SECTION 45.1-246.1. Citizen suits; rights of citizens to accompany inspectors  

A. Except as provided in subsections B or C of this section, any person having an interest which is or may be adversely affected may, in order to compel compliance with the provisions of this chapter, commence a civil action on his own behalf against:

1. The United States or any other governmental instrumentality or agency, or any other person that is alleged to be in violation of the provisions of this chapter or of any rule, regulation, order or permit issued pursuant thereto; or

2. The Director when there is alleged a failure of the Director to perform any act or duty under this chapter which is not discretionary with the Director.

B. No action may be commenced under subdivision A 1 of this section:

1. Prior to sixty days after the plaintiff has given written notice of the violation to (i) the Secretary, (ii) the Director and (iii) any alleged violator; or

2. If the Commonwealth of Virginia or the Secretary of the Interior has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or this Commonwealth to require compliance with the provisions of this chapter, or any rule, regulation, order, or permit issued pursuant to this chapter, provided, however, that any person may intervene as a matter of right in any such action in a court of the Commonwealth;

C. No action may be commenced under subdivision A 2 of this section prior to sixty days after the plaintiff has given written notice of such action to the Director, in such manner as shall be prescribed by regulation, provided, however, that such action may be brought immediately after such notification in any case in which it is alleged that a violation or order would constitute an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.

D. Any action with respect to a violation of this chapter or the regulations thereunder may be brought only in the circuit court of the county or city in which the surface coal mining operation complained of is located. In any such action commenced under the provisions of this section, the Director may intervene as a matter of right, whether or not he is a party to the action.

E. 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, provided that the court determines such award is appropriate. If a preliminary injunction is sought the court may require the filing of a bond or equivalent security in accordance with the rules of civil procedure.

F. Nothing in this section shall restrict any common-law or statutory right which any person or class of persons may have to seek enforcement of any of the provisions of this chapter and the regulations thereunder, or to seek any other relief, including relief against the Director.

G. Any person who as a result of the violation by any operator of any rule, regulation, order, or permit issued pursuant to this chapter, suffers injury to his person or property may bring an action for damages, including reasonable attorney and expert witness fees. Such action may be brought only in the circuit court of the county or city 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 Title 65.2.

H. Whenever information provided the Director by any person results in any inspection, the Director shall notify such person of the time at which the inspection is scheduled to occur, and such person shall be allowed to accompany the inspector during the inspection.

1980, c. 510.