California Legislature—2013–14 Regular Session

Assembly BillNo. 227


Introduced by Assembly Member Gatto

February 4, 2013


An act to amend Section 25249.7 of the Health and Safety Code, relating to toxic substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 227, as introduced, Gatto. Proposition 65: enforcement: chemical listing.

(1) 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 knowingly discharging or releasing such a chemical into water or 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, the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and the alleged violator that such an action has been filed.

This bill would allow a person who receives a notice that alleges the person is in violation of the warning requirements of Proposition 65 to correct the violation within 14 days after receiving that notice and demonstrate to the Attorney General, the city attorney, or the district attorney in whose jurisdiction the notice is filed that the violation has been corrected. The bill would prohibit an enforcement action from being commenced if the Attorney General, the city attorney, or the district attorney concurs that the violation has been corrected. The bill would impose a state-mandated local program by imposing new duties upon local agencies with regard to concurring in that correction of a violation.

(2) Proposition 65 provides that it may be amended by a statute, passed in each house by 23 vote, to further its purposes.

This bill would find and declare that it furthers the purposes of Proposition 65.

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 25249.7 of the Health and Safety Code
2 is amended to read:

3

25249.7.  

(a) begin deleteAny end deletebegin insertA end insertpersonbegin delete thatend deletebegin insert whoend insert violates or threatens to
4violate Section 25249.5 or 25249.6 may be enjoined in any court
5of competent jurisdiction.

6(b) (1)  begin deleteAny end delete begin insertA end insertperson who has violated Section 25249.5 or
725249.6begin delete shall beend deletebegin insert isend insert liable for a civil penalty not to exceed two
8thousand five hundred dollars ($2,500) per day for each violation
9in addition to any other penalty established by law. That civil
10penalty may be assessed and recovered in a civil action brought
11in any court of competent jurisdiction.

12(2) In assessing the amount of a civil penalty for a violation of
13this chapter, the court shall consider all of the following:

14(A) The nature and extent of the violation.

15(B) The number of, and severity of, the violations.

16(C) The economic effect of the penalty on the violator.

P3    1(D) Whether the violator took good faith measures to comply
2with this chapter and the time these measures were taken.

3(E) The willfulness of the violator’s misconduct.

4(F) The deterrent effect that the imposition of the penalty would
5have on both the violator and the regulated community as a whole.

6(G) Any other factor that justice may require.

7(c) Actions pursuant to this section may be brought by the
8Attorney General in the name of the people of the State of
9California, bybegin delete anyend deletebegin insert aend insert district attorney, bybegin delete anyend deletebegin insert aend insert city attorney of a
10city having a population in excess of 750,000, or, with the consent
11of the district attorney, by a city prosecutor inbegin delete anyend deletebegin insert aend insert city or city
12and county having a full-time city prosecutor, or as provided in
13subdivision (d).

14(d) Actions pursuant to this section may be brought bybegin delete anyend deletebegin insert aend insert
15 person in the public interest if both of the following requirements
16are met:

17(1) The private action is commenced more than 60 days from
18the date that the person has given notice of an alleged violation of
19Section 25249.5 or 25249.6 that is the subject of the private action
20to the Attorney General and the district attorney, city attorney, or
21prosecutor in whose jurisdiction the violation is alleged to have
22occurred, and to the alleged violator. If the notice alleges a
23violation of Section 25249.6, the notice of the alleged violation
24shall include a certificate of merit executed by the attorney for the
25noticing party, or by the noticing party, if the noticing party is not
26represented by an attorney. The certificate of merit shall state that
27the person executing the certificate has consulted with one or more
28persons with relevant and appropriate experience or expertise who
29has reviewed facts, studies, or other data regarding the exposure
30to the listed chemical that is the subject of the action, and that,
31based on that information, the person executing the certificate
32believes there is a reasonable and meritorious case for the private
33action. Factual information sufficient to establish the basis of the
34certificate of merit, including the information identified in
35paragraph (2) of subdivision (h), shall be attached to the certificate
36of merit that is served on the Attorney General.

