BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 227 (Gatto)
As Amended June 19, 2013
Hearing Date: June 25, 2013
Fiscal: Yes
Urgency: Yes
TH
SUBJECT
Proposition 65: Enforcement
DESCRIPTION
The 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.
Failure to comply with the act exposes a business to civil
penalties of up to $2,500 per day. The act can be enforced by
the Attorney General and other designated public prosecutors,
but it also contains a citizen suit provision allowing any
impacted person to bring an enforcement action in the public
interest.
This bill would prohibit an enforcement action from being filed
by a person in the public interest, and would prohibit the
recovery of settlement payments or fee reimbursements, in cases
where a notice sent to an alleged violator of Proposition 65
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,
that fully describes the corrective action taken to address the
alleged violation. This bill would limit the above prohibition
to:
(more)
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an exposure to alcoholic beverages that are consumed on the
alleged violator's premises to the extent on-site consumption
is permitted by the law;
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;
an exposure to environmental tobacco smoke caused by the 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; or
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.
BACKGROUND
The Safe Drinking Water and Toxic Enforcement Act of 1986,
enacted by California's voters as Proposition 65, is a "right to
know" statute that requires companies that "expose consumers to
carcinogens or reproductive toxins to provide a reasonable and
clear warning." (Ctr. for Self-Improvement & Cmty. Dev. v.
Lennar Corp. (2009) 173 Cal.App.4th 1543, 1550.) In general
terms, it 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 first giving a specified warning, or from
knowingly discharging or releasing these chemicals into the
water or any source of drinking water. Pursuant to the act, the
state publishes an annual list of chemicals known to cause
cancer, birth defects, or other reproductive harm. This list of
dangerous chemicals has grown to include approximately 800
entries since it was first published in 1987, and contains a
wide range of both naturally occurring and synthetic chemicals.
According to the California Office of Environmental Health
Hazard Assessment (OEHHA), the executive agency that administers
the act, listed chemicals include "additives or ingredients in
pesticides, common household products, food, drugs, dyes, or
solvents," as well as chemicals used in manufacturing and
construction, or that "may be byproducts of chemical processes,
such as motor vehicle exhaust." (OEHHA, Proposition 65 in Plain
Language!
[as of June 17, 2013].)
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Through Proposition 65's mandatory notification provision,
California residents are informed about the presence of
chemicals in the products they purchase, in their homes or
workplaces, or that are released into the environment. OEHHA
reports:
Since it was passed in 1986, Proposition 65 has provided
Californians with information they can use to reduce their
exposures to listed chemicals that may not have been
adequately controlled under other [s]tate or federal laws.
This law has also increased public awareness about the
adverse effects of exposures to listed chemicals. For
example, Proposition 65 has resulted in greater awareness
of the dangers of alcoholic beverage consumption during
pregnancy. Alcohol consumption warnings are perhaps the
most visible health warnings issued as a result of
Proposition 65.
Proposition 65's warning requirement has provided an
incentive for manufacturers to remove listed chemicals from
their products. For example, trichloroethylene, which
causes cancer, is no longer used in most correction fluids;
reformulated paint strippers do not contain the carcinogen
methylene chloride; and toluene, which causes birth defects
or other reproductive harm, has been removed from many nail
care products. In addition, a Proposition 65 enforcement
action prompted manufacturers to decrease the lead content
in ceramic tableware and wineries to eliminate the use of
lead-containing foil caps on wine bottles . . . Proposition
65 has also succeeded in spurring significant reductions in
California of air emissions of listed chemicals, such as
ethylene oxide, hexavalent chromium, and chloroform.
(OEHHA, Proposition 65 in Plain Language!
[as
of June 17, 2013].)
Proposition 65 is enforced, in part, by a civil penalty
provision that allows the assessment of up to $2,500 per day
upon persons who violate its prohibitions. The California
Attorney General acts as the primary enforcement agency under
the act, but other public prosecutors (like district attorneys)
can bring enforcement suits as well. Additionally, the act has
a citizen suit provision that permits any person to bring a
civil action against an alleged violator in the public interest.
