Rockland County, NY Chapter 389 Wells

[HISTORY: Adopted by the County Legislature of Rockland County 12-20-2004 by L.L. No. 1-2005.[1] Amendments noted where applicable.]

[1] Editor's Note: This local law was vetoed by the County Executive, which veto was overridden by a two-thirds majority vote of the County Legislature 2-1-2005 by Res. No. 36-2005.

§ 389-1 Findings, purpose and intent.

A. The Rockland County Legislature hereby finds and determines that the County must identify private water systems within its borders. This will assist Rockland County to better manage its water resources, of extreme importance due to the fact that Rockland's water is obtained from its own water sources, and a majority of that water comes from Rockland's underground water supplies.

B. The Rockland County Legislature hereby further finds that recent disclosures regarding the contamination of well water throughout the County of Rockland as a result of industrial activities, commercial activities, pesticide applications and other forms of groundwater contamination raise concerns that unsuspecting residents in Rockland County utilizing private water systems may be endangered unless a well-water test is completed on a regular and ongoing basis in order to identify areas of groundwater contamination.

C. The Rockland County Legislature further determines that many thousands of homes and tens of thousands of Rockland County residents currently use private water systems as their source of drinking water.

D. The purpose of this chapter is to protect public health and safety by requiring the completion of a well-water test prior to the acquisition of residential homes or on a regular and ongoing basis for rental properties. This will eventually result in registration of all private water systems within the County and protect our residents from contaminated water.

E. The Rockland County Legislature is aware that the New York State Legislature created Real Property Law Article 14 in order to give notice of certain enumerated matters to purchasers of real property in New York State, including Rockland County. The legislative history of that article notes that the New York Legislature never intended to prevent the parties to a real estate transaction from performing tests outside the ambit of the state-mandated disclosures. Thus, the legislative history states that the mandated disclosure form "can supplement information provided by professional inspections and tests."

§ 389-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

LANDLORD or LESSOR

Shall have the same meaning, defined as the person who allows another to use real property that falls under the purview of this chapter under a written or oral agreement.

ONE-FAMILY DWELLING, TWO-FAMILY DWELLING, MULTIPLE DWELLING, and "MOBILE HOME

Shall be as defined in the New York State Uniform Fire Prevention and Building Code. "Multiple dwelling" includes, but is not limited to, apartment houses, lodging houses, community residences, old-age homes, dormitories, fraternity houses and sorority houses.

PERSON

A person or any legal entity with the ability to act as a party to a real estate transaction or a lease or rental agreement, such as, but not limited to, a partnership, limited-liability partnership or corporation.

PRIVATE WATER SYSTEM or WELL

Any system to provide or potentially provide drinking water other than that secured from a public water system, including, but not limited to, any water system that contains connections to a home or other structure, a pool or similar construct, or a spigot or other device used for drinking purposes.

PUBLIC WATER SYSTEM

Shall have the same meaning as contained in the New York State Health Department Regulations, 10 New York Codes, Rules and Regulations Chapter I, Part 5, Subpart 5-1.1, Subdivision (at), to wit: a community, noncommunity or nontransient noncommunity water system which provides water to the public for human consumption through pipes or other constructed conveyances, if such system has at least five service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year. Such term includes: (1) collection, treatment, storage and distribution facilities under the control of the supplier of water of such system and used with such system; and (2) collection or pretreatment storage facilities not under such control which are used with such system.

RESIDENTIAL DWELLING

Any building located within Rockland County, permanent or temporary, or any part thereof, occupied or intended to be occupied by one or more individuals as a residence, home or sleeping place, together with the land and buildings appurtenant thereto and all services, privileges, furnishings, furniture and facilities supplied in connection with the occupation thereof, including all multiple residential dwellings, including lodging houses, boardinghouses, motels, or hotels with more than 10 rooms.

ROCKLAND COUNTY WATER STANDARD

The more stringent of New York State water quality requirements or Rockland County Health Department regulations, both as amended from time to time, whichever is more stringent

TENANT or LESSEE

Shall have the same meaning, defined as the person who uses real property that falls under the purview of this chapter that the person does not own under a written or oral agreement

§ 389-3 Testing requirements.

A. Upon the signing of a contract of sale for any property served by a private water system within Rockland County, the seller shall cause a test of the water and obtain a written certification from a New York State approved laboratory that such private water system, based on an analysis of untreated or raw water, conforms to the Rockland County water standard for such residences. The seller shall arrange for and pay the cost of this testing, and, within 10 days of the contract, provide the purchaser with confirmation that the test has been ordered.

B. The landlord or lessor of any residence of whatever sort being offered to the public as a rental property shall cause the private water system serving the residence to be tested every five years and when sold. Tenants or lessees shall be given a copy of said test as soon as the landlord or lessor obtains same.

