NY State Senate Bill 2015-S1087B

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 13, 2016	print number 1087b
Jan 13, 2016	amend and recommit to environmental conservation
Jan 06, 2016	referred to environmental conservation
Feb 27, 2015	print number 1087a
Feb 27, 2015	amend and recommit to environmental conservation
Jan 08, 2015	referred to environmental conservation

co-Sponsors

2015-S1087 - Details

See Assembly Version of this Bill:: A5802
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: A4272
2011-2012: S7814, A4656, A4801
2013-2014: S2769, A2047
2017-2018: S3269, A1811, A8965
2019-2020: S5013, A1424
2021-2022: S5394, A2261
2023-2024: S7913, A1622

2015-S1087 - Summary

Enacts "private environmental law enforcement act"; authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions for injunctive or declaratory relief to remedy environmental harms under certain circumstances; provides that such action may be commenced against any person for any violation of an administrative or court order compelling an investigation or remediation of an inactive hazardous waste disposal site.

2015-S1087 - Sponsor Memo

                                BILL NUMBER:S1087

TITLE OF BILL:  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

PURPOSE OR GENERAL IDEA:

To grant private citizens broad authorization to commence civil
judicial actions under 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 to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.

The bill authorizes any private citizen who has an interest which is
or may be adversely affected to commence civil judicial actions to
remedy environmental harms under certain circumstances. Any such party
may, under these circumstances, commence a civil action in a court of
competent jurisdiction 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 of Waters and Water Supply), Titles 5, 7, 8, 10 or 17 of
Article 17, Articles 19, 23, 24, 25, 33, 37 or 40 (Water Pollution
control, Air pollution control, Mineral Resources, Freshwater
Wetlands, Tidal Wetlands, Pesticides, Hazardous Substances Listing and
Hazardous Substances Bulk Storage), or Title 3, 7, 9 or 15 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 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 requires prior notice to the alleged violator, the
Commissioner of Environmental Conservation and the Attorney General as
a condition precedent to commencement of a citizen suit. Such notice
must be served at least 60 days prior to the commencement of an action
by a private citizen. 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 a citizen suit if the commissioner or the
Attorney General has commenced and is actively 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 civil
action commenced by a private citizen under this bill. A private
citizen 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 citizen suit 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 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
private citizens 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 and hazardous waste, freshwater and tidal wetlands, pesticides
and hazardous substances bulk storage.  To avoid duplication of
effort, the bill prohibits initiation of a citizen suit 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.

A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided-by concerned citizens.


Allowing private citizens 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 a citizen suit, 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 citizen suits. The State's role as guardian of the
environment and enforcer of the State's environmental laws is thereby
preserved. The public is both willing and able to assist in this
enforcement effort, as evidenced by the number of citizen suit
litigations under federal laws and the overwhelming popular support
for New York's recently enacted "Toxic Torts" bill. Citizen suit
provisions are contained in numerous federal environmental statutes,
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.

PRIOR LEGISLATIVE HISTORY:

2013-2014: S.2769A/A.2047A -- Died in EnCon/Advanced to Third Reading
2011-2012: Referred to Rules/Advanced to Third Reading
2009-2010: A04272(Brodsky)- Passed Assembly
2007-2008: A01100(Brodsky)- Third Reading
2005-2006: A01885(Brodsky)- Third Reading
2003-2004: A05936(Brodsky)- Passed Assembly
2001-2002: A00455(Brodsky)- Passed Assembly
1999-2000: A0956A(Brodsky)- Third Reading
1997-1998: A1620A(Brodsky)- Passed Assembly
1995-1996: A01918(Brodsky)- Passed Assembly

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, 2020 and nothing
in this act shall affect any action commenced pursuant to section
711311 of the environmental conservation law prior to such effective
date.

2015-S1087 - Bill Text download pdf

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

                                  1087

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 8, 2015
                               ___________

Introduced  by Sens. PARKER, HOYLMAN, LATIMER, SERRANO -- 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
  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  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.
                                                           LBD04892-01-5

S. 1087                             2

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 TWENTY-SEVEN OF ARTICLE FIFTEEN OF THIS CHAPTER; OR
  C.  TITLE FIVE, SEVEN, EIGHT, TEN OR SEVENTEEN OF ARTICLE SEVENTEEN 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
TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS  LATER,  AND  UPON  WRITTEN

S. 1087                             3

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.
S 71-4509. COSTS, FEES AND PENALTIES.

