Sec. 3. (a) An individual or entity that is identified in section 1(2) through 1(4) of this chapter and that brings an action under section 1 of this chapter may not maintain the action unless:
(1) none of the agencies that receives notice of the action under section 2 of this chapter:
(A) commences an administrative proceeding or a civil action on the alleged pollution, impairment, or destruction not later than ninety (90) days after receiving notice under section 2 of this chapter; or
(B) takes steps not later than ninety (90) days after receiving notice under section 2 of this chapter to have a criminal prosecution commenced on the alleged pollution, impairment, or destruction; or
(2) the agency that commences an administrative proceeding or a civil action on the alleged pollution, impairment, or destruction does not diligently pursue the administrative proceeding or civil action after the administrative proceeding or civil action is commenced.
(b) The agency does not have to be joined as a party in an action under this section.