Bill Text: NY A01424 | 2019-2020 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 28-0)

Status: (Introduced) 2019-01-15 - referred to environmental conservation [A01424 Detail]

Download: New_York-2019-A01424-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1424
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    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:
     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  § 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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01812-01-9

        A. 1424                             2
     1  remediate an inactive hazardous waste disposal site pursuant to title 13
     2  of article 27 of this chapter, or  for  a  violation  of  the  following
     3  provisions  of  or  any  rule,  regulation, permit, certificate or order
     4  promulgated or issued pursuant to:
     5    a. section 15-0501, 15-0503 or 15-0505 of this chapter; or
     6    b. title 27 of article 15 of this chapter; or
     7    c. title 5, 7, 8, 10 or 17 of article 17 of this chapter; or
     8    d. article 19 of this chapter; or
     9    e. article 23 of this chapter; or
    10    f. article 24 of this chapter; or
    11    g. article 25 of this chapter; or
    12    h. title 3, 7, 9 or 15 of article 27 of this chapter; or
    13    i. article 33 of this chapter; or
    14    j. article 37 of this chapter; or
    15    k. article 40 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 13 of article 27 of this chapter.
    33  § 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

        A. 1424                             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  § 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  § 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  § 71-4509. Costs, fees and penalties.

        A. 1424                             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  § 71-4511. Applicability in the Adirondack park.
    38    With  respect to those parts of title 27 of article 15 of this chapter
    39  and those parts of article  24  of  this  chapter  administered  by  the
    40  Adirondack  park  agency created pursuant to article twenty-seven of the
    41  executive law, any reference  in  this  title  to  the  department,  the
    42  commissioner,  or the commissioner's designee shall be construed to mean
    43  the Adirondack park agency.
    44  § 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    §  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  § 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

        A. 1424                             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    § 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, 2023 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.
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