Bill Text: NY S05612 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to enforcement actions for violations of the environmental conservation law.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO ENVIRONMENTAL CONSERVATION [S05612 Detail]
Download: New_York-2017-S05612-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5612 2017-2018 Regular Sessions IN SENATE April 20, 2017 ___________ Introduced by Sens. KRUEGER, HOYLMAN -- 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 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 ENVIRONMENTAL 5 LAW ENFORCEMENT ACT 6 Section 71-4501. Enforcement actions. 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 § 71-4501. Enforcement actions. 14 1. Except as otherwise provided in section 71-4503 of this title, any 15 person who has or may suffer an injury in fact, stemming from an alleged 16 violation, and redressable from the abatement of that violation, may 17 commence a civil action in a court of competent jurisdiction for injunc- 18 tive and declaratory relief pursuant to subdivision two of this section 19 against any person who is alleged to be in violation of any rule, regu- 20 lation, permit, certificate or order promulgated or issued pursuant to 21 the following provisions of this chapter: 22 a. section 15-0501, 15-0503 or 15-0505; or 23 b. title 27 of article 15; or 24 c. title 5, 7, 8, 10 or 17 of article 17; or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10943-01-7S. 5612 2 1 d. article 23; or 2 e. article 24; or 3 f. article 25; or 4 g. title 3, 7, 9 or 13 of article 27; or 5 h. article 40. 6 2. In any action commenced pursuant to subdivision one of this 7 section, the court may issue declaratory and/or injunctive relief for 8 each violation found. The judgment in any such action may also impose 9 such conditions on the defendant as are necessary to assure compliance 10 with such law, rule, regulation, permit, certificate or order within a 11 reasonable time period. 12 3. No person shall commence a civil action pursuant to subdivision one 13 of this section unless the alleged violation could be subject to a judi- 14 cial enforcement action or administrative enforcement proceeding brought 15 by or on behalf of the department, the state of New York, the commis- 16 sioner, or the commissioner's designee. 17 4. No action may be brought against the state or any of its depart- 18 ments, agencies or bureaus or any of its political subdivisions or any 19 public authority pursuant to this title except in their capacity as 20 owner or operator of a pollution source or as a person responsible for 21 the investigation or remediation of an inactive hazardous waste disposal 22 site pursuant to title thirteen of article twenty-seven of this chapter. 23 § 71-4503. Notice of action. 24 1. Except as provided in subdivision two of this section, no action 25 may be commenced under subdivision one of section 71-4501 of this title: 26 a. prior to sixty days after written notice by certified mail, return 27 receipt requested, has been given by the plaintiff to the commissioner, 28 the attorney general, and any person alleged to be in violation of any 29 law, rule, regulation, permit, certificate or order. Such written notice 30 shall be given in such a manner as the commissioner may prescribe by 31 regulation, and shall identify any person alleged to be in violation of 32 any such law, rule, regulation, permit, certificate or order as set 33 forth in subdivision one of section 71-4501 of this title and shall 34 describe with reasonable particularity the activity or condition 35 complained of including, where appropriate, data or test results in the 36 possession of the plaintiff which describe such alleged violation; or 37 b. if the commissioner or the commissioner's designee, at any time 38 prior to the end of the sixty day notice period prescribed in paragraph 39 a of this subdivision or prior to commencement of such action, whichever 40 is later and upon written notice to the person who provided the notice 41 prescribed in paragraph a of this subdivision, has commenced and is 42 diligently prosecuting an administrative enforcement proceeding pursuant 43 to this chapter to abate the alleged violation; or 44 c. if the attorney general, at any time prior to the end of the sixty 45 day notice period prescribed in paragraph a of this subdivision or prior 46 to commencement of such action, whichever is later, and upon written 47 notice to the person who provided the notice prescribed in paragraph a 48 of this subdivision, has commenced and is diligently prosecuting a civil 49 action in a court of the United States or New York state which seeks an 50 order or injunction to abate the alleged violation; or 51 d. if the alleged violation is the subject of a consent order, a 52 court order or any other written agreement signed by the commissioner or 53 the commissioner's designee and the alleged violator setting forth a 54 compliance schedule to eliminate the alleged violation in a reasonable 55 time period, or of a settlement or disposition of an administrative 56 enforcement proceeding or a civil action commenced pursuant to thisS. 5612 3 1 chapter, provided that the alleged violator is in compliance with the 2 terms of such consent order, court order, agreement, settlement or 3 disposition. 4 2. The plaintiff may commence an action under subdivision one of 5 section 71-4501 of this title prior to sixty days after the giving of 6 notice required by paragraph a of subdivision one of this section upon a 7 showing to the court that the matter in controversy involves a substan- 8 tial and imminent hazard to health or the environment. 9 3. A copy of the summons and complaint and any amendment thereto, 10 shall be served upon the commissioner and the attorney general. 11 § 71-4505. Intervention. 12 1. The state as represented by the attorney general may intervene as a 13 matter of right in any action brought pursuant to this title. 14 2. Any person who is authorized to commence an action pursuant to 15 section 71-4501 of this title and who has given notice pursuant to 16 section 71-4503 of this title may intervene upon timely motion as a 17 matter of right in any action or proceeding subsequently commenced by 18 the department or the attorney general relating to any violation alleged 19 in such notice. 20 § 71-4507. Approval of settlements. 21 1. No action commenced under this title shall be settled except upon 22 approval by the court upon sixty days notice to all parties, the commis- 23 sioner and the attorney general. Notice of the proposed settlement shall 24 be published in the environmental notice bulletin by the commissioner. 