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For the most part, the citizen suit provision has helped lower
the barriers and costs to implementing Proposition 65 by
allowing individuals, advocacy groups, and non-governmental
organizations to initiate enforcement actions without drawing
upon the time and resources of public prosecutors. However,
private individuals could arguably use the citizen suit
provision to force businesses into unfavorable or unfair
monetary settlements. The author has produced three examples
where private individuals secured settlements of several
thousand dollars from small businesses that committed minor
violations of the act. In the first example, a Santa Monica bar
entered into a $5,500 settlement over an alleged failure to post
a Proposition 65 warning pertaining to the sale of alcoholic
beverages. In the second example, a bar in Norwalk entered into
a $7,000 settlement, also over an alleged failure to post a
Proposition 65 warning pertaining to the sale of alcoholic
beverages. Finally, in the third example, a supermarket in
Berkeley agreed to pay a $4,000 settlement plus $21,000 in
attorney's fees and costs over alleged failures to post
Proposition 65 warnings pertaining to "flame-cooked ground beef
products," also known as hamburgers. In each case, the author
suggests that these businesses agreed to the settlements in
order to avoid the cost of litigation.
This bill would restrict the ability of individuals to bring
citizen suit enforcement actions under Proposition 65 for
alleged failures to provide reasonable and clear warnings, when
the warning pertains to one of four situations commonly found in
retail establishments, and the alleged violator takes immediate
corrective action upon notice of the violation. Specifically,
the bill would prohibit enforcement actions from being filed by
a person in the public interest, and would prohibit the recovery
of settlement payments or fee reimbursements, in cases where a
notice sent to an alleged violator of Proposition 65 alleges a
failure to provide a clear and reasonable warning for certain
specified exposures (see Comment 2) 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, that fully describes the corrective action taken to
address the alleged violation.
CHANGES TO EXISTING LAW
Existing law , the Safe Drinking Water and Toxic Enforcement Act
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of 1986 (Proposition 65), states that no person in the course of
doing business shall knowingly discharge or release a chemical
known to the state to cause cancer or reproductive toxicity into
water or onto or into land where such chemical passes or
probably will pass into any source of drinking water,
notwithstanding any other provision or authorization of law,
except as provided. (Health & Saf. Code Sec. 25249.5.)
Existing law states that no person in the course of doing
business shall knowingly and intentionally expose any individual
to a chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to
such individual, except as provided. (Health & Saf. Code Sec.
25249.6.)
Existing law exempts from the above warning requirements an
exposure for which the person responsible can show that the
exposure poses no significant risk assuming lifetime exposure at
the level in question for substances known to the state to cause
cancer, and that the exposure will have no observable effect
assuming exposure at one thousand (1,000) times the level in
question for substances known to the state to cause reproductive
toxicity. (Health & Saf. Code Sec. 25249.10(c).)
Existing law provides that the Governor shall cause to be
published a list of those chemicals known to the state to cause
cancer or reproductive toxicity within the meaning of the act,
and shall cause such list to be revised and republished in light
of additional knowledge at least once per year. (Health & Saf.
Code Sec. 25249.8(a).)
Existing law provides that any person who violates the above
provisions shall be 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.
In assessing the amount of a civil penalty, a court must
consider: the nature and extent of the violation; the number of,
and severity of, the violations; the economic effect of the
penalty on the violator; whether the violator took good faith
measures to comply with this chapter and the time these measures
were taken; the willfulness of the violator's misconduct; the
deterrent effect that the imposition of the penalty would have
on both the violator and the regulated community as a whole; and
any other factor that justice may require. (Health & Saf. Code
Sec. 25249.6(a), (b).)
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Existing law provides that actions may be brought to enforce the
Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65) by the Attorney General in the name of the
people of the State of California, by certain specified public
prosecutors, and by any person in the public interest. (Health
& Saf. Code Sec. 25249.6(c), (d).)
Existing law provides that, for actions brought by a person in
the public interest, the action shall be commenced at least 60
days from the date that the person has given notice of an
alleged violation that is the subject of the private action to
the Attorney General and the public prosecutor in whose
jurisdiction the violation is alleged to have occurred, and to
the alleged violator. If the notice alleges a violation of the
required warning provisions of the act, the notice shall include
a certificate of merit executed by the noticing party or their
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. An action may not be commenced by a person in
the public interest if the Attorney General or a specified
public prosecutor has commenced and is diligently prosecuting an
action against the alleged violator. (Health & Saf. Code Sec.
25249.6(d).)
Existing law permits amendments to the Safe Drinking Water and
Toxic Enforcement Act of 1986 (Proposition 65) provided they are
passed in each house of the Legislature by a two-thirds vote and
further the act's purposes. (Initiative Measure, Proposition
65, Sec. 7, Nov. 4, 1986.)
