Amended in Senate July 1, 2014

Amended in Assembly May 23, 2014

Amended in Assembly April 21, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2738


Introduced by Committee on Environmental Safety and Toxic Materials (Assembly Members Alejo (Chair), Bloom, Gomez, Lowenthal, and Ting)

February 26, 2014


An act to amend Sectionsbegin delete 25249.7, 116760.40, 116760.44, 116761.70,end deletebegin insert 25249.7end insert and 116835 of the Health and Safety Code, relating tobegin delete drinking water, and making an appropriation thereforend deletebegin insert contaminationend insert.

LEGISLATIVE COUNSEL’S DIGEST

AB 2738, as amended, Committee on Environmental Safety and Toxic Materials. begin deleteSafe Drinking Water State Revolving Fund: accounts. end deletebegin insertContamination.end insert

(1) Existing law, 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 that 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. Existing law, in an action brought by a person in the public interest, requires a person who serves notice of the alleged violation for an exposure to complete, as appropriate, and provide to the alleged violator a notice of special compliance procedure and proof of compliance form, as specified, and prohibits an action from being filed if specified circumstances are met, including the notice being timely served and the alleged violator correcting the alleged violation. Existing law requires the notice to allege that the alleged violator failed to provide clear and reasonable warning of specified exposures and no other violation.

This bill would require the notice of special compliance procedure and proof of compliance form to be provided to the alleged violator at the time the notice of the alleged violation is served. The bill would also require that the notice allege that the alleged violator failed to provide clear and reasonable warning regarding specified exposures.

begin delete

(2) Existing law, the Safe Drinking Water State Revolving Fund Law of 1997, authorizes the State Department of Public Health to administer the Safe Drinking Water State Revolving Fund, which is established in the State Treasury and continuously appropriated to the department to provide grants or revolving fund loans for the design and construction of projects for public water systems, as defined, to enable compliance with safe drinking water standards. Existing law authorizes the department to enter into an agreement with the federal government for matching federal contributions into the fund. Existing law requires federal funds to be deposited in the special accounts that are continuously appropriated to the department.

end delete
begin delete

This bill would, in addition, establish the fees and charges account within the fund for deposit of prescribed administrative fees to be expended for administrative costs of providing assistance under these provisions, to the extent consistent with federal law.

end delete
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Existing law authorizes the department to establish a reasonable fee schedule of administrative fees for loans to be paid by grant applicants, not to exceed 4% of the capitation grant.

end delete
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This bill would, instead, authorize the administrative fees to include an applicant fee to reimburse the department for the costs of reviewing and approving applications, and a loan disbursement fee to reimburse the department for all other costs. The bill would authorize the department to annually adjust the fee schedule.

end delete
begin delete

Existing law requires payment of charges incurred by the Attorney General in protection of the state’s interest in the use of funds under these provisions, not to exceed12 of 1% of the fund, to be paid as program expenses rather than administrative costs.

end delete
begin delete

This bill would delete this requirement.

end delete
begin delete

By changing the purposes for which continuously appropriated funds may be expended, this bill would make an appropriation.

end delete
begin delete

(3)

end delete

begin insert(2)end insert Existing law requires the State Department of Public Health to adopt regulations setting forth the criteria and procedures for certification of specified water treatment devices. Existing law prohibits the sale or distribution of a water treatment device for which a health or safety claim is made, unless the device is included on the list of water treatment devices published on the department’s Internet Web site and certified by an independent certified organization that has been accredited by the American National Standards Institute.begin insert end insertbegin insertExisting law transfers these duties to the State Water Resources Control Board on July 1, 2014. end insert

This bill would remove the requirement of certification by an independent certified organization.begin insert The bill would make changes to reflect the transfer of duties from the department to the State Water Resources Control Board.end insert

Vote: majority. Appropriation: begin deleteyes end deletebegin insertnoend insert. Fiscal committee: yes. State-mandated local program: no.

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

begin delete
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.

P4    1(C) The economic effect of the penalty on the violator.

2(D) Whether the violator took good faith measures to comply
3with this chapter and the time these measures were taken.

4(E) The willfulness of the violator’s misconduct.

5(F) The deterrent effect that the imposition of the penalty would
6have on both the violator and the regulated community as a whole.

7(G) Any other factor that justice may require.