C. Within 60 days of ordering the test, the seller shall deliver the well testing report to the purchaser. The buyer and seller both shall certify, in writing, that they have received and reviewed the water test results. The written certification shall be exchanged between the seller and buyer of residential property, and, in the case of a rental property, the results shall be posted in a prominent place in the residence and shall be given to every renter prior to consummation of an oral or written rental agreement. Concurrent with submittal to buyer, tenant or lessee, the seller and the laboratory must also submit the results directly to the Rockland County Department of Health.

D. In the event that the test discloses a failure to conform to the Rockland County water standard, then:

(1) In the case of a sale:

(a) The seller shall notify the purchaser within 15 days thereafter.

(b) The seller shall then have the option of either correcting the condition to achieve safe levels of contaminants as per state or Rockland County guidelines, whichever is more stringent, at his or her own cost and expense or canceling the contract of sale and returning the down payment, in which case neither party shall be liable to the other.

(c) The purchaser, upon notification by the seller that he or she will not remediate or correct the condition, may nevertheless agree, in writing, to consummate the transfer notwithstanding such noncompliance.

(d) If any part of the residence is currently occupied, the seller, if he or she cancels the contract, or the purchaser, if he or she buys the property, must immediately provide an alternate source of potable water, pursuant to the Rockland County Sanitary Code and within 60 days, in the case of the seller who cancels, or within 60 days after closing, for the buyer, or as soon as is practicable in either case, remediate the condition.

(2) In the case of a rental, the landlord shall then, in the case of a vacant residence, have the option of either correcting the condition at his or her own cost and expense prior to renting the premises or refraining from renting the property until such time as the landlord either performs the necessary remediation or connects to the public water supply. If any part of the residence is currently rented, the landlord must immediately provide an alternate source of potable water, pursuant to the Rockland County Sanitary Code and within 60 days, or as soon as is practicable, remediate the condition. Should the landlord refrain from performing on the obligations created by this chapter, the tenant may, at personal expense, remediate the condition and set off the cost by a reduction in rent until the cost is covered by such rental reduction.

E. Upon consummation of sale, an affidavit, substantially complying with the form in Appendix A of this chapter, and certifying that the testing has been or will be completed in accordance with the schedule contained in § 389-3 of this chapter, shall be filed with the Rockland County Health Department.

F. All new wells must be tested as above before they may be put into use for the first time. If the private water system fails, it may not be used until an appropriate remediation method is applied to the private water system and a subsequent test gives passing results.

G. All wells not in use as a potable water supply for a period of five years shall be treated as new wells, and shall not be used until testing is completed.

H. Where Rockland County or one or more of its constituent municipalities is the purchaser or the seller, any monies the municipality spends in furtherance of this chapter shall be a lien upon the real property, to be paid by the ultimate purchaser of the real property from the municipality.

§ 389-4 Water testing: collection and testing of samples.

A. Sample location.

(1) Water sampling locations for compliance with this chapter shall be as follows:

(a) If there is no water treatment system in use on the subject property, samples shall be collected from a primary cold water, nonaerated spigot or tap that draws from, or feeds water to, the potable water system of the subject property.

(b) Where a water treatment system is in use on the subject property, the sample shall be collected as follows:

[1] The water treatment system shall be disconnected or otherwise disabled prior to the collection of the water sample; or

[2] The sample shall be collected at a location prior to the water treatment system.

(2) In the case of new well construction and installation where there is no spigot or tap on the subject property, the sample may be collected directly at the wellhead (raw water sample).

B. Water testing by laboratories; conditions

(1) Any water test conducted in accordance with this chapter shall be conducted by a laboratory certified by the New York State Department of Health to test for drinking water contaminants.

(2) Any water test results provided by a laboratory to the person or persons requesting the test shall include the maximum contaminant levels or other established water quality standards, if any, prescribed by the Rockland County Health Department or this chapter for each parameter tested and shall be transmitted on a standardized private well water test reporting form substantially conforming to that prescribed by the Department of Health. The form shall also be sent from the Rockland County Health Department to the person or persons requesting the test, along with an informational document to provide information regarding remediation alternatives available, and shall refer the buyer and seller of the real property in question to the appropriate office or person within the Department of Health, or to the Department's Web site, for further information regarding such alternatives.

(3) Required information.

(a) The laboratory, within five business days after completion of the water test, shall also submit the water test results to the Department of Health, together with the following information:

[1] A statement that the testing is for the purpose of complying with this chapter;

[2] The location of the real property, described by block and lot number, street address, municipality, and County;

[3] The name and mailing address of the person or persons making the request for the test;

[4] The name of the employee or authorized representative of the laboratory who collected the well sample;

[5] The date and time that the water sample was collected and the specific point of collection;

[6] The date and time the sample was analyzed by the laboratory; and

[7] Such other information as may be required by the Department of Health as appropriate to the County.

(b) The Department of Health may require laboratories to submit electronically the information required pursuant to this chapter.