This bill would prohibit any person who serves a notice of an
alleged violation of Proposition 65 from filing an action in the
public interest against an alleged violator, or from recovering
from the alleged violator in a settlement any payment in lieu of
penalties or any reimbursement for costs and attorney's fees,
when the following conditions are met:
the notice of alleged violation was served on or after the
effective date of the statute adding this provision;
the notice alleges that the alleged violator failed to provide
a clear and reasonable warning regarding one or more of the
following:
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o an exposure to alcoholic beverages that are consumed on
the alleged violator's premises to the extent on-site
consumption is permitted by the law;
o 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;
o an exposure to environmental tobacco smoke caused by the
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; or
o 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;
within 14 days after service of the notice, the alleged
violator has done all of the following:
o corrected the alleged violation;
o agreed to pay a civil penalty for the alleged violation
in the amount of five hundred dollars ($500), 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;
o notified, in writing, the person that served the notice
of the alleged violation, that the violation has been
corrected. The written notice shall include a notice of
compliance approved by the Judicial Council and a
photograph or photocopy of the true and correct warning;
and
within 30 days of the receipt of that notice, the alleged
violator delivers the civil penalty to the person that served
the notice. 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.
This bill would require a notice of alleged violation subject to
these provisions to prominently include both of the following:
a clear and reasonable description of the terms of this bill,
including a notification that an alleged violator may not be
liable if the business has fewer than 10 employees; and
a notice of compliance, approved by the Judicial Council, that
states "I hereby swear, under penalty of perjury, that I have
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received a notice of violation of Section 25249.6 and have
taken the following steps to comply with Section 25249.7."
This bill states that it shall not prevent the Attorney General
or specified public prosecutors from filing an action against an
alleged violator of this act.
COMMENT
1. Stated need for the bill
The author writes:
Prop. 65, the Safe Drinking Water and Toxic Enforcement
Act, was enacted by ballot initiative in 1986. It was
intended to protect Californians and their drinking water
from chemicals known to cause cancer, birth defects or
other reproductive harm, and to inform citizens about
exposure to such chemicals.
Since its enactment, Prop. 65 has been an effective tool to
keep toxic chemicals out of the state's water supplies and
has raised awareness about possible exposure to
carcinogens. Unfortunately, there have been some who have
taken advantage of provisions in the proposition to ensnare
businesses in lawsuits, with the hope of obtaining
settlement payments that were never contemplated by the
voters when they passed Prop. 65.
These lawsuits are instigated by parties who target
businesses that, for various reasons, have neglected to
display the proper Prop. 65 warning sign. Prop. 65 was
motivated by voters' laudable wish to inform and protect
Californians from the potential exposure to dangerous
chemicals, not as a money-making venture. Businesses such
as restaurants or coffee shops or bars -- places that must
provide Prop. 65 warnings for serving baked goods, beer,
wine, or coffee, because these everyday things happen to
contain substances deemed to pose some health risks --
should be helped to comply with the intent of the law.
Many of these lawsuits never get to a courtroom. They are
settled out of court, sometimes for tens of thousands of
dollars, because business owners do not have the means to
hire attorneys, and fear becoming entangled in protracted
legal proceedings that could result in significant damages
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and attorney's fees.
AB 227 will return Prop. 65 to what voters intended it to
do: punish violators who pollute our state's waterways or
expose workers to dangerous carcinogens and to inform
consumers of the risks in products they may purchase.
2. Enforcement process created by this bill
This bill would create a new citizen suit enforcement process
for alleged Proposition 65 violations where a business is
alleged to have failed to provide a clear and reasonable warning
to patrons regarding one or more of the following:
an exposure to alcoholic beverages that are consumed on the
alleged violator's premises to the extent on-site consumption
is permitted by the law;
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;
an exposure to environmental tobacco smoke caused by the 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; or
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.
If this bill were chaptered, a private person who serves a
notice of an alleged violation within one of the four categories
listed above would be precluded from commencing an enforcement
action in court, or from recovering any settlement payments,
penalties, costs, or attorney's fees, so long as the alleged
violator performs the following three tasks within 14 days of
receiving the notice:
corrects the alleged violation;
agrees to pay a civil penalty for the alleged violation in the
amount of five hundred dollars ($500), per facility or
premises where the alleged violation occurred; and
notifies, in writing, the person that served the notice of the
alleged violation, that the violation had been corrected.
