senate Bill S1848

Grants private citizens broad authorization to commence civil judicial actions under certain titles of the environmental conservation law

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 13 / Jan / 2011
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 04 / Jan / 2012
    • REFERRED TO ENVIRONMENTAL CONSERVATION

Summary

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.

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Bill Details

Versions:
S1848
Legislative Cycle:
2011-2012
Current Committee:
Senate Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Add Art 71 Title 45 §§71-4501 - 71-4513, amd §71-1311, En Con L
Versions Introduced in 2009-2010 Legislative Cycle:
S3967

Sponsor Memo

BILL NUMBER:S1848

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 private citizens broad authorization to commence civil
judicial actions under certain titles of the Environmental
Conservation Law (ECL).

SUMMARY OF PROVISIONS:
The bill adds a new Title 45 to Article 71 of the ECL to provide broad
authority to citizens to bring civil actions to remedy environmental
injury. The bill authorizes any private citizen who has an interest
which is or may be adversely affected to commence civil judicial
actions to remedy environmental harms under certain circumstances.
Any such party may, under these circumstances, commence a civil
action in a court of competent jurisdiction for injunctive relief
against any person who is alleged to be in violation of any rule,
regulation, permit, certificate or order promulgated or issued
pursuant to: sections 15-0501, 15-0503 or 15-0505 of Title 5 of
Article 15 (Protection of Waters and Water Supply), Titles 5, 7,8,10
or 17 of Article 17, Articles 19,23, 24, 25, 33, 37 or 40 (Water
Pollution Control, Air Pollution Control, Mineral Resources,
Freshwater Wetlands, Tidal Wetlands, Pesticides, Hazardous Substances
Listing and Hazardous Substances Bulk Storage), or Title 3, 7,9 or 15
of Article 27 (Solid, Infectious and Hazardous Waste) of the ECL. A
civil action may also be commenced to enforce a violation of an
administrative or court order compelling remediation of an inactive
hazardous waste disposal site. The State may only be
sued pursuant to this bill in its capacity as the owner or operator
of a pollution source in violation of any statutory or regulatory
requirements, or as a person responsible for an inactive hazardous
waste disposal site pursuant to ECL Article 27, Title 13.

The bill requires prior notice to the alleged violator, the
Commissioner of Environmental Conservation and the Attorney General
as a condition precedent to commencement of a citizen suit. Such
notice must be served at least 60 days prior to the commencement of
an action by a
private citizen. This notice requirement may be waived if a
substantial and imminent hazard to the environment can be shown. The
plaintiff must follow procedures as may be promulgated by the
Commissioner in providing the required notice. The bill also
prohibits a citizen suit if the Commissioner or the Attorney General
has commenced and is actively prosecuting an administrative or civil
action relative to the alleged violation; or has obtained a
settlement or disposition of such an action; or is seeking
remediation of the inactive hazardous waste disposal site. In
addition, no action may be commenced if the alleged violation is the
subject of a consent order, a court order or any other order setting
forth a compliance schedule for the elimination of the violation,
provided the alleged violator is in compliance with the schedule. The


Attorney General is given the right to intervene in any civil action
commenced by a private citizen under this bill. A private citizen who
has given notice of intent to commence an action under this bill may
intervene upon timely motion as a matter of right in any civil action
or administrative enforcement proceeding subsequently commenced by
the Attorney General or the Department of Environmental Cons
ervation relating to the violation alleged in the notice of intent. No
citizen suit may be settled except upon an affirmative order of the
Court upon notice to all parties, the Commissioner of Environmental
Conservation and the Attorney General. The Court will not approve a
settlement if the court determines that a monetary settlement in
excess of total costs has been offered or paid by a defendant in
exchange for settlement. A wards of the costs of litigation and
reasonable attorney and expert witness fees may be made by the court
to a plaintiff in any action brought under this bill, where the Court
determines such awards to be appropriate.
In addition, a prevailing defendant may make a motion to recover
costs, however, he or she must show that the action or claim brought
by the plaintiff was frivolous. No such awards for costs or fees may
be made against the State or any of its political subdivisions. The
bill contains a "savings" clause to ensure that rights existing under
statutory or common law to seek enforcement of any statute, rule,
regulation, permit or order, or to obtain any available relief, are
not diminished.