25 Upon the motion of the commissioner, the attorney general, or any other 26 party or upon its own motion, the court may require such further notice 27 as may be required to protect the environment or persons who are not a 28 party to the action. The court shall not approve a settlement in an 29 action commenced under this title if the court determines that a mone- 30 tary settlement in excess of costs, disbursements and reasonable expert 31 witness and attorney fees has been offered or paid by a defendant as 32 consideration for such settlement to a plaintiff who has standing to sue 33 only by virtue of this title. 34 2. If, subsequent to the commencement of an action under subdivision 35 one of section 71-4501 of this title which action has not been finally 36 adjudicated, the person alleged to be in violation of any law, rule, 37 regulation, permit, certificate or order enters into a consent order, or 38 is subject to a court order or other written agreement signed by the 39 commissioner or the commissioner's designee which sets forth a reason- 40 able settlement and disposition of the alleged violation, the court in 41 which such action is pending, on motion of any party, may make an appro- 42 priate court order disposing of the case, including the award of costs, 43 disbursements, reasonable expert witness and attorney fees to any party 44 if appropriate pursuant to section 71-4509 of this title. 45 § 71-4509. Costs, fees and penalties. 46 1. The court, in issuing any final order in any action brought pursu- 47 ant to subdivisions one and two of section 71-4503 of this title may in 48 its discretion award costs, disbursements and reasonable expert witness 49 and attorney fees to any prevailing or substantially prevailing party; 50 provided, however, that a prevailing or substantially prevailing 51 respondent or defendant must show that the action or claim brought was 52 frivolous in order to recover such costs, disbursements, reasonable 53 expert witness and attorney fees. In order to find the action or claim 54 to be frivolous, the court must find in writing one or more of the 55 following:S. 5612 4 1 a. the action or claim was commenced, used or continued in bad faith, 2 solely to delay or prolong the resolution of the litigation or to harass 3 or maliciously injure another; 4 b. the action or claim was commenced or continued in bad faith without 5 any reasonable basis in law or fact and could not be supported by a good 6 faith argument for an extension, modification or reversal of existing 7 law. If the action or claim was promptly discontinued when the party or 8 the attorney learned or should have learned that the action or claim 9 lacked such a reasonable basis, the court may find that the party or the 10 attorney did not act in bad faith. 11 2. Notwithstanding the provisions of subdivision one of this section, 12 no costs, disbursements, or reasonable expert witness and attorney fees 13 may be awarded against the state, or any of its departments, agencies, 14 bureaus or any of its political subdivisions, or any public authority in 15 any action brought under this title. 16 3. In addition to the state's right to intervene pursuant to subdivi- 17 sion one of section 71-4505 of this title or any other law, the state, 18 as represented by the attorney general, may appear upon timely motion in 19 an action brought under this title for the sole purpose of obtaining an 20 award of penalties against any person found liable in such action; 21 provided, however, that the plaintiff and defendant must be notified of 22 the state's intent to move for penalties within thirty days of commence- 23 ment of such action. Any claim for penalties based upon a violation 24 which is the subject of an action brought under this title must be 25 brought in such action. 26 § 71-4511. Applicability in the Adirondack park. 27 With respect to those parts of title twenty-seven of article fifteen 28 of this chapter and those parts of article twenty-four of this chapter 29 administered by the Adirondack park agency created pursuant to article 30 twenty-seven of the executive law, any reference in this title to the 31 department, the commissioner, or the commissioner's designee shall be 32 construed to mean the Adirondack park agency. 33 § 71-4513. Savings clause. 34 Nothing in this title shall restrict any right which any person or 35 class of persons may have under any statute or common law to seek 36 enforcement of any statute, rule, regulation, permit, certificate or 37 order, or to seek any other relief. 38 § 2. Section 71-1311 of the environmental conservation law, subdivi- 39 sion 1 as amended by chapter 846 of the laws of 1981, is amended to read 40 as follows: 41 § 71-1311. Injunction against violations. 42 [1.] Whenever it appears that any person is violating or threatening 43 to violate any provision of article 23 of this chapter or is committing 44 any offense described in section 71-1305 of this title, the department, 45 acting by the Attorney General, may bring suit against such person in 46 any court of competent jurisdiction to restrain such person from contin- 47 uing such violation or from carrying out the threat of violation. In any 48 such suit, the court shall have jurisdiction to grant to the department 49 without bond or other undertaking, such prohibitory or mandatory injunc- 50 tions as the facts may warrant, including temporary restraining orders 51 and preliminary injunctions. 52 [2. If the department, acting by the Attorney General, shall fail to53bring suit to enjoin a violation or threatened violation of any54provision of article 23, or any rule, regulation, or order of the55department made pursuant hereto, within ten days after receipt of writ-56ten request to do so by any person who is or will be adversely affectedS. 5612 5 1by such violation, the person making such request may bring suit in his2own behalf to restrain such violation or threatened violation in any3court in which the department might have brought suit. The department4shall be made a party in such suit in addition to the person violating5or threatening to violate a provision of article 23, or a rule, regu-6lation, or order of the department, and the action shall proceed and7injunctive relief may be granted to the department without bond, or8other undertaking in the same manner as if suit had been brought by the9department.] 10 § 3. This act shall take effect immediately; provided however, that no 11 action authorized by section 71-4501 of the environmental conservation 12 law, as added by section one of this act, may be commenced against any 13 city, village, town or county prior to September 1, 2022 and nothing in 14 this act shall affect any action commenced pursuant to section 71-1311 15 of the environmental conservation law, prior to such effective date.
