71-1939 - Local enforcement.
§ 71-1939. Local enforcement. 1. The health commissioner of any county or part-county health district or city is hereby authorized and empowered to bring an action in any court of competent jurisdiction for the recovery of any penalty provided in section 71-1929 for any violation of the provisions of titles 1 through 11 inclusive and title 19 of article 17 and sections 71-1929 through 71-1939 of this article occurring in the district or city in which such health commissioner has jurisdiction, a. from a source described in subdivision 5 of section 17-0701, or b. resulting from a failure to comply with the terms of a permit issued by such county or city pursuant to subdivision 6 of section 17-0701. Such health commissioner may, in his discretion, compromise any penalty sued for in such action at any stage thereof before judgment. * c. The health commissioner of Nassau county is hereby authorized and empowered to bring an action in any court of competent jurisdiction for the recovery of any penalty provided in section 71-1929 and for injunctive relief pursuant to section 71-1931, for any violation of the provisions of titles 1 through 11 inclusive and title 19 of article 17, or for the violation of any rule or regulation promulgated thereunder, or any permit, certificate or order issued thereunder by any person, occurring in the county in which such health commissioner has jurisdiction, except no such action may be brought by such health commissioner against any person subject to a National Pollutant Discharge Elimination System permit authorized and approved by the United States Environmental Protection Agency pursuant to section 402 of the Federal Water Pollution Control Act of 1972 as amended (33 U.S.C. 1342), or against the state of New York, or any of its political subdivisions, or any municipal agency or sewer or water district within the county. Such health commissioner may, in his discretion, compromise any penalty sued for in such action at any stage thereof before judgment. Except for an action for injunctive relief, no action may be commenced or maintained under this paragraph: (1) prior to ninety days after notice has been given to the commissioner and the attorney general that the action will be commenced; or (2) if the commissioner or his delegate, at any time prior to the end of the ninety-day period prescribed in subparagraph one of this paragraph, has commenced and is actively prosecuting an administrative enforcement proceeding commenced pursuant to this title which seeks an order or injunction relative to the violation which is alleged to have occurred or to be occurring; or (3) if the attorney general, at any time prior to the end of the ninety-day notice period prescribed in subparagraph one of this paragraph, has commenced and is actively prosecuting a civil action in a court of the United States or New York state which seeks an order or injunction relative to the violation which is alleged to have occurred or to be occurring; or (4) if the violation which is alleged to have occurred or to be occurring is the subject of a settlement or disposition of an administrative enforcement proceeding or civil action commenced pursuant to this title. Notice pursuant to subparagraph one of this paragraph shall include information as is necessary to identify any person alleged to be in violation of titles 1 through 11 inclusive and title 19 of article 17 of this chapter, or any rule or regulation promulgated thereunder, or any permit, certificate or order issued thereunder, and the activity or condition complained of, and shall further summarize the evidence.All enforcement actions brought pursuant to this paragraph shall comply in all respects with any rule, regulation or policy promulgated or issued pursuant to the Federal Water Pollution Control Act of 1972 as amended (33 USC 1342) and article 17 of this chapter. The attorney general is hereby authorized to intervene in any such action pursuant to this paragraph in order to protect the interests of the state. * NB Repealed October 1, 2011 * d. Notwithstanding subdivision one of section 71-0211 as added by chapter sixty-two of the laws of nineteen hundred eighty-nine, all fines and penalties received pursuant to paragraph c of this subdivision shall be divided as follows: (1) all necessary and reasonable costs actually incurred shall be retained by the county of Nassau. (2) to the extent available, any balance remaining shall be distributed with one-half to the general fund to the credit of the state purposes account and one-half to the county of Nassau. * NB Repealed October 1, 2011 2. Any penalty collected pursuant to this section shall be paid to the district or city, except that any penalty for a violation resulting in the killing of fish or shellfish shall be credited to the conservation fund established by section 83 of the State Finance Law, and shall be available for the uses and purposes of such fund. * 3. Within three days after bringing any action authorized by this section said health commissioner shall by registered mail serve upon the Attorney General and the commissioner a copy of the summons and complaint, if any, in such action, with a statement as to the date or dates of service thereof upon the defendant or defendants, or, if a complaint has not been served with the summons, a statement of the particulars of the violation or violations upon which such action was based. The Attorney General is hereby authorized to intervene in any such action in order to protect the interests of the state. * NB Effective until January 1, 2011 * 3. a. The health commissioner of any county which has been approved by the commissioner pursuant to section 17-1017 of this chapter to administer and enforce a local law or ordinance related to the provisions of title ten of article seventeen of this chapter is hereby authorized and empowered to bring an action in any court of competent jurisdiction for the recovery of any penalty provided in section 71-1929 of this title for any violation of title ten of article seventeen of this chapter occurring in the county in which the county health commissioner has jurisdiction. b. All fines and penalties collected pursuant to this subdivision shall be paid to the district or county, provided, however, that one-quarter of such fines and penalties received shall be paid to the general fund to the credit of the state purposes account. * NB Effective January 1, 2011 * 4. Within three days after bringing any action authorized by this section said health commissioner shall by registered mail serve upon the Attorney General and the commissioner a copy of the summons and complaint, if any, in such action, with a statement as to the date or dates of service thereof upon the defendant or defendants, or, if a complaint has not been served with the summons, a statement of the particulars of the violation or violations upon which such action was based. The Attorney General is hereby authorized to intervene in any such action in order to protect the interests of the state. * NB Effective January 1, 2011