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
begin delete aend delete person begin delete in the public interestend delete, 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 begin delete certainend delete specified exposures begin delete, including a notification that an alleged violator may not be liable if the business has fewer than 10 employees,end delete 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 begin delete serves on the person who sent the notice a specified written statement, signed under penalty of perjury, subject to the limitationend delete 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. begin delete Since the commission of perjury is a crime, the bill would impose a state-mandated local program by creating a new crime.end delete 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.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.end delete
This bill would provide that no reimbursement is required by this act for a specified reason.end delete
This bill would declare that it is to take effect immediately as an urgency statute.
Fiscal committee: yes.
State-mandated local program:
begin deleteyes end delete.
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
P4 1having a full-time city prosecutor, or as provided in subdivision
3(d) Actions pursuant to this section may be brought by a person
4in the public interest if both of the following requirements are met:
5(1) The private action is commenced more than 60 days from
6the date that the person has given notice of an alleged violation of
7Section 25249.5 or 25249.6 that is the subject of the private action
8to the Attorney General and the district attorney, city attorney, or
9prosecutor in whose jurisdiction the violation is alleged to have
10occurred, and to the alleged violator. If the notice alleges a
11violation of Section 25249.6, the notice of the alleged violation
12shall include a certificate of merit executed by the attorney for the
13noticing party, or by the noticing party, if the noticing party is not
14represented by an attorney. The certificate of merit shall state that
15the person executing the certificate has consulted with one or more
16persons with relevant and appropriate experience or expertise who
17has reviewed facts, studies, or other data regarding the exposure
18to the listed chemical that is the subject of the action, and that,
19based on that information, the person executing the certificate
20believes there is a reasonable and meritorious case for the private
21action. Factual information sufficient to establish the basis of the
22certificate of merit, including the information identified in
23paragraph (2) of subdivision (h), shall be attached to the certificate
24of merit that is served on the Attorney General.
25(2) Neither the Attorney General, a district attorney, a city
26attorney, nor a prosecutor has commenced and is diligently
27prosecuting an action against the violation.
28(e) A person bringing an action in the public interest pursuant
29to subdivision (d) and a person filing an action in which a violation
30of this chapter is alleged shall notify the Attorney General that the
31action has been filed. Neither this subdivision nor the procedures
32provided in subdivisions (f) to (k), inclusive, affect the
33requirements imposed by statute or a court decision in existence
34on January 1, 2002, concerning whether a person filing an action
35in which a violation of this chapter is alleged is required to comply
36with the requirements of subdivision (d).
37(f) (1) A person filing an action in the public interest pursuant
38to subdivision (d), a private person filing an action in which a
39violation of this chapter is alleged, or a private person settling a
40violation of this chapter alleged in a notice given pursuant to
P5 1paragraph (1) of subdivision (d), shall, after the action or violation
2is subject either to a settlement or to a judgment, submit to the
3Attorney General a reporting form that includes the results of that
4settlement or judgment and the final disposition of the case, even
5if dismissed. At the time of the filing of a judgment pursuant to
6an action brought in the public interest pursuant to subdivision (d),
7or an action brought by a private person in which a violation of
8this chapter is alleged, the plaintiff shall file an affidavit verifying
9that the report required by this subdivision has been accurately
10completed and submitted to the Attorney General.
11(2) A person bringing an action in the public interest pursuant
12to subdivision (d), or a private person bringing an action in which
13a violation of this chapter is alleged, shall, after the action is either
14subject to a settlement, with or without court approval, or to a
15judgment, submit to the Attorney General a report that includes
16information on any corrective action being taken as a part of the
17settlement or resolution of the action.
18(3) The Attorney General shall develop a reporting form that
19specifies the information that shall be reported, including, but not
20limited to, for purposes of subdivision (e), the date the action was
21filed, the nature of the relief sought, and for purposes of this
22subdivision, the amount of the settlement or civil penalty assessed,
23other financial terms of the settlement, and any other information
24the Attorney General deems appropriate.
25(4) If there is a settlement of an action brought by a person in
26the public interest under subdivision (d), the plaintiff shall submit
27the settlement, other than a voluntary dismissal in which no
28consideration is received from the defendant, to the court for
29approval upon noticed motion, and the court may approve the
30settlement only if the court makes all of the following findings:
31(A) The warning that is required by the
32with this chapter.
33(B) The award of attorney’s fees is reasonable under California
35(C) The penalty amount is reasonable based on the criteria set
36forth in paragraph (2) of subdivision (b).
37(5) The plaintiff subject to paragraph (4) has the burden of
38producing evidence sufficient to sustain each required finding.
39The plaintiff shall serve the motion and all supporting papers on
P6 1the Attorney General, who may appear and participate in a
2proceeding without intervening in the case.
