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:
    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  TWO  OF  THIS  SECTION  AGAINST ANY PERSON FOR ANY VIOLATION OF AN
   20  ADMINISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO  INVESTIGATE  OR
   21  REMEDIATE  AN  INACTIVE  HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE
   22  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
    1  THE FOLLOWING PROVISIONS OF OR ANY RULE, REGULATION, PERMIT, CERTIFICATE
    2  OR ORDER PROMULGATED OR ISSUED PURSUANT TO:
    3    A. SECTION 15-0501, 15-0503 OR 15-0505 OF THIS CHAPTER; OR
    4    B. TITLE TWENTY-SEVEN OF ARTICLE FIFTEEN OF THIS CHAPTER; OR
    5    C.  TITLE FIVE, SEVEN, EIGHT, TEN OR SEVENTEEN OF ARTICLE SEVENTEEN OF
    6  THIS CHAPTER; OR
    7    D. ARTICLE NINETEEN OF THIS CHAPTER; OR
    8    E. ARTICLE TWENTY-THREE OF THIS CHAPTER; OR
    9    F. ARTICLE TWENTY-FOUR OF THIS CHAPTER; OR
   10    G. ARTICLE TWENTY-FIVE OF THIS CHAPTER; OR
   11    H. TITLE THREE, SEVEN, NINE OR FIFTEEN OF ARTICLE TWENTY-SEVEN OF THIS
   12  CHAPTER; OR
   13    I. ARTICLE THIRTY-THREE OF THIS CHAPTER; OR
   14    J. ARTICLE THIRTY-SEVEN OF THIS CHAPTER; OR
   15    K. ARTICLE FORTY OF THIS CHAPTER.
   16    2. IN ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  ONE  OF  THIS
   17  SECTION,  THE  COURT  MAY ISSUE DECLARATORY AND/OR INJUNCTIVE RELIEF FOR
   18  EACH VIOLATION FOUND. THE JUDGMENT IN ANY SUCH ACTION  MAY  ALSO  IMPOSE
   19  SUCH  CONDITIONS  ON THE DEFENDANT AS ARE NECESSARY TO ASSURE COMPLIANCE
   20  WITH SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER  WITHIN  A
   21  REASONABLE TIME PERIOD.
   22    3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO SUBDIVISION ONE
   23  OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
   24  CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
   25  BY  OR  ON  BEHALF OF THE DEPARTMENT, THE STATE OF NEW YORK, THE COMMIS-
   26  SIONER, OR THE COMMISSIONER'S DESIGNEE.
   27    4. NO ACTION MAY BE BROUGHT AGAINST THE STATE OR ANY  OF  ITS  DEPART-
   28  MENTS,  AGENCIES  OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR ANY
   29  PUBLIC AUTHORITY PURSUANT TO THIS TITLE  EXCEPT  IN  THEIR  CAPACITY  AS
   30  OWNER  OR  OPERATOR OF A POLLUTION SOURCE OR AS A PERSON RESPONSIBLE FOR
   31  THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
   32  SITE PURSUANT TO TITLE THIRTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER.
   33  S 71-4503. NOTICE OF ACTION.
   34    1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS  SECTION,  NO  ACTION
