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:
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 2 OF THIS SECTION AGAINST ANY PERSON FOR ANY VIOLATION OF AN ADMIN-
ISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO INVESTIGATE OR REME-
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
ARTICLE 27 OF THIS CHAPTER, OR FOR A VIOLATION OF THE FOLLOWING
PROVISIONS OF OR ANY RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER
PROMULGATED OR ISSUED PURSUANT TO:
A. SECTION 15-0501, 15-0503 OR 15-0505 OF THIS CHAPTER; OR
B. TITLE 27 OF ARTICLE 15 OF THIS CHAPTER; OR
C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17 OF THIS CHAPTER; OR
D. ARTICLE 19 OF THIS CHAPTER; OR
E. ARTICLE 23 OF THIS CHAPTER; OR
F. ARTICLE 24 OF THIS CHAPTER; OR
G. ARTICLE 25 OF THIS CHAPTER; OR
H. TITLE 3, 7, 9 OR 15 OF ARTICLE 27 OF THIS CHAPTER; OR
I. ARTICLE 33 OF THIS CHAPTER; OR
J. ARTICLE 37 OF THIS CHAPTER; OR
K. ARTICLE 40 OF THIS CHAPTER.
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 1 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
ACTIVELY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT
TO THIS CHAPTER 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
TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER, AND UPON WRITTEN
NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
A. 5802 3
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 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 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 COMMIS-
SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT 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 A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE
A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETER-
MINES THAT A MONETARY 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.
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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 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 WITNESS AND ATTORNEY FEES MUST MAKE A MOTION REQUEST-
ING 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 FRIVO-
LOUS, 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 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
any offense described in section 71-1305 of this title, the department,
acting by the Attorney General, may bring suit against such person in
A. 5802 5
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.
[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, 2019 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.