Recent amendments to the bill would not require the $500 penalty
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to be paid right away. Rather, the alleged violator need only
agree to pay the amount and then, within 30 days of the receipt
of the notice of violation, deliver the civil penalty to the
person that served the notice. This bill would then require the
recipient of the penalty to remit 75 percent of the penalty to
the Safe Drinking Water and Toxic Enforcement Fund within 30
days of receipt of the funds from the alleged violator. The
remaining 25 percent (or $125) may be retained by the person
that served the notice of violation.
The bill is structured to incentivize participants to settle
minor Proposition 65 violations through this new citizen suit
enforcement process. A person who serves a notice of an alleged
violation within one of the four categories would automatically
find themselves within the new process, and once a business
receives a copy of that notice, it becomes the business's
responsibility to ensure that it takes all the necessary steps
and corrective measures within the window provided to stay
within the process. If it fails to do so, the business would
lose the protections offered by this bill and find itself once
again faced with the possibility of civil litigation and/or
settlement demands. As the Family Winemakers of California
state in their letter of support:
AB 227 is a sensible alternative to prosecution because it
contains a clear incentive to fix potential violations and
reduces the court system workload. It does not interfere
with Prop. 65's compliance mechanisms since it just
fast-tracks a solution.
If enacted, businesses would still have an incentive to comply
with Proposition 65's warning requirements since, even with the
protections offered by this bill, non-compliant businesses would
still be assessed a civil penalty of $500, and would be required
to undertake the same corrective action that would have
prevented the violation in the first place.
3. Limitations on citizen suits under Proposition 65
The creation of a new citizen suit enforcement process as
contemplated in this bill would have the effect of precluding
some civil litigation brought by individuals in the public
interest. For Proposition 65 reasonable warning violations
falling within one of the four categories described in Comment
2, a private plaintiff would be barred from filing an action
against the alleged violator, and would be barred from
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recovering any settlement or payment in lieu of penalties or any
reimbursement for costs and attorney's fees, if the alleged
violator meets all of the conditions and takes all of the
corrective action specified in the bill. If an alleged violator
failed to follow the required procedure or failed to take all of
the required actions, a private plaintiff could still bring a
civil action or enter into a settlement agreement as permitted
by existing law.
Importantly, this bill provides that it would not 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 enforcement action against an
alleged violator. It does, however, state that in any such
action, the amount of any civil penalty assessed for a violation
shall be reduced to reflect any payment made by the alleged
violator for the same alleged violation under the new citizen
suit enforcement process.
4. In furtherance of Proposition 65
When Proposition 65 was passed by California's voters in 1986,
it included a section permitting the Legislature to amend the
initiative by statute if such an amendment passed in each house
by a two-thirds vote, and if the amendment was undertaken "[t]o
further its [the initiative's] purposes." (Initiative Measure,
Proposition 65, Sec. 7, Nov. 4, 1986.) California courts have
construed "[t]he declared purpose of Proposition 65's warning
requirements" as being "to protect the public's right to be
informed about exposures to chemicals that cause cancer, birth
defects, or other reproductive harm." Am. Meat Inst. v. Leeman
(2009) 180 Cal.App.4th 728, 760 [citations and internal
quotation marks omitted].)
This bill arguably furthers Proposition 65's purposes by
creating a streamlined process for quickly bringing minor
violations of the initiative's warning provisions into
compliance. Instead of entering into protracted litigation or
settlement discussions, businesses that receive notices alleging
violations of the initiative's warning provisions are given an
incentive to quickly remedy the alleged defect. In addition to
any other benefits businesses might receive in avoiding private
lawsuits, this bill entices alleged violators to provide the
required warnings about exposure to chemicals that cause cancer,
birth defects, or other reproductive harm, and in so doing
upholds the public's right to be informed about these hazards.
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5. Notice of compliance
Recent amendments to this bill direct the Judicial Council to
approve a "notice of compliance" to be executed by alleged
violators who find themselves within the bill's new citizen suit
enforcement process. Staff at the Judicial Council has stated
that preparation of such a notice would be a time-intensive
endeavor that may require the Council to seek multiple rounds of
public comment and feedback. As this is an urgency measure, the
author has committed to continue to work with Committee staff to
amend the bill to include a statutory form for the contemplated
"notice of compliance," and to strike those provisions tasking
the approval of this notice to Judicial Council.
6. Statutory adjustment of civil penalty
The $500 civil penalty provision in this bill includes a clause
designed to protect the value of the penalty from inflationary
pressure. It states that the penalty is "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." However, it does not specify when the
annual adjustment would take effect, or what entity would be
responsible for making the necessary calculations and publishing
the results. The author offers the following amendments to
address these concerns.
