NY State Senate Bill 2017-S5612

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to environmental conservation
Apr 20, 2017	referred to environmental conservation

co-Sponsors

2017-S5612 (ACTIVE) - Details

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 Other Legislative Sessions:: 2009-2010: S1730
2011-2012: S891
2013-2014: S3424
2015-2016: S2776

2017-S5612 (ACTIVE) - Summary

Relates to enforcement actions for violations of the environmental conservation law.

2017-S5612 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5612

 TITLE OF BILL :  An act to amend the environmental conservation law,
in relation to enforcement actions for violations of such law

 PURPOSE OR GENERAL IDEA :

To enable injured parties, who demonstrate standing, the ability to
seek abatement of ongoing violations of certain titles of the
Environmental Conservation Law (ECL).

 SUMMARY OF SPECIFIC PROVISIONS :

The bill adds a new Title 45 to Article 71 of the ECL. The bill
authorizes an injured party with requisite standing to commence a
civil judicial action to abate violations of existing law under
specific circumstances. Such party may, under these circumstances,
commence a civil action in a court of competent jurisdiction solely
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 and Title 27 of Article 15 (Protection or Waters
and Water Supply), Titles 3, 7, 9, 13 or 17 of Article 17, Articles
23, 24, 25 or 40 (Water pollution Control, Mineral Resources,
Freshwater Wetlands, Tidal Wetlands, and Hazardous Substances Bulk
storage), or Title 3, 7, 9 or 13 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,
and political subdivisions of 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 contains the standing requirements developed under federal
decisional law, and as recently adopted by the Court of Appeals in
Save the. Pine Bush, inc., v. Common Council of the City of Albany, 13
N.Y.S 3d 297 (2009), to ensure that only truly injured parties may
bring an action under this title.

The requirement that a defendant be "in violation" of an applicable
provision of the ECL is consistent with the limited equitable relief
available to a plaintiff. This language is consistent with federal
decisional provisions and there is an established body of law
interpreting the phrase "in violation." No action may be commenced
against a party for past violations and no damages or penalties are
available under this title.

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 an enforcement action.  Such
notice must be served at least 60 days prior to the commencement of an
action. 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 an enforcement action if the Commissioner or
the Attorney General has commenced and is diligently 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
enforcement action commenced under this bill. An injured party 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 Conservation
relating to the violation alleged in the notice of intent.

No enforcement action 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. Awards 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 standing requirement, the availability of only injunctive relief,
the notice provision, the supervision of settlements, and the
unlimited award of costs and fees to a defendant contesting a
frivolous suit, collectively insure that only meritorious actions will
be prosecuted.

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
injured parties 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 end hazardous waste, freshwater and tidal wetlands, pesticides
and hazardous substances bulk storage. To avoid duplication of effort,
the bill prohibits initiation of an enforcement action 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. Enforcement actions would allow the State to marshal the
pool of resources and assistance that could be provided by injured
parties. Allowing injured parties 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 an action, 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
such action. The State's role as guardian, of the environment and
enforcer of the State's environmental laws is thereby preserved.
Injured party provisions are contained in numerous federal
environmental statues, 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 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.

 FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS :

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 September 1, 2021, 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.

2017-S5612 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5612
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              April 20, 2017
                                ___________
 
 Introduced  by Sens. KRUEGER, HOYLMAN -- read twice and ordered printed,
   and when printed to be committed to  the  Committee  on  Environmental
   Conservation
 
 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.
 § 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 TWO OF THIS SECTION
 AGAINST ANY PERSON WHO IS ALLEGED TO BE IN VIOLATION OF ANY RULE,  REGU-
 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; OR
   B. TITLE 27 OF ARTICLE 15; OR
   C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17; OR

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

                                                            LBD10943-01-7

 S. 5612                             2
 
   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  ONE 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 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.
 § 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 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
   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

 S. 5612                             3
 
 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 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.
 § 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.
 § 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
 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 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.
 § 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  WITNESS
 AND  ATTORNEY  FEES TO ANY PREVAILING OR SUBSTANTIALLY PREVAILING PARTY;
 PROVIDED,  HOWEVER,  THAT  A  PREVAILING  OR  SUBSTANTIALLY   PREVAILING
 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:

 S. 5612                             4
 
   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 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 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.
 § 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.
 § 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.
   § 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:
 § 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.
   [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

 S. 5612                             5

 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.]
   § 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, 2022 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.

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Senate Bill S5612

Sponsored By

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

co-Sponsors

2017-S5612 (ACTIVE) - Details

2017-S5612 (ACTIVE) - Summary

2017-S5612 (ACTIVE) - Sponsor Memo

2017-S5612 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5612

Share this bill

Sponsored By

Liz Krueger

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

co-Sponsors

Brad Hoylman-Sigal

2017-S5612 (ACTIVE) - Details

2017-S5612 (ACTIVE) - Summary

2017-S5612 (ACTIVE) - Sponsor Memo

2017-S5612 (ACTIVE) - Bill Text download pdf

Comments