§ 27-1205. Mitigation of contaminants in drinking water.

1. Whenever the commissioner of health has required a public water
system to take action to reduce exposure to an emerging contaminant or
emerging contaminants and has determined that the concentration of the
emerging contaminant constitutes an actual or potential threat to public
health based on the best available scientific information pursuant to
section eleven hundred twelve of the public health law, the department
in conjunction with the department of health, may, pursuant to the Clean
Water Infrastructure Act of 2017 and within the up to one hundred thirty
million dollars appropriated for such purposes, undertake all reasonable
and necessary additional mitigation measures in any area of the state in
which contamination is known to be present. The department shall employ
feasible measures that can be successfully carried out with available,
implementable and cost effective technology. Such area shall include, at
a minimum, all properties served by the public water system, any
individual onsite water supply systems impacted by the contamination,
and any land and any surface or underground water sources impacted by
the contamination. Such approved measures shall be protective of public
health and may include but not be limited to the installation of
treatment systems or the provision of alternative water supply sources
to ensure that drinking water meets applicable standards, including
maximum contaminant levels, notification levels, maximum residual
disinfectant levels, or action levels established by the department of
health.

2. If the department or the department of health, as applicable,
determines that a drinking water contamination site poses a significant
threat to the public health or environment from a hazardous waste, the
department shall refer the site to the inactive hazardous waste disposal
site remedial program pursuant to title thirteen of this article.

3. Whenever the commissioner of health has required a public water
system to take action to reduce exposure to emerging contaminants and
has determined that the concentration of the emerging contaminant
constitutes an actual or potential threat to public health based on the
best available scientific information pursuant to section eleven hundred
twelve of the public health law:

a. the department shall have the authority to undertake directly in
conjunction with the department of health, the development and
implementation of all necessary and reasonable mitigation and
remediation measures of drinking water contamination, as approved by the
department of health, to address emerging contaminants in public water
supplies;

b. the commissioner may order, after notice and opportunity for a
hearing, the owner and/or operator of the drinking water contamination
site and/or any person responsible for such contamination to undertake
all reasonable and necessary mitigation and remediation, as approved by
the department of health, to ensure that drinking water meets applicable
standards, including maximum contaminant levels, notification levels,
maximum residual disinfectant levels, or action levels established by
the department of health, and employ feasible measures that can be
successfully carried out with available, implementable and cost
effective technology, subject to the approval of the department and the
department of health, at such site, and to implement such program within
reasonable time limits specified in the order. Provided, however, that
in the event the commissioner of health shall issue an order pursuant to
subdivision three of section one thousand three hundred eighty-nine-b of
the public health law, such order of the commissioner of health shall
supersede any order issued hereunder.

4. The department shall have the authority a. to delegate
responsibility for a specific drinking water contamination site to the
municipality in which such site is located and b. to contract with any
other person to perform necessary work in connection with such sites.

5. Section eight of the court of claims act or any other provision of
law to the contrary notwithstanding, the state shall be immune from
liability and action with respect to any act or omission done in the
discharge of the department's aforesaid responsibility pursuant to this
title; provided, however, that this subdivision shall not limit the
liability which may otherwise exist for unlawful, willful, or malicious
acts or omissions on the part of the state, state agencies, or their
officers, employees or agents; or for the ownership or responsibility
for the disposal of such contaminant, including liability for the cost
of remediation, pursuant to this section.

6. Whenever the commissioner of health, after investigation, finds:

a. that a public drinking water contamination site represents an
actual or potential threat to the public health; and

b. the threat makes it prejudicial to the public interest to delay
action until a hearing can be held pursuant to this title, the
department may, pursuant to paragraph a of subdivision three of this
section and within the funds available to the department from the
drinking water response program, develop and implement, in conjunction
with the department of health, all reasonable and necessary mitigation
and remedial measures to address drinking water contamination for such
site to ensure that drinking water meets applicable standards, including
maximum contaminant levels, notification levels, maximum residual
disinfectant levels or action levels established by the department of
health. Findings required pursuant to this subdivision shall be in
writing and may be made by the commissioner of health on an ex parte
basis subject to judicial review.

7. Any order issued pursuant to paragraph b of subdivision three of
this section shall be issued only after notice and the opportunity for a
hearing is provided to persons who may be the subject of such order. The
commissioner or the commissioner of health shall determine which persons
are responsible pursuant to said subdivision according to applicable
principles of statutory or common law liability. Such persons shall be
entitled to raise any defense set forth in section 27-1211 of this title
or common law defense at any such hearing and such defenses shall have
the same force and effect at such hearings as they would have in a court
of law. In the event a hearing is held, no order shall be issued by the
commissioner under subdivision three of this section until a final
decision has been rendered. Any such order shall be reviewable pursuant
to article seventy-eight of the civil practice law and rules within
thirty days after service of such order. The commissioner or the
commissioner of health may request the participation of the attorney
general in such hearings.