   35  MAY BE COMMENCED UNDER SUBDIVISION ONE OF SECTION 71-4501 OF THIS TITLE:
   36    A.  PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN
   37  RECEIPT REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE  COMMISSIONER,
   38  THE  ATTORNEY  GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY
   39  LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
   40  SHALL BE GIVEN IN SUCH A MANNER AS THE  COMMISSIONER  MAY  PRESCRIBE  BY
   41  REGULATION,  AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION OF
   42  ANY SUCH LAW, RULE, REGULATION, PERMIT,  CERTIFICATE  OR  ORDER  AS  SET
   43  FORTH  IN  SUBDIVISION  ONE  OF  SECTION 71-4501 OF THIS TITLE AND SHALL
   44  DESCRIBE  WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR   CONDITION
   45  COMPLAINED  OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN THE
   46  POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
   47    B. IF THE COMMISSIONER OR THE COMMISSIONER'S  DESIGNEE,  AT  ANY  TIME
   48  PRIOR  TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH
   49  A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
   50  IS LATER AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED  THE  NOTICE
   51  PRESCRIBED  IN  PARAGRAPH  A OF THIS SUBDIVISION,   HAS COMMENCED AND IS
   52  ACTIVELY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT  PROCEEDING  PURSUANT
   53  TO THIS CHAPTER RELATIVE TO THE ALLEGED VIOLATION; OR
   54    C.  IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY
   55  DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR
   56  TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS  LATER,  AND  UPON  WRITTEN
       S. 1087                             3
    1  NOTICE  TO  THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
    2  OF THIS SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING  A  CIVIL
    3  ACTION  IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
    4  ORDER OR INJUNCTION RELATIVE TO THE ALLEGED VIOLATION; OR
    5    D.  IF  THE  ALLEGED  VIOLATION   IS THE SUBJECT OF A CONSENT ORDER, A
    6  COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR
    7  THE COMMISSIONER'S DESIGNEE AND THE ALLEGED  VIOLATOR  SETTING  FORTH  A
    8  COMPLIANCE  SCHEDULE  TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
    9  TIME PERIOD, OR OF A SETTLEMENT  OR  DISPOSITION  OF  AN  ADMINISTRATIVE
   10  ENFORCEMENT  PROCEEDING  OR  A  CIVIL  ACTION COMMENCED PURSUANT TO THIS
   11  CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN  COMPLIANCE  WITH  THE
   12  TERMS  OF  SUCH  CONSENT  ORDER,  COURT  ORDER, AGREEMENT, SETTLEMENT OR
   13  DISPOSITION.
   14    2. THE PLAINTIFF MAY COMMENCE  AN  ACTION  UNDER  SUBDIVISION  ONE  OF
   15  SECTION  71-4501  OF  THIS TITLE PRIOR TO SIXTY DAYS AFTER THE GIVING OF
   16  NOTICE REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION UPON A
   17  SHOWING TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A  SUBSTAN-
   18  TIAL AND IMMINENT HAZARD TO THE ENVIRONMENT.
   19    3.  A COPY OF THE COMPLAINT, AND, UNLESS SERVICE IS THEREAFTER WAIVED,
   20  ALL MOTION PAPERS AND ANY SUBSEQUENT PLEADINGS SHALL BE SERVED UPON  THE
   21  COMMISSIONER, THE ATTORNEY GENERAL AND THE DEFENDANT.
   22  S 71-4505. INTERVENTION.
   23    1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
   24  MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
   25    2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
   26  SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
   27  SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
   28  MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
   29  THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
   30  IN SUCH NOTICE.
   31  S 71-4507. APPROVAL OF SETTLEMENTS.
   32    1.  NO  ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
   33  APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
   34  SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
   35  BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN. UPON  THE  MOTION  OF
   36  THE  COMMISSIONER,  THE ATTORNEY GENERAL, OR ANY OTHER PARTY OR UPON ITS
   37  OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE REQUIRED
   38  TO PROTECT THE INTERESTS IN ENVIRONMENTAL PROTECTION OR  ENFORCEMENT  OF
   39  CITIZENS  WHO ARE NOT A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE
   40  A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETER-
   41  MINES THAT A MONETARY SETTLEMENT IN EXCESS OF COSTS,  DISBURSEMENTS  AND
   42  REASONABLE  EXPERT WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY
   43  A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO  HAS
   44  STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE.
   45    2.  IF,  SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION
   46  ONE OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT  BEEN  FINALLY
   47  ADJUDICATED,  THE  PERSON  ALLEGED  TO BE IN VIOLATION OF ANY LAW, RULE,
   48  REGULATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR
   49  IS SUBJECT TO A COURT ORDER OR OTHER WRITTEN  AGREEMENT  SIGNED  BY  THE
   50  COMMISSIONER  OR  THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON-
   51  ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE  COURT  IN
   52  WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
   53  PRIATE  COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS,
   54  DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY  PARTY
   55  IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
   56  S 71-4509. COSTS, FEES AND PENALTIES.
       S. 1087                             4
    1    1.  THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
    2  ANT TO SUBDIVISIONS ONE AND TWO OF SECTION 71-4503 OF THIS TITLE MAY  IN
