Bill S1730B-2009

Relating to enforcement actions for violations of the environmental conservation law

Relates to enforcement actions for violations of the environmental conservation law.

Details

Actions

  • Jun 15, 2010: REPORTED AND COMMITTED TO RULES
  • Jun 10, 2010: REPORTED AND COMMITTED TO FINANCE
  • Jun 8, 2010: REPORTED AND COMMITTED TO CODES
  • Jun 2, 2010: PRINT NUMBER 1730B
  • Jun 2, 2010: AMEND (T) AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • May 21, 2010: PRINT NUMBER 1730A
  • May 21, 2010: AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • Jan 6, 2010: REFERRED TO ENVIRONMENTAL CONSERVATION
  • Jun 2, 2009: REPORTED AND COMMITTED TO CODES
  • Feb 5, 2009: REFERRED TO ENVIRONMENTAL CONSERVATION

Votes

VOTE: COMMITTEE VOTE: - Environmental Conservation - Jun 8, 2010
Ayes (8): Thompson, Oppenheimer, Schneiderman, Parker, Serrano, Perkins, Stewart-Cousins, Leibell
Ayes W/R (4): Foley, Marcellino, Young, Padavan
Nays (1): Little
Excused (1): Johnson O
VOTE: COMMITTEE VOTE: - Codes - Jun 10, 2010
Ayes (11): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Lanza, Flanagan
Nays (5): Volker, Saland, DeFrancisco, Bonacic, Golden

Memo

BILL NUMBER:S1730B

TITLE OF BILL: An act to amend the environmental conservation law, in relation to enforcement actions for violations of such law

PURPOSE OR GENERAL IDEA: To enable injured parties, who demonstrate standing, the ability to seek abatement of ongoing violations of 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.

The bill authorizes an injured party with requisite standing to commence a civil judicial action to abate violations of existing law under specific circumstances. Such party may, under these circumstances, commence a civil action in a court of competent jurisdiction solely 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 150501, 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 23, 24, 25 or 40 (Water pollution Control, Mineral Resources, Freshwater Wetlands, Tidal Wetlands, and Hazardous Substances Bulk storage), or Title 3, 7, 9 or 13 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, and political subdivisions of 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 requirements, or as a person responsible for an inactive hazardous waste disposal site pursuant to ECL Article 27, Title 13.

The bill contains the standing requirements developed under federal decisional law, and as recently adopted by the Court of Appeals in Save the Pine Bush, Inc., v. Common Council of the City of Albany, 13 N.Y.S. 3d 297 (2009), to ensure that only truly injured parties may bring an action under this title.

The requirement that a defendant be "in violation" of an applicable provision of the ECL is consistent with the limited equitable relief available to a plaintiff. This language is consistent with federal decisional provisions and there is an established body of law interpreting the phrase "in violation." No action may be commenced against a party for past violations and no damages or penalties are available under this title.

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 an enforcement action. Such notice must be served at least 60 days prior to the commencement of an action. 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 an enforcement action if the Commissioner or the Attorney General has commenced and is diligently 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 schedule 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 enforcement action commenced under this bill. An injured party 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 relating to the violation alleged in the notice of intent.

No enforcement action 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 subdivisions.

The standing requirement, the availability of only injunctive relief, the notice provision, the supervision of settlements, and the unlimited award of costs and fees to a defendant contesting a frivolous suit, collectively insure that only meritorious actions will be prosecuted.

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, regulations, 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 injured parties 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 an enforcement action 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, regulations, permits, certificates or orders issued thereunder. As a result, a member of the regulated community may reason that if compliance with legal requirements, which may be costly, is postponed, it may be worth running the risk that an enforcement action will be commenced.

Enforcement actions would allow the State to marshal the pool of resources and assistance that could be provided by injured parties. Allowing injured parties 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 an action, 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 such action. The State's role as guardian of the environment and enforcer of the State's environmental laws is thereby preserved. Injured party provisions are contained in numerous federal environmental statues, 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 allocate 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) A.4272 (3/1/10 Passed Assembly)

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 1, 2012, 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.


