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:
    1    Section 1. Article 71 of the environmental conservation law is amended
    2  by adding a new title 45 to read as follows:
    3                                   TITLE 45
    4                            PRIVATE ENVIRONMENTAL
    5                             LAW ENFORCEMENT ACT
    6  SECTION 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
    7          71-4503. NOTICE OF ACTION.
    8          71-4505. INTERVENTION.
    9          71-4507. APPROVAL OF SETTLEMENTS.
   10          71-4509. COSTS, FEES AND PENALTIES.
   11          71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
   12          71-4513. SAVINGS CLAUSE.
   13  S 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
   14    1.  EXCEPT AS OTHERWISE PROVIDED IN SECTION 71-4503 OF THIS TITLE, ANY
   15  PERSON WHO HAS SUFFERED OR MAY SUFFER AN INJURY IN FACT,  REGARDLESS  OF
   16  WHETHER SUCH INJURY IS DIFFERENT IN KIND OR DEGREE FROM THAT SUFFERED BY
   17  THE PUBLIC AT LARGE, MAY COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT
   18  JURISDICTION  FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO SUBDIVI-
   19  SION 2 OF THIS SECTION AGAINST ANY PERSON FOR ANY VIOLATION OF AN ADMIN-
   20  ISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO INVESTIGATE OR  REME-
   21  DIATE  AN INACTIVE HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE 13 OF
   22  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
    1  PROVISIONS  OF  OR  ANY  RULE,  REGULATION, PERMIT, CERTIFICATE OR ORDER
    2  PROMULGATED OR ISSUED PURSUANT TO:
    3    A. SECTION 15-0501, 15-0503 OR 15-0505 OF THIS CHAPTER; OR
    4    B. TITLE 27 OF ARTICLE 15 OF THIS CHAPTER; OR
    5    C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17 OF THIS CHAPTER; OR
    6    D. ARTICLE 19 OF THIS CHAPTER; OR
    7    E. ARTICLE 23 OF THIS CHAPTER; OR
    8    F. ARTICLE 24 OF THIS CHAPTER; OR
    9    G. ARTICLE 25 OF THIS CHAPTER; OR
   10    H. TITLE 3, 7, 9 OR 15 OF ARTICLE 27 OF THIS CHAPTER; OR
   11    I. ARTICLE 33 OF THIS CHAPTER; OR
   12    J. ARTICLE 37 OF THIS CHAPTER; OR
   13    K. ARTICLE 40 OF THIS CHAPTER.
   14    2.  IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION 1 OF THIS SECTION,
