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DEE-19: Citizen Suit Policy Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 19
Program ID: N/A
Issuing Authority: Langdon Marsh, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Langdon Marsh
Date: 23 July 1994
Issuance Date: 23 July 1994
Latest Review Date (Office Use):

Consistent with the Civil Penalty Policy; Order on Consent Enforcement policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:

  1. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
  2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
  3. Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
  4. The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.

This guidance establishes a systematic approach for staff to follow in reviewing a citizen's Notice of Intent to Sue for violation(s) of a federal environmental statute, and establishes procedures for determining the Department's appropriate role in connection with such Notice. It identifies, also, the criteria that department staff should consider before selecting and implementing a case strategy to respond to the Notice.

I. Introduction

Provisions of various federal environmental statutes allow citizens to commence civil actions against alleged violators of those statutes. Before commencing such action, however, the prospective citizen/plaintiff must serve the alleged violator with a Notice of Intent to Sue for violation(s) and provide copies of its Notice to the United States Environmental Protection Agency and the relevant state enforcement agency. (See e.g., sections 304 and 505 of the Federal Clean Air and Clean Water Acts, respectively; section 7002 of the Federal Resource Conservation and Recovery Act; section 326 of the Federal Emergency Planning and Community Right-To-Know Act; and section 101, et seq., of the Federal Comprehensive Environmental Response, Compensation, and Liability Act). As the agency with responsibility for enforcing New York's environmental protection statutes, DEC is the state agency that should receive a copy of each citizen's Notice of Intent to Sue.

II. DEC Policy Regarding Federal Citizen's Suits

The Department seeks full and effective agency enforcement of the laws which it administers. DEC cannot take enforcement action against each and every enforceable environmental violation because of resource constraints, however. "Citizen suits" (civil lawsuits brought by private parties to enforce environmental laws) can complement the Department's enforcement efforts. For this reason, the Department welcomes and supports the initiation of citizen suits to the extent that such lawsuits are consistent with the goals and enforcement policies of DEC and enhance environmental protection. In recognition of the vital assistance that citizens can render to the State, Governor Cuomo has introduced legislation for each of the past several years that would provide State authority for citizens to commence civil actions to enforce New York State's environmental laws.

III. DEC Procedural Response to Receipt of Citizen Suit Notice

Before an informed strategy can be developed to respond to the Department's receipt of a particular citizen's Notice of Intent to Sue, the General Counsel must be made aware of all of the facts pertaining to the violations alleged in the Notice. In the first instance, every Notice of Intent to Sue received by Staff must be directed, immediately, to the General Counsel. In the Office of General Counsel, the Director of the Division of Environmental Enforcement (DEE), will be responsible for distribution of the citizen's Notice of Intent to Sue as set forth below.

Copies of the Notice, along with a Staff response/ recommendation form, will be distributed to the following Individuals:

  • the appropriate Compliance or Program Counsel
  • the Regional Attorney
  • the Regional Director/Regional Program Supervisor the Division responsible for the affected program
  • the Division of Fish and Wildlife
  • the Division of Marine Resources
  • the Division of Law Enforcement
  • Multi-media/Pollution Prevention Unit
  • the Office of the Attorney General or other prosecuting attorney's office (when DEC has previously referred the alleged violations for civil and/or criminal judicial enforcement)

Upon receipt of a copy of a citizen's Notice of Intent to Sue, the above-listed individuals will provide a summary of available relevant information concerning the alleged violation(s); including but not limited to:

  • results of past inspections;
  • the status of any permits or orders issued to the alleged violator by DEC;
  • the potential environmental and health impacts of the alleged violation;
  • the enforcement and compliance history of the alleged violator; and
  • any DEC enforcement action taken or planned with respect to the alleged violation.

Each of the individuals specified above will also provide a recommendation for an appropriate agency response to the Citizen's Notice. A proposed standard response form is attached hereto. The Department shall consider these documents to be exempt from disclosure under Freedom of Information Law (FOIL) and privileged as attorney work product, Non-final inter-agency and/or attorney-client communications.