JUSTIFICATION:
The large number of violations of environmental laws, rules,
regulations, permits, certificates and orders makes 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,regulations,
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 recently
approved 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 allocate 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.

LEGISLATIVE HISTORY:
03/07/07 REFERRED TO ENVIRONMENTAL CONSERVATION
01/09/08 REFERRED TO ENVIRONMENTAL CONSERVATION
04/07/09 REFERRED TO ENVIRONMENTAL CONSERVATION
01/06/10 REFERRED TO ENVIRONMENTAL CONSERVATION

FISCAL IMPLICATIONS:
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 the
first day of September in the year next succeeding the year in which
this act shall have become a law, and nothing in this act shall
affect any action commenced pursuant to section 71-1311 of the
environmental conservation law prior to such contingent date for
actions authorized by section 71-4501 of the environmental
conservation law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1848

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 13, 2011
                               ___________

Introduced by Sens. OPPENHEIMER, DIAZ, KRUEGER -- read twice and ordered
  printed, and when printed to be committed to the Committee on Environ-
  mental 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:

  Section 1. Article 71 of the environmental conservation law is amended
by adding a new title 45 to read as follows:
                                 TITLE 45
                          PRIVATE ENVIRONMENTAL
                           LAW ENFORCEMENT ACT
SECTION 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
        71-4503. NOTICE OF ACTION.
        71-4505. INTERVENTION.
        71-4507. APPROVAL OF SETTLEMENTS.
        71-4509. COSTS, FEES, AND PENALTIES.
        71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
        71-4513. SAVINGS CLAUSE.
S 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
  1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 71-4503 OF THIS TITLE,  ANY
PERSON  WHO  HAS SUFFERED OR MAY SUFFER AN INJURY IN FACT, REGARDLESS OF
WHETHER SUCH INJURY IS DIFFERENT IN KIND OR DEGREE FROM THAT SUFFERED BY
THE PUBLIC AT LARGE, MAY COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT
JURISDICTION FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO  SUBDIVI-
SION  TWO  OF  THIS  SECTION  AGAINST ANY PERSON FOR ANY VIOLATION OF AN
ADMINISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO  INVESTIGATE  OR
REMEDIATE  AN  INACTIVE  HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE
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.
                                                           LBD04320-02-1