Author's amendments
On page 7, line 39, after "to be adjusted" add
"quinquennially as provided in this paragraph"
On page 7, line 39, strike "every 5 years to reflect any
increases in"
On page 7, strike line 40 in its entirety
On page 8, line 1, strike "of the California Consumer Price
Index"
On page 8, line 5, after the period add the following:
On January 1, 2019, and at each five-year interval
thereafter, the dollar amount of the civil penalty
provided in this section 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
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recent five-year period ending on December 31
preceding the adjustment, rounded to the nearest five
dollars ($5). The Judicial Council shall
quinquennially publish the dollar amount of the
adjusted civil penalty provided in this section,
together with the date of the next scheduled
adjustment.
7. Findings and declarations
A number of supporters of this bill have expressed concerns over
its stated findings and declarations. Specifically, they
suggest that Section 3 and Section 4, as drafted, could lead to
confusion in certain Proposition 65 enforcement actions not
within the scope of this bill. As these two sections are
unnecessary to articulate a legislative finding that this bill
furthers the purposes of the Safe Drinking Water and Toxic
Enforcement Act of 1986, the following amendments are suggested
to strike these sections from the bill.
Author's amendments
On page 9, strike lines 35-40
On page 10, strike lines 1-12
8. Clarifying amendments
The author offers the following additional clarifying
amendments:
Author's amendments
On page 4, line 21, strike "(j)" and replace it with "(k)"
On page 5, line 33, strike "(j)" and replace it with "(k)"
On page 7, line 23, strike "or (C)" and replace it with
"(C), or (D)"
On page 8, line 23, strike "receipt" and replace it with
"service"
On page 8, line 34, strike "The"
On page 8, strike line 35 in its entirety
On page 8, line 36, strike "notice that meets this
requirement."
On page 9, line 20, strike "my" and replace it with "may"
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Support : Air Conditioning Trade Association; American Chemistry
Council; American Coatings Association; Apartment Association,
California Southern Cities; Association of Home Appliance
Manufacturers; BIOCOM; California Apartment Association;
California Assisted Living Association; California Association
of Health Facilities; California Association of Winegrape
Growers; California Automotive Business Coalition; California
Bus Association; California Business Properties Association;
California Chamber of Commerce; California Citizens Against
Lawsuit Abuse; California Construction & Industrial Materials
Association; California Craft Brewers Association; California
Framing Contractors Association; California Grocers Association;
California Hotel and Lodging Association; California Independent
Grocers Association; California Independent Oil Marketers
Association; California Independent Petroleum Association;
California League of Food Processors; California Manufacturers
and Technology Association; California Metals Coalition;
California Restaurant Association; California Retailers
Association; California Service Station & Automotive Repair
Association; California Travel Association; Camarillo Chamber of
Commerce; Carpentaria Valley Chamber of Commerce; Carson Chamber
of Commerce; Chambers of Commerce Alliance of Ventura and Santa
Barbara Counties; Civil Justice Association of California;
Clovis Chamber of Commerce; Consumer Attorneys of California;
Consumer Healthcare Products Association; Consumer Specialty
Products Association; Culver City Chamber of Commerce; Duarte
Chamber of Commerce; East Bay Rental Housing Association; El
Segundo Chamber of Commerce; Family Winemakers of California;
Fresno Chamber of Commerce; Fullerton Chamber of Commerce;
Garden Grove Chamber of Commerce; Gardena Chamber of Commerce;
Goleta Valley Chamber of Commerce; Greater Conejo Valley Chamber
of Commerce; Greater Riverside Chamber of Commerce; Harbor
City/Harbor Gateway Chamber of Commerce; Hawthorne Chamber of
Commerce; Hermosa Beach Chamber of Commerce; Irwindale Chamber
of Commerce; Lawndale Chamber of Commerce; LAX Coastal Chamber
of Commerce; Lomita Chamber of Commerce; Manhattan Beach Chamber
of Commerce; Moorpark Chamber of Commerce; National Association
of Theatre Owners of CA/NV; National Federation of Independent
Business; NOR CAL Rental Property Association; Palm Desert
Chamber of Commerce; Plumbing-Heating-Cooling Contractors
Association of California; Ojai Chamber of Commerce; Orange
County Business Council; Oxnard Chamber of Commerce; Palos
Verdes Peninsula Chamber of Commerce; Personal Care Products
Council; Port Hueneme Chamber of Commerce; Rancho Cordova
Chamber of Commerce; Redondo Beach Chamber of Commerce; San
Fernando Valley Chamber of Commerce; San Gabriel Valley
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Legislative Coalition of Chambers; San Gabriel Valley Regional
Chamber of Commerce; San Pedro Chamber of Commerce; Santa
Barbara Chamber of Commerce; Santa Clarita Chamber of Commerce;
Santa Paula Chamber of Commerce; Simi Valley Chamber of
Commerce; South Bay Association of Chambers of Commerce;
Thousand Oaks Chamber of Commerce; Torrance Chamber of Commerce;
United Chambers of San Fernando Valley; Valley Industry &
Commerce Association; Ventura Chamber of Commerce; Visalia
Chamber of Commerce; West Coast Lumber and Building Material
Association; Western Electrical Contractors Association;
Wilmington Chamber of Commerce
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : AB 1026 (Quirk) would specify that
the substances included in the list that are identified as
hazardous for purposes of the Safe Drinking Water and Toxic
Enforcement Act of 1986 (Proposition 65) may only be included if
there is sufficient evidence that the referenced substance is
known to cause cancer or reproductive toxicity. This bill is
pending in the Assembly Committee on Environmental Safety and
Toxic Materials.
