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

                                  5941

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 3, 2011
                               ___________

Introduced  by M. of A. GOODELL -- read once and referred to the Commit-
  tee 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 TWO 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09383-01-1
              

A. 5941                             2

  3.  ANY  LANDOWNER, WATER PURVEYOR OR OTHER PERSON SUFFERING POLLUTION
OR DIMINUTION OF A WATER SUPPLY AS A RESULT OF THE DRILLING,  TREATMENT,
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  FOUR  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  FIVE  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  FOUR  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 FIVE OF THIS SECTION SHALL  RETAIN
THE  SERVICES  OF  AN  INDEPENDENT  CERTIFIED  LABORATORY TO CONDUCT THE
PREDRILLING 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.