Grants private citizens broad authorization to commence civil judicial actions under certain titles of the environmental conservation law

2 Co-sponsors

• Ruben Diaz
• Liz Krueger

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

To grant private citizens broad authorization to commence civil judicial actions under certain titles of the Environmental Conservation Law (ECL).

Summary of 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 competent 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 of Article 15 (Protection of Waters and Water Supply), Titles 5, 7, 8, 10 or 17 of Article 17, Articles 19, 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 requirements, 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 Attorney 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 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 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 relating 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. A wards 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 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.