15-58-309. Right of private action.

15-58-309. Right of private action. (a) Any person having an interest which is or may be adversely affected may commence a civil action on his or her own behalf to compel compliance with this chapter or the rules issued pursuant to this chapter: (1) Against the State of Arkansas or any other state instrumentality or agency which is alleged to be in violation of the provisions of this chapter or of any rule, order, or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, order, or permit issued pursuant to this chapter; or (2) Against the Director of the Division of Environmental Quality or the Arkansas Pollution Control and Ecology Commission where there is alleged a failure of the director or the commission to perform any act or duty under this chapter which is not discretionary with the director or with the commission. (b) No action may be commenced: (1) Under subdivision (a)(1) of this section: (A) Prior to sixty (60) days after the plaintiff has given notice in writing of the violation: (i) To the director; (ii) To the Attorney General; and (iii) To any alleged violator; or (B) If the director has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this chapter, or any rule, order, or permit issued pursuant to this chapter, but in any such action any person may intervene as a matter of right; or (2) Under subdivision (a)(2) of this section prior to sixty (60) days after the plaintiff has given notice in writing of the action to the director in such manner as the commission shall by rule prescribe, or to the commission, except that the action may be brought immediately after notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff. (c)(1) Any action respecting a violation of this chapter or the rules thereunder may be brought only in the Pulaski County Circuit Court if the action is filed against the State of Arkansas, the commission, the director, or any other state instrumentality or agency, and in Pulaski County or in the county in which the greater part of the surface coal mining operation complained of is located if the action is filed against any other person. (2) In any action under this section, the director, the commission, or the Division of Environmental Quality, if not a party, may intervene as a matter of right. (d) The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation, including attorney and expert witness fees, to any party whenever the court determines the award is appropriate. If a temporary restraining order or preliminary injunction is sought, the court may require the filing of a bond or equivalent security, provided that no bond shall be required if the temporary restraining order or preliminary injunction is sought by the director, the commission, or the division. (e) Nothing in this section shall restrict any right which any person or class of persons may have under any statute or common law to seek enforcement of any of the provisions of this chapter and the rules thereunder or to seek any other relief, including relief against the director, the commission, or the division. (f) Any person who is injured in his or her person or property through the violation by any operation of any rule, order, or permit issued pursuant to this chapter may bring an action for damages, including reasonable attorney and expert witness fees only in the judicial district in which the surface coal mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under the Workers' Compensation Law, § 11-9-101 et seq.