE RECHARGE RATE IN ANY WELL USED FOR DRINKING WATER BY A PROPERTY
OWNER TO DECREASE.
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(C) UNLESS PROVEN OTHERWISE BY CLEAR AND CONVINCING EVIDENCE, A BLAST
SHALL BE CONSIDERED THE CAUSE OF THE PRESENCE IN A DRINKING WATER SUPPLY
OF ANY HAZARDOUS SUBSTANCE, AS DEFINED IN THE RULES AND REGULATIONS OF
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND, IN THE CASE OF A WELL
PROVIDING DRINKING WATER, THE CAUSE OF ANY REDUCTION IN THE RECHARGE
RATE OF ANY SUCH WELL, OR AN INCREASE IN THE TURBIDITY OF SUCH DRINKING
WATER SUPPLY.
(D) AFTER AN INVESTIGATION AND UPON A FINDING BY THE DEPARTMENT THAT
ANY BLASTER OR BLASTING ENTITY CAUSED BY ITS BLASTING CONTAMINATION OF A
PROPERTY OWNER'S DRINKING WATER, A FUNCTIONAL REDUCTION IN THE RECHARGE
RATE/YIELD OF A GROUNDWATER WELL SUPPLYING DRINKING WATER TO A PROPERTY
OWNER, OR AN INCREASE IN TURBIDITY OF SUCH DRINKING WATER SUPPLY, SUCH
VIOLATION SHALL BE PUNISHABLE BY A CIVIL PENALTY NOT TO EXCEED FIFTEEN
THOUSAND DOLLARS PER VIOLATION. IN ADDITION, THE BLASTER SHALL BE
REQUIRED TO ABATE EACH VIOLATION AND PROVIDE ALTERNATE WATER SUPPLIES TO
AN AFFECTED PROPERTY OWNER AT THE BLASTER'S EXPENSE UNTIL THE CONTAM-
INATION OR TURBIDITY IS FULLY ABATED AND THE RECHARGE RATE IS RESTORED
TO PRE-BLAST CONDITIONS.
3. CIVIL PENALTIES COLLECTED BY THE DEPARTMENT PURSUANT TO THIS TITLE
MAY BE USED FOR ABATEMENT PURPOSES FOR ANY WELLS USED TO PROVIDE DRINK-
ING WATER TO PROPERTY OWNERS WITHIN THE STATE THAT HAVE BEEN COMPROMISED
AS A RESULT OF BLASTING.
4. NOTHING IN THIS TITLE SHALL BE CONSTRUED TO PREVENT OR PROHIBIT THE
COMMENCEMENT OF ANY CIVIL OR ADMINISTRATIVE ACTION OR PROCEEDING TO
ENJOIN ANY CONDUCT CONSTITUTING A VIOLATION OF THIS TITLE OR TO RECOVER
ANY PENALTY THEREFOR OR ANY DAMAGES OCCASIONED THEREBY.
S 1179. POWER TO SUSPEND OR MODIFY. THE COMMISSIONER MAY, IN HIS OR
HER DISCRETION, SUSPEND OR MODIFY THE REQUIREMENTS OF THIS TITLE:
1. WHEN HE OR SHE DEEMS IT NECESSARY TO DO SO TO PROTECT THE HEALTH,
SAFETY AND WELFARE OF THE PUBLIC; OR
2. FOR STATE OR MUNICIPAL PROJECTS IF, IN HIS OR HER OPINION, ADEQUATE
SAFEGUARDS HAVE BEEN IMPLEMENTED TO PREVENT WELL CONTAMINATION.
S 1180. MINES AND WATER WELL DRILLERS. THE PROVISIONS OF THIS TITLE
SHALL NOT APPLY TO:
1. MINES SUBJECT TO THE PROVISIONS OF TITLE TWENTY-SEVEN OF ARTICLE
TWENTY-THREE OF THE ENVIRONMENTAL CONSERVATION LAW; AND
2. WATER WELL DRILLERS SUBJECT TO THE PROVISIONS OF TITLE FIFTEEN OF
ARTICLE FIFTEEN OF THE ENVIRONMENTAL CONSERVATION LAW.
S 1181. PREEMPTION. 1. IF ANY PART OR PROVISION OF THIS TITLE IS
INCONSISTENT WITH ANY FEDERAL LAW, RULE OR REGULATION, THEN SUCH LAW,
RULE OR REGULATION SHALL PREVAIL. IF ANY PART OR PROVISION OF THIS TITLE
OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE BE ADJUDGED
INVALID BY A COURT OF COMPETENT JURISDICTION, SUCH JUDGMENT SHALL BE
CONFINED IN ITS OPERATION TO THE PART OR PROVISION OF OR APPLICATION
DIRECTLY INVOLVED IN THE CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE
BEEN RENDERED AND SHALL NOT AFFECT OR IMPAIR THE VALIDITY OF THE REMAIN-
DER OF THIS TITLE, OR THE APPLICATION THEREOF TO OTHER PERSONS OR
CIRCUMSTANCES.
2. THE PROVISIONS OF THIS TITLE SHALL BE NULL AND VOID ON THE DATE
THAT ANY FEDERAL LAW, RULE OR REGULATION TAKES EFFECT, INCORPORATING
EITHER THE SAME OR SUBSTANTIALLY SIMILAR PROVISIONS ARE AS CONTAINED IN
THIS TITLE.
S 2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.