Senate Bill S1730

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

                                 1730--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 5, 2009
                               ___________

Introduced  by  Sens.  SCHNEIDERMAN,  THOMPSON -- read twice and ordered
  printed, and when printed to be committed to the Committee on Environ-
  mental Conservation -- recommitted to the Committee  on  Environmental
  Conservation  in  accordance  with  Senate Rule 6, sec. 8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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 OR MAY SUFFER AN INJURY IN FACT, STEMMING FROM AN ALLEGED
VIOLATION, AND REDRESSABLE FROM THE ABATEMENT  OF  THAT  VIOLATION,  MAY
COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION FOR INJUNC-
TIVE  AND  DECLARATORY  RELIEF PURSUANT TO SUBDIVISION 2 OF THIS SECTION
AGAINST ANY PERSON WHO IS ALLEGED TO BE IN VIOLATION OF ANY RULE,  REGU-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07344-03-0

              

S. 1730--A                          2

LATION,  PERMIT,  CERTIFICATE OR ORDER PROMULGATED OR ISSUED PURSUANT TO
THE FOLLOWING PROVISIONS OF THIS CHAPTER:
  A. SECTION 15-0501, 15-0503 OR 15-0505 OF TITLE 5 OF ARTICLE 15; OR
  B. TITLE 27 OF ARTICLE 15; OR
  C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17; OR
  D. ARTICLE 23; OR
  E. ARTICLE 24; OR
  F. ARTICLE 25; OR
  G. TITLE 3, 7, 9 OR 15 OF ARTICLE 27; OR
  H. ARTICLE 40.
  2.  IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION 1 OF THIS SECTION,
THE COURT MAY  ISSUE  DECLARATORY  AND/OR  INJUNCTIVE  RELIEF  FOR  EACH
VIOLATION  FOUND.  THE  JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE SUCH
CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE  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  1
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 13 OF ARTICLE 27 OF THIS CHAPTER.
S 71-4503. NOTICE OF ACTION.
  1. EXCEPT AS PROVIDED IN SUBDIVISION 2 OF THIS SECTION, NO ACTION  MAY
BE COMMENCED UNDER SUBDIVISION 1 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 THE COMMISSIONER'S  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
DILIGENTLY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT
TO THIS CHAPTER TO ABATE 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
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 DILIGENTLY PROSECUTING A CIVIL
ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
ORDER OR INJUNCTION TO ABATE THE ALLEGED VIOLATION; OR

S. 1730--A                          3

  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 1 OF SECTION
71-4501  OF  THIS  TITLE  PRIOR TO SIXTY DAYS AFTER THE GIVING OF NOTICE
REQUIRED BY PARAGRAPH A OF SUBDIVISION 1 OF THIS SECTION UPON A  SHOWING
TO  THE  COURT THAT THE MATTER IN CONTROVERSY INVOLVES A SUBSTANTIAL AND
IMMINENT HAZARD TO HEALTH OR THE ENVIRONMENT.
  3. A COPY OF THE SUMMONS AND  COMPLAINT  AND  ANY  AMENDMENT  THERETO,
SHALL BE SERVED UPON THE COMMISSIONER AND THE  ATTORNEY GENERAL.
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 COMMIS-
SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN BY  THE  COMMISSIONER.
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 ENVIRONMENT OR PERSONS WHO ARE NOT A
PARTY TO THE ACTION. THE COURT SHALL NOT  APPROVE  A  SETTLEMENT  IN  AN
ACTION  COMMENCED  UNDER THIS TITLE IF THE COURT DETERMINES THAT A MONE-
TARY SETTLEMENT IN EXCESS OF COSTS, DISBURSEMENTS AND REASONABLE  EXPERT
WITNESS  AND  ATTORNEY  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 1
OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU-
DICATED, THE PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW,  RULE,  REGU-
LATION,  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  THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON-
ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE  COURT  IN
WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
PRIATE  COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS,
DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY  PARTY
IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
S 71-4509. COSTS, FEES AND PENALTIES.
  1.  THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
ANT TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN  ITS
DISCRETION  AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS AND
ATTORNEY FEES TO  ANY  PREVAILING  OR  SUBSTANTIALLY  PREVAILING  PARTY;
PROVIDED,   HOWEVER,  THAT  A  PREVAILING  OR  SUBSTANTIALLY  PREVAILING

S. 1730--A                          4

RESPONDENT OR DEFENDENT MUST SHOW THAT THE ACTION OR CLAIM  BROUGHT  WAS
FRIVOLOUS  IN  ORDER  TO  RECOVER  SUCH COSTS, DISBURSEMENTS, REASONABLE
EXPERT WITNESS AND ATTORNEY FEES.  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 1 OF THIS SECTION, NO
COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES MAY
BE AWARDED AGAINST THE STATE,  OR  ANY  OF  ITS  DEPARTMENTS,  AGENCIES,
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 1 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 27 OF ARTICLE 15 OF THIS  CHAPTER
AND  THOSE  PARTS  OF  ARTICLE  24  OF  THIS CHAPTER ADMINISTERED BY THE
ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE 27 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
any offense described in section 71-1305 of this title, the  department,
acting  by  the  Attorney General, may bring suit against such person in
any court of competent jurisdiction to restrain such person from contin-
uing 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 injunc-
tions  as  the facts may warrant, including temporary restraining orders
and preliminary injunctions.

S. 1730--A                          5

  [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 September 1, 2012 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.

