BILL NUMBER: SB 1572 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Sher
FEBRUARY 20, 2002
An act to amend Section 25249.7 of the Health and Safety Code,
relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
SB 1572, as introduced, Sher. Proposition 65: enforcement.
The existing Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65) prohibits any person, in the course of doing
business, from knowingly and intentionally exposing any individual to
a chemical known to the state to cause cancer or reproductive
toxicity without giving a specified warning, or from discharging or
releasing such a chemical into any source of drinking water, except
as specified. The act imposes civil penalties upon persons who
violate those prohibitions, and provides for the enforcement of those
prohibitions by the Attorney General, a district attorney, or
specified city attorneys or prosecutors, and by any person in the
public interest. The act requires any person bringing an action in
the public interest, or any private person filing an action in which
a violation of the act is alleged, to notify the Attorney General
that such an action has been filed and requires such a person, after
the action is either subject to a settlement or a judgment, to submit
to the Attorney General a reporting form that includes the results
of that settlement or judgment and the final disposition of the case.
This bill would additionally require any private person settling
any violation of the act to submit to the Attorney General the
reporting form that includes the results of that settlement and the
final disposition of the case. The bill would also make technical
nonsubstantive changes and correct erroneous references.
The bill, in conformance with the requirements of Proposition 65,
would make a legislative finding and declaration that these changes
would further the purposes of the act.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25249.7 of the Health and Safety Code is
amended to read:
25249.7. (a) Any person that violates or threatens to violate
Section 25249.5 or 25249.6 may be enjoined in any court of competent
jurisdiction.
(b) (1) Any person who has violated Section 25249.5 or 25249.6
shall be liable for a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation in addition to
any other penalty established by law. That civil penalty may be
assessed and recovered in a civil action brought in any court of
competent jurisdiction.
(2) In assessing the amount of a civil penalty for a violation of
this chapter, the court shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with
this chapter and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(c) Actions pursuant to this section may be brought by the
Attorney General in the name of the people of the State of
California, by any district attorney, by any city attorney of a city
having a population in excess of 750,000, or, with the consent of the
district attorney, by a city prosecutor in any city or city and
county having a full-time city prosecutor, or as provided in
subdivision (d).
(d) Actions pursuant to this section may be brought by any person
in the public interest if both of the following requirements are met:
(1) The private action is commenced more than 60 days from the
date that the person has given notice of an alleged violation of
Section 25249.5 or 25249.6 that is the subject of the private action
to the Attorney General and the district attorney, city attorney, or
prosecutor in whose jurisdiction the violation is alleged to have
occurred, and to the alleged violator. If the notice alleges a
violation of Section 25249.6, the notice of the alleged violation
shall include a certificate of merit executed by the attorney for the
noticing party, or by the noticing party, if the noticing party is
not represented by an attorney. The certificate of merit shall state
that the person executing the certificate has consulted with one or
more persons with relevant and appropriate experience or expertise
who has reviewed facts, studies, or other data regarding the exposure
to the listed chemical that is the subject of the action, and that,
based on that information, the person executing the certificate
believes there is a reasonable and meritorious case for the private
action. Factual information sufficient to establish the basis of the
certificate of merit, including the information identified in
paragraph (2) of subdivision (h), shall be attached to the
certificate of merit that is served on the Attorney General.
(2) Neither the Attorney General, any district attorney, any city
attorney, nor any prosecutor has commenced and is diligently
prosecuting an action against the violation.
(e) Any person bringing an action in the public interest pursuant
to subdivision (d) and any person filing any action in which a
violation of this chapter is alleged shall notify the Attorney
General that the action has been filed. Neither this subdivision nor
the procedures provided in subdivisions (f) to (j), inclusive, shall
affect the requirements imposed by statute or a court decision in
existence on the effective date of the act amending this
section during the 2001-02 Regular Session January 1,
2002, concerning whether any person filing any action in which
a violation of this chapter is alleged is required to comply with the
requirements of subdivision (d).
(f) (1) Any person filing an action in the public interest
pursuant to subdivision (d) or , any
private person filing any action in which a violation of this chapter
is alleged , or any private person settling any violation of
this chapter alleged in a notice given pursuant to paragraph (1) of
subdivision (d) , shall, after the action or violation is
subject either to a settlement or to a judgment, submit to the
Attorney General a reporting form that includes the results of that
settlement or judgment and the final disposition of the case, even if
dismissed. At the time of the filing of any judgment pursuant to an
action brought in the public interest pursuant to subdivision (d),
or any action brought by a private person in which a violation of
this chapter is alleged, the plaintiff shall file an affidavit
verifying that the report required by this subdivision has been
accurately completed and submitted to the Attorney General.
