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

(1)  Any person, including the State and any other governmentalinstrumentality 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 ofthe director to perform any act or duty under this chapter, that is notdiscretionary with the director.

(b)  The circuit court shall have jurisdictionin actions brought under subsection (a)(1) to enforce the rule, requirement, ororder concerned, to order such action as may be necessary to correct theviolation, and to impose any civil penalty provided for the violation.  Thecircuit 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 actionsbrought pursuant to subsection (a)(1):

(1)  No action may be commenced before sixty daysafter the plaintiff has given notice in accordance with rules adopted underchapter 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 hasissued a notice letter to the violator concerning the violation or hasundertaken a response action, including investigation, with respect to the violation.

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

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

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

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

(h)  No action shall be brought under thissection 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".