California Legislature—2013–14 Regular Session

Assembly Bill No. 2361

Introduced by Assembly Member Jones

February 21, 2014

An act to amend Section 25249.7 of the Health and Safety Code, relating to toxic substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 2361, as introduced, Jones. Proposition 65: enforcement.

(1) The Safe Drinking Water and Toxic Enforcement Act of 1986, an initiative measure approved by the voters as Proposition 65 at the November 6, 1986, statewide general election, (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 into or onto land passing into any source of drinking water, except as specified. The act imposes civil penalties 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. Proposition 65 excludes from the definition of the term “person in the course of doing business” a person employing fewer than 10 employees.

This bill would prohibit a person from bringing an action in the public interest against a person employing fewer than 25 employees.

(2) Proposition 65 provides that it may be amended by a statute, passed by a 2⁄3 vote of each house of the Legislature, to further its purposes.

This bill would find and declare that it furthers the purposes of Proposition 65.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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)  begin delete Actions end delete begin insert (1) end insert begin insert   end insert begin insert Except as provided in paragraph (2), an action end insert
pursuant to this section may be brought by a person in the public
interest if both of the following requirements are met:

begin delete

(1)

end delete

begin insert (A) end insert  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.

begin delete

(2)

end delete

begin insert (B) end insert  Neither the Attorney General, a district attorney, a city
attorney, nor a prosecutor has commenced and is diligently
prosecuting an action against the violation.

begin insert

(2) A person may not bring an action in the public interest
pursuant to this subdivision against a person employing fewer
than 25 employees.

end insert

(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 (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
begin insert subparagraph (A) of end insert 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 (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 begin insert subparagraph (A) of end insert paragraph (1) of subdivision (d) for an
exposure identified in subparagraph (A), (B), (C), or (D) of
paragraph (1) shall complete, as appropriate, and provide to the
alleged violator, a notice of special compliance procedure and
proof of compliance form pursuant to subdivision (l) and 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 begin insert subparagraph (A) of end insert paragraph
(1) of subdivision (d) was served on or after begin delete the effective date of
the act amending this section during the 2013-14 Regular Session end delete
begin insert October 5, 2013, end insert 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 in a food or beverage prepared and sold
on the alleged violator’s premises primarily intended for immediate
consumption on or off premises, to the extent of both of the
following:

(i) The chemical was not intentionally added.

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

(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 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 April 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 special compliance procedure
and proof of compliance form specified in subdivision (l), which
was provided by the person serving notice of the alleged violation
and which shall be completed by the alleged violator as directed
in the notice.

(3) The alleged violator shall deliver the civil penalty to the
person that served the notice of the alleged violation within 30
days of 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) The notice required to be provided to an alleged violator
pursuant to subdivision (k) shall be presented as follows:

PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
INSERTED

[4 pages]

(m) An alleged violator 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 act furthers
the purposes of the Safe Drinking Water and Toxic Enforcement
Act of 1986.