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

                                 1730--B

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 5, 2009
                               ___________

Introduced  by  Sens.  SCHNEIDERMAN,  THOMPSON -- read twice and ordered
  printed, and when printed to be committed to the Committee on Environ-
  mental Conservation -- recommitted to the Committee  on  Environmental
  Conservation  in  accordance  with  Senate Rule 6, sec. 8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  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
                              ENVIRONMENTAL
                           LAW ENFORCEMENT ACT
SECTION 71-4501. ENFORCEMENT ACTIONS.
        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 ACTIONS.
  1.  EXCEPT AS OTHERWISE PROVIDED IN SECTION 71-4503 OF THIS TITLE, ANY
PERSON WHO HAS OR MAY SUFFER AN INJURY IN FACT, STEMMING FROM AN ALLEGED
VIOLATION, AND REDRESSABLE FROM THE ABATEMENT  OF  THAT  VIOLATION,  MAY
COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION FOR INJUNC-
TIVE  AND  DECLARATORY  RELIEF PURSUANT TO SUBDIVISION 2 OF THIS SECTION
AGAINST ANY PERSON WHO IS ALLEGED TO BE IN VIOLATION OF ANY RULE,  REGU-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07344-05-0

              

S. 1730--B                          2

LATION,  PERMIT,  CERTIFICATE OR ORDER PROMULGATED OR ISSUED PURSUANT TO
THE FOLLOWING PROVISIONS OF THIS CHAPTER:
  A. SECTION 15-0501, 15-0503 OR 15-0505 OF TITLE 5 OF ARTICLE 15; OR
  B. TITLE 27 OF ARTICLE 15; OR
  C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17; OR
  D. ARTICLE 23; OR
  E. ARTICLE 24; OR
  F. ARTICLE 25; OR
  G. TITLE 3, 7, 9 OR 13 OF ARTICLE 27; OR
  H. ARTICLE 40.
  2.  IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION 1 OF THIS SECTION,
THE COURT MAY  ISSUE  DECLARATORY  AND/OR  INJUNCTIVE  RELIEF  FOR  EACH
VIOLATION  FOUND.  THE  JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE SUCH
CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE  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  1
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 13 OF ARTICLE 27 OF THIS CHAPTER.
S 71-4503. NOTICE OF ACTION.
  1. EXCEPT AS PROVIDED IN SUBDIVISION 2 OF THIS SECTION, NO ACTION  MAY
BE COMMENCED UNDER SUBDIVISION 1 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 THE COMMISSIONER'S  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
DILIGENTLY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT
TO THIS CHAPTER TO ABATE 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
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 DILIGENTLY PROSECUTING A CIVIL
ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
ORDER OR INJUNCTION TO ABATE THE ALLEGED VIOLATION; OR

S. 1730--B                          3

  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 1 OF SECTION
71-4501  OF  THIS  TITLE  PRIOR TO SIXTY DAYS AFTER THE GIVING OF NOTICE
REQUIRED BY PARAGRAPH A OF SUBDIVISION 1 OF THIS SECTION UPON A  SHOWING
TO  THE  COURT THAT THE MATTER IN CONTROVERSY INVOLVES A SUBSTANTIAL AND
IMMINENT HAZARD TO HEALTH OR THE ENVIRONMENT.
  3. A COPY OF THE SUMMONS AND  COMPLAINT  AND  ANY  AMENDMENT  THERETO,
SHALL BE SERVED UPON THE COMMISSIONER AND THE  ATTORNEY GENERAL.
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 COMMIS-
SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN BY  THE  COMMISSIONER.
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 ENVIRONMENT OR PERSONS WHO ARE NOT A
PARTY TO THE ACTION. THE COURT SHALL NOT  APPROVE  A  SETTLEMENT  IN  AN
ACTION  COMMENCED  UNDER THIS TITLE IF THE COURT DETERMINES THAT A MONE-
TARY SETTLEMENT IN EXCESS OF COSTS, DISBURSEMENTS AND REASONABLE  EXPERT
WITNESS  AND  ATTORNEY  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 1
OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU-
DICATED, THE PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW,  RULE,  REGU-
LATION,  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  THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON-
ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE  COURT  IN
WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
PRIATE  COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS,
DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY  PARTY
IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
S 71-4509. COSTS, FEES AND PENALTIES.
  1.  THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
ANT TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN  ITS
DISCRETION  AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS AND
ATTORNEY FEES TO  ANY  PREVAILING  OR  SUBSTANTIALLY  PREVAILING  PARTY;
PROVIDED,   HOWEVER,  THAT  A  PREVAILING  OR  SUBSTANTIALLY  PREVAILING

S. 1730--B                          4

RESPONDENT OR DEFENDANT MUST SHOW THAT THE ACTION OR CLAIM  BROUGHT  WAS
FRIVOLOUS  IN  ORDER  TO  RECOVER  SUCH COSTS, DISBURSEMENTS, REASONABLE
EXPERT WITNESS AND ATTORNEY FEES.  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 1 OF THIS SECTION, NO
COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES MAY
BE AWARDED AGAINST THE STATE,  OR  ANY  OF  ITS  DEPARTMENTS,  AGENCIES,
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 1 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 27 OF ARTICLE 15 OF THIS  CHAPTER
AND  THOSE  PARTS  OF  ARTICLE  24  OF  THIS CHAPTER ADMINISTERED BY THE
ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE 27 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
any offense described in section 71-1305 of this title, the  department,
acting  by  the  Attorney General, may bring suit against such person in
any court of competent jurisdiction to restrain such person from contin-
uing 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 injunc-
tions  as  the facts may warrant, including temporary restraining orders
and preliminary injunctions.

S. 1730--B                          5

  [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 September 1, 2012 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.