Add Art 71 Title 45 SS71-4501 - 71-4513, amd S71-1311, 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.
STATE OF NEW YORK
________________________________________________________________________
3967
2009-2010 Regular Sessions
IN SENATE
April 7, 2009
___________
Introduced by Sen. OPPENHEIMER -- read twice and ordered printed, and
when printed to be committed to the Committee on Environmental Conser-
vation
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
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 71 of the environmental conservation law is amended
2 by adding a new title 45 to read as follows:
3 TITLE 45
4 PRIVATE ENVIRONMENTAL
5 LAW ENFORCEMENT ACT
6 Section 71-4501. Enforcement by private citizens.
7 71-4503. Notice of action.
8 71-4505. Intervention.
9 71-4507. Approval of settlements.
10 71-4509. Costs, fees, and penalties.
11 71-4511. Applicability in the Adirondack park.
12 71-4513. Savings clause.
13 § 71-4501. Enforcement by private citizens.
14 1. Except as otherwise provided in section 71-4503 of this title, any
15 person who has suffered or may suffer an injury in fact, regardless of
16 whether such injury is different in kind or degree from that suffered by
17 the public at large, may commence a civil action in a court of competent
18 jurisdiction for injunctive and declaratory relief pursuant to subdivi-
19 sion two of this section against any person for any violation of an
20 administrative or court order compelling that person to investigate or
21 remediate an inactive hazardous waste disposal site pursuant to title
22 thirteen of article twenty-seven of this chapter or for a violation of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07344-02-9
S. 3967 2
1 the following provisions of or any rule, regulation, permit, certif-
2 icate, or order promulgated or issued pursuant to:
3 a. section 15-0501, 15-0503 or 15-0505 of title five of article
4 fifteen of this chapter; or
5 b. title twenty-seven of article fifteen of this chapter; or
6 c. title five, seven, eight, ten or seventeen of article seventeen of
7 this chapter; or
8 d. article nineteen of this chapter; or
9 e. article twenty-three of this chapter; or
10 f. article twenty-four of this chapter; or
11 g. article twenty-five of this chapter; or
12 h. title three, seven, nine or fifteen of article twenty-seven of this
13 chapter; or
14 i. article thirty-three of this chapter; or
15 j. article thirty-seven of this chapter; or
16 k. article forty of this chapter.
17 2. In any action commenced pursuant to subdivision one of this
18 section, the court may issue declaratory or injunctive relief or both
19 for each violation found. The judgment in any such action may also
20 impose such conditions on the defendant as are necessary to ensure
21 compliance with such law, rule, regulation, permit, certificate, or
22 order within a reasonable time period.
23 3. No person shall commence a civil action pursuant to subdivision one
24 of this section unless the alleged violation could be subject to a judi-
25 cial enforcement action or administrative enforcement proceeding brought
26 by or on behalf of the department, the state of New York, the commis-
27 sioner, or the commissioner's designee.
28 4. No action may be brought against the state or any of its depart-
29 ments, agencies, or bureaus or any of its political subdivisions or any
30 public authority pursuant to this title except in their capacity as
31 owner or operator of a pollution source or as a person responsible for
32 the investigation or remediation of an inactive hazardous waste disposal
33 site pursuant to title thirteen of article twenty-seven of this chapter.
34 § 71-4503. Notice of action.