Text

STATE OF NEW YORK ________________________________________________________________________ 1730--B 2009-2010 Regular Sessions IN SENATE February 5, 2009 ___________
Introduced by Sens. SCHNEIDERMAN, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Environ- mental 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 committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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: Section 1. Article 71 of the environmental conservation law is amended by adding a new title 45 to read as follows: TITLE 45 ENVIRONMENTAL LAW ENFORCEMENT ACT SECTION 71-4501. ENFORCEMENT ACTIONS. 71-4503. NOTICE OF ACTION. 71-4505. INTERVENTION. 71-4507. APPROVAL OF SETTLEMENTS. 71-4509. COSTS, FEES AND PENALTIES. 71-4511. APPLICABILITY IN THE ADIRONDACK PARK. 71-4513. SAVINGS CLAUSE. S 71-4501. ENFORCEMENT ACTIONS. 1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 71-4503 OF THIS TITLE, ANY PERSON WHO HAS OR MAY SUFFER AN INJURY IN FACT, STEMMING FROM AN ALLEGED VIOLATION, AND REDRESSABLE FROM THE ABATEMENT OF THAT VIOLATION, MAY COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT JURISDICTION FOR INJUNC- TIVE AND DECLARATORY RELIEF PURSUANT TO SUBDIVISION 2 OF THIS SECTION AGAINST ANY PERSON WHO IS ALLEGED TO BE IN VIOLATION OF ANY RULE, REGU-
LATION, PERMIT, CERTIFICATE OR ORDER PROMULGATED OR ISSUED PURSUANT TO THE FOLLOWING PROVISIONS OF THIS CHAPTER: A. SECTION 15-0501, 15-0503 OR 15-0505 OF TITLE 5 OF ARTICLE 15; OR B. TITLE 27 OF ARTICLE 15; OR C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17; OR D. ARTICLE 23; OR E. ARTICLE 24; OR F. ARTICLE 25; OR G. TITLE 3, 7, 9 OR 13 OF ARTICLE 27; OR H. ARTICLE 40. 2. IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION 1 OF THIS SECTION, THE COURT MAY ISSUE DECLARATORY AND/OR INJUNCTIVE RELIEF FOR EACH VIOLATION FOUND. THE JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE SUCH CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO ASSURE COMPLIANCE WITH SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER WITHIN A REASONABLE TIME PERIOD. 3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO SUBDIVISION 1 OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI- CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT BY OR ON BEHALF OF THE DEPARTMENT, THE STATE OF NEW YORK, THE COMMIS- SIONER, OR THE COMMISSIONER'S DESIGNEE. 4. NO ACTION MAY BE BROUGHT AGAINST THE STATE OR ANY OF ITS DEPART- MENTS, AGENCIES OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS OR ANY PUBLIC AUTHORITY PURSUANT TO THIS TITLE EXCEPT IN THEIR CAPACITY AS OWNER OR OPERATOR OF A POLLUTION SOURCE OR AS A PERSON RESPONSIBLE FOR THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE 13 OF ARTICLE 27 OF THIS CHAPTER. S 71-4503. NOTICE OF ACTION. 1. EXCEPT AS PROVIDED IN SUBDIVISION 2 OF THIS SECTION, NO ACTION MAY BE COMMENCED UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE: A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE COMMISSIONER, THE ATTORNEY GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE SHALL BE GIVEN IN SUCH A MANNER AS THE COMMISSIONER MAY PRESCRIBE BY REGULATION, AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION OF ANY SUCH LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER AS SET FORTH IN SUBDIVISION ONE OF SECTION 71-4501 OF THIS TITLE AND SHALL DESCRIBE WITH REASONABLE PARTICULARITY THE ACTIVITY OR CONDITION COMPLAINED OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN THE POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR B. IF THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE, AT ANY TIME PRIOR TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION, HAS COMMENCED AND IS DILIGENTLY PROSECUTING AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT TO THIS CHAPTER TO ABATE THE ALLEGED VIOLATION; OR C. IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER IS LATER, AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION, HAS COMMENCED AND IS DILIGENTLY PROSECUTING A CIVIL ACTION IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS AN ORDER OR INJUNCTION TO ABATE THE ALLEGED VIOLATION; OR
D. IF THE ALLEGED VIOLATION IS THE SUBJECT OF A CONSENT ORDER, A COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE AND THE ALLEGED VIOLATOR SETTING FORTH A COMPLIANCE SCHEDULE TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE TIME PERIOD, OR OF A SETTLEMENT OR DISPOSITION OF AN ADMINISTRATIVE ENFORCEMENT PROCEEDING OR A CIVIL ACTION COMMENCED PURSUANT TO THIS CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN COMPLIANCE WITH THE TERMS OF SUCH CONSENT ORDER, COURT ORDER, AGREEMENT, SETTLEMENT OR DISPOSITION. 2. THE PLAINTIFF MAY COMMENCE AN ACTION UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE PRIOR TO SIXTY DAYS AFTER THE GIVING OF NOTICE REQUIRED BY PARAGRAPH A OF SUBDIVISION 1 OF THIS SECTION UPON A SHOWING TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A SUBSTANTIAL AND IMMINENT HAZARD TO HEALTH OR THE ENVIRONMENT. 3. A COPY OF THE SUMMONS AND COMPLAINT AND ANY AMENDMENT THERETO, SHALL BE SERVED UPON THE COMMISSIONER AND THE ATTORNEY GENERAL. S 71-4505. INTERVENTION. 1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE. 2. ANY PERSON WHO IS AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO SECTION 71-4501 OF THIS TITLE AND WHO HAS GIVEN NOTICE PURSUANT TO SECTION 71-4503 OF THIS TITLE MAY INTERVENE UPON TIMELY MOTION AS A MATTER OF RIGHT IN ANY ACTION OR PROCEEDING SUBSEQUENTLY COMMENCED BY THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED IN SUCH NOTICE. S 71-4507. APPROVAL OF SETTLEMENTS. 