as amended, Gatto. Proposition 65:
begin delete enforcement: chemical listing.end delete
(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
begin delete demonstrate to the Attorney General, the city attorney, or the district attorney in whose jurisdiction the notice is filed that the violation has been correctedend delete. The bill would prohibit an enforcement
action from being commenced if the begin delete Attorney General, the city attorney, or the district attorney concurs that the violation has been correctedend delete. begin delete Theend delete bill would impose a state-mandated local program by begin delete imposing new duties upon local agencies with regard to concurring in that correction of a violationend delete.
(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.end delete
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.end delete
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 25249.7 of the Health and Safety Code
2 is amended to read:
(a) A person who violates or threatens to violate
2Section 25249.5 or 25249.6 may be enjoined in any court of
4(b) (1) A person who has violated Section 25249.5 or 25249.6
5is liable for a civil penalty not to exceed two thousand five hundred
6dollars ($2,500) per day for each violation in addition to any other
7penalty established by law. That civil penalty may be assessed and
8recovered in a civil action brought in any court of competent
10(2) In assessing the amount of a civil penalty for a violation of
11this chapter, the court shall consider all of the following:
12(A) The nature and extent of the violation.
13(B) The number of, and severity of, the violations.
14(C) The economic effect of the penalty on the violator.
15(D) Whether the violator took good faith measures to comply
16with this chapter and the time these measures were taken.
17(E) The willfulness of the violator’s misconduct.
18(F) The deterrent effect that the imposition of the penalty would
19have on both the violator and the regulated community as a whole.
20(G) Any other factor that justice may require.
21(c) Actions pursuant to this section may be brought by the
22Attorney General in the name of the people of the State of
23California, by a district attorney, by a city attorney of a city having
24a population in excess of 750,000, or, with the consent of the
25district attorney, by a city prosecutor in a city or city and county
26having a full-time city prosecutor, or as provided in subdivision
28(d) Actions pursuant to this section may be brought by a person
29in the public interest if both of the following requirements are met:
30(1) The private action is commenced more than 60 days from
31the date that the person has given notice of an alleged violation of
32Section 25249.5 or 25249.6 that is the subject of the private action
33to the Attorney General and the district attorney, city attorney, or
34prosecutor in whose jurisdiction the violation is alleged to have
35occurred, and to the alleged violator. If the notice alleges a
36violation of Section 25249.6, the notice of the alleged violation
37shall include a certificate of merit executed by the attorney for the
38noticing party, or by the noticing party, if the noticing party is not
39represented by an attorney. The certificate of merit shall state that
40the person executing the certificate has consulted with one or more
P4 1persons with relevant and appropriate experience or expertise who
2has reviewed facts, studies, or other data regarding the exposure
3to the listed chemical that is the subject of the action, and that,
4based on that information, the person executing the certificate
5believes there is a reasonable and meritorious case for the private
6action. Factual information sufficient to establish the basis of the
7certificate of merit, including the information identified in
8paragraph (2) of subdivision (h), shall be attached to the certificate
9of merit that is served on the Attorney General.
10(2) Neither the Attorney General, a district attorney, a city
11attorney, nor a prosecutor has commenced and is diligently
12prosecuting an action against the violation.
13(e) A person bringing an action in the public interest pursuant
14to subdivision (d) and a person filing an action in which a violation
15of this chapter is alleged shall notify the Attorney General that the
16action has been filed. Neither this subdivision nor the procedures
17provided in subdivisions (f) to (j), inclusive, affect the requirements
18imposed by statute or a court decision in existence on January 1,
192002, concerning whether a person filing an action in which a
20violation of this chapter is alleged is required to comply with the
21requirements of subdivision (d).
22(f) (1) A person filing an action in the public interest pursuant
23to subdivision (d), a private person filing an action in which a
24violation of this chapter is alleged, or a private person settling a
25violation of this chapter alleged in a notice given pursuant to
26paragraph (1) of subdivision (d), shall, after the action or violation
27is subject either to a settlement or to a judgment, submit to the
28Attorney General a reporting form that includes the results of that
29settlement or judgment and the final disposition of the case, even
30if dismissed. At the time of the filing of a judgment pursuant to
31an action brought in the public interest pursuant to subdivision (d),
32or an action brought by a private person in which a violation of
33this chapter is alleged, the plaintiff shall file an affidavit verifying
34that the report required by this subdivision has been accurately
35completed and submitted to the Attorney General.
36(2) A person bringing an action in the public interest pursuant
37to subdivision (d), or a private person bringing an action in which
38a violation of this chapter is alleged, shall, after the action is either
39subject to a settlement, with or without court approval, or to a
40judgment, submit to the Attorney General a report that includes
P5 1information on any corrective action being taken as a part of the
2settlement or resolution of the action.
