S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5802
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     March 4, 2015
                                      ___________
       Introduced  by  M. of A. KAVANAGH, COLTON, ENGLEBRIGHT, LUPARDO, JAFFEE,
         PAULIN, ROSENTHAL, WEPRIN, ABINANTI,  FAHY,  LIFTON,  OTIS,  ORTIZ  --
         Multi-Sponsored  by  --  M.  of  A.   BRENNAN, CLARK, DINOWITZ, GALEF,
         GLICK, GOTTFRIED, PERRY, WRIGHT --  read  once  and  referred  to  the
         Committee on Environmental Conservation
       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  S 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 2 OF THIS SECTION AGAINST ANY PERSON FOR ANY VIOLATION OF AN ADMIN-
   20  ISTRATIVE  OR COURT ORDER COMPELLING THAT PERSON TO INVESTIGATE OR REME-
   21  DIATE AN INACTIVE HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE 13  OF
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04892-03-5
       A. 5802                             2
    1  ARTICLE  27  OF  THIS  CHAPTER,  OR  FOR  A  VIOLATION  OF THE FOLLOWING
    2  PROVISIONS OF OR ANY RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR  ORDER
    3  PROMULGATED OR ISSUED PURSUANT TO:
    4    A. SECTION 15-0501, 15-0503 OR 15-0505 OF THIS CHAPTER; OR
    5    B. TITLE 27 OF ARTICLE 15 OF THIS CHAPTER; OR
    6    C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17 OF THIS CHAPTER; OR
    7    D. ARTICLE 19 OF THIS CHAPTER; OR
    8    E. ARTICLE 23 OF THIS CHAPTER; OR
    9    F. ARTICLE 24 OF THIS CHAPTER; OR
   10    G. ARTICLE 25 OF THIS CHAPTER; OR
   11    H. TITLE 3, 7, 9 OR 15 OF ARTICLE 27 OF THIS CHAPTER; OR
   12    I. ARTICLE 33 OF THIS CHAPTER; OR
   13    J. ARTICLE 37 OF THIS CHAPTER; OR
   14    K. ARTICLE 40 OF THIS CHAPTER.
   15    2.  IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION 1 OF THIS SECTION,
