Relates to the preparation of water supply emergency plans

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.