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SB1405 - 572R - I Ver
REFERENCE TITLE:
environment; citizen suits
State of Arizona
Senate
Fifty-seventh Legislature
Second Regular Session
2026
SB 1405
Introduced by
Senators
Epstein: Ortiz
AN
ACT
amending sections 49-264, 49-282, 49-407
and 49-551, Arizona Revised Statutes; relating to environmental Lawsuits.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 49-264, Arizona Revised
Statutes, is amended to read:
START_STATUTE
49-264.
Private right of action; citizen suits; right to intervene
A. Except as provided in subsection B of this
section, a person that has an interest that is or may be adversely affected
by a violation of this chapter or a rule adopted or an order issued by
the department pursuant to this chapter
may commence a civil action in
superior court on the person's own behalf against
:
1. A person, this state or a
political subdivision of this state alleging a violation of this chapter or an
order, permit, standard, rule or discharge limitation adopted or issued
pursuant to this chapter.� The court has jurisdiction to enforce this chapter
or an order, permit, standard, rule or discharge limitation adopted or issued
pursuant to this chapter and to apply any appropriate civil penalty pursuant to
section 49-262.
2.
The director alleging a
failure of the director to perform an act or duty under this chapter that is
not discretionary with the director. The court shall have
jurisdiction to order the director to perform the act or duty.
B.
No
An
action
may
not
be commenced in
any
either
of the following cases:
1. Before
one hundred twenty
sixty
days after the plaintiff has given notice of the alleged
violation to the director and to an alleged violator.
2. If after conducting an
investigation the director determines within one hundred twenty days after
receiving notice of the alleged violation from the plaintiff that no violation
has occurred, or the director had determined before receiving the notice of the
alleged violation that the violation had not occurred.
3. If the department has issued and is
diligently processing a notice of violation or an order or has commenced and is
diligently prosecuting a civil action in the superior court to require
compliance with the provision, order, permit, standard, rule or discharge
limitation.
4.
2.
If
the attorney general or county attorney has commenced and is diligently
prosecuting a civil action in the superior court to require compliance with
the provision,
this CHAPTER OR the
order,
permit, standard, rule or discharge limitation.
5. If the director is diligently
pursuing the violation under another state or federal environmental law.
C. In an action commenced under this section
:
1. The director, if not a party, may
intervene as a matter of right.
2.
The plaintiff has the
burden of proof.
D. The court, in issuing a final order in an action
brought under this section, may
:
1.
Award costs of litigation,
including reasonable attorney and expert witness fees, to any party
that substantially prevails
if the court
DETERMINES it is appropriate and, in addition, to the DEFENDANT in the case of
a frivolous action
.
2. Provide for injunctive or other
equitable relief or assess civil penalties that could have been assessed under
section 49-262.� Any monies collected as civil penalties shall be
deposited, pursuant to sections 35-146 and 35-147, in the water
quality assurance revolving fund established by section 49-282.
E. this section shall be construed in
a manner consistent with 33 United States code section 1365 and with judicial
interpretations of that section.
E.
F.
A
person that is or may be adversely affected by a violation of any requirement
of the underground injection control permit program established pursuant to
article 3.3 of this chapter may intervene as a matter of right in any pending
state civil or administrative enforcement action.� A person's right to
intervene is limited as follows:
1. A person may intervene only if the person is
adversely affected by the violation that is named in the state's action.
2. A person may intervene only for purposes of
obtaining the following remedies for the state:
(a) A temporary restraining order.
(b) Injunctive relief.
(c) Civil penalties.
(d) Any combination of the penalties prescribed in
this paragraph.
END_STATUTE
Sec. 2. Section 49-282, Arizona Revised
Statutes, is amended to read:
START_STATUTE
49-282.
Water quality assurance revolving fund
A. The water quality assurance revolving fund is
established to be administered by the director. The fund consists of
monies from the following sources:
1. Monies appropriated by the legislature.
2. Fertilizer license fees allocated under section 3-272,
subsection B, paragraph 2.