Distribution of the citizen's Notice of Intent to Sue and staff response forms will take place within a 10-day time period to allow for timely determination of the Department's course of action with regard to the particular citizen's Notice. DEE will Review the responses and recommendations on the 30th day after the Notice is received, determine whether additional information is needed, obtain any such information, and draft a proposed response to the Notice for submission to the General Counsel for signature.

According to the usual principles and criteria utilized in planning enforcement strategy, based upon all of the information and recommendations received, the General Counsel, in close consultation with the affected programs, shall decide upon the appropriate agency response to the citizen's Notice of Intent to Sue. A letter outlining DEC's response to the Notice shall be sent to the prospective citizen/plaintiff and defendant, and/or a referral to the Attorney General or other prosecuting attorney's office may be prepared.

Each Notice of Intent to Sue served upon the Department by a Prospective citizen/plaintiff shall be entered promptly by DEE into the Environmental Enforcement Data System (EEDS)(1).

IV. Options

Upon investigation into the facts and circumstances pertaining to the allegations in a particular citizen's Notice of Intent to Sue, the Department may make one or more of the below-listed Determinations:

  • The violations that are the subject of the citizen's Notice have been resolved previously, by means of an Administrative or judicial Order, the terms of which have been fully performed by the violator;
  • The violations that are the subject of the citizen's Notice have been resolved previously, by means of an Administrative or judicial Order, the terms of which have not been fully performed by the violator;
  • The violations have been referred by Program to the Office of general Counsel for resolution through the commencement of administrative or judicial enforcement proceedings, but the violations have not yet been resolved by the issuance of an order;
  • Program is aware of the violations alleged in the Notice, is addressing the violations with the violator in the manner outlined in the Department's established guidance, and has not yet referred the violations to the Office of General Counsel for the Commencement of enforcement proceedings;
  • The violation(s) exist and that Program was not aware of the violation(s) prior to receipt of the citizen's Notice; and/or
  • The allegations of violation(s) set forth in the citizen's Notice are unfounded in fact.

In deciding how to respond to service of a copy of a citizen's Notice of Intent to Sue, DEC should always select the course of action which will best serve the Department's goal of protection of the State's environment and its natural resources through effective and efficient enforcement of the law. the Department's strategy for handling each case in which a citizen's Notice is received by the Department must be chosen with careful consideration of the facts and circumstances specific to the individual case. In general, the Department may respond to a citizen suit Notice of Intent to Sue in one of the following ways:

  1. Initiation of agency enforcement.

    In general, the decision to initiate DEC enforcement action (whether administrative or judicial) after receipt of a copy of a citizen's Notice of Intent to Sue should be based on the same principles that would guide the determination in the absence of such a Notice. If the case is provable, meritorious and sufficiently significant that a normal docketing decision would lead to enforcement action; action should be instituted, if possible, prior to the expiration of the statutory notice period. The citizen's Notice will have served the purpose intended by congress; that is, the Notice will have informed the Agency of the existence of the violation(s) and afforded it the opportunity to resolve the violation(s) in a manner consistent with the Department's mandate, goals and enforcement policy. Communication to the citizen initiating the action should occur.

  2. No action.

    The initiation of new action by the Department is not warranted if Staff determines that the allegations stated in a citizen's Notice of Intent to Sue are unfounded in fact; or, if the violations have been resolved by means of an Administrative or judicial Order, the terms of which have been fully performed by the violator; or, if the violations have been resolved by means of an administrative or Judicial Order, the terms of which have not been fully performed but the violator is in compliance with the schedule And conditions established by the Order; or if, in following the Department's established policies and procedures, Staff would Not normally refer the violation(s) to the Office of General Counsel, and there are no special circumstances that justify a departure from the Department's established policies and procedures. In short, the receipt of a copy of a citizen's Notice of Intent to Sue for Violation(s) need not cause the Agency to reorder its priorities or expend its technical and legal Resources by initiating an action in response to the Notice. DEC may take steps necessary to protect the integrity of any enforcement order and compliance schedule which adequately address the violations.

