STATE OF NEW YORK IN SENATE

Transcription

1 SUMMARY: S1730-B SCHNEIDERMAN No Same as SCHNEIDERMAN, DUANE, THOMPSON Add Art 71 Title 45 SS , amd S , En Con L Relates enfcement actions f violations of environmental conservation law. BILL TEXT: STATE OF NEW YORK B Regular Sessions IN SENATE February 5, 2009 Introduced by Sens. SCHNEIDERMAN, THOMPSON -- read twice and dered printed, and when printed be committed Committee on Environmental Conservation -- recommitted Committee on Environmental Conservation in accdance with Senate Rule 6, sec committee discharged, bill amended, dered reprinted as amended and recommitted said committee -- committee discharged, bill amended, dered reprinted as amended and recommitted said committee Assem- AN ACT amend environmental conservation law, in relation enfcement actions f violations of such law The People of State of New Yk, represented in Senate and bly, do enact as follows: 1 Section 1. Article 71 of environmental conservation law is amended 2 by adding a new title 45 read as follows: 3 TITLE 45 4 ENVIRONMENTAL 5 LAW ENFORCEMENT ACT 6 Section Enfcement actions Notice of action.

2 Intervention Approval of settlements Costs, fees and penalties Applicability in Adirondack park Savings clause Enfcement actions Except as wise provided in section of this title, 15 person who has may suffer an injury in fact, stemming from an alleged 16 violation, and redressable from abatement of that violation, may 17 commence a civil action in a court of competent jurisdiction f injunc- 18 tive and declaraty relief pursuant subdivision 2 of this section 19 against person who is alleged be in violation of rule, regu- brackets 05-0 EXPLANATION--Matter in italics (undersced) is new; matter in [ ] is old law be omitted. S B 2 LBD lation, permit, certificate der promulgated issued pursuant 2 following provisions of this chapter: 3 a. section , of title 5 of article 15; 4 b. title 27 of article 15; 5 c. title 5, 7, 8, of article 17; 6 d. article 23; 7 e. article 24; 8 f. article 25; 9 g. title 3, 7, 9 13 of article 27; 10 h. article In action commenced pursuant subdivision 1 of this section, 12 court may issue declaraty and/ injunctive relief f each 13 violation found. The judgment in such action may also impose such 14 conditions on defendant as are necessary assure compliance with 15 such law, rule, regulation, permit, certificate der within a 16 reasonable time period No person shall commence a civil action pursuant subdivision 1 18 of this section unless alleged violation could be subject a judi- 19 cial enfcement action administrative enfcement proceeding brought 20 by on behalf of department, state of New Yk, commis- 21 sioner, commissioner's designee.

3 22 4. No action may be brought against state of its depart- 23 ments, agencies bureaus of its political subdivisions 24 public authity pursuant this title except in ir capacity as 25 owner operat of a pollution source as a person responsible f 26 investigation remediation of an inactive hazardous waste disposal 27 site pursuant title 13 of article 27 of this chapter Notice of action Except as provided in subdivision 2 of this section, no action may 30 be commenced under subdivision 1 of section of this title: 31 a. pri sixty days after written notice by certified mail, return 32 receipt requested, has been given by plaintiff commissioner, 33 attney general, and person alleged be in violation of 34 law, rule, regulation, permit, certificate der. Such written notice 35 shall be given in such a manner as commissioner may prescribe by 36 regulation, and shall identify person alleged be in violation of 37 such law, rule, regulation, permit, certificate der as set 38 fth in subdivision one of section of this title and shall 39 describe with reasonable particularity activity condition 40 complained of including, where appropriate, data test results in 41 possession of plaintiff which describe such alleged violation; 42 b. if commissioner commissioner's designee, at time 43 pri end of sixty day notice period prescribed in paragraph 44 a of this subdivision pri commencement of such action, whichever 45 is later and upon written notice person who provided notice 46 prescribed in paragraph a of this subdivision, has commenced and is 47 diligently prosecuting an administrative enfcement proceeding pursuant 48 this chapter abate alleged violation; 49 c. if attney general, at time pri end of sixty 50 day notice period prescribed in paragraph a of this subdivision pri 51 commencement of such action, whichever is later, and upon written 52 notice person who provided notice prescribed in paragraph a

4 53 of this subdivision, has commenced and is diligently prosecuting a civil 54 action in a court of United States New Yk state which seeks an 55 der injunction abate alleged violation; S B 3 1 d. if alleged violation is subject of a consent der, a 2 court der written agreement signed by commissioner 3 commissioner's designee and alleged violat setting fth a 4 compliance schedule eliminate alleged violation in a reasonable 5 time period, of a settlement disposition of an administrative 6 enfcement proceeding a civil action commenced pursuant this 7 chapter, provided that alleged violat is in compliance with 8 terms of such consent der, court der, agreement, settlement 9 disposition The plaintiff may commence an action under subdivision 1 of section of this title pri sixty days after giving of notice 12 required by paragraph a of subdivision 1 of this section upon a showing 13 court that matter in controversy involves a substantial and 14 imminent hazard health environment A copy of summons and complaint and amendment re, 16 shall be served upon commissioner and attney general Intervention The state as represented by attney general may intervene as a 19 matter of right in action brought pursuant this title Any person who is authized commence an action pursuant 21 section of this title and who has given notice pursuant 22 section of this title may intervene upon timely motion as a 23 matter of right in action proceeding subsequently commenced by 24 department attney general relating violation alleged 25 in such notice Approval of settlements No action commenced under this title shall be settled except upon 28 approval by court upon sixty days notice all parties, commis-