S. 1848                             2

THE  FOLLOWING  PROVISIONS  OF  OR ANY RULE, REGULATION, PERMIT, CERTIF-
ICATE, OR ORDER PROMULGATED OR ISSUED PURSUANT TO:
  A.  SECTION  15-0501,  15-0503  OR  15-0505  OF  TITLE FIVE OF ARTICLE
FIFTEEN OF THIS CHAPTER; OR
  B. TITLE TWENTY-SEVEN OF ARTICLE FIFTEEN OF THIS CHAPTER; OR
  C. TITLE FIVE, SEVEN, EIGHT, TEN OR SEVENTEEN OF ARTICLE SEVENTEEN  OF
THIS CHAPTER; OR
  D. ARTICLE NINETEEN OF THIS CHAPTER; OR
  E. ARTICLE TWENTY-THREE OF THIS CHAPTER; OR
  F. ARTICLE TWENTY-FOUR OF THIS CHAPTER; OR
  G. ARTICLE TWENTY-FIVE OF THIS CHAPTER; OR
  H. TITLE THREE, SEVEN, NINE OR FIFTEEN OF ARTICLE TWENTY-SEVEN OF THIS
CHAPTER; OR
  I. ARTICLE THIRTY-THREE OF THIS CHAPTER; OR
  J. ARTICLE THIRTY-SEVEN OF THIS CHAPTER; OR
  K. ARTICLE FORTY OF THIS CHAPTER.
  2.  IN  ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  ONE OF THIS
SECTION, THE COURT MAY ISSUE DECLARATORY OR INJUNCTIVE  RELIEF  OR  BOTH
FOR  EACH  VIOLATION  FOUND.  THE  JUDGMENT  IN ANY SUCH ACTION MAY ALSO
IMPOSE SUCH CONDITIONS ON THE  DEFENDANT  AS  ARE  NECESSARY  TO  ENSURE
COMPLIANCE  WITH  SUCH  LAW,  RULE,  REGULATION, PERMIT, CERTIFICATE, OR
ORDER WITHIN A REASONABLE TIME PERIOD.
  3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO SUBDIVISION ONE
OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
BY OR ON BEHALF OF THE DEPARTMENT, THE STATE OF NEW  YORK,  THE  COMMIS-
SIONER, OR THE COMMISSIONER'S DESIGNEE.
  4.  NO  ACTION  MAY BE BROUGHT AGAINST THE STATE OR ANY OF ITS DEPART-
MENTS, AGENCIES, OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR  ANY
PUBLIC  AUTHORITY  PURSUANT  TO  THIS  TITLE EXCEPT IN THEIR CAPACITY AS
OWNER OR OPERATOR OF A POLLUTION SOURCE OR AS A PERSON  RESPONSIBLE  FOR
THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
SITE PURSUANT TO TITLE THIRTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER.
S 71-4503. NOTICE OF ACTION.
  1.  EXCEPT  AS  PROVIDED IN SUBDIVISION TWO OF THIS SECTION, NO ACTION
MAY BE COMMENCED UNDER SUBDIVISION ONE OF SECTION 71-4501 OF THIS TITLE:
  A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL,  RETURN
RECEIPT  REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE COMMISSIONER,
THE ATTORNEY GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION  OF  ANY
LAW,  RULE,  REGULATION,  PERMIT,  CERTIFICATE,  OR  ORDER. SUCH WRITTEN
NOTICE SHALL BE GIVEN IN SUCH A MANNER AS THE COMMISSIONER MAY PRESCRIBE
BY REGULATION AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE  IN  VIOLATION
OF  ANY SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE, OR ORDER AS SET
FORTH IN SUBDIVISION ONE OF SECTION 71-4501  OF  THIS  TITLE  AND  SHALL
DESCRIBE   WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR  CONDITION
COMPLAINED OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN  THE
POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
  B.  IF  THE  COMMISSIONER OR HIS OR HER DESIGNEE, AT ANY TIME PRIOR TO
THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS
SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER,
AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED
IN PARAGRAPH A OF THIS SUBDIVISION,  HAS COMMENCED AND IS ACTIVELY PROS-
ECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT TO THIS  CHAP-
TER RELATIVE TO THE ALLEGED VIOLATION; OR
  C.  IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY
DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR

