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 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. 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 provisionsend 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 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) Any person who serves a notice of alleged violation pursuant
4to paragraph (1) of subdivision (d) for an exposure identified in
5subparagraph (A),(B), or (C) of paragraph (1) of this subdivision
6shall not file an action for that exposure against the alleged violator,
7or recover from the alleged violator in a settlement any payment
8in lieu of penalties or any reimbursement for costs and attorney’s
9fees, if all of the following conditions have been met:
10(1) The notice given pursuant to paragraph (1) of subdivision
11(d) was served on or after the effective date of the statute adding
12this paragraph and alleges that the alleged violator failed to provide
13clear and reasonable warning as required under Section 25249.6
14regarding one or more of the following, and no other violation:
15(A) An exposure to alcoholic
begin delete beverages, or toend delete
18 a chemical known to the state to cause cancer
19or reproductive toxicity to the extent the chemical is formed
begin delete on by necessary preparation of food
20the alleged violator’s premisesend delete
21or beverages which are sold on the alleged violator’s premises for
24 An exposure to environmental tobacco smoke caused by
25 entry of persons (other than employees) on premises owned or
26operated by the alleged violator where smoking is permitted at any
27location on the premises.
29 An exposure to chemicals known to the state to cause cancer
30or reproductive toxicity in engine exhaust, to the extent the
31exposure occurs inside a facility owned or operated by the alleged
32violator and primarily intended for parking noncommercial
34(2) Within 14 days after service of the notice, the alleged violator
35has done all of the following:
36(A) Corrected the alleged violation.
begin deletePaid end deletea civil penalty for the alleged violation
38of Section 25496.6 in the amount of five hundred dollars ($500),
39to be adjusted
begin delete annuallyend delete to reflect any increases in
40the cost of living in California, as indicated by the annual average
P8 1of the California Consumer Price Index, per facility or premises
2where the alleged violation occurred, of which 75 percent shall be
3deposited in the Safe Drinking Water and Toxic Enforcement
4Fund, and 25 percent shall be paid to the person that served the
5notice as provided in Section 25249.12.
begin deleteServed on end deletethe person that served the
begin deletea written statement, signed under penalty of perjury, that .
8fully describes the actions taken to correct the alleged violation
9and attaches a true and correct copy of any warning provided as
10part of such actionsend delete
15(3) The alleged violator has not been served with a notice under
16paragraph (1) of subdivision (d) for an exposure identified in
17subparagraph (A), (B), or (C) of paragraph (1) of this subdivision
18within the previous five years for failure to provide clear and
19reasonable warning about the same exposure in the same facility
20or on the same premises.
27(l) Any notice subject to subdivision (k) shall prominently
begin delete a clear and reasonable description of the terms of
29subdivision (k). The lead agency may prescribe specific language
30for inclusion in the notice that meets this requirement.end delete
3(m) In the event of a dispute over whether an action brought
4pursuant to subdivision (d) is barred by subdivision (k), the alleged
5violator shall bear the burden of proving the applicability of
6subdivision (k) and its compliance with all requirements of
7paragraph (2) of subdivision (k). Upon the conclusion of an action
8brought pursuant to subdivision (d), if the trial court determines
9that the alleged violator has prevailed on the affirmative defense
10under subdivision (k), the court may, upon motion of that alleged
11violator or upon the court’s own motion, review the basis for the
12belief of the plaintiff that the action was not precluded by
13subdivision (k). If the court finds that there was no credible factual
14basis for the plaintiff’s belief that the action was not precluded by
15subdivision (k), then the action shall be deemed a violation of
16subdivision (b) of Section 128.7 of the Code of Civil Procedure.
17The court shall not find a factual basis credible if it is based on a
18legal theory of liability that is frivolous within the meaning of
19Section 128.5 of the Code of Civil Procedure.
23(n) Nothing in subdivision (k) shall prevent the Attorney
24General, a district attorney, a city attorney, or a prosecutor in whose
25jurisdiction the violation is alleged to have occurred from filing
26an action pursuant to subdivision (c) against an alleged violator.
27In any such action, the amount of any civil penalty for a violation
28shall be reduced to reflect any payment made by the alleged
29violator for the same alleged violation pursuant to subparagraph
30(B) of paragraph (2) of subdivision (k).
The Legislature finds and declares that this enactment
32furthers the purposes of the Safe Drinking Water and Toxic
33Enforcement Act of 1986 (Chapter 6.6 (commencing with Section
3425249.5) of Division 20 of the Health and Safety Code).
Specifically, the Legislature finds and declares that
36subdivision (k) of Section 25249.7 is necessary to further the
37purposes of Section 25249.6 of the Health and Safety Code, in
38terms of speed of compliance and reasonableness as contemplated
39by that section. To ensure prompt compliance with the Safe
40Drinking Water and Toxic Enforcement Act of 1986 (Chapter 6.6
P10 1(commencing with Section 25249.5) of Division 20 of the Health
2and Safety Code), paragraph (2) of subdivision (k) of Section
325249.7 of the Health and Safety Code shall be independent and
4severable from the rest of this enactment.
The Legislature further finds and declares that
6subdivisions (k) to (m), inclusive, of Section 25249.7 of the Health
7and Safety Code are necessary to further the purposes of the intent
8of fairness contemplated by the Safe Drinking Water and Toxic
9Enforcement Act of 1986 (Chapter 6.6 (commencing with Section
1025249.5) of Division 20 of the Health and Safety Code), as evinced
11by the fairness factors outlined in Section 25249.10 of the Health
12and Safety Code.
This act is an urgency statute necessary for the
14immediate preservation of the public peace, health, or safety within
15the meaning of Article IV of the Constitution and shall go into
16immediate effect. The facts constituting the necessity are:
17In order to avoid unnecessary litigation and to facilitate
18compliance with the Safe Drinking Water and Toxic Enforcement
19Act of 1986, it is necessary that this act take effect immediately.
No reimbursement is required by this act pursuant to
21Section 6 of Article XIII B of the California Constitution because
22the only costs that may be incurred by a local agency or school
23district will be incurred because this act creates a new crime or
24infraction, eliminates a crime or infraction, or changes the penalty
25for a crime or infraction, within the meaning of Section 17556 of
26the Government Code, or changes the definition of a crime within
27the meaning of Section 6 of Article XIII B of the California