   15  THE COURT MAY  ISSUE  DECLARATORY  AND/OR  INJUNCTIVE  RELIEF  FOR  EACH
   16  VIOLATION  FOUND.  THE  JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE SUCH
   17  CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE  COMPLIANCE  WITH
   18  SUCH  LAW,  RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR  ORDER WITHIN A
   19  REASONABLE TIME PERIOD.
   20    3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO  SUBDIVISION  1
   21  OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
   22  CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
   23  BY  OR  ON  BEHALF OF THE DEPARTMENT, THE STATE OF NEW YORK, THE COMMIS-
   24  SIONER, OR THE COMMISSIONER'S DESIGNEE.
   25    4. NO ACTION MAY BE BROUGHT AGAINST THE STATE OR ANY  OF  ITS  DEPART-
   26  MENTS,  AGENCIES  OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR ANY
   27  PUBLIC AUTHORITY PURSUANT TO THIS TITLE  EXCEPT  IN  THEIR  CAPACITY  AS
   28  OWNER  OR  OPERATOR OF A POLLUTION SOURCE OR AS A PERSON RESPONSIBLE FOR
   29  THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
   30  SITE PURSUANT TO TITLE 13 OF ARTICLE 27 OF THIS CHAPTER.
   31  S 71-4503. NOTICE OF ACTION.
   32    1. EXCEPT AS PROVIDED IN SUBDIVISION 2 OF THIS SECTION, NO ACTION  MAY
   33  BE COMMENCED UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE:
   34    A.  PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN
   35  RECEIPT REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE  COMMISSIONER,
   36  THE  ATTORNEY  GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY
   37  LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
   38  SHALL BE GIVEN IN SUCH A MANNER AS THE  COMMISSIONER  MAY  PRESCRIBE  BY
   39  REGULATION,  AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION OF
   40  ANY SUCH LAW, RULE, REGULATION, PERMIT,  CERTIFICATE  OR  ORDER  AS  SET
   41  FORTH  IN  SUBDIVISION  1  OF  SECTION  71-4501  OF THIS TITLE AND SHALL
   42  DESCRIBE  WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR   CONDITION
   43  COMPLAINED  OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN THE
   44  POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
   45    B. IF THE COMMISSIONER OR THE COMMISSIONER'S  DESIGNEE,  AT  ANY  TIME
   46  PRIOR  TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH
   47  A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
   48  IS LATER AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED  THE  NOTICE
   49  PRESCRIBED  IN  PARAGRAPH  A OF THIS SUBDIVISION,   HAS COMMENCED AND IS
   50  ACTIVELY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT  PROCEEDING  PURSUANT
   51  TO THIS CHAPTER RELATIVE TO THE ALLEGED VIOLATION; OR
   52    C.  IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY
   53  DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR
   54  TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS  LATER,  AND  UPON  WRITTEN
   55  NOTICE  TO  THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
   56  OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING  A  CIVIL
       S. 1087--A                          3
    1  ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
    2  ORDER OR INJUNCTION RELATIVE TO THE ALLEGED VIOLATION; OR
    3    D.  IF  THE  ALLEGED  VIOLATION   IS THE SUBJECT OF A CONSENT ORDER, A
    4  COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR
    5  THE COMMISSIONER'S DESIGNEE AND THE ALLEGED  VIOLATOR  SETTING  FORTH  A
    6  COMPLIANCE  SCHEDULE  TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
    7  TIME PERIOD, OR OF A SETTLEMENT  OR  DISPOSITION  OF  AN  ADMINISTRATIVE
    8  ENFORCEMENT  PROCEEDING  OR  A  CIVIL  ACTION COMMENCED PURSUANT TO THIS
    9  CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN  COMPLIANCE  WITH  THE
   10  TERMS  OF  SUCH  CONSENT  ORDER,  COURT  ORDER, AGREEMENT, SETTLEMENT OR
   11  DISPOSITION.
   12    2. THE PLAINTIFF MAY COMMENCE AN ACTION UNDER SUBDIVISION 1 OF SECTION
   13  71-4501 OF THIS TITLE PRIOR TO SIXTY DAYS AFTER  THE  GIVING  OF  NOTICE
   14  REQUIRED  BY PARAGRAPH A OF SUBDIVISION 1 OF THIS SECTION UPON A SHOWING
   15  TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A  SUBSTANTIAL  AND
   16  IMMINENT HAZARD TO THE ENVIRONMENT.
   17    3.  A COPY OF THE COMPLAINT, AND, UNLESS SERVICE IS THEREAFTER WAIVED,
   18  ALL MOTION PAPERS AND ANY SUBSEQUENT PLEADINGS SHALL BE SERVED UPON  THE
   19  COMMISSIONER, THE ATTORNEY GENERAL AND THE DEFENDANT.
   20  S 71-4505. INTERVENTION.
   21    1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
   22  MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
   23    2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
   24  SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
   25  SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
   26  MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
   27  THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
   28  IN SUCH NOTICE.
   29  S 71-4507. APPROVAL OF SETTLEMENTS.
   30    1.  NO  ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
   31  APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
   32  SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
   33  BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN. UPON  THE  MOTION  OF
   34  THE  COMMISSIONER,  THE ATTORNEY GENERAL, OR ANY OTHER PARTY OR UPON ITS
   35  OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE REQUIRED
   36  TO PROTECT THE INTERESTS IN ENVIRONMENTAL PROTECTION OR  ENFORCEMENT  OF
   37  CITIZENS  WHO ARE NOT A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE
   38  A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETER-
   39  MINES THAT A MONETARY SETTLEMENT IN EXCESS OF COSTS,  DISBURSEMENTS  AND
   40  REASONABLE  EXPERT WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY
   41  A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO  HAS
   42  STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE.
   43    2. IF, SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION 1
   44  OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU-
   45  DICATED,  THE  PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW, RULE, REGU-
   46  LATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR  IS
   47  SUBJECT  TO  A  COURT  ORDER  OR  OTHER  WRITTEN AGREEMENT SIGNED BY THE
