[§128D-21]  Citizen's suits. 
(a)  Except as provided in subsections (c) and (d) and in section 128D-17, any
person may commence a civil action in the circuit court on the person's own
behalf against:



(1)  Any person, including the State and any other governmental
instrumentality or agency, who is alleged to be in violation of any rule,
requirement, or order that has become effective pursuant to this chapter; or



(2)  The director, where there is alleged a failure of
the director to perform any act or duty under this chapter, that is not
discretionary with the director.



(b)  The circuit court shall have jurisdiction
in actions brought under subsection (a)(1) to enforce the rule, requirement, or
order concerned, to order such action as may be necessary to correct the
violation, and to impose any civil penalty provided for the violation.  The
circuit court shall have jurisdiction in actions brought under subsection
(a)(2) to order the director to perform the act or duty concerned.



(c)  The following shall apply to actions
brought pursuant to subsection (a)(1):



(1)  No action may be commenced before sixty days
after the plaintiff has given notice in accordance with rules adopted under
chapter 91 of the violation to:



(A)  The director; and



(B)  Any alleged violator of the rule,
requirement, or order concerned; and



(2)  No action may be commenced if the director has
issued a notice letter to the violator concerning the violation or has
undertaken a response action, including investigation, with respect to the violation.



(d)  No action may be commenced under
subsection (a)(2) before the sixtieth day following the date on which the
plaintiff gives notice to the director that the plaintiff will commence the
action.  Notice under this subsection shall be given in such manner as the
director shall adopt by rule.



(e)  The court, in issuing any final order in
any action brought pursuant to this section, may award costs of litigation
(including reasonable attorney and expert witness fees) to the prevailing or
the substantially prevailing party whenever the court determines such an award
is appropriate.



(f)  The State, if not a party to any action
under this section, may intervene as a matter of right.



(g)  This chapter does not affect or otherwise
impair the rights of any person under federal, state, or common law, except
with respect to the timing of review as provided in section 128D-17.



(h)  No action shall be brought under this
section for two years following June 17, 1991. [L 1991, c 280, pt of §1]



 



Revision Note



 



  "June 17,
1991" substituted for "the effective date of this Act".