3(3) The Attorney General shall develop a reporting form that
4specifies the information that shall be reported, including, but not
5limited to, for purposes of subdivision (e), the date the action was
6filed, the nature of the relief sought, and for purposes of this
7subdivision, the amount of the settlement or civil penalty assessed,
8other financial terms of the settlement, and any other information
9the Attorney General deems appropriate.
10(4) If there is a settlement of an action brought by a person in
11the public interest under subdivision (d), the plaintiff shall submit
12the settlement, other than a voluntary dismissal in which no
13consideration is received from the defendant, to the court for
14approval upon noticed motion, and the court may approve the
15settlement only if the court makes all of the following findings:
16(A) The warning that is required by the
17with this chapter.
18(B) The award of attorney’s fees is reasonable under California
20(C) The penalty amount is reasonable based on the criteria set
21forth in paragraph (2) of subdivision (b).
22(5) The plaintiff subject to paragraph (4) has the burden of
23producing evidence sufficient to sustain each required finding.
24The plaintiff shall serve the motion and all supporting papers on
25the Attorney General, who may appear and participate in a
26proceeding without intervening in the case.
27(6) Neither this subdivision nor the procedures provided in
28subdivision (e) and subdivisions (g) to (j), inclusive, affect the
29requirements imposed by statute or a court decision in existence
30on January 1, 2002, concerning whether claims raised by a person
31or public prosecutor not a party to the action are precluded by a
32settlement approved by the court.
33(g) The Attorney General shall maintain a record of the
34information submitted pursuant to subdivisions (e) and (f) and
35shall make this information available to the public.
36(h) (1) Except as provided in paragraph (2), the basis for the
37certificate of merit required by subdivision (d) is not discoverable.
38However, nothing in this subdivision precludes the discovery of
39information related to the certificate of merit if that information
40is relevant to the subject matter of the action and is otherwise
P6 1discoverable, solely on the ground that it was used in support of
2the certificate of merit.
3(2) Upon the conclusion of an action brought pursuant to
4subdivision (d) with respect to a defendant, if the trial court
5determines that there was no actual or threatened exposure to a
6listed chemical, the court may, upon the motion of that alleged
7violator or upon the court’s own motion, review the basis for the
8belief of the person executing the certificate of merit, expressed
9in the certificate of merit, that an exposure to a listed chemical had
10occurred or was threatened. The information in the certificate of
11merit, including the identity of the persons consulted with and
12relied on by the certifier, and the facts, studies, or other data
13reviewed by those persons, shall be disclosed to the court in an
14in-camera proceeding at which the moving party shall not be
15present. If the court finds that there was no credible factual basis
16for the certifier’s belief that an exposure to a listed chemical had
17occurred or was threatened, then the action shall be deemed
18frivolous within the meaning of Section 128.7 of the Code of Civil
19Procedure. The court shall not find a factual basis credible on the
20basis of a legal theory of liability that is frivolous within the
21meaning of Section 128.7 of the Code of Civil Procedure.
22(i) The Attorney General may provide the factual information
23submitted to establish the basis of the certificate of merit on request
24to a district attorney, city attorney, or prosecutor within whose
25jurisdiction the violation is alleged to have occurred, or to any
26other state or federal government agency, but in all other respects
27 the Attorney General shall maintain, and ensure that all recipients
28maintain, the submitted information as confidential official
29information to the full extent authorized in Section 1040 of the
31(j) In an action brought by the Attorney General, a district
32attorney, a city attorney, or a prosecutor pursuant to this chapter,
33the Attorney General, district attorney, city attorney, or prosecutor
34may seek and recover costs and attorney’s fees on behalf of a party
35who provides a notice pursuant to subdivision (d) and who renders
36assistance in that action.
person who receives a notice pursuant to paragraph
38(1) of subdivision (d) that alleges the person is in violation of
39Section 25249.6 may, prior to the commencement of an
begin delete correctend delete
P7 1 the violation within 14 days after receiving that
begin delete notice and demonstrate to the Attorney General, the city attorney,
3or the district attorney in whose jurisdiction the notice is filed that
4the violation has been corrected. An enforcement action shall not
5be commenced if the Attorney General, the city attorney, or the
6district attorney concurs that the violation has been corrected.end delete
The Legislature finds and declares that this act furthers
21the purposes of the Safe Drinking Water and Toxic Enforcement
22Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
23Division 20 of the Health and Safety Code).
If the Commission on State Mandates determines that
25this act contains costs mandated by the state, reimbursement to
26local agencies and school districts for those costs shall be made
27pursuant to Part 7 (commencing with Section 17500) of Division
284 of Title 2 of the Government Code.