3. Pesticide registration fees allocated under
section 3-351, subsection D, paragraph 2.
4. The tax on water use pursuant to section 42-5302.
5. Water quality assurance fees collected under
section 45-616.
6. Industrial discharge registration fees collected
under section 49-209.
7. Hazardous waste facility registration fees
collected under section 49-929.
8. Hazardous waste resource recovery facility
registration fees collected under section 49-930.
9. Monies recovered from responsible parties as
remedial action costs.
10. Monies received as costs for a review of
remedial actions at the request of a person other than this state.
11. Monies received from the collection of corporate
income taxes under title 43, chapter 11, article 2 as prescribed by subsection
B of this section.
12. Prospective purchaser or prospective remediator
agreement fees collected under section 49-285.01.
13. civil Penalties collected
pursuant to section 49-264.
B. The water quality assurance revolving fund shall
be assured of an annual funding amount of $18,000,000.� At the beginning of
each fiscal year, the state treasurer shall transfer the sum of $15,000,000 to
the water quality assurance revolving fund from the corporate income tax as
collected pursuant to title 43, chapter 11, article 2.� As custodian of the
fund, the director shall certify to the governor, the state treasurer, the
president of the senate and the speaker of the house of representatives at the
end of that fiscal year the amount of monies deposited in the water quality
assurance revolving fund pursuant to subsection A, paragraphs 1 through 8 of
this section. At the end of the fiscal year the state treasurer
shall adjust the $15,000,000 transfer of corporate income tax so that, when
combined with monies deposited in the fund during that fiscal year pursuant to
subsection A, paragraphs 1 through 8 of this section, the fund receives
$18,000,000 each fiscal year.� This adjustment shall occur as part of the year-end
book closing process for that fiscal year. If sufficient monies from
the corporate income tax are not available to make any necessary upward
adjustments as part of the year-end book closing, the state treasurer
shall transfer the monies necessary to achieve the $18,000,000 funding level
from the transaction privilege and severance tax clearing account pursuant to
section 42-5029, subsection D, paragraph 4, to the water quality
assurance revolving fund.� Any transfers prescribed by this subsection shall
not be deducted from the net proceeds distributed pursuant to section 43-206.
C. At the beginning of each fiscal year, the
director of environmental quality shall contract with the department of water
resources for the transfer of up to $800,000 from the water quality assurance
revolving fund to the Arizona water quality fund established by section 45-618
for support services for the water quality assurance revolving fund
program. The support services provided for the water quality
assurance revolving fund program shall be determined by the director of water
resources in consultation with the director of environmental quality.
D. Monies in the fund are exempt from lapsing under
section 35-190. Interest earned on monies in the fund shall be credited
to the fund.
E. Monies from the water quality assurance revolving
fund shall be used for the following purposes:
1. To provide state matching monies or to meet such
other obligations as are prescribed by section 104 of CERCLA.
2. For all reasonable and necessary costs to
implement this article, including:
(a) Taking remedial actions.
(b) Conducting investigations of an area to
determine if a release or a threatened release of a hazardous substance exists.
(c) Conducting remedial investigations, feasibility
studies, health effect studies and risk assessments.
(d) Identifying and investigating potentially
responsible parties and allocating liability among the responsible parties.
(e) Funding orphan shares.
(f) Participating in the allocation process,
administrative appeals and court actions.
(g) Funding the community advisory boards and other
community involvement activities.
(h) Remediating pollutants if necessary to remediate
a hazardous substance.
3. For the reasonable and necessary costs of
monitoring, assessing, identifying, locating and evaluating the degradation,
destruction, loss of or threat to the waters of the state resulting from a
release of a hazardous substance to the environment.
4. For the reasonable and necessary costs of
administering the fund.
5. For the reasonable and necessary costs of
administering the industrial discharge registration program under section 49-209.
6. For the costs of the water quality monitoring
program described in section 49-225.
7. For compliance monitoring, investigation and
enforcement activities pertaining to generating, transporting, treating,
storing and disposing of hazardous waste.� The amount to be used pursuant to
chapter 5 of this title is limited to the amount received in the prior fiscal
year from the hazardous waste facility registration fee.