(2) Any person bringing an action in the public interest pursuant
to subdivision (d), or any private person bringing an action in which
a violation of this chapter is alleged, shall, after the action is
either subject to a settlement, with or without court approval, or to
a judgment, submit to the Attorney General a report that includes
information on any corrective action being taken as a part of the
settlement or resolution of the action.
(3) The Attorney General shall develop a reporting form that
specifies the information that shall be reported, including, but not
limited to, for purposes of subdivision (e), the date the action was
filed, the nature of the relief sought, and for purposes of this
subdivision, the amount of the settlement or civil penalty assessed,
other financial terms of the settlement, and any other information
the Attorney General deems appropriate.
(4) If there is a settlement of an action brought by a person in
the public interest under subdivision (d), the plaintiff shall submit
the settlement, other than a voluntary dismissal in which no
consideration is received from the defendant, to the court for
approval upon noticed motion, and the court may approve the
settlement only if the court makes all of the following findings:
(A) Any warning that is required by the settlement complies with
this chapter.
(B) Any award of attorney's fees is reasonable under California
law.
(C) Any penalty amount is reasonable based on the criteria set
forth in paragraph (2) of subdivision (b).
(5) The plaintiff subject to paragraph (4) has the burden of
producing evidence sufficient to sustain each required finding. The
plaintiff shall serve the motion and all supporting papers on the
Attorney General, who may appear and participate in any proceeding
without intervening in the case.
(6) Neither this subdivision nor the procedures provided in
subdivision (e) and subdivisions (g) to (j), inclusive, shall affect
the requirements imposed by statute or a court decision in existence
on the effective date of the act amending this section
during the 2001-02 Regular Session January 1, 2002,
concerning whether claims raised by any person or public
prosecutor not a party to the action are precluded by a settlement
approved by the court.
(g) The Attorney General shall maintain a record of the
information submitted pursuant to subdivisions (e) and (f) and shall
make this information available to the public.
(h) (1) Except as provided in paragraph (2), the basis for the
certificate of merit required by subdivision (d) is not discoverable.
However, nothing in this subdivision shall preclude the discovery of
information related to the certificate of merit if that information
is relevant to the subject matter of the action and is otherwise
discoverable, solely on the ground that it was used in support of the
certificate of merit.
(2) Upon the conclusion of an action brought pursuant to
subdivision (d) with respect to any defendant, if the trial court
determines that there was no actual or threatened exposure to a
listed chemical, the court may, upon the motion of that alleged
violator or upon the court's own motion, review the basis for the
belief of the person executing the certificate of merit, expressed in
the certificate of merit, that an exposure to a listed chemical had
occurred or was threatened. The information in the certificate of
merit, including the identity of the persons consulted with and
relied on by the certifier, and the facts, studies, or other data
reviewed by those persons, shall be disclosed to the court in an
in-camera proceeding at which the moving party shall not be present.
If the court finds that there was no credible factual basis for the
certifier's belief that an exposure to a listed chemical had occurred
or was threatened, then the action shall be deemed frivolous within
the meaning of Section 128.5 128.6 or 128.7
of the Code of Civil Procedure , whichever provision is
applicable to the action. The court shall not find a factual
basis credible on the basis of a legal theory of liability that is
frivolous within the meaning of Section 128.5
128.6 or 128.7 of the Code of Civil Procedure , whichever
provision is applicable to the action .
(i) The Attorney General may provide the factual information
submitted to establish the basis of the certificate of merit on
request to any district attorney, city attorney, or prosecutor within
whose jurisdiction the violation is alleged to have occurred, or to
any other state or federal government agency, but in all other
respects the Attorney General shall maintain, and ensure that all
recipients maintain, the submitted information as confidential
official information to the full extent authorized in Section 1040 of
the Evidence Code.
(j) In any action brought by the Attorney General, a district
attorney, a city attorney, or a prosecutor pursuant to this chapter,
the Attorney General, district attorney, city attorney, or prosecutor
may seek and recover costs and attorney's fees on behalf of any
party who provides a notice pursuant to subdivision (d) and who
renders assistance in that action.
SEC. 2. The Legislature hereby finds and declares that Section 1
of this act furthers the purposes of the Safe Drinking Water and
Toxic Enforcement Act of 1986.