3(6) Neither this subdivision nor the procedures provided in
4subdivision (e) and subdivisions (g) to (k), inclusive, affect the
5requirements imposed by statute or a court decision in existence
6on January 1, 2002, concerning whether claims raised by a person
7or public prosecutor not a party to the action are precluded by a
8settlement approved by the court.
9(g) The Attorney General shall maintain a record of the
10information submitted pursuant to subdivisions (e) and (f) and
11shall make this information available to the public.
12(h) (1) Except as provided in paragraph (2), the basis for the
13certificate of merit required by subdivision (d) is not discoverable.
14However, nothing in this subdivision precludes the discovery of
15information related to the certificate of merit if that information
16is relevant to the subject matter of the action and is otherwise
17discoverable, solely on the ground that it was used in support of
18the certificate of merit.
19(2) Upon the conclusion of an action brought pursuant to
20subdivision (d) with respect to a defendant, if the trial court
21determines that there was no actual or threatened exposure to a
22listed chemical, the court may, upon the motion of that alleged
23violator or upon the court’s own motion, review the basis for the
24belief of the person executing the certificate of merit, expressed
25in the certificate of merit, that an exposure to a listed chemical had
26occurred or was threatened. The information in the certificate of
27merit, including the identity of the persons consulted with and
28relied on by the certifier, and the facts, studies, or other data
29reviewed by those persons, shall be disclosed to the court in an
30in-camera proceeding at which the moving party shall not be
31present. If the court finds that there was no credible factual basis
32for the certifier’s belief that an exposure to a listed chemical had
33occurred or was threatened, then the action shall be deemed
34frivolous within the meaning of Section 128.7 of the Code of Civil
35Procedure. The court shall not find a factual basis credible on the
36 basis of a legal theory of liability that is frivolous within the
37meaning of Section 128.7 of the Code of Civil Procedure.
38(i) The Attorney General may provide the factual information
39submitted to establish the basis of the certificate of merit on request
40to a district attorney, city attorney, or prosecutor within whose
P7 1jurisdiction the violation is alleged to have occurred, or to any
2other state or federal government agency, but in all other respects
3the Attorney General shall maintain, and ensure that all recipients
4maintain, the submitted information as confidential official
5information to the full extent authorized in Section 1040 of the
7(j) In an action brought by the Attorney General, a district
8attorney, a city attorney, or a prosecutor pursuant to this chapter,
9the Attorney General, district attorney, city attorney, or prosecutor
10may seek and recover costs and attorney’s fees on behalf of a party
11who provides a notice pursuant to subdivision (d) and who renders
12assistance in that action.
13(k) Any person who serves a notice of alleged violation pursuant
14to paragraph (1) of subdivision (d) for an exposure identified in
15subparagraph (A), (B), (C), or (D) of paragraph (1) shall not file an action for that
19exposure against the alleged violator, or recover from the alleged
20violator in a settlement any payment in lieu of penalties or any
21 reimbursement for costs and attorney’s fees, if all of the following
22conditions have been met:
23(1) The notice given pursuant to paragraph (1) of subdivision
24(d) was served on or after the effective date of the act amending
25this section during the 2013-14 Regular Session and alleges that
26the alleged violator failed to provide clear and reasonable warning
27as required under Section 25249.6 regarding one or more of the
28following, and no other violation:
29(A) An exposure to alcoholic beverages that are consumed on
30the alleged violator’s premises to the extent onsite consumption
31is permitted by law.
32(B) An exposure to a chemical known to the state to cause cancer
33or reproductive toxicity
begin delete to the extent the chemical is formed by
34necessary preparation of food or beverages which are sold on the
35alleged violator’s premises for immediate consumption on or off
36the premises.end delete
4(C) An exposure to environmental tobacco smoke caused by
5entry of persons (other than employees) on premises owned or
6operated by the alleged violator where smoking is permitted at any
7location on the premises.
8(D) An exposure to chemicals known to the state to cause cancer
9or reproductive toxicity in engine exhaust, to the extent the
10exposure occurs inside a facility owned or operated by the alleged
11violator and primarily intended for parking noncommercial
13(2) Within 14 days after service of the notice, the alleged violator
14has done all of the following:
15(A) Corrected the alleged violation.
16(B) (i) Agreed to pay a civil penalty for the alleged violation
17of Section 25496.6 in the amount of five hundred dollars ($500),
18 to be adjusted quinquennially pursuant to clause (ii), per facility
19or premises where the alleged violation occurred, of which 75
20percent shall be deposited in the Safe Drinking Water and Toxic
21Enforcement Fund, and 25 percent shall be paid to the person that
22served the notice as provided in Section 25249.12.