8. For emergency response use as prescribed in
section 49-282.02.
9. For all reasonable and necessary costs of the
preparation and execution of prospective purchaser
or
prospective remediator
agreements.
10. For all reasonable and necessary costs of the
voluntary remediation program.
11. To reimburse a political subdivision of this
state for its reasonable, necessary and cost-effective remedial action
costs incurred in response to a release or threat of a release of a hazardous
substance or pollutants that presents an immediate and substantial endangerment
to the public health or the environment. The political subdivision
is not eligible for reimbursement until it has taken all reasonable efforts to
obtain reimbursement from the responsible party and the federal government.�
Not more than $250,000 may be spent from the fund for this purpose in any
fiscal year.
12. For all reasonable and necessary costs incurred
by the department pursuant to section 49-282.04 and the department of
water resources pursuant to section 45-605 for well inspections, remedial
actions and review and approval of well construction necessary to prevent
vertical cross-contamination.� The director of environmental quality and
the director of water resources shall enter into an agreement for the transfer
of these costs.
13. For actions that are taken pursuant to section
49-282.03 before the selection of a remedy.
14. For the reasonable and necessary costs of the
conveyance, use or discharge of water remediated as part of a remedy under this
article.
15. For the reasonable and necessary costs incurred
by the department of health services at the request of the director of
environmental quality to assess and evaluate the effect of a release or
threatened release of hazardous substances to the public health or welfare and
the environment. The director of environmental quality and the
director of the department of health services shall enter into an agreement for
the transfer of these costs. The assessment and evaluation by the
department of health services may include:
(a) Performing health effect studies and risk
assessments.
(b) Evaluating and calculating cleanup standards.
(c) Assisting in communicating health and risk
issues to the public.
16. For the reasonable and necessary costs incurred
by the department of law to provide legal services at the request of the
director of environmental quality.
17. For the reasonable and necessary costs of
contracting for the goods and services to enable the director to implement this
article.
18. For remediation demonstration projects that use
bioremediation or other alternative technologies.� The department may not use
more than $500,000 in a fiscal year pursuant to this paragraph.
F. Any political subdivision of this state that
uses, used or may use waters of the state for drinking water purposes or any
state agency, regardless of whether the political subdivision or state agency
is a responsible party, may apply to the director for monies from the fund to
be used for remedial action. An application to the fund for remedial
action costs shall not be treated as an admission that a political subdivision
or an agency of this state is a responsible party, but a political subdivision
or a state agency that is a responsible party is liable for remedial action
costs in the same manner, including reimbursement of the fund, as any other
responsible party. The political subdivision shall commit a local
matching amount at least equal to the amount sought from the fund.
G. The director of environmental quality shall
prepare and submit a budget for the water quality assurance revolving fund
program and the director of water resources shall prepare and submit a budget
for the Arizona water quality fund with the departments' budgets that are
required pursuant to section 35-111. The committees on
appropriations of the house of representatives and the senate shall review the
water quality assurance revolving fund budget and the Arizona water quality
fund budget to ensure that the departments' expenditures are made in accordance
with the legislature's intent and that the departments are making adequate
progress toward accomplishing that intent.
END_STATUTE
Sec. 3. Section 49-407, Arizona Revised
Statutes, is amended to read:
START_STATUTE
49-407.
Private right of action; citizen suits; right to intervene
A. Except as provided in subsection B
of this section
, a person
having
that has
an interest
which
that
is
or may be adversely affected may commence a civil action in superior court on
his
the person's
own behalf against
:
1. A person, this state or a
political subdivision of this state alleging a violation of this article or
article 2 of this chapter or an order, permit, standard, rule or emission
limitation adopted or issued pursuant to this article or article 2 of this
chapter. The court has jurisdiction to enforce this article or
article 2 of this chapter or an order, permit, standard, rule or emission
limitation adopted or issued pursuant to this article or article 2 of this
chapter and to apply any appropriate civil penalty pursuant to section 49-463.