  3. Coordinating parallel enforcement proceedings.

    A special case is presented when the violation mentioned in the citizen's Notice is the subject of an on-going Agency enforcement proceeding which has not yet resulted in the issuance of an Order at the time that the citizen's statutory notice period expires. The citizen may, if it satisfies certain other statutory conditions, exercise its right to commence a civil action by filing a complaint against the violator in federal court. Staff must give careful consideration to all of the facts and circumstances of each case before making a determination as to how the Department should proceed. After reviewing all of the facts and circumstances of the specific case, the Department may move to intervene in the citizen's suit as described in Item IV below or Staff may determine that it is appropriate to continue to pursue a resolution of the violation(s) through its on-going Agency enforcement proceeding.

    The violator, who has already been contacted by the Department concerning the violations that are the subject of the citizen's complaint, may assert as a defense to the citizen's complaint the fact that the Department has commenced and is diligently prosecuting an action with respect to the same violation(s). The issue whether the violator/defendant is entitled to that defense is a matter for the Court in which the case is pending to decide. The Court's decision, whomever it may favor, does not prevent the Department from continuing to pursue its on-going enforcement proceeding. In other words, if the violator/defendant is successful in Court with its claim that the violation alleged by the citizen is being diligently prosecuted by DEC, the citizen suit may be preempted; but the commencement of a citizen suit does not necessarily preempt the Department's enforcement proceeding against the violator.

    Though the Department is entitled under federal law to pursue its own action against a violator while a citizen suit is pending In federal court, Staff will consider carefully all of the facts and circumstances of each case before a decision is made as to whether it is desirable to do so. The benefit of continuing the agency's on-going enforcement proceeding, rather than discontinuing it and joining the citizen suit in federal court, is obvious. The Department is the agency of the State that is charged with the responsibility for enforcing New York's environmental protection statutes. Retaining control of the lead in the case and the forum in which the Department's action against the violator will be adjudicated, is the best way to ensure that compliance will be achieved and the environment will be protected in a manner that is consistent with the Department's legislative mandate, goals and enforcement policies.

    The independent DEC proceeding may impact upon the Citizen/plaintiff. Until the DEC proceeding is resolved by means of an administrative or judicial order, the citizen/plaintiff must continue to expend effort and expense to obtain a court's decision that the violator/defendant has violated the law. Otherwise, the citizen/plaintiff cannot be sure that anyone will accomplish the purpose for which the citizen suit was commenced; namely, to obtain compliance by the violator with the mandates of the environmental laws. Moreover, until a court finds that the violator has indeed violated the law, the citizen/plaintiff cannot obtain reimbursement for the cost and expense of investigating and pursuing the violations.

    The decision by the Department to continue an on-going enforcement proceeding despite the existence in federal court of a citizen suit concerning the same violations may impact upon the agency, as well. The Department may be required to expend its resources in both the DEC's chosen forum and the citizen suit proceeding. Increasingly, the Department is required to respond to requests by the parties to a citizen suit and/or from the court for information and opinion about the violations which are the subject of the citizen suit. Also increasingly, the department is required by courts to meet court-imposed, rather than statutorily-imposed, deadlines concerning the review and approval of remedial action plans and operating permits which are necessary to accomplish the remedial plans which have been ordered by the Courts.

    In the event that a decision is made to proceed with the Department's on-going enforcement action, the attorney handling the DEC prosecution in consultation with the General Counsel may attempt to coordinate a resolution of the Department's action and the citizen suit by communicating closely with the Court, the citizen-plaintiff and defendant. DEC must always be certain in such cases that its position, enforcement objectives, and the objectives of the case, will not be compromised, and that its resources will be utilized in the most effective, efficient and appropriate manner.

