AB 227, as amended, Gatto. Proposition 65: enforcement.
(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
begin delete 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 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. The bill wouldend delete prohibit an enforcement action from being begin delete commencedend delete by a person in the public interest if the begin delete person receiving the notice of alleged violation takes those actionsend delete. Since the commission of perjury is a crime, the bill would impose a state-mandated local program
by creating a new crime.
(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 no reimbursement is required by this act for a specified reason.
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
4Section 25249.5 or 25249.6 may be enjoined in any court of
6(b) (1) A person who has violated Section 25249.5 or 25249.6
7is liable for a civil penalty not to exceed two thousand five hundred
8dollars ($2,500) per day for each violation in addition to any other
9penalty established by law. That civil penalty may be assessed and
10recovered in a civil action brought in any court of competent
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.
17(D) Whether the violator took good faith measures to comply
18with this chapter and the time these measures were taken.
19(E) The willfulness of the violator’s misconduct.
20(F) The deterrent effect that the imposition of the penalty would
21have on both the violator and the regulated community as a whole.
22(G) Any other factor that justice may require.
23(c) Actions pursuant to this section may be brought by the
24Attorney General in the name of the people of the State of
25California, by a district attorney, by a city attorney of a city having
26a population in excess of 750,000, or, with the consent of the
27district attorney, by a city prosecutor in a city or city and county
28having a full-time city prosecutor, or as provided in subdivision
30(d) Actions pursuant to this section may be brought by a person
31in the public interest if both of the following requirements are met:
32(1) The private action is commenced more than 60 days from
33the date that the person has given notice of an alleged violation of
34Section 25249.5 or 25249.6 that is the subject of the private action
35to the Attorney General and the district attorney, city attorney, or
36prosecutor in whose jurisdiction the violation is alleged to have
37occurred, and to the alleged violator. If the notice alleges a
38violation of Section 25249.6, the notice of the alleged violation
P4 1shall include a certificate of merit executed by the attorney for the
2noticing party, or by the noticing party, if the noticing party is not
3represented by an attorney. The certificate of merit shall state that
4the person executing the certificate has consulted with one or more
5persons with relevant and appropriate experience or expertise who
6has reviewed facts, studies, or other data regarding the exposure
7to the listed chemical that is the subject of the action, and that,
8based on that information, the person executing the certificate
9believes there is a reasonable and meritorious case for the private
10action. Factual information sufficient to establish the basis of the
11certificate of merit, including the information identified in
12paragraph (2) of subdivision (h), shall be attached to the certificate
13of merit that is served on the Attorney General.
14(2) Neither the Attorney General, a district attorney, a city
15attorney, nor a prosecutor has commenced and is diligently
16prosecuting an action against the violation.
17(e) A person bringing an action in the public interest pursuant
18to subdivision (d) and a person filing an action in which a violation
19of this chapter is alleged shall notify the Attorney General that the
20action has been filed. Neither this subdivision nor the procedures
21provided in subdivisions (f) to (j), inclusive, affect the requirements
22imposed by statute or a court decision in existence on January 1,
232002, concerning whether a person filing an action in which a
24violation of this chapter is alleged is required to comply with the
25requirements of subdivision (d).
26(f) (1) A person filing an action in the public interest pursuant
27to subdivision (d), a private person filing an action in which a
28violation of this chapter is alleged, or a private person settling a
29violation of this chapter alleged in a notice given pursuant to
30paragraph (1) of subdivision (d), shall, after the action or violation
31is subject either to a settlement or to a judgment, submit to the
32Attorney General a reporting form that includes the results of that
33settlement or judgment and the final disposition of the case, even
34if dismissed. At the time of the filing of a judgment pursuant to
35an action brought in the public interest pursuant to subdivision (d),
36or an action brought by a private person in which a violation of
37this chapter is alleged, the plaintiff shall file an affidavit verifying
38that the report required by this subdivision has been accurately
39completed and submitted to the Attorney General.
P5 1(2) A person bringing an action in the public interest pursuant
2to subdivision (d), or a private person bringing an action in which
3a violation of this chapter is alleged, shall, after the action is either
4subject to a settlement, with or without court approval, or to a
5judgment, submit to the Attorney General a report that includes
6information on any corrective action being taken as a part of the
7settlement or resolution of the action.
8(3) The Attorney General shall develop a reporting form that
9specifies the information that shall be reported, including, but not
10limited to, for purposes of subdivision (e), the date the action was
11filed, the nature of the relief sought, and for purposes of this
12subdivision, the amount of the settlement or civil penalty assessed,
13other financial terms of the settlement, and any other information
14the Attorney General deems appropriate.