1. NO ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS- SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN BY THE COMMISSIONER. UPON THE MOTION OF THE COMMISSIONER, THE ATTORNEY GENERAL, OR ANY OTHER PARTY OR UPON ITS OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE REQUIRED TO PROTECT THE ENVIRONMENT OR PERSONS WHO ARE NOT A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETERMINES THAT A MONE- TARY SETTLEMENT IN EXCESS OF COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO HAS STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE. 2. IF, SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION 1 OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT BEEN FINALLY ADJU- DICATED, THE PERSON ALLEGED TO BE IN VIOLATION OF ANY LAW, RULE, REGU- LATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR IS SUBJECT TO A COURT ORDER OR OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON- ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE COURT IN WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO- PRIATE COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS, DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY PARTY IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE. S 71-4509. COSTS, FEES AND PENALTIES. 1. THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU- ANT TO SUBDIVISIONS 1 AND 2 OF SECTION 71-4503 OF THIS TITLE MAY IN ITS DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY PREVAILING OR SUBSTANTIALLY PREVAILING PARTY; PROVIDED, HOWEVER, THAT A PREVAILING OR SUBSTANTIALLY PREVAILING
RESPONDENT OR DEFENDANT MUST SHOW THAT THE ACTION OR CLAIM BROUGHT WAS FRIVOLOUS IN ORDER TO RECOVER SUCH COSTS, DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES. IN ORDER TO FIND THE ACTION OR CLAIM TO BE FRIVOLOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING: A. THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD FAITH, SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS OR MALICIOUSLY INJURE ANOTHER; B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD FAITH ARGUMENT FOR AN EXTENSION, MODIFICATION OR REVERSAL OF EXISTING LAW. IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY OR THE ATTORNEY LEARNED OR SHOULD HAVE LEARNED THAT THE ACTION OR CLAIM LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE ATTORNEY DID NOT ACT IN BAD FAITH. 2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION 1 OF THIS SECTION, NO COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES MAY BE AWARDED AGAINST THE STATE, OR ANY OF ITS DEPARTMENTS, AGENCIES, BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN ANY ACTION BROUGHT UNDER THIS TITLE. 3. IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO SUBDIVI- SION 1 OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW, THE STATE, AS REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN AN ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE PURPOSE OF OBTAINING AN AWARD OF PENALTIES AGAINST ANY PERSON FOUND LIABLE IN SUCH ACTION; PROVIDED, HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED OF THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE- MENT OF SUCH ACTION. ANY CLAIM FOR PENALTIES BASED UPON A VIOLATION WHICH IS THE SUBJECT OF AN ACTION BROUGHT UNDER THIS TITLE MUST BE BROUGHT IN SUCH ACTION. S 71-4511. APPLICABILITY IN THE ADIRONDACK PARK. WITH RESPECT TO THOSE PARTS OF TITLE 27 OF ARTICLE 15 OF THIS CHAPTER AND THOSE PARTS OF ARTICLE 24 OF THIS CHAPTER ADMINISTERED BY THE ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE 27 OF THE EXECUTIVE LAW, ANY REFERENCE IN THIS TITLE TO THE DEPARTMENT, THE COMMISSIONER, OR THE COMMISSIONER'S DESIGNEE SHALL BE CONSTRUED TO MEAN THE ADIRONDACK PARK AGENCY. S 71-4513. SAVINGS CLAUSE. NOTHING IN THIS TITLE SHALL RESTRICT ANY RIGHT WHICH ANY PERSON OR CLASS OF PERSONS MAY HAVE UNDER ANY STATUTE OR COMMON LAW TO SEEK ENFORCEMENT OF ANY STATUTE, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER, OR TO SEEK ANY OTHER RELIEF. S 2. Section 71-1311 of the environmental conservation law, subdivi- sion 1 as amended by chapter 846 of the laws of 1981, is amended to read as follows: S 71-1311. Injunction against violations. [1.] Whenever it appears that any person is violating or threatening to violate any provision of article 23 of this chapter or is committing any offense described in section 71-1305 of this title, the department, acting by the Attorney General, may bring suit against such person in any court of competent jurisdiction to restrain such person from contin- uing such violation or from carrying out the threat of violation. In any such suit, the court shall have jurisdiction to grant to the department without bond or other undertaking, such prohibitory or mandatory injunc- tions as the facts may warrant, including temporary restraining orders and preliminary injunctions.
[2. If the department, acting by the Attorney General, shall fail to bring suit to enjoin a violation or threatened violation of any provision of article 23, or any rule, regulation, or order of the department made pursuant hereto, within ten days after receipt of writ- ten request to do so by any person who is or will be adversely affected by such violation, the person making such request may bring suit in his own behalf to restrain such violation or threatened violation in any court in which the department might have brought suit. The department shall be made a party in such suit in addition to the person violating or threatening to violate a provision of article 23, or a rule, regu- lation, or order of the department, and the action shall proceed and injunctive relief may be granted to the department without bond, or other undertaking in the same manner as if suit had been brought by the department.] S 3. 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 1, 2012 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.

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