   48  COMMISSIONER OR THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH  A  REASON-
   49  ABLE  SETTLEMENT  AND DISPOSITION OF THE ALLEGED VIOLATION, THE COURT IN
   50  WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
   51  PRIATE COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF  COSTS,
   52  DISBURSEMENTS,  REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY PARTY
   53  IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
   54  S 71-4509. COSTS, FEES AND PENALTIES.
   55    1. THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT  PURSU-
   56  ANT  TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN ITS
       S. 1087--A                          4
    1  DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS  AND
    2  ATTORNEY  FEES  TO  ANY  PREVAILING  OR  SUBSTANTIALLY PREVAILING PARTY;
    3  PROVIDED, HOWEVER, THAT SUCH AN AWARD  TO  A  PREVAILING  RESPONDENT  OR
    4  DEFENDANT  SHALL  NOT  EXCEED  TEN  THOUSAND  DOLLARS  AND  A PREVAILING
    5  RESPONDENT OR DEFENDANT IN ORDER TO RECOVER SUCH  COSTS,  DISBURSEMENTS,
    6  REASONABLE  EXPERT WITNESS AND ATTORNEY FEES MUST MAKE A MOTION REQUEST-
    7  ING SUCH COSTS, DISBURSEMENTS AND FEES AND SHOW THAT THE ACTION OR CLAIM
    8  BROUGHT WAS FRIVOLOUS. IN ORDER TO FIND THE ACTION OR CLAIM TO BE FRIVO-
    9  LOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
   10    A. THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD  FAITH,
   11  SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
   12  OR MALICIOUSLY INJURE ANOTHER;
   13    B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
   14  ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
   15  FAITH  ARGUMENT  FOR  AN EXTENSION, MODIFICATION OR REVERSAL OF EXISTING
   16  LAW. IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY  OR
   17  THE  ATTORNEY  LEARNED  OR  SHOULD HAVE LEARNED THAT THE ACTION OR CLAIM
   18  LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
   19  ATTORNEY DID NOT ACT IN BAD FAITH.
   20    2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION 1 OF THIS SECTION, NO
   21  COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES MAY
   22  BE AWARDED AGAINST THE STATE,  OR  ANY  OF  ITS  DEPARTMENTS,  AGENCIES,
   23  BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN
   24  ANY ACTION BROUGHT UNDER THIS TITLE.
   25    3.  IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO SUBDIVI-
   26  SION 1 OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE,  AS
   27  REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN AN
   28  ACTION  BROUGHT  UNDER  THIS  TITLE FOR THE SOLE PURPOSE OF OBTAINING AN
   29  AWARD OF PENALTIES AGAINST ANY  PERSON  FOUND  LIABLE  IN  SUCH  ACTION;
   30  PROVIDED,  HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED OF
   31  THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
   32  MENT OF SUCH ACTION. ANY CLAIM FOR  PENALTIES  BASED  UPON  A  VIOLATION
   33  WHICH  IS  THE  SUBJECT  OF  AN  ACTION BROUGHT UNDER THIS TITLE MUST BE
   34  BROUGHT IN SUCH ACTION.
   35  S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
   36    WITH RESPECT TO THOSE PARTS OF TITLE 27 OF ARTICLE 15 OF THIS  CHAPTER
   37  AND  THOSE  PARTS  OF  ARTICLE  24  OF  THIS CHAPTER ADMINISTERED BY THE
   38  ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE TWENTY-SEVEN  OF  THE
   39  EXECUTIVE  LAW,  ANY  REFERENCE  IN  THIS  TITLE  TO THE DEPARTMENT, THE
   40  COMMISSIONER, OR THE COMMISSIONER'S DESIGNEE SHALL BE CONSTRUED TO  MEAN
   41  THE ADIRONDACK PARK AGENCY.
   42  S 71-4513. SAVINGS CLAUSE.
   43    NOTHING  IN  THIS  TITLE  SHALL RESTRICT ANY RIGHT WHICH ANY PERSON OR
   44  CLASS OF PERSONS MAY HAVE UNDER  ANY  STATUTE  OR  COMMON  LAW  TO  SEEK
   45  ENFORCEMENT  OF  ANY  STATUTE,  RULE, REGULATION, PERMIT, CERTIFICATE OR
   46  ORDER, OR TO SEEK ANY OTHER RELIEF.
   47    S 2. Section 71-1311 of the environmental conservation  law,  subdivi-
   48  sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
   49  as follows:
   50  S 71-1311. Injunction against violations.
   51    [1.]  Whenever  it appears that any person is violating or threatening
   52  to violate any provision of article 23 of this chapter or is  committing
   53  any  offense described in section 71-1305 of this title, the department,
   54  acting by the Attorney General, may bring suit against  such  person  in
   55  any court of competent jurisdiction to restrain such person from contin-
   56  uing such violation or from carrying out the threat of violation. In any
       S. 1087--A                          5
    1  such  suit, the court shall have jurisdiction to grant to the department
    2  without bond or other undertaking, such prohibitory or mandatory injunc-
    3  tions as the facts may warrant, including temporary  restraining  orders
    4  and preliminary injunctions.
    5    [2.  If  the department, acting by the Attorney General, shall fail to
    6  bring suit  to  enjoin  a  violation  or  threatened  violation  of  any
    7  provision  of  article  23,  or  any  rule,  regulation, or order of the
    8  department made pursuant hereto, within ten days after receipt of  writ-
    9  ten  request to do so by any person who is or will be adversely affected
   10  by such violation, the person making such request may bring suit in  his
   11  own  behalf  to  restrain  such violation or threatened violation in any
   12  court in which the department might have brought  suit.  The  department
   13  shall  be  made a party in such suit in addition to the person violating
   14  or threatening to violate a provision of article 23, or  a  rule,  regu-
   15  lation,  or  order  of  the department, and the action shall proceed and
   16  injunctive relief may be granted to  the  department  without  bond,  or
   17  other  undertaking in the same manner as if suit had been brought by the
   18  department.]
   19    S 3. This act shall take effect immediately; provided however, that no
   20  action authorized by section 71-4501 of the  environmental  conservation
   21  law,  as  added by section one of this act, may be commenced against any
   22  city, village, town or county prior to September 1, 2019 and nothing  in
   23  this  act  shall affect any action commenced pursuant to section 71-1311
   24  of the environmental conservation law prior to such effective date.