S. 1087                             4

  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  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

S. 1087                             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, 2020 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.

co-Sponsors

2015-S1087A - Details

See Assembly Version of this Bill:: A5802
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: A4272
2011-2012: S7814, A4656, A4801
2013-2014: S2769, A2047
2017-2018: S3269, A1811, A8965
2019-2020: S5013, A1424
2021-2022: S5394, A2261
2023-2024: S7913, A1622

2015-S1087A - Summary

Enacts "private environmental law enforcement act"; authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions for injunctive or declaratory relief to remedy environmental harms under certain circumstances; provides that such action may be commenced against any person for any violation of an administrative or court order compelling an investigation or remediation of an inactive hazardous waste disposal site.

2015-S1087A - Sponsor Memo

                                 BILL NUMBER:  S1087A

 TITLE OF BILL :  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

 PURPOSE OR GENERAL IDEA :

To grant private citizens broad authorization to commence civil
judicial actions under 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 to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.

The bill authorizes any private citizen who has an interest which is
or may be adversely affected to commence civil judicial actions to
remedy environmental harms under certain circumstances. Any such party
may, under these circumstances, commence a civil action in a court of
competent jurisdiction 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 of Waters and Water Supply), Titles 5, 7, 8, 10 or 17 of
Article 17, Articles 19, 23, 24, 25, 33, 37 or 40 (Water Pollution
control, Air pollution control, Mineral Resources, Freshwater
Wetlands, Tidal Wetlands, Pesticides, Hazardous Substances Listing and
Hazardous Substances Bulk Storage), or Title 3, 7, 9 or 15 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 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 requires prior notice to the alleged violator, the
Commissioner of Environmental Conservation and the Attorney General as
a condition precedent to commencement of a citizen suit. Such notice
must be served at least 60 days prior to the commencement of an action
by a private citizen. 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 a citizen suit if the commissioner or the
Attorney General has commenced and is actively 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 civil
action commenced by a private citizen under this bill. A private
citizen 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 citizen suit 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 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
private citizens 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 and hazardous waste, freshwater and tidal wetlands, pesticides
and hazardous substances bulk storage. To avoid duplication of effort,
the bill prohibits initiation of a citizen suit 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.

A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided-by concerned citizens.
Allowing private citizens 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 a citizen suit, 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 citizen suits. The State's role as guardian of the
environment and enforcer of the State's environmental laws is thereby
preserved. The public is both willing and able to assist in this
enforcement effort, as evidenced by the number of citizen suit
litigations under federal laws and the overwhelming popular support
for New York's recently enacted "Toxic Torts" bill. Citizen suit
provisions are contained in numerous federal environmental statutes,
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.

 PRIOR LEGISLATIVE HISTORY :

2013-2014: S.2769A/A.2047A -- Died in EnCon/Advanced to Third Reading
2011-2012: Referred to Rules/Advanced to Third Reading
2009-2010: A04272(Brodsky)- Passed Assembly
2007-2008: A01100(Brodsky)- Third Reading
2005-2006: A01885(Brodsky)- Third Reading
2003-2004: A05936(Brodsky)- Passed Assembly
2001-2002: A00455(Brodsky)- Passed Assembly
1999-2000: A0956A(Brodsky)- Third Reading
1997-1998: A1620A(Brodsky)- Passed Assembly
1995-1996: A01918(Brodsky)- Passed Assembly

 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, 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.

