Bill Text: NY S03424 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to enforcement actions for violations of the environmental conservation law.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-24 - PRINT NUMBER 3424A [S03424 Detail]
Download: New_York-2013-S03424-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3424--A
2013-2014 Regular Sessions
I N S E N A T E
February 1, 2013
___________
Introduced by Sen. KRUEGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Environmental Conservation
-- recommitted to the Committee on Environmental Conservation in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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 S 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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01227-02-4
S. 3424--A 2
1 A. SECTION 15-0501, 15-0503 OR 15-0505; OR
2 B. TITLE 27 OF ARTICLE 15; OR
3 C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17; OR
4 D. ARTICLE 23; OR
5 E. ARTICLE 24; OR
6 F. ARTICLE 25; OR
7 G. TITLE 3, 7, 9 OR 13 OF ARTICLE 27; OR
8 H. ARTICLE 40.
9 2. IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION ONE OF THIS
10 SECTION, THE COURT MAY ISSUE DECLARATORY AND/OR INJUNCTIVE RELIEF FOR
11 EACH VIOLATION FOUND. THE JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE
12 SUCH CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE COMPLIANCE
13 WITH SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER WITHIN A
14 REASONABLE TIME PERIOD.
15 3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO SUBDIVISION ONE
16 OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
17 CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
18 BY OR ON BEHALF OF THE DEPARTMENT, THE STATE OF NEW YORK, THE COMMIS-
19 SIONER, OR THE COMMISSIONER'S DESIGNEE.
20 4. NO ACTION MAY BE BROUGHT AGAINST THE STATE OR ANY OF ITS DEPART-
21 MENTS, AGENCIES OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR ANY
22 PUBLIC AUTHORITY PURSUANT TO THIS TITLE EXCEPT IN THEIR CAPACITY AS
23 OWNER OR OPERATOR OF A POLLUTION SOURCE OR AS A PERSON RESPONSIBLE FOR
24 THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
25 SITE PURSUANT TO TITLE 13 OF ARTICLE 27 OF THIS CHAPTER.
26 S 71-4503. NOTICE OF ACTION.
27 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, NO ACTION
28 MAY BE COMMENCED UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE:
29 A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN
30 RECEIPT REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE COMMISSIONER,
31 THE ATTORNEY GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY
32 LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
33 SHALL BE GIVEN IN SUCH A MANNER AS THE COMMISSIONER MAY PRESCRIBE BY
34 REGULATION, AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION OF
35 ANY SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER AS SET
36 FORTH IN SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE AND SHALL
37 DESCRIBE WITH REASONABLE PARTICULARITY THE ACTIVITY OR CONDITION
38 COMPLAINED OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN THE
39 POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
40 B. IF THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE, AT ANY TIME
41 PRIOR TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH
42 A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
43 IS LATER AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE
44 PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION, HAS COMMENCED AND IS
45 DILIGENTLY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT
46 TO THIS CHAPTER TO ABATE THE ALLEGED VIOLATION; OR
47 C. IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY
48 DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR
49 TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER, AND UPON WRITTEN
50 NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A
51 OF THIS SUBDIVISION, HAS COMMENCED AND IS DILIGENTLY PROSECUTING A CIVIL
52 ACTION IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN
53 ORDER OR INJUNCTION TO ABATE THE ALLEGED VIOLATION; OR
54 D. IF THE ALLEGED VIOLATION IS THE SUBJECT OF A CONSENT ORDER, A
55 COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR
56 THE COMMISSIONER'S DESIGNEE AND THE ALLEGED VIOLATOR SETTING FORTH A
S. 3424--A 3
1 COMPLIANCE SCHEDULE TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
2 TIME PERIOD, OR OF A SETTLEMENT OR DISPOSITION OF AN ADMINISTRATIVE
3 ENFORCEMENT PROCEEDING OR A CIVIL ACTION COMMENCED PURSUANT TO THIS
4 CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN COMPLIANCE WITH THE
5 TERMS OF SUCH CONSENT ORDER, COURT ORDER, AGREEMENT, SETTLEMENT OR
6 DISPOSITION.
7 2. THE PLAINTIFF MAY COMMENCE AN ACTION UNDER SUBDIVISION 1 OF SECTION
8 71-4501 OF THIS TITLE PRIOR TO SIXTY DAYS AFTER THE GIVING OF NOTICE
9 REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION UPON A SHOW-
10 ING TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A SUBSTANTIAL
11 AND IMMINENT HAZARD TO HEALTH OR THE ENVIRONMENT.
12 3. A COPY OF THE SUMMONS AND COMPLAINT AND ANY AMENDMENT THERETO,
13 SHALL BE SERVED UPON THE COMMISSIONER AND THE ATTORNEY GENERAL.
14 S 71-4505. INTERVENTION.
15 1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
16 MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
17 2. ANY PERSON WHO IS AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
18 SECTION 71-4501 OF THIS TITLE AND WHO HAS GIVEN NOTICE PURSUANT TO
19 SECTION 71-4503 OF THIS TITLE MAY INTERVENE UPON TIMELY MOTION AS A
20 MATTER OF RIGHT IN ANY ACTION OR PROCEEDING SUBSEQUENTLY COMMENCED BY
21 THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
22 IN SUCH NOTICE.
23 S 71-4507. APPROVAL OF SETTLEMENTS.
24 1. NO ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
25 APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
26 SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
27 BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN BY THE COMMISSIONER.
28 UPON THE MOTION OF THE COMMISSIONER, THE ATTORNEY GENERAL, OR ANY OTHER
29 PARTY OR UPON ITS OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE
30 AS MAY BE REQUIRED TO PROTECT THE ENVIRONMENT OR PERSONS WHO ARE NOT A
31 PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE A SETTLEMENT IN AN
