Amended in Senate June 19, 2013

Amended in Assembly May 8, 2013

Amended in Assembly April 9, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 227

Introduced by Assembly Member Gatto

( begin delete Coauthor: Assembly Member end delete begin insert Coauthors: Assembly Members Alejo, Hagman, Logue, and end insert Muratsuchi)

February 4, 2013

An act to amend Section 25249.7 of the Health and Safety Code, relating to toxic substances, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

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 of not more than $2,500 per day 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 prohibit an enforcement action from being filed by a person in the public interest, and would prohibit the recovery of certain payments or reimbursements, if the notice to the alleged violator alleges a failure to provide a clear and reasonable warning for certain specified exposures begin insert , including a notification that an alleged violator may not be liable if the business has fewer than 10 employees, end insert and, within 14 days after receiving the notice, the alleged violator corrects the alleged violation, pays a civil penalty in the amount of $500 per facility or premises, and serves on the person who sent the notice a specified written statement, signed under penalty of perjury begin insert , subject to the limitation that the alleged violator may correct the violation, pay the civil penalty, and serve a correction notice on the person who served notice of the violation only one time for a violation arising from the same exposure in the same facility or on the same premises end insert . Since the commission of perjury is a crime, the bill would impose a state-mandated local program by creating a new crime.

The bill would require a person who brings an action in the public interest and serves a notice of an alleged violation for those exposures to include certain information in the notice begin delete and would provide, if there is a dispute over whether an action is prohibited under the provisions added by the bill, that the alleged violator bears the burden of proving the applicability of those provisions end 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 and would make other findings regarding the purposes of the bill. The bill would declare that a specified provision of the bill is independent and severable from the other changes made by this bill.

(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.

(4) This bill would declare that it is to take effect immediately as an urgency statute.

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) Any person who serves a notice of alleged violation pursuant
to paragraph (1) of subdivision (d) for an exposure identified in
subparagraph (A),(B), or (C) of paragraph (1) of this subdivision
shall not file an action for that exposure against the alleged violator,
or recover from the alleged violator in a settlement any payment
in lieu of penalties or any reimbursement for costs and attorney’s
fees, if all of the following conditions have been met:

(1) The notice given pursuant to paragraph (1) of subdivision
(d) was served on or after the effective date of the statute adding
this paragraph and alleges that the alleged violator failed to provide
clear and reasonable warning as required under Section 25249.6
regarding one or more of the following, and no other violation:

(A) An exposure to alcoholic begin delete beverages, or to end delete begin insert beverages that
are consumed on the alleged violator’s premises to the extent
on-site consumption is permitted by law. end insert

begin insert (B) end insert begin insert   end insert begin insert An exposure to end insert a chemical known to the state to cause cancer
or reproductive toxicity to the extent the chemical is formed begin delete on
the alleged violator’s premises end delete by necessary preparation of food
or beverages which are sold on the alleged violator’s premises for
immediate consumption begin insert on or off the premises end insert .

begin delete

(B)

end delete

begin insert (C) end insert  An exposure to environmental tobacco smoke caused by
entry of persons (other than employees) on premises owned or
operated by the alleged violator where smoking is permitted at any
location on the premises.

begin delete

(C)

end delete

begin insert (D) end insert  An exposure to chemicals known to the state to cause cancer
or reproductive toxicity in engine exhaust, to the extent the
exposure occurs inside a facility owned or operated by the alleged
violator and primarily intended for parking noncommercial
vehicles.

(2) Within 14 days after service of the notice, the alleged violator
has done all of the following:

(A) Corrected the alleged violation.

(B)  begin delete Paid end delete begin insert Agreed to pay end insert a civil penalty for the alleged violation
of Section 25496.6 in the amount of five hundred dollars ($500),
to be adjusted begin delete annually end delete begin insert every 5 years end insert to reflect any increases in
the cost of living in California, as indicated by the annual average
of the California Consumer Price Index, per facility or premises
where the alleged violation occurred, of which 75 percent shall be
deposited in the Safe Drinking Water and Toxic Enforcement
Fund, and 25 percent shall be paid to the person that served the
notice as provided in Section 25249.12.