35 1. Except as provided in subdivision two of this section, no action
36 may be commenced under subdivision one of section 71-4501 of this title:
37 a. prior to sixty days after written notice by certified mail, return
38 receipt requested, has been given by the plaintiff to the commissioner,
39 the attorney general, and any person alleged to be in violation of any
40 law, rule, regulation, permit, certificate, or order. Such written
41 notice shall be given in such a manner as the commissioner may prescribe
42 by regulation and shall identify any person alleged to be in violation
43 of any such law, rule, regulation, permit, certificate, or order as set
44 forth in subdivision one of section 71-4501 of this title and shall
45 describe with reasonable particularity the activity or condition
46 complained of including, where appropriate, data or test results in the
47 possession of the plaintiff which describe such alleged violation; or
48 b. if the commissioner or his or her designee, at any time prior to
49 the end of the sixty day notice period prescribed in paragraph a of this
50 subdivision or prior to commencement of such action, whichever is later,
51 and upon written notice to the person who provided the notice prescribed
52 in paragraph a of this subdivision, has commenced and is actively pros-
53 ecuting an administrative enforcement proceeding pursuant to this chap-
54 ter relative to the alleged violation; or
55 c. if the attorney general, at any time prior to the end of the sixty
56 day notice period prescribed in paragraph a of this subdivision or prior
S. 3967 3
1 to commencement of such action, whichever is later, and upon written
2 notice to the person who provided the notice prescribed in paragraph a
3 of this subdivision, has commenced and is actively prosecuting a civil
4 action in a court of the United States or New York state which seeks an
5 order or injunction relative to the alleged violation; or
6 d. if the alleged violation is the subject of a consent order, a
7 court order, or any other written agreement signed by the commissioner
8 or the commissioner's designee and the alleged violator setting forth a
9 compliance schedule to eliminate the alleged violation in a reasonable
10 time period, or of a settlement or disposition of an administrative
11 enforcement proceeding or a civil action commenced pursuant to this
12 chapter; provided that the alleged violator is in compliance with the
13 terms of such consent order, court order, agreement, settlement, or
14 disposition.
15 2. The plaintiff may commence an action under subdivision one of
16 section 71-4501 of this title prior to sixty days after the giving of
17 notice required by paragraph a of subdivision one of this section upon a
18 showing to the court that the matter in controversy involves a substan-
19 tial and imminent hazard to the environment.
20 3. A copy of the complaint and, unless service is thereafter waived,
21 all motion papers and any subsequent pleadings shall be served upon the
22 commissioner, the attorney general, and the defendant.
23 § 71-4505. Intervention.
24 1. The state, as represented by the attorney general, may intervene as
25 a matter of right in any action brought pursuant to this title.
26 2. Any person who is authorized to commence an action pursuant to
27 section 71-4501 of this title and who has given notice pursuant to
28 section 71-4503 of this title may intervene upon timely motion as a
29 matter of right in any action or proceeding subsequently commenced by
30 the department or the attorney general relating to any violation alleged
31 in such notice.
32 § 71-4507. Approval of settlements.
33 1. No action commenced under this title shall be settled, except upon
34 approval by the court upon sixty days' notice to all parties, the
35 commissioner, and the attorney general. Notice of the proposed settle-
36 ment shall be published in the environmental notice bulletin. Upon the
37 motion of the commissioner, the attorney general, or any other party, or
38 upon its own motion, the court may require such further notice as may be
39 required to protect the interests in environmental protection or
40 enforcement of citizens who are not party to the action. The court shall
41 not approve a settlement in an action commenced under this title if the
42 court determines that a monetary settlement in excess of costs,
43 disbursements, and reasonable expert witnesses' and attorneys' fees has
44 been offered or paid by a defendant as consideration for such settlement
45 to a plaintiff who has standing to sue only by virtue of this title.
46 2. If, subsequent to the commencement of an action under subdivision
47 one of section 71-4501 of this title which action has not been finally
48 adjudicated, the person alleged to be in violation of any law, rule,
49 regulation, permit, certificate, or order enters into a consent order or
50 is subject to a court order or other written agreement signed by the
51 commissioner or his designee which sets forth a reasonable settlement
52 and disposition of the alleged violation, the court in which such action
53 is pending, on motion of any party, may make an appropriate order
54 disposing of the case, including the award of costs, disbursements,
55 reasonable expert witnesses' and attorneys' fees to any party, if appro-
56 priate pursuant to section 71-4509 of this title.
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1 § 71-4509. Costs, fees, and penalties.
