BILL NUMBER: AB 227 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 2, 2013
AMENDED IN SENATE JUNE 19, 2013
AMENDED IN ASSEMBLY MAY 8, 2013
AMENDED IN ASSEMBLY APRIL 9, 2013
INTRODUCED BY Assembly Member Gatto
(Coauthors: Assembly Members Alejo, Hagman, Logue, and Muratsuchi)
( Coauthor: Senator Anderson
)
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, 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 the
Judicial Council, on January 1, 2019, and at each 5-year interval
thereafter, to adjust that civil penalty, as specified.
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 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), (k),
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),
(k), 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) (B), (C), or
(D) 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 act amending this section during
the 2013- 14 Regular Session 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 beverages that are consumed on the
alleged violator's premises to the extent onsite consumption is
permitted by law.
(B) An exposure to a chemical known to the state to cause cancer
or reproductive toxicity to the extent the chemical is formed by
necessary preparation of food or beverages which are sold on the
alleged violator's premises for immediate consumption on or off the
premises.
(C) 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.
(D) 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) (i) Agreed to pay a civil penalty for
the alleged violation of Section 25496.6 in the amount of five
hundred dollars ($500), to be adjusted every 5 years to
reflect any increases in the cost of living in California, as
indicated by the annual average of the California Consumer Price
Index quinquennially pursuant to clause (ii) ,
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.
(ii) On January 1, 2019, and at each five-year interval
thereafter, the dollar amount of the civil penalty provided pursuant
to this subparagraph shall be adjusted by the Judicial Council based
on the change in the annual California Consumer Price Index for All
Urban Consumers, published by the Department of Industrial Relations,
Division of Labor Statistics, for the most recent five-year period
ending on December 31 of the year preceding the year in which the
adjustment is made, rounded to the nearest five dollars ($5). The
Judicial Council shall quinquennially publish the dollar amount of
the adjusted civil penalty provided pursuant to this subparagraph,
together with the date of the next scheduled adjustment.
(C) Notified, in writing, the person that served the notice 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.
(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 service 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.
(l) Any notice subject to subdivision (k) shall prominently
include both of the following:
(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.
(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."
(m) An alleged violator my may
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.
(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 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).
SEC. 3. Specifically, the Legislature finds and declares that
subdivision (k) of Section 25249.7 of the Health and Safety Code
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
act .
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. 5. The Legislature further finds
and declares that Sections 2, 3, and 4 of this act are intended to
articulate how 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) and
shall not be construed to affect any litigation other than litigation
concerning whether 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).
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.
SEC. 7. 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.