2.
The director alleging a
failure of the director to perform an act or duty under this article or article
2 of this chapter that is not discretionary with the director. The
court has jurisdiction to order the director to perform the act or duty.
B.
No
An
action
may
not
be commenced in
any
either
of the following cases:
1. Before sixty days after the plaintiff has given
notice of the alleged violation to the director and to an alleged violator.
2. If the director determines no
violation has occurred, or if the director has initiated an administrative
enforcement action by issuing a warning letter, notice of violation or issuing
an order.
3.
2.
If
the attorney general or county attorney has commenced and is diligently
prosecuting a civil action in the superior court to require compliance with
the provision,
this article or ARTICLE 2 of this
chapter or the
order, permit, standard, rule or emission limitation.
C. In an action commenced under this section
:
1. The director, if not a party, may
intervene as a matter of right.
2.
The plaintiff has the
burden of proof.
D. The court, in issuing a final order in an action
brought under this section, may
:
1.
Award costs of litigation,
including reasonable attorney and expert witness fees, to any party
that substantially prevails
if the court
determines it is appropriate and, in addition, to the defendant in the case of
a frivolous action
.
2. Provide for injunctive or other
equitable relief under section 49-462 or assess civil penalties that
could have been assessed under section 49-463. Any monies
collected as civil penalties shall be deposited, pursuant to sections 35-146
and 35-147, in the air quality fund established by section 49-551.
E. This section shall be construed in
a manner consistent with 42 United States code section 7604 and with judicial
interpretations of that section.
END_STATUTE
Sec. 4. Section 49-551, Arizona Revised
Statutes, is amended to read:
START_STATUTE
49-551.
Air quality fee; air quality fund; purpose
A. Every person who is required to register a motor
vehicle in this state pursuant to section 28-2153 shall pay, in addition
to the registration fee, an annual air quality fee at the time of vehicle
registration of $1.50.� Unless and until the United States environmental
protection agency grants a waiver for diesel fuel pursuant to section 211(c)(4)
of the clean air act, every person who is required to register a diesel powered
motor vehicle in this state with a declared gross weight as defined in section 28-5431
of more than eight thousand five hundred pounds and every person who is subject
to an apportioned fee for diesel powered motor vehicles collected pursuant to
title 28, chapter 7, articles 7 and 8 shall pay an additional apportioned
diesel fee of $10.
B. The registering officer shall collect the fees
and immediately deposit, pursuant to sections 35-146 and 35-147,
the air quality fees in the air quality fund established by subsection C of this
section and shall deposit the diesel fees in the voluntary vehicle repair
program fund established pursuant to section 49-558.02.
C. The air quality fund is established consisting of
monies received pursuant to this section, gifts, grants and donations,
civil penalties collected pursuant to section 49-407
and
monies appropriated by the legislature.� The department
of
environmental quality
shall administer the fund. Monies in
the fund are exempt from the provisions of section 35-190 relating to the
lapsing of appropriations.� Interest earned on monies in the fund shall be
credited to the fund.� Monies in the air quality fund shall be used, subject to
legislative appropriation, for:
1. Air quality research, experiments and programs
conducted by or for the department for the purpose of bringing area A or area B
into or maintaining area A or area B in attainment status, improving air
quality in areas of this state outside area A or area B and reducing emissions
of particulate matter, carbon monoxide, oxides of nitrogen, volatile organic
compounds and hazardous air pollutants throughout
the
this
state.
2. Monitoring visible air pollution and developing
and implementing programs to reduce emissions of pollutants that contribute to
visible air pollution in counties with a population of four hundred thousand
persons or more.
3. Developing and adopting rules in compliance with
sections 49-426.03, 49-426.04, 49-426.05 and 49-426.06.
D. The department of environmental quality shall
transfer $400,000 from the air quality fund to the department of administration
for the purposes prescribed by section 49-588 in eight installments in
each of the first eight months of a fiscal year.
E. This section does not apply to an electrically
powered golf cart or an electrically powered vehicle.
END_STATUTE