Prior Legislation :
AB 1756 (Committee on Budget, Chapter 228, Statutes of 2003)
established the Safe Drinking Water and Toxic Enforcement Fund
in the State Treasury and authorized the director of the lead
agency, who is designated by the Governor to implement the act,
to expend the funds in the Safe Drinking Water and Toxic
Enforcement Fund upon appropriation by the Legislature to
implement and administer the act. This bill requires 75 percent
of all civil and criminal penalties collected pursuant to the
act to be deposited in the fund and requires any interest earned
upon the money deposited into the fund to be deposited in the
fund. The bill requires 25 percent of all civil and criminal
penalties collected pursuant to the act to be paid to the
prosecuting office or the person who brought the action in the
public interest.
AB 1447 (Matthews, 2003) would have authorized a person who
receives a notice alleging a violation of the warning
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requirements of the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Proposition 65) pursuant to the act's citizen suit
provision to serve a written offer, including a specified
declaration under penalty of perjury, to enter into a resolution
of the notice's allegations, before an enforcement action is
commenced. The bill would have prohibited a person who brings
an action under the citizen suit provision from receiving either
an award of civil penalties if the written offer includes a
specified declaration and the person serving the written offer
agrees to provide a clear and reasonable warning or eliminate or
reduce the alleged exposure, or attorney's fees if the person
who makes the written offer agrees to reimburse the attorney's
fees and other costs and the person who brings the action does
not achieve a more favorable result than the terms of the offer.
The bill would have deemed as frivolous an unreasonable
rejection of a written offer and the continued prosecution of an
enforcement action. This bill died in the Assembly Committee on
the Judiciary.
AB 1176 (Campbell, 2003) would have made similar changes to
those in AB 1447, but would have additionally required a court
to make a finding that any proposed settlement was "fair,
reasonable and in the public interest" before it could be
approved. This bill died in the Assembly Committee on
Environmental Safety and Toxic Materials.
AB 1380 (Pacheco, 2003) would have made similar changes to those
in AB 1447, but would have additionally prohibited Proposition
65 suits against retailers of consumer products, and would have
increased the number of exemptions from specified Proposition 65
requirements. This bill died in the Assembly Committee on
Environmental Safety and Toxic Materials.
SB 471 (Sher, Chapter 578, Statutes of 2001) requires a court,
in assessing the amount of a civil penalty for a violation of
the Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65), to consider specified factors, including,
among other things, the economic effect of the penalty on the
violator, whether the violator took good-faith measures to
comply with the act, the willfulness of the defendant's
misconduct, and the deterrent effect that the imposition of the
penalty would have on both the violator and the regulated
community. This bill further states that, in cases where a
person bringing an action in the public interest alleging a
violation of the act's warning provisions is required to give
notice to the Attorney General, the notice must include a
AB 227 (Gatto)
Page 17 of ?
certificate of merit stating 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 believes there is a reasonable and
meritorious case for the private action.
Prior Vote :
Assembly Committee on Environmental Safety and Toxic Materials
(Ayes 7, Noes 0)
Assembly Committee on the Judiciary (Ayes 10, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Floor (Ayes 72, Noes 0)
Senate Committee on Environmental Quality (Ayes 9, Noes 0)
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