   16  THE COURT MAY  ISSUE  DECLARATORY  AND/OR  INJUNCTIVE  RELIEF  FOR  EACH
   17  VIOLATION  FOUND.  THE  JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE SUCH
   18  CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE  COMPLIANCE  WITH
   19  SUCH  LAW,  RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR  ORDER WITHIN A
   20  REASONABLE TIME PERIOD.
   21    3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO  SUBDIVISION  1
   22  OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
   23  CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
   24  BY  OR  ON  BEHALF OF THE DEPARTMENT, THE STATE OF NEW YORK, THE COMMIS-
   25  SIONER, OR THE COMMISSIONER'S DESIGNEE.
   26    4. NO ACTION MAY BE BROUGHT AGAINST THE STATE OR ANY  OF  ITS  DEPART-
   27  MENTS,  AGENCIES  OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR ANY
   28  PUBLIC AUTHORITY PURSUANT TO THIS TITLE  EXCEPT  IN  THEIR  CAPACITY  AS
   29  OWNER  OR  OPERATOR OF A POLLUTION SOURCE OR AS A PERSON RESPONSIBLE FOR
   30  THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
   31  SITE PURSUANT TO TITLE 13 OF ARTICLE 27 OF THIS CHAPTER.
   32  S 71-4503. NOTICE OF ACTION.
   33    1. EXCEPT AS PROVIDED IN SUBDIVISION 2 OF THIS SECTION, NO ACTION  MAY
   34  BE COMMENCED UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE:
   35    A.  PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN
   36  RECEIPT REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE  COMMISSIONER,
   37  THE  ATTORNEY  GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY
   38  LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
   39  SHALL BE GIVEN IN SUCH A MANNER AS THE  COMMISSIONER  MAY  PRESCRIBE  BY
   40  REGULATION,  AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION OF
   41  ANY SUCH LAW, RULE, REGULATION, PERMIT,  CERTIFICATE  OR  ORDER  AS  SET
   42  FORTH  IN  SUBDIVISION  1  OF  SECTION  71-4501  OF THIS TITLE AND SHALL
   43  DESCRIBE  WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR   CONDITION
   44  COMPLAINED  OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN THE
   45  POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
   46    B. IF THE COMMISSIONER OR THE COMMISSIONER'S  DESIGNEE,  AT  ANY  TIME
   47  PRIOR  TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH
   48  A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
   49  IS LATER AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED  THE  NOTICE
   50  PRESCRIBED  IN  PARAGRAPH  A OF THIS SUBDIVISION,   HAS COMMENCED AND IS
   51  ACTIVELY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT  PROCEEDING  PURSUANT
   52  TO THIS CHAPTER RELATIVE TO THE ALLEGED VIOLATION; OR
   53    C.  IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY
   54  DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR
   55  TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS  LATER,  AND  UPON  WRITTEN
   56  NOTICE  TO  THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
       A. 5802                             3
    1  OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING  A  CIVIL
    2  ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
    3  ORDER OR INJUNCTION RELATIVE TO THE ALLEGED VIOLATION; OR
    4    D.  IF  THE  ALLEGED  VIOLATION   IS THE SUBJECT OF A CONSENT ORDER, A
    5  COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR
    6  THE COMMISSIONER'S DESIGNEE AND THE ALLEGED  VIOLATOR  SETTING  FORTH  A
    7  COMPLIANCE  SCHEDULE  TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
    8  TIME PERIOD, OR OF A SETTLEMENT  OR  DISPOSITION  OF  AN  ADMINISTRATIVE
    9  ENFORCEMENT  PROCEEDING  OR  A  CIVIL  ACTION COMMENCED PURSUANT TO THIS
   10  CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN  COMPLIANCE  WITH  THE
   11  TERMS  OF  SUCH  CONSENT  ORDER,  COURT  ORDER, AGREEMENT, SETTLEMENT OR
   12  DISPOSITION.
   13    2. THE PLAINTIFF MAY COMMENCE AN ACTION UNDER SUBDIVISION 1 OF SECTION
   14  71-4501 OF THIS TITLE PRIOR TO SIXTY DAYS AFTER  THE  GIVING  OF  NOTICE
   15  REQUIRED  BY PARAGRAPH A OF SUBDIVISION 1 OF THIS SECTION UPON A SHOWING
   16  TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A  SUBSTANTIAL  AND
   17  IMMINENT HAZARD TO THE ENVIRONMENT.
   18    3.  A COPY OF THE COMPLAINT, AND, UNLESS SERVICE IS THEREAFTER WAIVED,
   19  ALL MOTION PAPERS AND ANY SUBSEQUENT PLEADINGS SHALL BE SERVED UPON  THE
   20  COMMISSIONER, THE ATTORNEY GENERAL AND THE DEFENDANT.
   21  S 71-4505. INTERVENTION.
   22    1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
   23  MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
   24    2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
   25  SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
   26  SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
   27  MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
   28  THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
   29  IN SUCH NOTICE.
   30  S 71-4507. APPROVAL OF SETTLEMENTS.
   31    1.  NO  ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
   32  APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
   33  SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
   34  BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN. UPON  THE  MOTION  OF
   35  THE  COMMISSIONER,  THE ATTORNEY GENERAL, OR ANY OTHER PARTY OR UPON ITS
   36  OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE REQUIRED
   37  TO PROTECT THE INTERESTS IN ENVIRONMENTAL PROTECTION OR  ENFORCEMENT  OF
   38  CITIZENS  WHO ARE NOT A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE
   39  A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETER-
   40  MINES THAT A MONETARY SETTLEMENT IN EXCESS OF COSTS,  DISBURSEMENTS  AND
   41  REASONABLE  EXPERT WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY
   42  A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO  HAS
   43  STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE.
   44    2. IF, SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION 1
   45  OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU-
   46  DICATED,  THE  PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW, RULE, REGU-
   47  LATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR  IS
   48  SUBJECT  TO  A  COURT  ORDER  OR  OTHER  WRITTEN AGREEMENT SIGNED BY THE
