Amended in Senate August 30, 2013

Amended in Senate August 20, 2013

Amended in Senate July 2, 2013

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 BillNo. 227


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 require a person filing an enforcement action in the public interest for certain specified exposures to provide a notice in a specified proof of compliance form. The bill would prohibit an enforcement action from being filed by that person, 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 those 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 notifies the person bringing the action that the violation has been corrected pursuant to the specified proof of compliance form. The bill would specify 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. The bill would require the Judicial Council, onbegin delete Januaryend deletebegin insert Aprilend insert 1, 2019, and at each 5-year interval thereafter, to adjust that civil penalty, as specified.

(2) Proposition 65 provides that it may be amended by a statute, passed in each house by 23 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) This bill would declare that it is to take effect immediately as an urgency statute.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 25249.7 of the Health and Safety Code
2 is amended to read:

3

25249.7.  

(a) A person who violates or threatens to violate
4Section 25249.5 or 25249.6 may be enjoined in any court of
5competent jurisdiction.

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
11jurisdiction.

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
29(d).

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 (k), inclusive, affect the
22requirements imposed by statute or a court decision in existence
23on January 1, 2002, concerning whether a person filing an action
24in which a violation of this chapter is alleged is required to comply
25with the requirements 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 settlement complies
22with this chapter.

23(B) The award of attorney’s fees is reasonable under California
24law.

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 (k), 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
25 basis 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
32the 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
35Evidence Code.

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), (C), or (D) of paragraph (1) shall complete,
6as appropriate, and provide to the alleged violator, a notice of
7special compliance procedure and proof of compliance form
8pursuant to subdivision (l) and shall not file an action for that
9exposure against the alleged violator, or recover from the alleged
10violator in a settlement any payment in lieu of penalties or any
11 reimbursement for costs and attorney’s fees, if all of the following
12conditions have been met:

13(1) The notice given pursuant to paragraph (1) of subdivision
14(d) was served on or after the effective date of the act amending
15this section during the 2013-14 Regular Session and alleges that
16the alleged violator failed to provide clear and reasonable warning
17as required under Section 25249.6 regarding one or more of the
18following, and no other violation:

19(A) An exposure to alcoholic beverages that are consumed on
20the alleged violator’s premises to the extent onsite consumption
21is permitted by law.

22(B) An exposure to a chemical known to the state to cause cancer
23or reproductive toxicity in a food or beverage prepared and sold
24on the alleged violator’s premises primarily intended for immediate
25consumption on or off premises, to the extent of both of the
26following:

27(i) The chemical was not intentionally added.

28(ii) The chemical was formed by cooking or similar preparation
29of food or beverage components necessary to render the food or
30beverage palatable or to avoid microbiological contamination.

31(C) An exposure to environmental tobacco smoke caused by
32entry of persons (other than employees) on premises owned or
33operated by the alleged violator where smoking is permitted at any
34location on the premises.

35(D) An exposure to chemicals known to the state to cause cancer
36or reproductive toxicity in engine exhaust, to the extent the
37exposure occurs inside a facility owned or operated by the alleged
38violator and primarily intended for parking noncommercial
39vehicles.

P8    1(2) Within 14 days after service of the notice, the alleged violator
2has done all of the following:

3(A) Corrected the alleged violation.

4(B) (i) Agreed to pay a civil penalty for the alleged violation
5of Section 25496.6 in the amount of five hundred dollars ($500),
6 to be adjusted quinquennially pursuant to clause (ii), per facility
7or premises where the alleged violation occurred, of which 75
8percent shall be deposited in the Safe Drinking Water and Toxic
9Enforcement Fund, and 25 percent shall be paid to the person that
10served the notice as provided in Section 25249.12.

11(ii) Onbegin delete Januaryend deletebegin insert Aprilend insert 1, 2019, and at each five-year interval
12thereafter, the dollar amount of the civil penalty provided pursuant
13to this subparagraph shall be adjusted by the Judicial Council based
14on the change in the annual California Consumer Price Index for
15All Urban Consumers, published by the Department of Industrial
16Relations, Division of Labor Statistics, for the most recent five-year
17period ending on December 31 of the year preceding the year in
18which the adjustment is made, rounded to the nearest five dollars
19 ($5). The Judicial Council shall quinquennially publish the dollar
20amount of the adjusted civil penalty provided pursuant to this
21subparagraph, together with the date of the next scheduled
22adjustment.

23(C) Notified, in writing, the person that served the notice of the
24alleged violation, that the violation has been corrected. The written
25notice shall include the notice of special compliance procedure
26and proof of compliance form specified in subdivision (l), which
27was provided by the person serving notice of the alleged violation
28and which shall be completed by the alleged violator as directed
29in the notice.

30(3) The alleged violator shall deliver the civil penalty to the
31person that served the notice of the alleged violation within 30
32days of service of that notice, and the person that served the notice
33of violation shall remit the portion of the penalty due to the Safe
34Drinking Water and Toxic Enforcement Fund within 30 days of
35receipt of the funds from the alleged violator.

36(l)  The notice required to be provided to an alleged violator
37pursuant to subdivision (k) shall be presented as follows:

P9    1PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
2INSERTED

[2 pages]

P11   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).

12

SEC. 2.  

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).

16

SEC. 3.  

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.

26

SEC. 4.  

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.

34

SEC. 5.  

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
P12   1and Toxic Enforcement Act of 1986 (Chapter 6.6 (commencing
2with Section 25249.5) of Division 20 of the Health and Safety
3Code).

4

SEC. 6.  

This act is an urgency statute necessary for the
5immediate preservation of the public peace, health, or safety within
6the meaning of Article IV of the Constitution and shall go into
7immediate effect. The facts constituting the necessity are:

8In order to avoid unnecessary litigation and to facilitate
9compliance with the Safe Drinking Water and Toxic Enforcement
10Act of 1986, it is necessary that this act take effect immediately.



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