S. 1848                             3

TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS  LATER,  AND  UPON  WRITTEN
NOTICE  TO  THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING  A  CIVIL
ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
ORDER OR INJUNCTION RELATIVE TO THE ALLEGED VIOLATION; OR
  D. IF THE ALLEGED VIOLATION   IS THE SUBJECT OF  A  CONSENT  ORDER,  A
COURT  ORDER,  OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER
OR THE COMMISSIONER'S DESIGNEE AND THE ALLEGED VIOLATOR SETTING FORTH  A
COMPLIANCE  SCHEDULE  TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
TIME PERIOD, OR OF A SETTLEMENT  OR  DISPOSITION  OF  AN  ADMINISTRATIVE
ENFORCEMENT  PROCEEDING  OR  A  CIVIL  ACTION COMMENCED PURSUANT TO THIS
CHAPTER; PROVIDED THAT THE ALLEGED VIOLATOR IS IN  COMPLIANCE  WITH  THE
TERMS  OF  SUCH  CONSENT  ORDER,  COURT ORDER, AGREEMENT, SETTLEMENT, OR
DISPOSITION.
  2. THE PLAINTIFF MAY COMMENCE  AN  ACTION  UNDER  SUBDIVISION  ONE  OF
SECTION  71-4501  OF  THIS TITLE PRIOR TO SIXTY DAYS AFTER THE GIVING OF
NOTICE REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION UPON A
SHOWING TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A  SUBSTAN-
TIAL AND IMMINENT HAZARD TO THE ENVIRONMENT.
  3.  A  COPY OF THE COMPLAINT AND, UNLESS SERVICE IS THEREAFTER WAIVED,
ALL MOTION PAPERS AND ANY SUBSEQUENT PLEADINGS SHALL BE SERVED UPON  THE
COMMISSIONER, THE ATTORNEY GENERAL, AND THE DEFENDANT.
S 71-4505. INTERVENTION.
  1. THE STATE, AS REPRESENTED BY THE ATTORNEY GENERAL, MAY INTERVENE AS
A MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
  2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
IN SUCH NOTICE.
S 71-4507. APPROVAL OF SETTLEMENTS.
  1.  NO ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED, EXCEPT UPON
APPROVAL BY THE COURT UPON  SIXTY  DAYS'  NOTICE  TO  ALL  PARTIES,  THE
COMMISSIONER,  AND  THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLE-
MENT SHALL BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN.  UPON  THE
MOTION OF THE COMMISSIONER, THE ATTORNEY GENERAL, OR ANY OTHER PARTY, OR
UPON ITS OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE
REQUIRED  TO  PROTECT  THE  INTERESTS  IN  ENVIRONMENTAL  PROTECTION  OR
ENFORCEMENT OF CITIZENS WHO ARE NOT PARTY TO THE ACTION. THE COURT SHALL
NOT APPROVE A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF  THE
COURT  DETERMINES  THAT  A  MONETARY  SETTLEMENT  IN  EXCESS  OF  COSTS,
DISBURSEMENTS, AND REASONABLE EXPERT WITNESSES' AND ATTORNEYS' FEES  HAS
BEEN OFFERED OR PAID BY A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT
TO A PLAINTIFF WHO HAS STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE.
  2.  IF,  SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION
ONE OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT  BEEN  FINALLY
ADJUDICATED,  THE  PERSON  ALLEGED  TO BE IN VIOLATION OF ANY LAW, RULE,
REGULATION, PERMIT, CERTIFICATE, OR ORDER ENTERS INTO A CONSENT ORDER OR
IS SUBJECT TO A COURT ORDER OR OTHER WRITTEN  AGREEMENT  SIGNED  BY  THE
COMMISSIONER  OR  HIS  DESIGNEE WHICH SETS FORTH A REASONABLE SETTLEMENT
AND DISPOSITION OF THE ALLEGED VIOLATION, THE COURT IN WHICH SUCH ACTION
IS PENDING, ON MOTION OF  ANY  PARTY,  MAY  MAKE  AN  APPROPRIATE  ORDER
DISPOSING  OF  THE  CASE,  INCLUDING  THE AWARD OF COSTS, DISBURSEMENTS,
REASONABLE EXPERT WITNESSES' AND ATTORNEYS' FEES TO ANY PARTY, IF APPRO-
PRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.