32 ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETERMINES THAT A MONE-
33 TARY SETTLEMENT IN EXCESS OF COSTS, DISBURSEMENTS AND REASONABLE EXPERT
34 WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY A DEFENDANT AS
35 CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO HAS STANDING TO SUE
36 ONLY BY VIRTUE OF THIS TITLE.
37 2. IF, SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION 1
38 OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU-
39 DICATED, THE PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW, RULE, REGU-
40 LATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR IS
41 SUBJECT TO A COURT ORDER OR OTHER WRITTEN AGREEMENT SIGNED BY THE
42 COMMISSIONER OR THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON-
43 ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE COURT IN
44 WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
45 PRIATE COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS,
46 DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY PARTY
47 IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
48 S 71-4509. COSTS, FEES AND PENALTIES.
49 1. THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
50 ANT TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN ITS
51 DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS AND
52 ATTORNEY FEES TO ANY PREVAILING OR SUBSTANTIALLY PREVAILING PARTY;
53 PROVIDED, HOWEVER, THAT A PREVAILING OR SUBSTANTIALLY PREVAILING
54 RESPONDENT OR DEFENDANT MUST SHOW THAT THE ACTION OR CLAIM BROUGHT WAS
55 FRIVOLOUS IN ORDER TO RECOVER SUCH COSTS, DISBURSEMENTS, REASONABLE
56 EXPERT WITNESS AND ATTORNEY FEES. IN ORDER TO FIND THE ACTION OR CLAIM
S. 3424--A 4
1 TO BE FRIVOLOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE
2 FOLLOWING:
3 A. THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD FAITH,
4 SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
5 OR MALICIOUSLY INJURE ANOTHER;
6 B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
7 ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
8 FAITH ARGUMENT FOR AN EXTENSION, MODIFICATION OR REVERSAL OF EXISTING
9 LAW. IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY OR
10 THE ATTORNEY LEARNED OR SHOULD HAVE LEARNED THAT THE ACTION OR CLAIM
11 LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
12 ATTORNEY DID NOT ACT IN BAD FAITH.
13 2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
14 NO COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES
15 MAY BE AWARDED AGAINST THE STATE, OR ANY OF ITS DEPARTMENTS, AGENCIES,
16 BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN
17 ANY ACTION BROUGHT UNDER THIS TITLE.
18 3. IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO SUBDIVI-
19 SION 1 OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE, AS
20 REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN AN
21 ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE PURPOSE OF OBTAINING AN
22 AWARD OF PENALTIES AGAINST ANY PERSON FOUND LIABLE IN SUCH ACTION;
23 PROVIDED, HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED OF
24 THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
25 MENT OF SUCH ACTION. ANY CLAIM FOR PENALTIES BASED UPON A VIOLATION
26 WHICH IS THE SUBJECT OF AN ACTION BROUGHT UNDER THIS TITLE MUST BE
27 BROUGHT IN SUCH ACTION.
28 S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
29 WITH RESPECT TO THOSE PARTS OF TITLE 27 OF ARTICLE 15 OF THIS CHAPTER
30 AND THOSE PARTS OF ARTICLE 24 OF THIS CHAPTER ADMINISTERED BY THE
31 ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE 27 OF THE EXECUTIVE
32 LAW, ANY REFERENCE IN THIS TITLE TO THE DEPARTMENT, THE COMMISSIONER, OR
33 THE COMMISSIONER'S DESIGNEE SHALL BE CONSTRUED TO MEAN THE ADIRONDACK
34 PARK AGENCY.
35 S 71-4513. SAVINGS CLAUSE.
36 NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT WHICH ANY PERSON OR
37 CLASS OF PERSONS MAY HAVE UNDER ANY STATUTE OR COMMON LAW TO SEEK
38 ENFORCEMENT OF ANY STATUTE, RULE, REGULATION, PERMIT, CERTIFICATE OR
39 ORDER, OR TO SEEK ANY OTHER RELIEF.
40 S 2. Section 71-1311 of the environmental conservation law, subdivi-
41 sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
42 as follows:
43 S 71-1311. Injunction against violations.
44 [1.] Whenever it appears that any person is violating or threatening
45 to violate any provision of article 23 of this chapter or is committing
46 any offense described in section 71-1305 of this title, the department,
47 acting by the Attorney General, may bring suit against such person in
48 any court of competent jurisdiction to restrain such person from contin-
49 uing such violation or from carrying out the threat of violation. In any
50 such suit, the court shall have jurisdiction to grant to the department
51 without bond or other undertaking, such prohibitory or mandatory injunc-
52 tions as the facts may warrant, including temporary restraining orders
53 and preliminary injunctions.
54 [2. If the department, acting by the Attorney General, shall fail to
55 bring suit to enjoin a violation or threatened violation of any
56 provision of article 23, or any rule, regulation, or order of the
S. 3424--A 5
1 department made pursuant hereto, within ten days after receipt of writ-
2 ten request to do so by any person who is or will be adversely affected
3 by such violation, the person making such request may bring suit in his
4 own behalf to restrain such violation or threatened violation in any
5 court in which the department might have brought suit. The department
6 shall be made a party in such suit in addition to the person violating
7 or threatening to violate a provision of article 23, or a rule, regu-
8 lation, or order of the department, and the action shall proceed and
9 injunctive relief may be granted to the department without bond, or
10 other undertaking in the same manner as if suit had been brought by the
11 department.]
12 S 3. This act shall take effect immediately; provided however, that no
13 action authorized by section 71-4501 of the environmental conservation
14 law, as added by section one of this act, may be commenced against any
15 city, village, town or county prior to September 1, 2018 and nothing in
16 this act shall affect any action commenced pursuant to section 71-1311
17 of the environmental conservation law prior to such effective date.
