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

                                  4656

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2011
                               ___________

Introduced  by M. of A. LANCMAN -- read once and referred to the Commit-
  tee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  enacting the "environmental rights enforcement reform act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "environmental rights enforcement reform act".
  S  2.  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  TWO  OF  THIS  SECTION  AGAINST ANY PERSON FOR ANY VIOLATION OF AN
ADMINISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO  INVESTIGATE  OR
REMEDIATE  AN  INACTIVE  HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE
THIRTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER, OR FOR A VIOLATION  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04320-03-1

              

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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  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  17  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 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.
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 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

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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 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
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.

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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 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 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.
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  3.  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,

A. 4656                             5

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
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 4. 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, 2015 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.