37(2) Neither the Attorney General,begin delete anyend deletebegin insert aend insert district attorney,begin delete anyend deletebegin insert aend insert
38 city attorney, norbegin delete anyend deletebegin insert aend insert prosecutor has commenced and is diligently
39prosecuting an action against the violation.

P4    1(e) begin deleteAny end deletebegin insertA end insertperson bringing an action in the public interest
2pursuant to subdivision (d) andbegin delete anyend deletebegin insert aend insert person filingbegin delete anyend deletebegin insert anend insert action
3in which a violation of this chapter is alleged shall notify the
4Attorney General that the action has been filed. Neither this
5subdivision nor the procedures provided in subdivisions (f) to (j),
6inclusive,begin delete shallend delete affect the requirements imposed by statute or a
7court decision in existence on January 1, 2002, concerning whether
8begin delete anyend deletebegin insert aend insert person filingbegin delete anyend deletebegin insert anend insert action in which a violation of this
9chapter is alleged is required to comply with the requirements of
10subdivision (d).

11(f) (1) begin deleteAny end deletebegin insertA end insertperson filing an action in the public interest
12pursuant to subdivision (d),begin delete anyend deletebegin insert aend insert private person filingbegin delete anyend deletebegin insert anend insert
13 action in which a violation of this chapter is alleged, orbegin delete anyend deletebegin insert aend insert
14 private person settlingbegin delete anyend deletebegin insert aend insert violation of this chapter alleged in a
15notice given pursuant to paragraph (1) of subdivision (d), shall,
16after the action or violation is subject either to a settlement or to
17a judgment, submit to the Attorney General a reporting form that
18includes the results of that settlement or judgment and the final
19disposition of the case, even if dismissed. At the time of the filing
20ofbegin delete anyend deletebegin insert aend insert judgment pursuant to an action brought in the public
21interest pursuant to subdivision (d), orbegin delete anyend deletebegin insert anend insert action brought by a
22private person in which a violation of this chapter is alleged, the
23plaintiff shall file an affidavit verifying that the report required by
24this subdivision has been accurately completed and submitted to
25the Attorney General.

26(2) begin deleteAny end deletebegin insertA end insertperson bringing an action in the public interest
27pursuant to subdivision (d), orbegin delete anyend deletebegin insert aend insert private person bringing an
28action in which a violation of this chapter is alleged, shall, after
29the action is either subject to a settlement, with or without court
30approval, or to a judgment, submit to the Attorney General a report
31that includes information on any corrective action being taken as
32a part of the settlement or resolution of the action.

33(3) The Attorney General shall develop a reporting form that
34specifies the information that shall be reported, including, but not
35limited to, for purposes of subdivision (e), the date the action was
36filed, the nature of the relief sought, and for purposes of this
37subdivision, the amount of the settlement or civil penalty assessed,
38other financial terms of the settlement, and any other information
39the Attorney General deems appropriate.

P5    1(4) If there is a settlement of an action brought by a person in
2the public interest under subdivision (d), the plaintiff shall submit
3the settlement, other than a voluntary dismissal in which no
4consideration is received from the defendant, to the court for
5approval upon noticed motion, and the court may approve the
6settlement only if the court makes all of the following findings:

7(A) begin deleteAny end deletebegin insertThe end insertwarning that is required by the settlement complies
8with this chapter.

9(B) begin deleteAny end deletebegin insertThe end insertaward of attorney’s fees is reasonable under
10California law.

11(C) begin deleteAny end deletebegin insertThe end insertpenalty amount is reasonable based on the criteria
12set forth in paragraph (2) of subdivision (b).

13(5) The plaintiff subject to paragraph (4) has the burden of
14producing evidence sufficient to sustain each required finding.
15The plaintiff shall serve the motion and all supporting papers on
16the Attorney General, who may appear and participate inbegin delete anyend deletebegin insert aend insert
17 proceeding without intervening in the case.