2 1. The court, in issuing any final order in any action brought pursu-
3 ant to subdivisions one and two of section 71-4503 of this title, may in
4 its discretion award costs, disbursements, and reasonable expert
5 witnesses' and attorneys' fees to any prevailing or substantially
6 prevailing party; provided, however, that such an award to a prevailing
7 respondent or defendant shall not exceed ten thousand dollars, and a
8 prevailing respondent or defendant, in order to recover such costs,
9 disbursements, reasonable expert witnesses' and attorneys' fees, must
10 make a motion requesting such costs, disbursements, and fees and show
11 that the action or claim brought was frivolous. In order to find the
12 action or claim to be frivolous, the court must find in writing one or
13 more of the following:
14 a. the action or claim was commenced, used, or continued in bad faith,
15 solely to delay or prolong the resolution of the litigation or to harass
16 or maliciously injure another;
17 b. the action or claim was commenced or continued in bad faith without
18 any reasonable basis in law or fact and could not be supported by a good
19 faith argument for an extension, modification, or reversal of existing
20 law. If the action or claim was promptly discontinued when the party or
21 the attorney learned or should have learned that the action or claim
22 lacked such a reasonable basis, the court may find that the party or the
23 attorney did not act in bad faith.
24 2. Notwithstanding the provisions of subdivision one of this section,
25 no costs, disbursements, or reasonable expert witnesses' and attorneys'
26 fees may be awarded against the state, or any of its departments, agen-
27 cies, bureaus, or any of its political subdivisions or any public
28 authority in any action brought under this title.
29 3. In addition to the state's right to intervene pursuant to subdivi-
30 sion one of section 71-4505 of this title or any other law, the state,
31 as represented by the attorney general, may appear upon timely motion in
32 an action brought under this title for the sole purpose of obtaining an
33 award of penalties against any person found liable in such action;
34 provided, however, that the plaintiff and defendant must be notified of
35 the state's intent to move for penalties within thirty days of commence-
36 ment of such action. Any claim for penalties based upon a violation
37 which is the subject of an action brought under this title must be
38 brought in such action.
39 § 71-4511. Applicability in the Adirondack park.
40 With respect to those parts of title twenty-seven of article fifteen
41 of this chapter and those parts of article twenty-four of this chapter
42 administered by the Adirondack park agency created pursuant to article
43 twenty-seven of the executive law, any reference in this title to the
44 department, the commissioner, or the commissioner's designee shall be
45 construed to mean the Adirondack park agency.
46 § 71-4513. Savings clause.
47 Nothing in this title shall restrict any right which any person or
48 class of persons may have under any statute or common law to seek
49 enforcement of any statute, rule, regulation, permit, certificate, or
50 order or to seek any other relief.
51 § 2. Section 71-1311 of the environmental conservation law, subdivi-
52 sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
53 as follows:
54 § 71-1311. Injunction against violations.
55 [1.] Whenever it appears that any person is violating or threatening
56 to violate any provision of article 23 of this chapter or is committing
S. 3967 5
1 any offense described in section 71-1305 of this title, the department,
2 acting by the [Attorney General] attorney general, may bring suit
3 against such person in any court of competent jurisdiction to restrain
4 such person from continuing such violation or from carrying out the
5 threat of violation. In any such suit, the court shall have jurisdiction
6 to grant to the department, without bond or other undertaking, such
7 prohibitory or mandatory injunctions as the facts may warrant, including
8 temporary restraining orders and preliminary injunctions.
9 [2. If the department, acting by the Attorney General, shall fail to
10 bring suit to enjoin a violation or threatened violation of any
11 provision of article 23, or any rule, regulation, or order of the
12 department made pursuant hereto, within ten days after receipt of writ-
13 ten request to do so by any person who is or will be adversely affected
14 by such violation, the person making such request may bring suit in his
15 own behalf to restrain such violation or threatened violation in any
16 court in which the department might have brought suit. The department
17 shall be made a party in such suit in addition to the person violating
18 or threatening to violate a provision of article 23, or a rule, regu-
19 lation, or order of the department, and the action shall proceed and
20 injunctive relief may be granted to the department without bond, or
21 other undertaking in the same manner as if suit had been brought by the
22 department.]
23 § 3. This act shall take effect immediately; provided however, that no
24 action authorized by section 71-4501 of the environmental conservation
25 law, as added by section one of this act, may be commenced against any
26 city, village, town, or county prior to the first day of September in
27 the year next succeeding the year in which this act shall have become a
28 law, and nothing in this act shall affect any action commenced pursuant
29 to section 71-1311 of the environmental conservation law prior to such
30 contingent date for actions authorized by section 71-4501 of the envi-
31 ronmental conservation law.