   49  COMMISSIONER OR THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH  A  REASON-
   50  ABLE  SETTLEMENT  AND DISPOSITION OF THE ALLEGED VIOLATION, THE COURT IN
   51  WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
   52  PRIATE COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF  COSTS,
   53  DISBURSEMENTS,  REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY PARTY
   54  IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
   55  S 71-4509. COSTS, FEES AND PENALTIES.
       A. 5802                             4
    1    1. THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT  PURSU-
    2  ANT  TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN ITS
    3  DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS  AND
    4  ATTORNEY  FEES  TO  ANY  PREVAILING  OR  SUBSTANTIALLY PREVAILING PARTY;
    5  PROVIDED,  HOWEVER,  THAT  SUCH  AN  AWARD TO A PREVAILING RESPONDENT OR
    6  DEFENDANT SHALL  NOT  EXCEED  TEN  THOUSAND  DOLLARS  AND  A  PREVAILING
    7  RESPONDENT  OR  DEFENDANT IN ORDER TO RECOVER SUCH COSTS, DISBURSEMENTS,
    8  REASONABLE EXPERT WITNESS AND ATTORNEY FEES MUST MAKE A MOTION  REQUEST-
    9  ING SUCH COSTS, DISBURSEMENTS AND FEES AND SHOW THAT THE ACTION OR CLAIM
   10  BROUGHT WAS FRIVOLOUS. IN ORDER TO FIND THE ACTION OR CLAIM TO BE FRIVO-
   11  LOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
   12    A.  THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD FAITH,
   13  SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
   14  OR MALICIOUSLY INJURE ANOTHER;
   15    B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
   16  ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
   17  FAITH ARGUMENT FOR AN EXTENSION, MODIFICATION OR  REVERSAL  OF  EXISTING
   18  LAW.  IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY OR
   19  THE ATTORNEY LEARNED OR SHOULD HAVE LEARNED THAT  THE  ACTION  OR  CLAIM
   20  LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
   21  ATTORNEY DID NOT ACT IN BAD FAITH.
   22    2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION 1 OF THIS SECTION, NO
   23  COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES MAY
   24  BE  AWARDED  AGAINST  THE  STATE,  OR  ANY OF ITS DEPARTMENTS, AGENCIES,
   25  BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN
   26  ANY ACTION BROUGHT UNDER THIS TITLE.
   27    3. IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO  SUBDIVI-
   28  SION  1 OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE, AS
   29  REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN AN
   30  ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE  PURPOSE  OF  OBTAINING  AN
   31  AWARD  OF  PENALTIES  AGAINST  ANY  PERSON  FOUND LIABLE IN SUCH ACTION;
   32  PROVIDED, HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED  OF
   33  THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
   34  MENT  OF  SUCH  ACTION.  ANY  CLAIM FOR PENALTIES BASED UPON A VIOLATION
   35  WHICH IS THE SUBJECT OF AN ACTION  BROUGHT  UNDER  THIS  TITLE  MUST  BE
   36  BROUGHT IN SUCH ACTION.
   37  S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
   38    WITH  RESPECT TO THOSE PARTS OF TITLE 27 OF ARTICLE 15 OF THIS CHAPTER
   39  AND THOSE PARTS OF ARTICLE  24  OF  THIS  CHAPTER  ADMINISTERED  BY  THE
   40  ADIRONDACK  PARK  AGENCY CREATED PURSUANT TO ARTICLE TWENTY-SEVEN OF THE
   41  EXECUTIVE LAW, ANY REFERENCE  IN  THIS  TITLE  TO  THE  DEPARTMENT,  THE
   42  COMMISSIONER,  OR THE COMMISSIONER'S DESIGNEE SHALL BE CONSTRUED TO MEAN
   43  THE ADIRONDACK PARK AGENCY.
   44  S 71-4513. SAVINGS CLAUSE.
   45    NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT  WHICH  ANY  PERSON  OR
   46  CLASS  OF  PERSONS  MAY  HAVE  UNDER  ANY  STATUTE OR COMMON LAW TO SEEK
   47  ENFORCEMENT OF ANY STATUTE, RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR
   48  ORDER, OR TO SEEK ANY OTHER RELIEF.
   49    S  2.  Section 71-1311 of the environmental conservation law, subdivi-
   50  sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
   51  as follows:
   52  S 71-1311. Injunction against violations.
   53    [1.] Whenever it appears that any person is violating  or  threatening
   54  to  violate any provision of article 23 of this chapter or is committing
   55  any offense described in section 71-1305 of this title, the  department,
   56  acting  by  the  Attorney General, may bring suit against such person in
       A. 5802                             5
    1  any court of competent jurisdiction to restrain such person from contin-
    2  uing such violation or from carrying out the threat of violation. In any
    3  such suit, the court shall have jurisdiction to grant to the  department
    4  without bond or other undertaking, such prohibitory or mandatory injunc-
    5  tions  as  the facts may warrant, including temporary restraining orders
    6  and preliminary injunctions.
    7    [2. If the department, acting by the Attorney General, shall  fail  to
    8  bring  suit  to  enjoin  a  violation  or  threatened  violation  of any
    9  provision of article 23, or  any  rule,  regulation,  or  order  of  the
   10  department  made pursuant hereto, within ten days after receipt of writ-
   11  ten request to do so by any person who is or will be adversely  affected
   12  by  such violation, the person making such request may bring suit in his
   13  own behalf to restrain such violation or  threatened  violation  in  any
   14  court  in  which  the department might have brought suit. The department
   15  shall be made a party in such suit in addition to the  person  violating
   16  or  threatening  to  violate a provision of article 23, or a rule, regu-
   17  lation, or order of the department, and the  action  shall  proceed  and
   18  injunctive  relief  may  be  granted  to the department without bond, or
   19  other undertaking in the same manner as if suit had been brought by  the
   20  department.]
   21    S 3. This act shall take effect immediately; provided however, that no
   22  action  authorized  by section 71-4501 of the environmental conservation
   23  law, as added by section one of this act, may be commenced  against  any
   24  city,  village, town or county prior to September 1, 2019 and nothing in
   25  this act shall affect any action commenced pursuant to  section  71-1311
   26  of the environmental conservation law prior to such effective date.