18(6) Neither this subdivision nor the procedures provided in
19subdivision (e) and subdivisions (g) to (j), inclusive,begin delete shallend delete affect
20the requirements imposed by statute or a court decision in existence
21on January 1, 2002, concerning whether claims raised bybegin delete anyend deletebegin insert aend insert
22 person or public prosecutor not a party to the action are precluded
23by a settlement approved by the court.

24(g) The Attorney General shall maintain a record of the
25information submitted pursuant to subdivisions (e) and (f) and
26shall make this information available to the public.

27(h) (1) Except as provided in paragraph (2), the basis for the
28certificate of merit required by subdivision (d) is not discoverable.
29However, nothing in this subdivisionbegin delete shall precludeend deletebegin insert precludesend insert the
30discovery of information related to the certificate of merit if that
31information is relevant to the subject matter of the action and is
32otherwise discoverable, solely on the ground that it was used in
33support of the certificate of merit.

34(2) Upon the conclusion of an action brought pursuant to
35subdivision (d) with respect tobegin delete anyend deletebegin insert aend insert defendant, if the trial court
36determines that there was no actual or threatened exposure to a
37listed chemical, the court may, upon the motion of that alleged
38violator or upon the court’s own motion, review the basis for the
39belief of the person executing the certificate of merit, expressed
40in the certificate of merit, that an exposure to a listed chemical had
P6    1occurred or was threatened. The information in the certificate of
2merit, including the identity of the persons consulted with and
3relied on by the certifier, and the facts, studies, or other data
4reviewed by those persons, shall be disclosed to the court in an
5in-camera proceeding at which the moving party shall not be
6present. If the court finds that there was no credible factual basis
7for the certifier’s belief that an exposure to a listed chemical had
8occurred or was threatened, then the action shall be deemed
9frivolous within the meaning of Section begin delete 128.6 orend delete 128.7 of the Code
10of Civil Procedure begin delete, whichever provision is applicable to the actionend delete .
11The court shall not find a factual basis credible on the basis of a
12legal theory of liability that is frivolous within the meaning of
13Sectionbegin delete 128.6 orend delete 128.7 of the Code of Civil Procedurebegin delete, whichever end delete
14begin deleteprovision is applicable to the actionend delete.

15(i) The Attorney General may provide the factual information
16submitted to establish the basis of the certificate of merit on request
17tobegin delete anyend deletebegin insert aend insert district attorney, city attorney, or prosecutor within whose
18jurisdiction the violation is alleged to have occurred, or to any
19other state or federal government agency, but in all other respects
20 the Attorney General shall maintain, and ensure that all recipients
21maintain, the submitted information as confidential official
22information to the full extent authorized in Section 1040 of the
23Evidence Code.

24(j) Inbegin delete anyend deletebegin insert anend insert action brought by the Attorney General, a district
25attorney, a city attorney, or a prosecutor pursuant to this chapter,
26the Attorney General, district attorney, city attorney, or prosecutor
27may seek and recover costs and attorney’s fees on behalf ofbegin delete anyend delete
28begin insert aend insert party who provides a notice pursuant to subdivision (d) and who
29renders assistance in that action.

begin insert

30(k) A person who receives a notice pursuant to paragraph (1)
31of subdivision (d) that alleges the person is in violation of Section
3225249.6 may, prior to the commencement of an enforcement action,
33correct the violation within 14 days after receiving that notice and
34demonstrate to the Attorney General, the city attorney, or the
35district attorney in whose jurisdiction the notice is filed that the
36violation has been corrected. An enforcement action shall not be
37commenced if the Attorney General, the city attorney, or the district
38attorney concurs that the violation has been corrected.

end insert
39

SEC. 2.  

The Legislature finds and declares that this act furthers
40the purposes of the Safe Drinking Water and Toxic Enforcement
P7    1Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
2Division 20 of the Health and Safety Code).

3

SEC. 3.  

If the Commission on State Mandates determines that
4this act contains costs mandated by the state, reimbursement to
5local agencies and school districts for those costs shall be made
6pursuant to Part 7 (commencing with Section 17500) of Division
74 of Title 2 of the Government Code.



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