15(4) If there is a settlement of an action brought by a person in
16the public interest under subdivision (d), the plaintiff shall submit
17the settlement, other than a voluntary dismissal in which no
18consideration is received from the defendant, to the court for
19approval upon noticed motion, and the court may approve the
20settlement only if the court makes all of the following findings:
21(A) The warning that is required by the
22with this chapter.
23(B) The award of attorney’s fees is reasonable under California
25(C) The penalty amount is reasonable based on the criteria set
26forth in paragraph (2) of subdivision (b).
27(5) The plaintiff subject to paragraph (4) has the burden of
28producing evidence sufficient to sustain each required finding.
29The plaintiff shall serve the motion and all supporting papers on
30the Attorney General, who may appear and participate in a
31proceeding without intervening in the case.
32(6) Neither this subdivision nor the procedures provided in
33subdivision (e) and subdivisions (g) to (j), inclusive, affect the
34requirements imposed by statute or a court decision in existence
35on January 1, 2002, concerning whether claims raised by a person
36or public prosecutor not a party to the action are precluded by a
37settlement approved by the court.
38(g) The Attorney General shall maintain a record of the
39information submitted pursuant to subdivisions (e) and (f) and
40shall make this information available to the public.
P6 1(h) (1) Except as provided in paragraph (2), the basis for the
2certificate of merit required by subdivision (d) is not discoverable.
3However, nothing in this subdivision precludes the discovery of
4information related to the certificate of merit if that information
5is relevant to the subject matter of the action and is otherwise
6discoverable, solely on the ground that it was used in support of
7the certificate of merit.
8(2) Upon the conclusion of an action brought pursuant to
9subdivision (d) with respect to a defendant, if the trial court
10determines that there was no actual or threatened exposure to a
11listed chemical, the court may, upon the motion of that alleged
12violator or upon the court’s own motion, review the basis for the
13belief of the person executing the certificate of merit, expressed
14in the certificate of merit, that an exposure to a listed chemical had
15occurred or was threatened. The information in the certificate of
16merit, including the identity of the persons consulted with and
17relied on by the certifier, and the facts, studies, or other data
18reviewed by those persons, shall be disclosed to the court in an
19in-camera proceeding at which the moving party shall not be
20present. If the court finds that there was no credible factual basis
21for the certifier’s belief that an exposure to a listed chemical had
22occurred or was threatened, then the action shall be deemed
23frivolous within the meaning of Section 128.7 of the Code of Civil
24Procedure. The court shall not find a factual basis credible on the
25basis of a legal theory of liability that is frivolous within the
26meaning of Section 128.7 of the Code of Civil Procedure.
27(i) The Attorney General may provide the factual information
28submitted to establish the basis of the certificate of merit on request
29to a district attorney, city attorney, or prosecutor within whose
30jurisdiction the violation is alleged to have occurred, or to any
31other state or federal government agency, but in all other respects
32 the Attorney General shall maintain, and ensure that all recipients
33maintain, the submitted information as confidential official
34information to the full extent authorized in Section 1040 of the
36(j) In an action brought by the Attorney General, a district
37attorney, a city attorney, or a prosecutor pursuant to this chapter,
38the Attorney General, district attorney, city attorney, or prosecutor
39may seek and recover costs and attorney’s fees on behalf of a party
P7 1who provides a notice pursuant to subdivision (d) and who renders
2assistance in that action.
3(k) (1) A
person who receives a notice pursuant to paragraph
4(1) of subdivision (d) that alleges the person is in violation of
5Section 25249.6 may, prior to the commencement of an
6enforcement action, do both of the following:
7(A) Correct the violation within 14 days after receiving that
9(B) Serve on the person that sent the notice a written statement,
10signed under penalty of perjury, that fully describes the corrective
11actions taken and to which is attached a true and correct copy of
12any posted warnings.
13(2) An enforcement action shall not be commenced by a person
14in the public interest pursuant to subdivision (d) if the person
15receiving the notice alleging the violation complies with
16 subparagraphs (A) and (B) of paragraph (1).
17 (3) This subdivision shall not prevent the Attorney General, a
18district attorney, a city attorney, or a prosecutor in whose
19jurisdiction the violation is alleged to have occurred from filing
20an action pursuant to subdivision (c) against an alleged violator.
The Legislature finds and declares that this act furthers
20the purposes of the Safe Drinking Water and Toxic Enforcement
21Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
22Division 20 of the Health and Safety Code).
No reimbursement is required by this act pursuant to
14Section 6 of Article XIII B of the California Constitution because
15the only costs that may be incurred by a local agency or school
16district will be incurred because this act creates a new crime or
17infraction, eliminates a crime or infraction, or changes the penalty
18for a crime or infraction, within the meaning of Section 17556 of
19the Government Code, or changes the definition of a crime within
20the meaning of Section 6 of Article XIII B of the California