(4) A laboratory shall not release water test results to any person except the buyer and seller of the real property at issue, or the lessor and lessee or tenant of the rental real property, any person authorized by the buyer, seller, or lessor, as the case may be, the Department of Health, or any person designated by court order.

(5) The Department of Health shall compile the data accumulated from the water test results submitted by laboratories pursuant to this section in a manner that shall be useful to the Health Department, the County, or other governmental entities for the purposes of studying groundwater supplies or contamination in the County.

§ 389-5 Health Department to formulate regulations. [1]

The Rockland County Department of Health is hereby charged with formulating private water systems standards to govern the operation and testing of residential well-water systems in Rockland County. Such regulations must be approved by a resolution of the Rockland County Legislature. All residential well testing undertaken pursuant to this chapter must conform to the promulgated rules and regulations. For each fiscal year after the County fiscal year in which this chapter is enacted, the Department of Health shall include in its annual budget request submitted for the annual appropriations a sufficient sum to meet the costs projected for this chapter for the next County fiscal year.

[1] Editor's Note: The private well testing regulations adopted by the Health Department, and approved by the County Legislature 10-6-2005 by Res. No. 498-2005, are included at the end of this chapter.

§ 389-6 No waiver.

The testing and reporting requirements of this chapter may not be waived.

§ 389-7 Certain prior testing acceptable.

Where a homeowner, landlord, or prior possessor of the property caused a test to be performed that complies with each and every testing and sampling requirement as mandated by this chapter and formulated by the Rockland County Health Department, but such test is performed prior to the effective date of this chapter or prior to offering the property for sale or lease, such analytical results will be considered representative of the water quality of a given source, and as such may be used to satisfy the requirements of this chapter for a period of one year after sample collection, provided that the filing requirements are satisfied as soon as possible after the decision is made to sell or rent the property. After the effective date of this chapter, testing for purposes of sale shall be adequate for this chapter's purpose as to this or any subsequent buyer for one year from the testing date.

§ 389-8 Applicability.

A. This chapter shall apply to any agreements for the purchase and sale, or rental, of residential dwellings occurring on or after the effective date of this chapter.

B. This chapter shall not apply to gifts of residential dwellings nor to transfers of such residential dwellings that occur by operation of law.

§ 389-9 Penalties for offenses.

A. Any seller who violates a provision of this chapter or any regulations promulgated pursuant to this chapter shall be subject to the imposition of a civil penalty by the Rockland County Commissioner of Health in an amount not exceeding $500 for a violation in a single-family dwelling or mobile home and not exceeding $1,000 per apartment or unit for a violation in a two-family dwelling or multiple dwelling.

B. Any violation not corrected within one month of the initial violation date shall be subject to a penalty in an amount not exceeding $500 for each continuing, succeeding day in a single-family dwelling or mobile home, and each repeated violation in a two-family dwelling or multiple dwelling shall be subject to a penalty in an amount not exceeding $1,000 per apartment or unit for each continuing, succeeding day.

C. Each day the violation exists thereafter shall be deemed a separate additional violation.

D. Any person who fails to submit the well-water test results in the office of the Rockland County Health Department shall be subject to the imposition of a civil penalty by the Rockland County Commissioner of Health in an amount not exceeding $2,500 for a violation in a single-family or two-family dwelling or mobile home and not exceeding $2,500 per apartment or unit for a violation in a multiple dwelling.

E. The penalty provided for by this chapter may be sued for and recovered by the Rockland County Commissioner of Health in the name of the County of Rockland in any court of competent jurisdiction. No civil penalty shall be imposed as provided for herein unless the alleged violator has received notice of the charge against him and has had an opportunity to be heard as provided for in Article One of the Rockland County Sanitary Code.

§ 389-10 Severability.

If any clause, sentence, paragraph, subdivision, section or part of this chapter or the application thereof to any person, individual, corporation, firm, partnership, entity or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, affect or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this chapter or in its application to the person, individual, corporation, firm, partnership, entity or circumstance directly involved in the controversy in which such order or judgment shall be rendered.

§ 389-11 Duty of agents.

An agent representing a seller of residential real property as a listing broker shall have the duty to timely inform each seller represented by that agent of the seller's obligations under this chapter. An agent representing a buyer of residential real property, or, if the buyer is not represented by an agent, the agent representing a seller of residential real property and dealing with a prospective buyer, shall have the duty to timely (in any event, before the buyer signs a binding contract of sale) inform such buyer of this chapter. If an agent performs the duties and obligations imposed upon him or her pursuant to this section, the agent shall have no further duties under this chapter and shall not be liable to any party for a violation of this chapter.

§ 389-12 When effective.

This chapter shall become effective:

A. For new wells, immediately;

B. For rentals, one year;

C. For sales, six months; from the filing of this chapter in the office of the New York Secretary of State pursuant to § 27 of the Municipal Home Rule Law.