(C)  begin delete Served on end delete begin insert Notified, in writing, end insert the person that served the
notice begin delete a written statement, signed under penalty of perjury, that
fully describes the actions taken to correct the alleged violation
and attaches a true and correct copy of any warning provided as
part of such actions end delete begin insert of the alleged violation, that the violation has
been corrected. The written notice shall include the notice of
compliance approved by the Judicial Council pursuant to
paragraph (2) of subdivision (l) and a photograph or photocopy
of the true and correct warning end insert .

begin delete

(3) The alleged violator has not been served with a notice under
paragraph (1) of subdivision (d) for an exposure identified in
subparagraph (A), (B), or (C) of paragraph (1) of this subdivision
within the previous five years for failure to provide clear and
reasonable warning about the same exposure in the same facility
or on the same premises.

end delete begin insert

(3) The alleged violator shall deliver the civil penalty to the
person that served the notice of the alleged violation within 30
days of receipt of that notice, and the person that served the notice
of violation shall remit the portion of the penalty due to the Safe
Drinking Water and Toxic Enforcement Fund within 30 days of
receipt of the funds from the alleged violator.

end insert

(l) Any notice subject to subdivision (k) shall prominently
include begin delete a clear and reasonable description of the terms of
subdivision (k). The lead agency may prescribe specific language
for inclusion in the notice that meets this requirement. end delete begin insert both of the
following: end insert

begin insert

(1) A clear and reasonable description of the terms of
subdivision (k), including a notification that an alleged violator
may not be liable if the business has fewer than 10 employees. The
lead agency may prescribe specific language for inclusion in the
notice that meets this requirement.

end insert begin insert

(2) A notice of compliance, approved by the Judicial Council,
that includes the following statement: “I hereby swear, under
penalty of perjury, that I have received a notice of violation of
Section 25249.6 and have taken the following steps to comply with
Section 25249.7.”

end insert begin delete

(m) In the event of a dispute over whether an action brought
pursuant to subdivision (d) is barred by subdivision (k), the alleged
violator shall bear the burden of proving the applicability of
subdivision (k) and its compliance with all requirements of
paragraph (2) of subdivision (k). Upon the conclusion of an action
brought pursuant to subdivision (d), if the trial court determines
that the alleged violator has prevailed on the affirmative defense
under subdivision (k), the court may, upon motion of that alleged
violator or upon the court’s own motion, review the basis for the
belief of the plaintiff that the action was not precluded by
subdivision (k). If the court finds that there was no credible factual
basis for the plaintiff’s belief that the action was not precluded by
subdivision (k), then the action shall be deemed a violation of
subdivision (b) of Section 128.7 of the Code of Civil Procedure.
The court shall not find a factual basis credible if it is based on a
legal theory of liability that is frivolous within the meaning of
Section 128.5 of the Code of Civil Procedure.

end delete begin insert

(m) An alleged violator my satisfy the conditions set forth in
subdivision (k) only one time for a violation arising from the same
exposure in the same facility or on the same premises.

end insert

(n) Nothing in subdivision (k) shall 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.
In any such action, the amount of any civil penalty for a violation
shall be reduced to reflect any payment made by the alleged
violator for the same alleged violation pursuant to subparagraph
(B) of paragraph (2) of subdivision (k).

SEC. 2.  

The Legislature finds and declares that this enactment
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.  

Specifically, the Legislature finds and declares that
subdivision (k) of Section 25249.7 is necessary to further the
purposes of Section 25249.6 of the Health and Safety Code, in
terms of speed of compliance and reasonableness as contemplated
by that section. To ensure prompt compliance with 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), paragraph (2) of subdivision (k) of Section
25249.7 of the Health and Safety Code shall be independent and
severable from the rest of this enactment.

SEC. 4.  

The Legislature further finds and declares that
subdivisions (k) to (m), inclusive, of Section 25249.7 of the Health
and Safety Code are necessary to further the purposes of the intent
of fairness contemplated by 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), as evinced
by the fairness factors outlined in Section 25249.10 of the Health
and Safety Code.

SEC. 5.  

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

In order to avoid unnecessary litigation and to facilitate
compliance with the Safe Drinking Water and Toxic Enforcement
Act of 1986, it is necessary that this act take effect immediately.

SEC. 6.  

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.