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:

  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 TWO 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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01227-02-4
              

S. 3424--A                          2

  A. SECTION 15-0501, 15-0503 OR 15-0505; 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  ONE 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 ONE
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 TWO 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 1 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

S. 3424--A                          3

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 ONE OF THIS SECTION UPON A  SHOW-
ING  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

S. 3424--A                          4

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 ONE 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

S. 3424--A                          5

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, 2018 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.