5 29 sioner and attney general. Notice of proposed settlement shall 30 be published in environmental notice bulletin by commissioner. 31 Upon motion of commissioner, attney general, 32 party upon its own motion, court may require such furr notice 33 as may be required protect environment persons who are not a 34 party action. The court shall not approve a settlement in an 35 action commenced under this title if court determines that a mone- 36 tary settlement in excess of costs, disbursements and reasonable expert 37 witness and attney fees has been offered paid by a defendant as 38 consideration f such settlement a plaintiff who has standing sue 39 only by virtue of this title If, subsequent commencement of an action under subdivision 1 41 of section of this title which action has not been finally adju- 42 dicated, person alleged be in violation of law, rule, regu- 43 lation, permit, certificate der enters in a consent der, is 44 subject a court der written agreement signed by 45 commissioner commissioner's designee which sets fth a reason- 46 able settlement and disposition of alleged violation, court in 47 which such action is pending, on motion of party, may make an appro- 48 priate court der disposing of case, including award of costs, 49 disbursements, reasonable expert witness and attney fees party 50 if appropriate pursuant section of this title Costs, fees and penalties The court, in issuing final der in action brought pursu- 53 ant subdivisions 1 and 2 of section of this title may in its 54 discretion award costs, disbursements and reasonable expert witness and 55 attney fees prevailing substantially prevailing party; 56 provided, however, that a prevailing substantially prevailing S B 4 was 1 respondent defendant must show that action claim brought

6 2 frivolous in der recover such costs, disbursements, reasonable 3 expert witness and attney fees. In der find action claim 4 be frivolous, court must find in writing one me of 5 following: 6 a. action claim was commenced, used continued in bad faith, 7 solely delay prolong resolution of litigation harass 8 maliciously injure an; 9 b. action claim was commenced continued in bad faith without 10 reasonable basis in law fact and could not be suppted by a good 11 faith argument f an extension, modification reversal of existing 12 law. If action claim was promptly discontinued when party 13 attney learned should have learned that action claim 14 lacked such a reasonable basis, court may find that party 15 attney did not act in bad faith Notwithstanding provisions of subdivision 1 of this section, no 17 costs, disbursements, reasonable expert witness and attney fees may 18 be awarded against state, of its departments, agencies, 19 bureaus of its political subdivisions, public authity in 20 action brought under this title In addition state's right intervene pursuant subdivi- 22 sion 1 of section of this title law, state, as 23 represented by attney general, may appear upon timely motion in an 24 action brought under this title f sole purpose of obtaining an 25 award of penalties against person found liable in such action; 26 provided, however, that plaintiff and defendant must be notified of 27 state's intent move f penalties within thirty days of commence- 28 ment of such action. Any claim f penalties based upon a violation 29 which is subject of an action brought under this title must be 30 brought in such action Applicability in Adirondack park. 32 With respect those parts of title 27 of article 15 of this chapter

7 33 and those parts of article 24 of this chapter administered by 34 Adirondack park agency created pursuant article 27 of executive 35 law, reference in this title department, commissioner, 36 commissioner's designee shall be construed mean Adirondack 37 park agency Savings clause. 39 Nothing in this title shall restrict right which person 40 class of persons may have under statute common law seek 41 enfcement of statute, rule, regulation, permit, certificate 42 der, seek relief Section of environmental conservation law, subdivi- 44 sion 1 as amended by chapter 846 of laws of 1981, is amended read 45 as follows: Injunction against violations. 47 [1.] Whenever it appears that person is violating threatening 48 violate provision of article 23 of this chapter is committing 49 offense described in section of this title, department, 50 acting by Attney General, may bring suit against such person in 51 court of competent jurisdiction restrain such person from contin- 52 uing such violation from carrying out threat of violation. In 53 such suit, court shall have jurisdiction grant department 54 without bond undertaking, such prohibity mandaty injunc- 55 tions as facts may warrant, including tempary restraining ders 56 and preliminary injunctions. S B 5 1 [2. If department, acting by Attney General, shall fail 2 bring suit enjoin a violation threatened violation of 3 provision of article 23, rule, regulation, der of 4 department made pursuant here, within ten days after receipt of writ- 5 ten request do so by person who is will be adversely affected 6 by such violation, person making such request may bring suit in his

8 7 own behalf restrain such violation threatened violation in 8 court in which department might have brought suit. The department 9 shall be made a party in such suit in addition person violating 10 threatening violate a provision of article 23, a rule, regu- 11 lation, der of department, and action shall proceed and 12 injunctive relief may be granted department without bond, 13 undertaking in same manner as if suit had been brought by 14 department.] This act shall take effect immediately; provided however, that no 16 action authized by section of environmental conservation 17 law, as added by section one of this act, may be commenced against 18 city, village, wn county pri September 1, 2012 and nothing in 19 this act shall affect action commenced pursuant section of environmental conservation law pri such effective date.