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

                                  4272

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 2, 2009
                               ___________

Introduced  by  M.  of  A. BRODSKY, PAULIN, LUPARDO, ROSENTHAL -- Multi-
  Sponsored by -- M. of  A.    BRENNAN,  CHRISTENSEN,  DINOWITZ,  GALEF,
  GLICK,  GOTTFRIED,  JACOBS, McENENY, NOLAN, WEISENBERG, 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
THIRTEEN OF ARTICLE 27 OF THIS  CHAPTER,  OR  FOR  A  VIOLATION  OF  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07344-01-9
              

A. 4272                             2

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 TITLE 5 OF ARTICLE 15 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 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
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. 4272                             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.

A. 4272                             4

  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 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

A. 4272                             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, 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.