Amended in Assembly April 9, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 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 amended, Gatto. Proposition 65: begin delete enforcement: chemical listing. end delete begin insert enforcement. end insert

(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 corrected end delete begin insert serve on the person that sent the notice a written statement, signed under penalty of perjury, that describes the corrective actions and to which is attached a copy of the posted warnings end insert . The bill would prohibit an enforcement action from being commenced begin insert by a person in the public interest end insert if the begin delete Attorney General, the city attorney, or the district attorney concurs that the violation has been corrected end delete begin insert person receiving the notice of alleged violation takes those actions end insert . begin delete The end delete begin insert Since the commission of perjury is a crime, end insert begin insert the end insert 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 violation end delete begin insert creating a new crime end insert .

(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.

begin delete

(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 begin 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 begin insert

(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 insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

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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) A person who violates or threatens to violate
Section 25249.5 or 25249.6 may be enjoined in any court of
competent jurisdiction.

(b) (1) A person who has violated Section 25249.5 or 25249.6
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 a district attorney, by 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 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 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, a district attorney, a city
attorney, nor a prosecutor has commenced and is diligently
prosecuting an action against the violation.

(e) A person bringing an action in the public interest pursuant
to subdivision (d) and a person filing 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, affect the requirements
imposed by statute or a court decision in existence on January 1,
2002, concerning whether a person filing an action in which a
violation of this chapter is alleged is required to comply with the
requirements of subdivision (d).

(f) (1) A person filing an action in the public interest pursuant
to subdivision (d), a private person filing an action in which a
violation of this chapter is alleged, or a private person settling 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 a judgment pursuant to
an action brought in the public interest pursuant to subdivision (d),
or 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) A person bringing an action in the public interest pursuant
to subdivision (d), or 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) The warning that is required by the settlement complies
with this chapter.

(B) The award of attorney’s fees is reasonable under California
law.

(C) 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 a
proceeding without intervening in the case.

(6) Neither this subdivision nor the procedures provided in
subdivision (e) and subdivisions (g) to (j), inclusive, affect the
requirements imposed by statute or a court decision in existence
on January 1, 2002, concerning whether claims raised by 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 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 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 128.7 of the Code of Civil
Procedure. 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 128.7 of the Code of Civil Procedure.

(i) The Attorney General may provide the factual information
submitted to establish the basis of the certificate of merit on request
to 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 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 a party
who provides a notice pursuant to subdivision (d) and who renders
assistance in that action.

(k)  begin insert (1) end insert begin insert   end insert 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, begin delete correct end delete begin insert do both of the following: end insert

begin insert (A) end insert begin insert   end insert begin insert Correct end insert the violation within 14 days after receiving that
begin delete 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. end delete
begin insert notice. end insert

begin insert (B) end insert begin insert   end insert begin insert Serve on the person that sent the notice a written statement,
signed under penalty of perjury, that fully describes the corrective
actions taken and to which is attached a true and correct copy of
any posted warnings. end insert

begin insert (2) end insert begin insert   end insert begin insert An enforcement action shall not be commenced by a person
in the public interest pursuant to subdivision (d) if the person
receiving the notice alleging the violation complies with
subparagraphs (A) and (B) of paragraph (1). end insert

begin insert

(3) This subdivision shall not prevent the Attorney General, a
district attorney, a city attorney, or a prosecutor in whose
jurisdiction the violation is alleged to have occurred from filing
an action pursuant to subdivision (c) against an alleged violator.

end insert

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).

begin delete

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.

end delete

begin insert

begin insert SEC. 3. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert