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, including a notification that an alleged violator may not be liable if the business has fewer than 10 employees, 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, 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. 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.
(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
P4 1prosecutor in whose jurisdiction the violation is alleged to have
2occurred, and to the alleged violator. If the notice alleges a
3violation of Section 25249.6, the notice of the alleged violation
4shall include a certificate of merit executed by the attorney for the
5noticing party, or by the noticing party, if the noticing party is not
6represented by an attorney. The certificate of merit shall state that
7the person executing the certificate has consulted with one or more
8persons with relevant and appropriate experience or expertise who
9has reviewed facts, studies, or other data regarding the exposure
10to the listed chemical that is the subject of the action, and that,
11based on that information, the person executing the certificate
12believes there is a reasonable and meritorious case for the private
13action. Factual information sufficient to establish the basis of the
14certificate of merit, including the information identified in
15paragraph (2) of subdivision (h), shall be attached to the certificate
16of merit that is served on the Attorney General.
17(2) Neither the Attorney General, a district attorney, a city
18attorney, nor a prosecutor has commenced and is diligently
19prosecuting an action against the violation.
20(e) A person bringing an action in the public interest pursuant
21to subdivision (d) and a person filing an action in which a violation
22of this chapter is alleged shall notify the Attorney General that the
23action has been filed. Neither this subdivision nor the procedures
24provided in subdivisions (f) to
begin delete (j),end delete inclusive, affect the
25requirements imposed by statute or a court decision in existence
26on January 1, 2002, concerning whether a person filing an action
27in which a violation of this chapter is alleged is required to comply
28with the requirements of subdivision (d).
29(f) (1) A person filing an action in the public interest pursuant
30to subdivision (d), a private person filing an action in which a
31violation of this chapter is alleged, or a private person settling a
32violation of this chapter alleged in a notice given pursuant to
33paragraph (1) of subdivision (d), shall, after the action or violation
34is subject either to a settlement or to a judgment, submit to the
35Attorney General a reporting form that includes the results of that
36settlement or judgment and the final disposition of the case, even
37if dismissed. At the time of the filing of a judgment pursuant to
38an action brought in the public interest pursuant to subdivision (d),
39or an action brought by a private person in which a violation of
40this chapter is alleged, the plaintiff shall file an affidavit verifying
P5 1that the report required by this subdivision has been accurately
2completed and submitted to the Attorney General.
3(2) A person bringing an action in the public interest pursuant
4to subdivision (d), or a private person bringing an action in which
5a violation of this chapter is alleged, shall, after the action is either
6subject to a settlement, with or without court approval, or to a
7judgment, submit to the Attorney General a report that includes
8information on any corrective action being taken as a part of the
9settlement or resolution of the action.
10(3) The Attorney General shall develop a reporting form that
11specifies the information that shall be reported, including, but not
12limited to, for purposes of subdivision (e), the date the action was
13filed, the nature of the relief sought, and for purposes of this
14subdivision, the amount of the settlement or civil penalty assessed,
15other financial terms of the settlement, and any other information
16the Attorney General deems appropriate.
17(4) If there is a settlement of an action brought by a person in
18the public interest under subdivision (d), the plaintiff shall submit
19the settlement, other than a voluntary dismissal in which no
20consideration is received from the defendant, to the court for
21approval upon noticed motion, and the court may approve the
22settlement only if the court makes all of the following findings:
23(A) The warning that is required by the settlement complies
24with this chapter.
25(B) The award of attorney’s fees is reasonable under California
27(C) The penalty amount is reasonable based on the criteria set
28forth in paragraph (2) of subdivision (b).
29(5) The plaintiff subject to paragraph (4) has the burden of
30producing evidence sufficient to sustain each required finding.
31The plaintiff shall serve the motion and all supporting papers on
32the Attorney General, who may appear and participate in a
33proceeding without intervening in the case.
34(6) Neither this subdivision nor the procedures provided in
35subdivision (e) and subdivisions (g) to
begin delete (j),end delete inclusive, affect the
36requirements imposed by statute or a court decision in existence
37on January 1, 2002, concerning whether claims raised by a person
38or public prosecutor not a party to the action are precluded by a
39settlement approved by the court.
P6 1(g) The Attorney General shall maintain a record of the
2information submitted pursuant to subdivisions (e) and (f) and
3shall make this information available to the public.
4(h) (1) Except as provided in paragraph (2), the basis for the
5certificate of merit required by subdivision (d) is not discoverable.
6However, nothing in this subdivision precludes the discovery of
7information related to the certificate of merit if that information
8is relevant to the subject matter of the action and is otherwise
9discoverable, solely on the ground that it was used in support of
10the certificate of merit.
11(2) Upon the conclusion of an action brought pursuant to
12subdivision (d) with respect to a defendant, if the trial court
13determines that there was no actual or threatened exposure to a
14listed chemical, the court may, upon the motion of that alleged
15violator or upon the court’s own motion, review the basis for the
16belief of the person executing the certificate of merit, expressed
17in the certificate of merit, that an exposure to a listed chemical had
18occurred or was threatened. The information in the certificate of
19merit, including the identity of the persons consulted with and
20relied on by the certifier, and the facts, studies, or other data
21reviewed by those persons, shall be disclosed to the court in an
22in-camera proceeding at which the moving party shall not be
23present. If the court finds that there was no credible factual basis
24for the certifier’s belief that an exposure to a listed chemical had
25occurred or was threatened, then the action shall be deemed
26frivolous within the meaning of Section 128.7 of the Code of Civil
27Procedure. The court shall not find a factual basis credible on the
28 basis of a legal theory of liability that is frivolous within the
29meaning of Section 128.7 of the Code of Civil Procedure.
30(i) The Attorney General may provide the factual information
31submitted to establish the basis of the certificate of merit on request
32to a district attorney, city attorney, or prosecutor within whose
33jurisdiction the violation is alleged to have occurred, or to any
34other state or federal government agency, but in all other respects
35the Attorney General shall maintain, and ensure that all recipients
36maintain, the submitted information as confidential official
37information to the full extent authorized in Section 1040 of the
39(j) In an action brought by the Attorney General, a district
40attorney, a city attorney, or a prosecutor pursuant to this chapter,
P7 1the Attorney General, district attorney, city attorney, or prosecutor
2may seek and recover costs and attorney’s fees on behalf of a party
3who provides a notice pursuant to subdivision (d) and who renders
4assistance in that action.
5(k) Any person who serves a notice of alleged violation pursuant
6to paragraph (1) of subdivision (d) for an exposure identified in
begin delete(B), or (C)end delete of paragraph (1) begin delete of shall not file an action for that exposure against
8this subdivisionend delete
9the alleged violator, or recover from the alleged violator in a
10settlement any payment in lieu of penalties or any reimbursement
11for costs and attorney’s fees, if all of the following conditions have
13(1) The notice given pursuant to paragraph (1) of subdivision
14(d) was served on or after the effective date of the
begin delete statute adding and alleges
that the alleged violator failed to
15this paragraphend delete
17provide clear and reasonable warning as required under Section
1825249.6 regarding one or more of the following, and no other
20(A) An exposure to alcoholic beverages that are consumed on
21the alleged violator’s premises to the extent onsite consumption
22is permitted by law.
23(B) An exposure to a chemical known to the state to cause cancer
24or reproductive toxicity to the extent the chemical is formed by
25necessary preparation of food or beverages which are sold on the
26alleged violator’s premises for immediate consumption on or off
28(C) An exposure to environmental tobacco smoke caused by
29entry of persons (other than employees) on premises owned or
30operated by the alleged violator where smoking is permitted at any
31location on the premises.
32(D) An exposure to chemicals known to the state to cause cancer
33or reproductive toxicity in engine exhaust, to the extent the
34exposure occurs inside a facility owned or operated by the alleged
35violator and primarily intended for parking noncommercial
37(2) Within 14 days after service of the notice, the alleged violator
38has done all of the following:
39(A) Corrected the alleged violation.
P8 1(B) Agreed to pay a civil penalty for the alleged violation
2of Section 25496.6 in the amount of five hundred dollars ($500),
3 to be adjusted
begin delete every 5 years to reflect any increases in the cost of , per facility or premises where the alleged violation occurred,
4living in California, as indicated by the annual average of the
5California Consumer Price Indexend delete
7of which 75 percent shall be deposited in the Safe Drinking Water
8and Toxic Enforcement Fund, and 25 percent shall be paid to the
9person that served the notice as provided in Section 25249.12.
22(C) Notified, in writing, the person that served the notice of the
23alleged violation, that the violation has been corrected. The written
24notice shall include the notice of compliance approved by the
25Judicial Council pursuant to paragraph (2) of subdivision (l) and
26a photograph or photocopy of the true and correct warning.
27(3) The alleged violator shall deliver the
civil penalty to the
28person that served the notice of the alleged violation within 30
begin delete receiptend delete of that notice, and the person that served
30the notice of violation shall remit the portion of the penalty due to
31the Safe Drinking Water and Toxic Enforcement Fund within 30
32days of receipt of the funds from the alleged violator.
33(l) Any notice subject to subdivision (k) shall prominently
34include both of the following:
35(1) A clear and reasonable description of the terms of
36subdivision (k), including a notification that an alleged violator
37may not be liable if the business has fewer than 10 employees.
begin delete The lead agency may prescribe specific language for inclusion in
39the notice that meets this requirement.end delete
P9 1(2) A notice of compliance, approved by the Judicial Council,
2that includes the following statement: “I hereby swear, under
3penalty of perjury, that I have received a notice of violation of
4Section 25249.6 and have taken the following steps to comply
5with Section 25249.7.”
6(m) An alleged violator
begin delete myend delete satisfy the conditions set forth
7in subdivision (k) only one time for a violation arising from the
8same exposure in the same facility or on the same premises.
9(n) Nothing in subdivision (k) shall prevent the Attorney
10General, a district attorney, a city attorney, or a prosecutor in whose
11jurisdiction the violation is alleged to have occurred from filing
12an action pursuant to subdivision (c) against an alleged violator.
13In any such action, the amount of any civil penalty for a violation
14shall be reduced to reflect any payment made by the alleged
15violator for the same alleged violation pursuant to subparagraph
16(B) of paragraph (2) of subdivision (k).
The Legislature finds and declares that this
begin delete enactmentend delete
18 furthers the purposes of the Safe Drinking Water and Toxic
19Enforcement Act of 1986 (Chapter 6.6 (commencing with Section
2025249.5) of Division 20 of the Health and Safety Code).
Specifically, the Legislature finds and declares that
22subdivision (k) of Section 25249.7
23 is necessary to further the purposes of Section 25249.6 of the
24Health and Safety Code, in terms of speed of compliance and
25reasonableness as contemplated by that section. To ensure prompt
26compliance with the Safe Drinking Water and Toxic Enforcement
27Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
28Division 20 of the Health and Safety Code), paragraph (2) of
29subdivision (k) of Section 25249.7 of the Health and Safety Code
30shall be independent and severable from the rest of this
begin delete enactmentend delete
The Legislature further finds and declares that
33subdivisions (k) to (m), inclusive, of Section 25249.7 of the Health
34and Safety Code are necessary to further the purposes of the intent
35of fairness contemplated by the Safe Drinking Water and Toxic
36Enforcement Act of 1986 (Chapter 6.6 (commencing with Section
3725249.5) of Division 20 of the Health and Safety Code), as evinced
38by the fairness factors outlined in Section 25249.10 of the Health
39and Safety Code.
This act is an urgency statute necessary for the immediate
2preservation of the public peace, health, or safety within the
3meaning of Article IV of the Constitution and shall go into
4immediate effect. The facts constituting the necessity are:
5In order to avoid unnecessary litigation and to facilitate
6compliance with the Safe Drinking Water and Toxic Enforcement
7Act of 1986, it is necessary that this act take effect immediately.
No reimbursement is required by this act pursuant to
19Section 6 of Article XIII B of the California Constitution because
20the only costs that may be incurred by a local agency or school
21district will be incurred because this act creates a new crime or
22infraction, eliminates a crime or infraction, or changes the penalty
23for a crime or infraction, within the meaning of Section 17556 of
24the Government Code, or changes the definition of a crime within
25the meaning of Section 6 of Article XIII B of the California