S. 1848                             4

S 71-4509. COSTS, FEES, AND PENALTIES.
  1.  THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
ANT TO SUBDIVISIONS ONE AND TWO OF SECTION 71-4503 OF THIS TITLE, MAY IN
ITS  DISCRETION  AWARD  COSTS,  DISBURSEMENTS,  AND  REASONABLE   EXPERT
WITNESSES'  AND  ATTORNEYS'  FEES  TO  ANY  PREVAILING  OR SUBSTANTIALLY
PREVAILING PARTY; PROVIDED, HOWEVER, THAT SUCH AN AWARD TO A  PREVAILING
RESPONDENT  OR  DEFENDANT  SHALL  NOT EXCEED TEN THOUSAND DOLLARS, AND A
PREVAILING RESPONDENT OR DEFENDANT, IN  ORDER  TO  RECOVER  SUCH  COSTS,
DISBURSEMENTS,  REASONABLE  EXPERT  WITNESSES' AND ATTORNEYS' FEES, MUST
MAKE A MOTION REQUESTING SUCH COSTS, DISBURSEMENTS, AND  FEES  AND  SHOW
THAT  THE  ACTION  OR  CLAIM BROUGHT WAS FRIVOLOUS. IN ORDER TO FIND THE
ACTION OR CLAIM TO BE FRIVOLOUS, THE COURT MUST FIND IN WRITING  ONE  OR
MORE OF THE FOLLOWING:
  A. THE ACTION OR CLAIM WAS COMMENCED, USED, OR CONTINUED IN BAD FAITH,
SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
OR MALICIOUSLY INJURE ANOTHER;
  B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
FAITH  ARGUMENT  FOR AN EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING
LAW. IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY  OR
THE  ATTORNEY  LEARNED  OR  SHOULD HAVE LEARNED THAT THE ACTION OR CLAIM
LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
ATTORNEY DID NOT ACT IN BAD FAITH.
  2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS  SECTION,
NO  COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESSES' AND ATTORNEYS'
FEES MAY BE AWARDED AGAINST THE STATE, OR ANY OF ITS DEPARTMENTS,  AGEN-
CIES,  BUREAUS,  OR  ANY  OF  ITS  POLITICAL  SUBDIVISIONS OR ANY PUBLIC
AUTHORITY IN ANY ACTION BROUGHT UNDER THIS TITLE.
  3. IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO  SUBDIVI-
SION  ONE  OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE,
AS REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN
AN ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE PURPOSE OF OBTAINING  AN
AWARD  OF  PENALTIES  AGAINST  ANY  PERSON  FOUND LIABLE IN SUCH ACTION;
PROVIDED, HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED  OF
THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
MENT  OF  SUCH  ACTION.  ANY  CLAIM FOR PENALTIES BASED UPON A VIOLATION
WHICH IS THE SUBJECT OF AN ACTION  BROUGHT  UNDER  THIS  TITLE  MUST  BE
BROUGHT IN SUCH ACTION.
S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
  WITH  RESPECT  TO THOSE PARTS OF TITLE TWENTY-SEVEN OF ARTICLE FIFTEEN
OF THIS CHAPTER AND THOSE PARTS OF ARTICLE TWENTY-FOUR OF  THIS  CHAPTER
ADMINISTERED  BY  THE ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE
TWENTY-SEVEN OF THE EXECUTIVE LAW, ANY REFERENCE IN THIS  TITLE  TO  THE
DEPARTMENT,  THE  COMMISSIONER,  OR THE COMMISSIONER'S DESIGNEE SHALL BE
CONSTRUED TO MEAN THE ADIRONDACK PARK AGENCY.
S 71-4513. SAVINGS CLAUSE.
  NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT  WHICH  ANY  PERSON  OR
CLASS  OF  PERSONS  MAY  HAVE  UNDER  ANY  STATUTE OR COMMON LAW TO SEEK
ENFORCEMENT OF ANY STATUTE, RULE, REGULATION,  PERMIT,  CERTIFICATE,  OR
ORDER OR TO SEEK ANY OTHER RELIEF.
  S  2.  Section 71-1311 of the environmental conservation law, subdivi-
sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
as follows:
S 71-1311. Injunction against violations.
  [1.] Whenever it appears that any person is violating  or  threatening
to  violate any provision of article 23 of this chapter or is committing

S. 1848                             5

any offense described in section 71-1305 of this title, the  department,
acting  by  the  [Attorney  General]  ATTORNEY  GENERAL,  may bring suit
against such person in any court of competent jurisdiction  to  restrain
such  person  from  continuing  such  violation or from carrying out the
threat of violation. In any such suit, the court shall have jurisdiction
to grant to the department, without  bond  or  other  undertaking,  such
prohibitory or mandatory injunctions as the facts may warrant, including
temporary restraining orders and preliminary injunctions.
  [2.  If  the department, acting by the Attorney General, shall fail to
bring suit  to  enjoin  a  violation  or  threatened  violation  of  any
provision  of  article  23,  or  any  rule,  regulation, or order of the
department made pursuant hereto, within ten days after receipt of  writ-
ten  request to do so by any person who is or will be adversely affected
by such violation, the person making such request may bring suit in  his
own  behalf  to  restrain  such violation or threatened violation in any
court in which the department might have brought  suit.  The  department
shall  be  made a party in such suit in addition to the person violating
or threatening to violate a provision of article 23, or  a  rule,  regu-
lation,  or  order  of  the department, and the action shall proceed and
injunctive relief may be granted to  the  department  without  bond,  or
other  undertaking in the same manner as if suit had been brought by the
department.]
  S 3. 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 the first day  of  September  in
the  year next succeeding the year in which this act shall have become a
law, and nothing in this act shall affect any action commenced  pursuant
to  section  71-1311 of the environmental conservation law prior to such
contingent date for actions authorized by section 71-4501 of  the  envi-
ronmental conservation law.

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