49-264

49-264. Private right of action; citizen
suits

A. Except as provided in subsection B, a person having an interest which is or may
be adversely affected by a violation of this chapter or a rule adopted or an order issued
by the department pursuant to this chapter may commence a civil action in superior court
on his own behalf against the director alleging a failure of the director to perform an
act or duty under this chapter which is not discretionary with the director. The court
shall have jurisdiction to order the director to perform the act or duty.

B. No action may be commenced in any of the following cases:

1. Before one hundred twenty days after the plaintiff has given notice of the
alleged violation to the director and to an alleged violator.

2. If after conducting an investigation the director determines within one hundred
twenty days after receiving notice of the alleged violation from the plaintiff that no
violation has occurred, or the director had determined prior to receiving the notice of
the alleged violation that the violation had not occurred.

3. If the department has issued and is diligently processing a notice of violation
or an order or has commenced and is diligently prosecuting a civil action in the superior
court to require compliance with the provision, order, permit, standard, rule or
discharge limitation.

4. If the attorney general or county attorney has commenced and is diligently
prosecuting a civil action in the superior court to require compliance with the
provision, order, permit, standard, rule or discharge limitation.

5. The director is diligently pursuing the violation under another state or federal
environmental law.

C. In an action commenced under this section the plaintiff has the burden of proof.

D. The court, in issuing a final order in an action brought under this section, may
award costs of litigation, including reasonable attorney and expert witness fees, to any
party that substantially prevails.