23(ii) On January 1, 2019, and at each five-year interval thereafter,
24the dollar amount of the civil penalty provided pursuant to this
25subparagraph shall be adjusted by the Judicial Council based on
26the change in the annual California Consumer Price Index for All
27Urban Consumers, published by the Department of Industrial
28Relations, Division of Labor Statistics, for the most recent five-year
29period ending on December 31 of the year preceding the year in
30which the adjustment is made, rounded to the nearest five dollars
31 ($5). The Judicial Council shall quinquennially publish the dollar
32amount of the adjusted civil penalty provided pursuant to this
33subparagraph, together with the date of the next scheduled
35(C) Notified, in writing, the person that served the notice of the
36alleged violation, that the violation has been corrected. The written
37notice shall include the notice of compliance
begin delete approved by the Judicial Council pursuant .
39to paragraph (2) of subdivision (l) and a photograph or photocopy
40of the true and correct warningend delete
4(3) The alleged violator shall deliver the civil penalty to the
5person that served the notice of the alleged violation within 30
6days of service of that notice, and the person that served the notice
7of violation shall remit the portion of the penalty due to the Safe
8Drinking Water and Toxic Enforcement Fund within 30 days of
9receipt of the funds from the alleged violator.
10(l) Any notice subject to subdivision (k) shall prominently
11include both of the following:
12(1) A clear and reasonable description of the terms of
13subdivision (k), including a notification that an alleged violator
14may not be liable if the business has fewer than 10 employees.
15(2) A notice of compliance, approved by the Judicial Council,
16that includes the following statement: “I hereby swear, under
17penalty of perjury, that I have received a notice of violation of
18Section 25249.6 and have taken the following steps to comply
19with Section 25249.7.”
P12 1(m) An alleged violator may satisfy the conditions set forth in
2subdivision (k) only one time for a violation arising from the same
3exposure in the same facility or on the same premises.
4(n) Nothing in subdivision (k) shall prevent the Attorney
5General, a district attorney, a city attorney, or a prosecutor in whose
6jurisdiction the violation is alleged to have occurred from filing
7an action pursuant to subdivision (c) against an alleged violator.
8In any such action, the amount of any civil penalty for a violation
9shall be reduced to reflect any payment made by the alleged
10violator for the same alleged violation pursuant to subparagraph
11(B) of paragraph (2) of subdivision (k).
The Legislature finds and declares that this act furthers
13the purposes of the Safe Drinking Water and Toxic Enforcement
14Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
15Division 20 of the Health and Safety Code).
Specifically, the Legislature finds and declares that
17subdivision (k) of Section 25249.7 of the Health and Safety Code
18is necessary to further the purposes of Section 25249.6 of the
19Health and Safety Code, in terms of speed of compliance and
20reasonableness as contemplated by that section. To ensure prompt
21compliance with the Safe Drinking Water and Toxic Enforcement
22Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
23Division 20 of the Health and Safety Code), paragraph (2) of
24subdivision (k) of Section 25249.7 of the Health and Safety Code
25shall be independent and severable from the rest of this act.
The Legislature further finds and declares that
27subdivisions (k) to (m), inclusive, of Section 25249.7 of the Health
28and Safety Code are necessary to further the purposes of the intent
29of fairness contemplated by the Safe Drinking Water and Toxic
30Enforcement Act of 1986 (Chapter 6.6 (commencing with Section
3125249.5) of Division 20 of the Health and Safety Code), as evinced
32by the fairness factors outlined in Section 25249.10 of the Health
33and Safety Code.
The Legislature further finds and declares that Sections
352, 3, and 4 of this act are intended to articulate how this act furthers
36the purposes of the Safe Drinking Water and Toxic Enforcement
37Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
38Division 20 of the Health and Safety Code) and shall not be
39construed to affect any litigation other than litigation concerning
40whether this act furthers the purposes of the Safe Drinking Water
P13 1and Toxic Enforcement Act of 1986 (Chapter 6.6 (commencing
2with Section 25249.5) of Division 20 of the Health and Safety
No reimbursement is required by this act pursuant to
5Section 6 of Article XIII B of the California Constitution because
6the only costs that may be incurred by a local agency or school
7district will be incurred because this act creates a new crime or
8infraction, eliminates a crime or infraction, or changes the penalty
9for a crime or infraction, within the meaning of Section 17556 of
10the Government Code, or changes the definition of a crime within
11the meaning of Section 6 of Article XIII B of the California
This act is an urgency statute necessary for the
15immediate preservation of the public peace, health, or safety within
16the meaning of Article IV of the Constitution and shall go into
17immediate effect. The facts constituting the necessity are:
18In order to avoid unnecessary litigation and to facilitate
19compliance with the Safe Drinking Water and Toxic Enforcement
20Act of 1986, it is necessary that this act take effect immediately.