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.