BILL NUMBER: AB 227	INTRODUCED
	BILL TEXT


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 2/3 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: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


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   A  person 
that   who  violates or threatens to violate
Section 25249.5 or 25249.6 may be enjoined in any court of competent
jurisdiction.
   (b) (1)  Any   A  person who has
violated Section 25249.5 or 25249.6  shall be  
is  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   a  district attorney,
by  any   a  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 
 a  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   a  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   a
 district attorney,  any   a  city
attorney, nor  any   a  prosecutor has
commenced and is diligently prosecuting an action against the
violation.
   (e)  Any   A  person bringing an action
in the public interest pursuant to subdivision (d) and  any
  a  person filing  any   an
 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 January 1,
2002, concerning whether  any   a  person
filing  any   an  action in which a
violation of this chapter is alleged is required to comply with the
requirements of subdivision (d).
   (f) (1)  Any   A  person filing an
action in the public interest pursuant to subdivision (d), 
any   a  private person filing  any
  an  action in which a violation of this chapter
is alleged, or  any   a  private person
settling  any   a  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   a
 judgment pursuant to an action brought in the public interest
pursuant to subdivision (d), or  any   an 
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   A    person bringing
an action in the public interest pursuant to subdivision (d), or
 any   a  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   The  warning that is required
by the settlement complies with this chapter.
   (B)  Any   The  award of attorney's fees
is reasonable under California law.
   (C)  Any   The  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
  a  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 January 1, 2002, concerning whether claims
raised by  any   a  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
  precludes  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   a 
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 
128.6 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
 128.6 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   a  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   an  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   a 
party who provides a notice pursuant to subdivision (d) and who
renders assistance in that action. 
   (k) A person who receives a notice pursuant to paragraph (1) of
subdivision (d) that alleges the person is in violation of Section
25249.6 may, prior to the commencement of an enforcement action,
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. An enforcement action shall not be
commenced if the Attorney General, the city attorney, or the district
attorney concurs that the violation has been corrected. 
  SEC. 2.  The Legislature finds and declares that this act furthers
the purposes of the Safe Drinking Water and Toxic Enforcement Act of
1986 (Chapter 6.6 (commencing with Section 25249.5) of Division 20 of
the Health and Safety Code).
  SEC. 3.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.