Add Art 71 Title 45 §§71-4501 - 71-4513, amd §71-1311, En Con L
Enacts "private environmental law enforcement act"; authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions for injunctive or declaratory relief to remedy environmental harms under certain circumstances; provides that such action may be commenced against any person for any violation of an administrative or court order compelling an investigation or remediation of an inactive hazardous waste disposal site.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5802A
SPONSOR: Kavanagh (MS) TITLE OF BILL: An act to amend the environmental conservation law, in
relation to granting private citizens the right to initiate civil
enforcement actions for violations of such law
PURPOSE:
To grant broad authorization for people to commence civil judicial
actions to prevent or remedy environmental injury under certain titles
of the Environmental Conservation Law (ECL).
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill amends Article 71 of the environmental conserva-
tion law by adding a new title 45, the Private Environmental Law
Enforcement Act.
Section 71-4501 of the new title 45 provides authority to persons who
have suffered or may suffer environmental injury to commence civil
actions against any person for violating: an administrative or court
order related to remediation of a hazardous waste disposal site; or for
a violation of the following provisions of any rule, regulation, permit,
certificate or order promulgated or issued pursuant to: a) ECL sections
15-0501, 15-0503 or 15-0505 related to protection of streams, water
bodies, and navigable waters; b) title 27 of article 15 of ECL related
to protection of wild, scenic, and recreational rivers systems; c) title
five, seven, eight, ten or seventeen of article 17 of ECL related to
water pollution control; d) ECL article 19 related to air pollution
control; e) ECL article 23 related to regulation of the development,
production, utilization, storage, and refinement of oil and gas in order
to prevent waste; f) ECL article 24 related to preservation, protection,
and conservation of freshwater wetlands; g) ECL article 25 related to
preservation and protection of tidal wetlands; h) title three, seven,
nine, or fifteen of article 27 of ECL related to regulation of waste
transporter permits, and of solid waste management, industrial hazardous
waste management, and regulated medical waste management; i) ECL article
33 related to regulation of registration, commercial use, purchase and
custom application of pesticides; j) ECL article 37 related to regu-
lation of hazardous or acutely hazardous substances; k) ECL article 40
related to regulation of bulk storage of hazardous substances.
Section 71-4503 of the new title 45 requires notice to the Environmental
Conservation Commission, the Attorney General, and any person a civil
action would allege violated this law before, and prohibits such suit
from being commenced if the commissioner or the Attorney General is
prosecuting a civil action to remedy the alleged injury.
Section 71-4505 of the bill establishes that the state may intervene in
a suit commenced by an individual and that an individual who filed the
notice required in section 71-4503 may intervene in a subsequent suit by
the state.
Section 71-4507 of the new title 45 establishes the terms for approval
of settlements.
Section 71-4509 of the new title 45 establishes costs, fees, and penal-
ties.
Section 71-4511 of the new title 45 establishes applicability in the
Adirondack Park.
Section 75-4513 of the new title 45 provides that nothing in this title
shall restrict the right of any person to seek enforcement of the law.
Section two of the bill amends section 71-1311 of the environmental
conservation law, subdivision 1, establishing who may enforce an injunc-
tion against violations of any provision of article 23 of chapter 846.
Section three of the bill sets forth the effective date.
JUSTIFICATION:
The large number of violations of environmental laws, rules, regu-
lations, permits, certificates and orders make it impossible for the
State to pursue timely enforcement actions in every instance where such
actions may be necessary or appropriate. This bill provides private
citizens with the right to seek enforcement through the courts in
instances involving violations of those provisions of the ECL relating
to protection of waters, water supply, water power, drainage, solid and
hazardous waste, freshwater and tidal wetlands, pesticides and hazardous
substances bulk storage. To avoid duplication of effort, the bill
prohibits initiation of a citizen suit when a particular activity or
condition constitutes a violation of the ECL if the Commissioner or the
Attorney General is diligently prosecuting an administrative or judicial
proceeding.
With limited enforcement resources, the State simply cannot bring an
enforcement action for every violation of the ECL or the rules, regu-
lations, permits, certificates or orders issued thereunder. As a result,
a member of the regulated community may reason that if compliance with
legal requirements, which may be costly, is postponed, it may be worth
running the risk that an enforcement action will be commenced.
A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided by concerned citizens.
Allowing private citizens to seek judicial enforcement of certain ECL
violations would increase the likelihood that such violations would be
prosecuted. This increased enforcement effort would have a significant
deterrent effect on the regulated community.
By requiring notice to the Department and the Attorney General of the
intent to institute a citizen suit, allowing the State to intervene in
such suits, and requiring notice to the Department and the Attorney
General prior to settlement of such suits, this proposal assures that
the State can oversee and provide input into the conduct and settlement
of citizen suits. The State's role as guardian of the environment and
enforcer of the State's environmental laws is thereby preserved. The
public is both willing and able to assist in this enforcement effort, as
evidenced by the number of citizen suit litigations under federal laws
and the overwhelming popular support for New York's recently enacted
"Toxic Torts" bill. Citizen suit provisions are contained in numerous
federal environmental statutes, including the Clean Air Act, the Clean
Water Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, the Noise Control
Act and the CERCLA reauthorization bill.
A pooling of all available resources will assist both public and private
sectors in achieving their common goal of increased compliance with the
environmental laws of New York State. It will enable government to allo-
cate scarce enforcement resources more efficiently by allowing it to
concentrate on the most significant violations with the assurance that
lower priority violations will not be overlooked.
PRIOR LEGISLATIVE HISTORY:
2015: A05802 (Kavanagh) - Rules
2014: A02047A (Kavanagh) - Third Reading
2013: A02047 (Kavanagh) - Third Reading
2012: A04801 (Kavanagh) - Third Reading
2011: A04801 (Kavanagh) Codes
2010: A04272 (Brodsky) - Passed Assembly
2009: A04272 (Brodsky) - Passed Assembly
2008: A01100 (Brodsky) - Third Reading
2007: A01100 (Brodsky) - Environmental Conservation
2006: A01885 (Brodsky) - Third Reading
2005: A01885 (Brodsky) - Codes
2004: A05936 (Brodsky) - Passed Assembly
2003: A05936 (Brodsky) - Passed Assembly
2002: A00455 (Brodsky) - Passed Assembly
2001: A00455 (Brodsky) - Third Reading
2000: A0956A (Brodsky) - Third Reading
1999: A0956A (Brodsky) - Passed Assembly
1998: A01620A (Brodsky) - Passed Assembly
1997: A01620A (Brodsky) - Passed Assembly
1996: A00191B (Brodsky) - Passed Assembly
1995: A00191B (Brodsky) - Passed Assembly
FISCAL IMPLICATION FOR STATE GOVERNMENT:
None.
EFFECTIVE DATE:
This act shall take effect immediately; provided, however, that no
action authorized by section 71-4501 of the environmental conservation
law, as added by section one of this act, may be commenced against any
city, village, town or county prior to September 1, 2020 and nothing in
this act shall affect any action commenced pursuant to section 71-1311
of the environmental conservation law prior to such effective date.
