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 environmental 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 environmental 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 environmental 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 environmental 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 environmental 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.