49-407. 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 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 article or article 2 of this chapter that is not discretionary with the
director. The court has 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 sixty days after the plaintiff has given notice of the alleged violation
to the director and to an alleged violator.
2. If the director determines no violation has occurred, or if the director has
initiated an administrative enforcement action by issuing a warning letter, notice of
violation or issuing an order.
3. 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 emission limitation.
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.
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