S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1424
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 15, 2019
                                ___________
 
 Introduced  by  M. of A. SIMON, ABINANTI, ENGLEBRIGHT, THIELE, L. ROSEN-
   THAL, WEPRIN, D'URSO, LUPARDO, MOSLEY, GALEF, PAULIN,  CARROLL,  FAHY,
   COLTON,  CAHILL,  LIFTON,  GLICK, GOTTFRIED, RICHARDSON, NIOU, DAVILA,
   OTIS, TAYLOR -- Multi-Sponsored by -- M.  of  A.  BUCHWALD,  DINOWITZ,
   PERRY  --  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.
 § 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

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

                                                            LBD01812-01-9

 A. 1424                             2
 
 REMEDIATE 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  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 13 OF ARTICLE 27 OF THIS CHAPTER.
 § 71-4503. NOTICE OF ACTION.
   1.  EXCEPT  AS  PROVIDED IN SUBDIVISION TWO OF THIS SECTION, NO ACTION
 MAY BE COMMENCED UNDER SUBDIVISION ONE OF SECTION 71-4501 OF THIS TITLE:
   A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL,  RETURN
 RECEIPT  REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE COMMISSIONER,
 THE ATTORNEY GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION  OF  ANY
 LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
 SHALL  BE  GIVEN  IN  SUCH A MANNER AS THE COMMISSIONER MAY PRESCRIBE BY
 REGULATION, AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION  OF
 ANY  SUCH  LAW,  RULE,  REGULATION,  PERMIT, CERTIFICATE OR ORDER AS SET
 FORTH IN SUBDIVISION ONE OF SECTION 71-4501  OF  THIS  TITLE  AND  SHALL
 DESCRIBE   WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR  CONDITION
 COMPLAINED OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN  THE
 POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
   B.  IF  THE  COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE, AT ANY TIME
 PRIOR TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN  PARAGRAPH
 A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
 IS  LATER  AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE
 PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION,   HAS  COMMENCED  AND  IS
 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

 A. 1424                             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.
 § 71-4505. INTERVENTION.
   1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
 MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
   2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
 SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
 SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
 MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
 THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
 IN SUCH NOTICE.
 § 71-4507. APPROVAL OF SETTLEMENTS.
   1.  NO  ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
 APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
 SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
 BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN. 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.
 § 71-4509. COSTS, FEES AND PENALTIES.

 A. 1424                             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.
 § 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.
 § 71-4513. SAVINGS CLAUSE.
   NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT  WHICH  ANY  PERSON  OR
 CLASS  OF  PERSONS  MAY  HAVE  UNDER  ANY  STATUTE OR COMMON LAW TO SEEK
 ENFORCEMENT OF ANY STATUTE, RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR
 ORDER, OR TO SEEK ANY OTHER RELIEF.
   §  2.  Section 71-1311 of the environmental conservation law, subdivi-
 sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
 as follows:
 § 71-1311. Injunction against violations.
   [1.] Whenever it appears that any person is violating  or  threatening
 to  violate any provision of article 23 of this chapter or is committing
 any offense described in section 71-1305 of this title, the  department,
 acting  by  the  Attorney General, may bring suit against such person in

 A. 1424                             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.]
   § 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, 2023 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.