  4. Judicial action through referral to Attorney General for intervention in a citizen suit.

    Referrals to the Attorney General are an integral part of the Department's overall enforcement program. There are instances when the DEC refers a case to the Attorney General because it is deemed in the best interest of the State to seek the immediate jurisdiction of a federal or state court over the matter.

    Referrals of citizen suits to the Attorney General will involve case-by-case evaluation. The Department may refer the maker to the attorney General after commencement of the citizen's suit if staff determines that the relief sought in the complaint is incomplete or inappropriate. DEC may intervene as a party/plaintiff, party/defendant, or as an Amicus Curiae to assist the Court by giving information which may not be available from any other source; and by introducing argument, authority, and evidence which serves to enhance environmental protection and which is consistent with the goals and enforcement policies of DEC.

V. Citizen Suit Settlements

The Department encourages the parties to a citizen suit to keep the Department informed of the status of the proceedings and negotiations in the case. This is especially important in cases in which the resolution of the matter will require the Department's participation through the issuance of permits and/or the review and approval of remedial plans. A proposed citizen suit settlement shall be reviewed according to the following criteria:

  • is the proposed settlement consistent with the statutory and regulatory standards applicable to the defendant with respect to the activity in question;
  • will the proposed settlement interfere in any way with DEC's present and/or future regulatory, compliance monitoring, or enforcement functions;
  • will the proposed settlement provide for appropriate remediation of all negative impacts in the environmental media affected by the violation;
  • will the proposed settlement provide for appropriate general and specific deterrence of similar violations?

Staff should review the proposed settlement in accordance with the criteria listed above and provide comments to the plaintiff and defendant through the General Counsel. Where comments communicated to the citizen/plaintiff and defendant are not incorporated into a proposed decree, and the decree materially impacts in an adverse manner with respect to any one of the above factors, a letter referring the case to the Attorney General for intervention should be drafted by the contact attorney for the General Counsel's signature.

VI. Conclusion

This document establishes guidance to consider and procedures for DEC staff to follow in each case in which the Department is served with a copy of a citizen's Notice of Intent to Sue for Violation(s) of a federal environmental statute. The policy is intended for use with the specific form appended to this document. The policy and procedures for use with the specific form appended to this document. The policy and procedures set forth in this document do not create any substantive or procedural rights, enforceable by any party in administrative or judicial litigation.

New York State Department of Environmental Conservation

Langdon Marsh
Commissioner

Dated: Albany, New York

July 23, 1994

1. The Environmental Enforcement Data System (EEDS) has been superceded by the Visual Inspection System for Tracking and Analysis (VISTA). As such, the entry of each Notice of Intent to Sue received by the Department into EEDS is no longer required.

Memorandum

To: Compliance or Program Counsel, (name)
Regional Attorney, Region (number)
Regional Director/Regional Program Supervisor, (name)
Division responsible for the affected program, (name of division)
Division of Fish and Wildlife
Division of Marine Resources
Division of Law Enforcement
Multi-Media/Pollution Prevention Unit
Office of the Attorney General

From: Division of Environmental Enforcement

Re: Citizen Suit Notice:

Date: (date)

Attached is a copy of a citizen suit notice of intent to sue which was served upon the Department on (date). In order to determine the Department's response, please review this matter and provide your response to Elissa Armater in DEE. Room 609, 50 Wolf Road, Albany, New York 12233-5500 by (date).

Specifically advise whether:

  • DEC has already obtained an existing enforcement order against the Respondent which materially covers the same allegations as those mentioned in the Notice. If so, please attach a copy of the Order.
  • DEC has already filed a Notice of Violation against the Respondent which materially covers the same allegations as those mentioned in the Notice. If so, please attach a copy of the Notice and state status of the case.
  • DEC should commence an administrative, judicial or criminal enforcement action against the Respondent within the 60 day notice period, because: (provide reason(s))
  • DEC should initiate no new action because: (provide reason(s))
  • DEC should intervene in the citizen suit, when commenced, because: (provide reason(s))
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