TITLE....Grants private citizens broad authorization to commence civil judicial actions under certain titles of the environmental conservation law
02/02/09
referred to environmental conservation
03/03/09
reported referred to codes
03/10/09
reported
03/12/09
advanced to third reading cal.228
SCHNEIDERMAN
Add Art 71 Title 45 SS71-4501 - 71-4513, amd S71-1311, En Con L
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.
RETRIEVE
STATE OF NEW YORK
________________________________________________________________________
1730
2009-2010 Regular Sessions
IN SENATE
February 5, 2009
___________
Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and
when printed to be committed to the Committee on Environmental Conser-
vation
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 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
22 thirteen of article 27 of this chapter, or for a violation of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07344-01-9
S. 1730 2
1 following provisions of or any rule, regulation, permit, certificate or
2 order promulgated or issued pursuant to:
3 a. section 15-0501, 15-0503 or 15-0505 of title 5 of article 15 of
4 this chapter; or
5 b. title 27 of article 15 of this chapter; or
6 c. title 5, 7, 8, 10 or 17 of article 17 of this chapter; or
7 d. article 19 of this chapter; or
8 e. article 23 of this chapter; or
9 f. article 24 of this chapter; or
10 g. article 25 of this chapter; or
11 h. title 3, 7, 9 or 15 of article 27 of this chapter; or
12 i. article 33 of this chapter; or
13 j. article 37 of this chapter; or
14 k. article 40 of this chapter.
15 2. In any action commenced pursuant to subdivision 1 of this section,
16 the court may issue declaratory and/or injunctive relief for each
17 violation found. The judgment in any such action may also impose such
18 conditions on the defendant as are necessary to assure compliance with
19 such law, rule, regulation, permit, certificate or order within a
20 reasonable time period.
21 3. No person shall commence a civil action pursuant to subdivision 1
22 of this section unless the alleged violation could be subject to a judi-
23 cial enforcement action or administrative enforcement proceeding brought
24 by or on behalf of the department, the state of New York, the commis-
25 sioner, or the commissioner's designee.
26 4. No action may be brought against the state or any of its depart-
27 ments, agencies or bureaus or any of its political subdivisions or any
28 public authority pursuant to this title except in their capacity as
29 owner or operator of a pollution source or as a person responsible for
30 the investigation or remediation of an inactive hazardous waste disposal
31 site pursuant to title 13 of article 27 of this chapter.
32 § 71-4503. Notice of action.
33 1. Except as provided in subdivision 2 of this section, no action may
34 be commenced under subdivision 1 of section 71-4501 of this title:
35 a. prior to sixty days after written notice by certified mail, return
36 receipt requested, has been given by the plaintiff to the commissioner,
37 the attorney general, and any person alleged to be in violation of any
38 law, rule, regulation, permit, certificate or order. Such written notice
39 shall be given in such a manner as the commissioner may prescribe by
40 regulation, and shall identify any person alleged to be in violation of
41 any such law, rule, regulation, permit, certificate or order as set
42 forth in subdivision one of section 71-4501 of this title and shall
43 describe with reasonable particularity the activity or condition
44 complained of including, where appropriate, data or test results in the
45 possession of the plaintiff which describe such alleged violation; or
46 b. if the commissioner or the commissioner's designee, at any time
47 prior to the end of the sixty day notice period prescribed in paragraph
48 a of this subdivision or prior to commencement of such action, whichever
49 is later and upon written notice to the person who provided the notice
50 prescribed in paragraph a of this subdivision, has commenced and is
51 actively prosecuting an administrative enforcement proceeding pursuant
52 to this chapter relative to the alleged violation; or
53 c. if the attorney general, at any time prior to the end of the sixty
54 day notice period prescribed in paragraph a of this subdivision or prior
55 to commencement of such action, whichever is later, and upon written
56 notice to the person who provided the notice prescribed in paragraph a
S. 1730 3
1 of this subdivision, has commenced and is actively prosecuting a civil
2 action in a court of the United States or New York state which seeks an
3 order or injunction relative to the alleged violation; or
4 d. if the alleged violation is the subject of a consent order, a
5 court order or any other written agreement signed by the commissioner or
6 the commissioner's designee and the alleged violator setting forth a
7 compliance schedule to eliminate the alleged violation in a reasonable
8 time period, or of a settlement or disposition of an administrative
9 enforcement proceeding or a civil action commenced pursuant to this
10 chapter, provided that the alleged violator is in compliance with the
11 terms of such consent order, court order, agreement, settlement or
12 disposition.
13 2. The plaintiff may commence an action under subdivision 1 of section
14 71-4501 of this title prior to sixty days after the giving of notice
15 required by paragraph a of subdivision 1 of this section upon a showing
16 to the court that the matter in controversy involves a substantial and
17 imminent hazard to the environment.