8. The commissioner shall make all reasonable efforts, in accordance
with the requirements of subdivision six of section ninety-seven-b of
the state finance law, to recover all mitigation costs incurred pursuant
to subdivisions one and three of this section from the owner and/or
operator of the drinking water contamination site.

9. When a municipality develops and implements remediation to address
a drinking water contamination site, determined pursuant to subdivision
four of this section, and the plan is approved by the department, in
conjunction with the department of health, which is owned or has been
operated by such municipality or when the department, in conjunction
with the department of health, pursuant to an agreement with a
municipality, develops and implements such remediation, the commissioner
shall, in the name of the state, agree in such agreement to provide from
the drinking water response program, within the limitations of
appropriations therefor, seventy-five percent of the eligible design and
construction costs of such program for which such municipality is liable
solely because of its ownership and/or operation of such site and which
are not recovered from or reimbursed or paid by a responsible party or
the federal government.

10. Nothing contained within this section shall be construed as
impairing or in any manner affecting the right or jurisdiction of the
attorney general to seek appropriate relief pursuant to his or her
statutory or common law authority.

11. Moneys for actions taken or to be taken by the department, the
department of health or any other state agency pursuant to this title
shall be payable directly to such agencies from the drinking water
response program pursuant to section ninety-seven-b of the state finance
law.

12. a. Every person shall, upon the written request of the
commissioner or a designee, permit a duly designated officer or employee
of the department at all reasonable times to have access to and to copy
all books, papers, documents and records pertinent to an ongoing
investigation of drinking water contamination identified in section
27-1203 of this title.

b. The commissioner may sign and issue subpoenas in the name of the
department requiring the production of books, papers, documents and
other records and may take testimony by depositions under oath of any
person relating to the ongoing investigation of a drinking water
contamination identified in this title. Such subpoenas and depositions
shall be regulated by the state of New York's civil practice law and
rules. The commissioner may invoke the powers of the supreme court of
the state of New York to compel compliance with any such subpoena or any
request to take such depositions.

c. When the department has substantial evidence that such drinking
water contamination site is causing or substantially contributing to the
contamination of drinking water, and subject to the applicable notice
provisions set forth in paragraph d of this subdivision, any duly
designated officer or employee of the department, or of any state
agency, and any agent, consultant, contractor, or other person,
including an employee, agent, consultant, or contractor of a responsible
person acting at the direction of the department, so authorized in
writing by the commissioner, may enter any drinking water contamination
site and areas near such site and inspect and take samples of wastes,
soil, air, surface water, and groundwater. In order to take such
samples, the department or authorized person may utilize or cause to be
utilized such sampling methods as it determines to be necessary
including, but not limited to, soil borings and monitoring wells.

d. The department or authorized person shall not take any samples
involving the substantial disturbance of the ground surface of any
property unless it has made a reasonable effort to identify the owner of
the property and to notify such owner of the intent to take such
samples. If the owner can be identified, the department shall provide
such owner with a minimum of ten days' written notice of the intent,
unless such owners and occupants consent to an earlier date, to take
such samples, unless the commissioner makes a written determination that
such ten day notice will not allow the department to protect the
environment or public health, in which case two days' written notice
shall be sufficient. Any inspection of the property and each such taking
of samples shall take place at reasonable times and shall be commenced
and completed with reasonable promptness. If any officer, employee,
agent, consultant, contractor, or other person so authorized in writing
by the commissioner obtains any samples prior to leaving the premises,
he or she shall give to the owner or operator a receipt describing the
sample obtained and, if requested, a portion of such sample equal in
volume or weight to the portion retained. If any analysis is made of
such samples, a copy of the results of such analysis shall be furnished
promptly to the owner or operator. Upon the completion of all sampling
activities, the department or authorized person shall remove, or cause
to be removed, all equipment and well machinery and return the ground
surface of the property to its condition prior to such sampling, unless
the department or authorized person, and the owner of the property shall
otherwise agree.

e. The expense of any such mitigation by the department or the
department of health shall be paid by the drinking water response
program, but may be recovered from any responsible person in any action
or proceeding brought pursuant to the state finance law, this title,
other state or federal statute, or common law if the person so
authorized in writing is an employee, agent, consultant, or contractor
of a responsible person acting at the direction of the department, then
the expense of any such sampling and analysis shall be paid by the
responsible person.

f. Any duly designated officer or employee of the department or any
other state agency, and any agent, consultant, contractor, or other
person acting at the direction of the department, authorized in writing
by the commissioner, may enter any drinking water contamination site and
areas near such site to undertake all reasonable and necessary
mitigation and remediation for such site, provided: (a) the commissioner
has sent a written notice to the owners of record or any known occupants
of such site or nearby areas of the intended entry and work at least ten
days prior to such initial entry unless such owners and occupants
consent to an earlier date; and (b) the department has substantial
evidence that such drinking water contamination site is causing or
substantially contributing to the contamination of drinking water. In
the event the commissioner of health makes a written determination that
such ten day notice will not be sufficient to protect public health, two
days' written notice shall be sufficient.