    3  ITS  DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS
    4  AND ATTORNEY FEES TO ANY PREVAILING OR SUBSTANTIALLY  PREVAILING  PARTY;
    5  PROVIDED,  HOWEVER,  THAT  SUCH  AN  AWARD TO A PREVAILING RESPONDENT OR
    6  DEFENDANT SHALL  NOT  EXCEED  TEN  THOUSAND  DOLLARS  AND  A  PREVAILING
    7  RESPONDENT  OR  DEFENDANT IN ORDER TO RECOVER SUCH COSTS, DISBURSEMENTS,
    8  REASONABLE EXPERT WITNESS AND ATTORNEY FEES MUST MAKE A MOTION  REQUEST-
    9  ING SUCH COSTS, DISBURSEMENTS AND FEES AND SHOW THAT THE ACTION OR CLAIM
   10  BROUGHT WAS FRIVOLOUS. IN ORDER TO FIND THE ACTION OR CLAIM TO BE FRIVO-
   11  LOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
   12    A.  THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD FAITH,
   13  SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
   14  OR MALICIOUSLY INJURE ANOTHER;
   15    B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
   16  ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
   17  FAITH ARGUMENT FOR AN EXTENSION, MODIFICATION OR  REVERSAL  OF  EXISTING
   18  LAW.  IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY OR
   19  THE ATTORNEY LEARNED OR SHOULD HAVE LEARNED THAT  THE  ACTION  OR  CLAIM
   20  LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
   21  ATTORNEY DID NOT ACT IN BAD FAITH.
   22    2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
   23  NO COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY  FEES
   24  MAY  BE  AWARDED AGAINST THE STATE, OR ANY OF ITS DEPARTMENTS, AGENCIES,
   25  BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN
   26  ANY ACTION BROUGHT UNDER THIS TITLE.
   27    3. IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO  SUBDIVI-
   28  SION  ONE  OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE,
   29  AS REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN
   30  AN ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE PURPOSE OF OBTAINING  AN
   31  AWARD  OF  PENALTIES  AGAINST  ANY  PERSON  FOUND LIABLE IN SUCH ACTION;
   32  PROVIDED, HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED  OF
   33  THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
   34  MENT  OF  SUCH  ACTION.  ANY  CLAIM FOR PENALTIES BASED UPON A VIOLATION
   35  WHICH IS THE SUBJECT OF AN ACTION  BROUGHT  UNDER  THIS  TITLE  MUST  BE
   36  BROUGHT IN SUCH ACTION.
   37  S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
   38    WITH  RESPECT  TO THOSE PARTS OF TITLE TWENTY-SEVEN OF ARTICLE FIFTEEN
   39  OF THIS CHAPTER AND THOSE PARTS OF ARTICLE TWENTY-FOUR OF  THIS  CHAPTER
   40  ADMINISTERED  BY  THE ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE
   41  TWENTY-SEVEN OF THE EXECUTIVE LAW, ANY REFERENCE IN THIS  TITLE  TO  THE
   42  DEPARTMENT,  THE  COMMISSIONER,  OR THE COMMISSIONER'S DESIGNEE SHALL BE
   43  CONSTRUED TO MEAN THE ADIRONDACK PARK AGENCY.
   44  S 71-4513. SAVINGS CLAUSE.
   45    NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT  WHICH  ANY  PERSON  OR
   46  CLASS  OF  PERSONS  MAY  HAVE  UNDER  ANY  STATUTE OR COMMON LAW TO SEEK
   47  ENFORCEMENT OF ANY STATUTE, RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR
   48  ORDER, OR TO SEEK ANY OTHER RELIEF.
   49    S  2.  Section 71-1311 of the environmental conservation law, subdivi-
   50  sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
   51  as follows:
   52  S 71-1311. Injunction against violations.
   53    [1.] Whenever it appears that any person is violating  or  threatening
   54  to  violate any provision of article 23 of this chapter or is committing
   55  any offense described in section 71-1305 of this title, the  department,
   56  acting  by  the  Attorney General, may bring suit against such person in
       S. 1087                             5
    1  any court of competent jurisdiction to restrain such person from contin-
    2  uing such violation or from carrying out the threat of violation. In any
    3  such suit, the court shall have jurisdiction to grant to the  department
    4  without bond or other undertaking, such prohibitory or mandatory injunc-
    5  tions  as  the facts may warrant, including temporary restraining orders
    6  and preliminary injunctions.
    7    [2. If the department, acting by the Attorney General, shall  fail  to
    8  bring  suit  to  enjoin  a  violation  or  threatened  violation  of any
    9  provision of article 23, or  any  rule,  regulation,  or  order  of  the
   10  department  made pursuant hereto, within ten days after receipt of writ-
   11  ten request to do so by any person who is or will be adversely  affected
   12  by  such violation, the person making such request may bring suit in his
   13  own behalf to restrain such violation or  threatened  violation  in  any
   14  court  in  which  the department might have brought suit. The department
   15  shall be made a party in such suit in addition to the  person  violating
   16  or  threatening  to  violate a provision of article 23, or a rule, regu-
   17  lation, or order of the department, and the  action  shall  proceed  and
   18  injunctive  relief  may  be  granted  to the department without bond, or
   19  other undertaking in the same manner as if suit had been brought by  the
   20  department.]
   21    S 3. This act shall take effect immediately; provided however, that no
   22  action  authorized  by section 71-4501 of the environmental conservation
   23  law, as added by section one of this act, may be commenced  against  any
   24  city,  village, town or county prior to September 1, 2020 and nothing in
   25  this act shall affect any action commenced pursuant to  section  71-1311
   26  of the environmental conservation law prior to such effective date.