Sec 3-367. Private right of action

A. Except as provided in subsection B of this section, any person having an interest that is or may be adversely affected may commence a civil action in superior court on the person's own behalf:

1. Against any person, including this state and any political subdivision of this state, who is alleged to be in violation of this article or of an order, permit or rule adopted or issued pursuant to this article other than a de minimis violation. The court shall have jurisdiction to enforce the provision, order, permit or rule and to apply any appropriate civil penalty under section 3-370.

2. Against the director where there is alleged a failure of the director to perform any act or duty under this article that is not discretionary with the director. The court shall have jurisdiction to order the director to perform such act or duty.

B. No action may be commenced in either of the following cases:

1. Before sixty days after the plaintiff has given notice of the alleged violation to the department and to any alleged violator or if, within the sixty days, the director begins and diligently performs the act or duty sought to be compelled.

2. If the attorney general has commenced and is diligently prosecuting an action before the department under section 3-368 or a civil action in the superior court of this state to require compliance with the permit, order, rule or provision of this article.

C. In any action 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 any final order in any action brought pursuant to this section, may:

1. Award costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines such award 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 administratively assessed. Any monies collected as civil penalties shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

E. This section shall not be construed to abrogate the provisions of chapter 1, article 2 of this title.