18 3. A copy of the complaint, and, unless service is thereafter waived,
19 all motion papers and any subsequent pleadings shall be served upon the
20 commissioner, the attorney general and the defendant.
21 § 71-4505. Intervention.
22 1. The state as represented by the attorney general may intervene as a
23 matter of right in any action brought pursuant to this title.
24 2. Any person who is authorized to commence an action pursuant to
25 section 71-4501 of this title and who has given notice pursuant to
26 section 71-4503 of this title may intervene upon timely motion as a
27 matter of right in any action or proceeding subsequently commenced by
28 the department or the attorney general relating to any violation alleged
29 in such notice.
30 § 71-4507. Approval of settlements.
31 1. No action commenced under this title shall be settled except upon
32 approval by the court upon sixty days notice to all parties, the commis-
33 sioner and the attorney general. Notice of the proposed settlement shall
34 be published in the environmental notice bulletin. Upon the motion of
35 the commissioner, the attorney general, or any other party or upon its
36 own motion, the court may require such further notice as may be required
37 to protect the interests in environmental protection or enforcement of
38 citizens who are not a party to the action. The court shall not approve
39 a settlement in an action commenced under this title if the court deter-
40 mines that a monetary settlement in excess of costs, disbursements and
41 reasonable expert witness and attorney fees has been offered or paid by
42 a defendant as consideration for such settlement to a plaintiff who has
43 standing to sue only by virtue of this title.
44 2. If, subsequent to the commencement of an action under subdivision 1
45 of section 71-4501 of this title which action has not been finally adju-
46 dicated, the person alleged to be in violation of any law, rule, regu-
47 lation, permit, certificate or order enters into a consent order, or is
48 subject to a court order or other written agreement signed by the
49 commissioner or the commissioner's designee which sets forth a reason-
50 able settlement and disposition of the alleged violation, the court in
51 which such action is pending, on motion of any party, may make an appro-
52 priate court order disposing of the case, including the award of costs,
53 disbursements, reasonable expert witness and attorney fees to any party
54 if appropriate pursuant to section 71-4509 of this title.
55 § 71-4509. Costs, fees and penalties.
S. 1730 4
1 1. The court, in issuing any final order in any action brought pursu-
2 ant to subdivisions 1 and 2 of section 71-4503 of this title may in its
3 discretion award costs, disbursements and reasonable expert witness and
4 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 1 of this section, no
23 costs, disbursements, or reasonable expert witness and attorney fees may
24 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 1 of section 71-4505 of this title or any other law, the state, as
29 represented by the attorney general, may appear upon timely motion in an
30 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 27 of the executive
41 law, any reference in this title to the department, the commissioner, or
42 the commissioner's designee shall be construed to mean the Adirondack
43 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
S. 1730 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, 2012 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.
NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1
RETRIEVE BILL
BILL NUMBER: S1730
SPONSOR: SCHNEIDERMAN¦¦¦¦¦¦¦¦ TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA:
To grant private citizens broad authorization to commence civil judicial
actions under certain titles of the Environmental Conservation Law
(ECL).
SUMMARY OF SPECIFIC PROVISIONS:
The bill adds a new Title 45 to Article 71 of the ECL to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.
The bill authorizes any private citizen who has an interest which is or
may be adversely affected to commence civil judicial actions to remedy
environmental harms under certain circumstances. Any such party may,
under these circumstances, commence a civil action in a court of compe-
tent jurisdiction for injunctive relief against any person who is
alleged to be in violation of any rule, regulation, permit, certificate
or order promulgated or issued pursuant to: sections 15-0501, 15-0503 or
15-0505 of Title 5 and Title 27 of Article 15 (Protection of Waters and
Water Supply), Titles 5, 7, 8, 10 or 17 of Article 17, Articles l9, 23,
24, 25, 33, 37 or 40 (Water Pollution Control, Air Pollution Control,
Mineral Resources, Freshwater Wetlands, Tidal Wetlands, Pesticides,
Hazardous Substances Listing and Hazardous Substances Bulk Storage), or
Title 3, 7, 9 or 15 of Article 27 (Solid, Infectious and Hazardous
Waste) of the ECL. A civil action may also be commenced to enforce a
violation of an administrative or court order compelling remediation of
an inactive hazardous waste disposal site. The State may only be sued
pursuant to this bill in its capacity as the owner or operator of a
pollution source in violation of any statutory or regulatory require-
ments, or as a person responsible for an inactive hazardous waste
disposal site pursuant to ECL Article 27, Title 13.
The bill requires prior notice to the alleged violator, the Commissioner
of Environmental Conservation and the Attorney General as a condition
precedent to commencement of a citizen suit. Such notice must be served
at least 60 days prior to the commencement of an action by a private
citizen. This notice requirement may be waived if a substantial and
imminent hazard to the environment can be shown. The plaintiff must
follow procedures as may be promulgated by the Commissioner in providing
the required notice.