2015-S1087A - Bill Text download pdf

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

                                 1087--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 8, 2015
                               ___________

Introduced  by Sens. PARKER, HOYLMAN, LATIMER, SERRANO -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Environmental  Conservation  --  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 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
ARTICLE 27 OF  THIS  CHAPTER,  OR  FOR  A  VIOLATION  OF  THE  FOLLOWING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04892-04-5

S. 1087--A                          2

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
OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING  A  CIVIL

S. 1087--A                          3

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.
  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

S. 1087--A                          4

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
any court of competent jurisdiction to restrain such person from contin-
uing such violation or from carrying out the threat of violation. In any

S. 1087--A                          5

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.

co-Sponsors

2015-S1087B (ACTIVE) - Details

See Assembly Version of this Bill:: A5802
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: A4272
2011-2012: S7814, A4656, A4801
2013-2014: S2769, A2047
2017-2018: S3269, A1811, A8965
2019-2020: S5013, A1424
2021-2022: S5394, A2261
2023-2024: S7913, A1622

2015-S1087B (ACTIVE) - Summary

Enacts "private environmental law enforcement act"; authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions for injunctive or declaratory relief to remedy environmental harms under certain circumstances; provides that such action may be commenced against any person for any violation of an administrative or court order compelling an investigation or remediation of an inactive hazardous waste disposal site.

2015-S1087B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1087B

 TITLE OF BILL :  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

 PURPOSE OR GENERAL IDEA :

To grant private citizens broad authorization to commence civil
judicial actions under 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 to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.

The bill authorizes any private citizen who has an interest which is
or may be adversely affected to commence civil judicial actions to
remedy environmental harms under certain circumstances. Any such party
may, under these circumstances, commence a civil action in a court of
competent jurisdiction 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 of Waters and Water Supply), Titles 5, 7, 8, 10 or 17 of
Article 17, Articles 19, 23, 24, 25, 33, 37 or 40 (Water Pollution
control, Air pollution control, Mineral Resources, Freshwater
Wetlands, Tidal Wetlands, Pesticides, Hazardous Substances Listing and
Hazardous Substances Bulk Storage), or Title 3, 7, 9 or 15 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 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 requires prior notice to the alleged violator, the
Commissioner of Environmental Conservation and the Attorney General as
a condition precedent to commencement of a citizen suit. Such notice
must be served at least 60 days prior to the commencement of an action
by a private citizen. 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 a citizen suit if the commissioner or the
Attorney General has commenced and is actively 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 civil
action commenced by a private citizen under this bill. A private
citizen 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 citizen suit 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 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
private citizens 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 and hazardous waste, freshwater and tidal wetlands, pesticides
and hazardous substances bulk storage. To avoid duplication of effort,
the bill prohibits initiation of a citizen suit 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.

A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided-by concerned citizens.
Allowing private citizens 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 a citizen suit, 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 citizen suits. The State's role as guardian of the
environment and enforcer of the State's environmental laws is thereby
preserved. The public is both willing and able to assist in this
enforcement effort, as evidenced by the number of citizen suit
litigations under federal laws and the overwhelming popular support
for New York's recently enacted "Toxic Torts" bill. Citizen suit
provisions are contained in numerous federal environmental statutes,
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.

 PRIOR LEGISLATIVE HISTORY :

2013-2014: S.2769A/A.2047A -- Died in EnCon/Advanced to Third Reading
2011-2012: Referred to Rules/Advanced to Third Reading
2009-2010: A04272(Brodsky)- Passed Assembly
2007-2008: A01100(Brodsky)- Third Reading
2005-2006: A01885(Brodsky)- Third Reading
2003-2004: A05936(Brodsky)- Passed Assembly
2001-2002: A00455(Brodsky)- Passed Assembly
1999-2000: A0956A(Brodsky)- Third Reading
1997-1998: A1620A(Brodsky)- Passed Assembly
1995-1996: A01918(Brodsky)- Passed Assembly

 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, 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.

2015-S1087B (ACTIVE) - Bill Text download pdf

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

                                 1087--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 8, 2015
                               ___________

Introduced  by Sens. PARKER, HOYLMAN, LATIMER, SERRANO, SQUADRON -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee  on Environmental Conservation -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  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 commit-
  tee

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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04892-05-6

S. 1087--B                          2

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
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

S. 1087--B                          3

  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 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,

S. 1087--B                          4

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  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.

S. 1087--B                          5

  [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
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, 2020 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.

Senate Bill S1087B

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Senate Bill S1087B

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Sponsored By

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

Bill Amendments

co-Sponsors

2015-S1087 - Details

2015-S1087 - Summary

2015-S1087 - Sponsor Memo

2015-S1087 - Bill Text download pdf

co-Sponsors

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