The bill also prohibits a citizen suit if the Commissioner or the Attor-
ney General has commenced and is actively prosecuting an administrative
or civil action relative to the alleged violation; or has obtained a
settlement or disposition of such an action; or is seeking remediation
of the inactive hazardous waste disposal site. In addition, no action
may be commenced if the alleged violation is the subject of a consent
order, a court order or any other order setting forth a compliance sche-
dule for the elimination of the violation, provided the alleged violator
is in compliance with the schedule.
The Attorney General is given the right to intervene in any civil action
commenced by a private citizen under this bill. A private citizen who
has given notice of intent to commence an action under this bill may
intervene upon timely motion as a matter of right in any civil action or
administrative enforcement proceeding subsequently commenced by the
Attorney General or the Department of Environmental Conservation relat-
ing to the violation alleged in the notice of intent.
No citizen suit may be settled except upon an affirmative order of the
court upon notice to all parties, the Commissioner of Environmental
Conservation and the Attorney General. The court will not approve a
settlement if the court determines that a monetary settlement in excess
of total costs has been offered or paid by a defendant in exchange for
settlement. Awards of the costs of litigation and reasonable attorney
and expert witness fees may be made by the court to a plaintiff in any
action brought under this bill, where the court determines such awards
to be appropriate. In addition, a prevailing defendant may make a
motion to recover costs, however, he or she must show that the action or
claim brought by the plaintiff was frivolous. No such awards for costs
or fees may be made against the State or any of its political subdivi-
sions.
The bill contains a "savings" clause to ensure that rights existing
under statutory or common law to seek enforcement of any statute, rule,
regulation, permit or order, or to obtain any available relief, are not
diminished.
JUSTIFICATION:
The large number of violations of environmental laws, rules, regu-
lations, permits, certificates and orders makes it impossible for the
State to pursue timely enforcement actions in every instance where such
actions may be necessary or appropriate. This bill provides private
citizens with the right to seek enforcement through the courts in
instances involving violations of those provisions of the ECL relating
to protection of waters, water supply, water power, drainage, solid and
hazardous waste, freshwater and tidal wetlands, pesticides and hazardous
substances bulk storage. To avoid duplication of effort, the bill
prohibits initiation of a citizen suit when a particular activity or
condition constitutes a violation of the ECL if the Commissioner or the
Attorney General is diligently prosecuting an administrative or judicial
proceeding.
With limited enforcement resources, the State simply cannot bring an
enforcement action for every violation of the ECL or the rules, regu-
lations, permits, certificates or orders issued thereunder. As a
result, a member of the regulated community may reason that if compli-
ance with legal requirements, which may be costly, is postponed, it may
be worth running the risk that an enforcement action will be commenced.
A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided by concerned citizens.
Allowing private citizens to seek judicial enforcement of certain ECL
violations would increase the likelihood that such violations would be
prosecuted. This increased enforcement effort would have a significant
deterrent effect on the regulated community.
By requiring notice to the Department and the Attorney General of the
intent to institute a citizen suit, allowing the State to intervene in
such suits and requiring notice to the Department and the Attorney
General prior to settlement of such suits, this proposal assures that
the State can oversee and provide input into the conduct and settlement
of citizen suits. The State's role as guardian of the environment and
enforcer of the State's environmental laws is thereby preserved. The
public is both willing and able to assist in this enforcement effort, as
evidenced by the number of citizen suit litigations under federal laws
and the overwhelming popular support for New York's recently enacted
"Toxic Torts" bill. Citizen suit provisions are contained in numerous
federal environmental statutes, including the Clean Air Act, the Clean
Water Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, the Noise Control
Act and the CERCLA reauthorization bill.
A pooling of all available resources will assist both public and private
sectors in achieving their common goal of increased compliance with the
environmental laws of New York State. It will enable government to allo-
cate scarce enforcement resources more efficiently by allowing it to
concentrate on the most significant violations with the assurance that
lower priority violations will not be overlooked.
LEGISLATIVE HISTORY:
A.4788 (1993-94), A.191-B (1995-96), A.1620-A (1997-98), A.956-A (1999-
2000), A.455 (2001-02), A.5936 (2003-04 Passed Assembly), A.1885 (2005-
06; Passed Assembly).A.1100 (2007-2008)
FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect immediately; provided, however, that no
action authorized by section 71-4501 of the environmental conservation
law, as added by section one of this act, may be commenced against any
city, village, town or county prior to September next succeeding the
year in which this act shall have become law, and nothing in this act
shall affect any action commenced pursuant to section 71-1311 of the
environmental conservation law prior to such effective date.