8(c) Actions pursuant to this section may be brought by the
9Attorney General in the name of the people of the State of
10California, by a district attorney, by a city attorney of a city having
11a population in excess of 750,000, or, with the consent of the
12district attorney, by a city prosecutor in a city or city and county
13having a full-time city prosecutor, or as provided in subdivision
14(d).

15(d) Actions pursuant to this section may be brought by a person
16in the public interest if both of the following requirements are met:

17(1) The private action is commenced more than 60 days from
18the date that the person has given notice of an alleged violation of
19Section 25249.5 or 25249.6 that is the subject of the private action
20to the Attorney General and the district attorney, city attorney, or
21prosecutor in whose jurisdiction the violation is alleged to have
22occurred, and to the alleged violator. If the notice alleges a
23violation of Section 25249.6, the notice of the alleged violation
24shall include a certificate of merit executed by the attorney for the
25noticing party, or by the noticing party, if the noticing party is not
26represented by an attorney. The certificate of merit shall state that
27the person executing the certificate has consulted with one or more
28 persons with relevant and appropriate experience or expertise who
29has reviewed facts, studies, or other data regarding the exposure
30to the listed chemical that is the subject of the action, and that,
31based on that information, the person executing the certificate
32believes there is a reasonable and meritorious case for the private
33action. Factual information sufficient to establish the basis of the
34certificate of merit, including the information identified in
35paragraph (2) of subdivision (h), shall be attached to the certificate
36of merit that is served on the Attorney General.

37(2) Neither the Attorney General, a district attorney, a city
38attorney, nor a prosecutor has commenced and is diligently
39prosecuting an action against the violation.

P5    1(e) A person bringing an action in the public interest pursuant
2to subdivision (d) and a person filing an action in which a violation
3of this chapter is alleged shall notify the Attorney General that the
4action has been filed. Neither this subdivision nor the procedures
5provided in subdivisions (f) to (k), inclusive, affect the
6requirements imposed by statute or a court decision in existence
7on January 1, 2002, concerning whether a person filing an action
8in which a violation of this chapter is alleged is required to comply
9with the requirements of subdivision (d).

10(f) (1) A person filing an action in the public interest pursuant
11to subdivision (d), a private person filing an action in which a
12violation of this chapter is alleged, or a private person settling a
13violation of this chapter alleged in a notice given pursuant to
14paragraph (1) of subdivision (d), shall, after the action or violation
15is subject either to a settlement or to a judgment, submit to the
16Attorney General a reporting form that includes the results of that
17settlement or judgment and the final disposition of the case, even
18if dismissed. At the time of the filing of a judgment pursuant to
19an action brought in the public interest pursuant to subdivision (d),
20or an action brought by a private person in which a violation of
21this chapter is alleged, the plaintiff shall file an affidavit verifying
22that the report required by this subdivision has been accurately
23completed and submitted to the Attorney General.

24(2) A person bringing an action in the public interest pursuant
25to subdivision (d), or a private person bringing an action in which
26a violation of this chapter is alleged, shall, after the action is either
27subject to a settlement, with or without court approval, or to a
28judgment, submit to the Attorney General a report that includes
29information on any corrective action being taken as a part of the
30settlement or resolution of the action.

31(3) The Attorney General shall develop a reporting form that
32specifies the information that shall be reported, including, but not
33limited to, for purposes of subdivision (e), the date the action was
34filed, the nature of the relief sought, and for purposes of this
35subdivision, the amount of the settlement or civil penalty assessed,
36other financial terms of the settlement, and any other information
37the Attorney General deems appropriate.

38(4) If there is a settlement of an action brought by a person in
39the public interest under subdivision (d), the plaintiff shall submit
40the settlement, other than a voluntary dismissal in which no
P6    1consideration is received from the defendant, to the court for
2approval upon noticed motion, and the court may approve the
3settlement only if the court makes all of the following findings:

4(A) The warning that is required by the settlement complies
5with this chapter.

6(B) The award of attorney’s fees is reasonable under California
7law.

8(C) The penalty amount is reasonable based on the criteria set
9forth in paragraph (2) of subdivision (b).

10(5) The plaintiff subject to paragraph (4) has the burden of
11producing evidence sufficient to sustain each required finding.
12The plaintiff shall serve the motion and all supporting papers on
13the Attorney General, who may appear and participate in a
14proceeding without intervening in the case.

15(6) Neither this subdivision nor the procedures provided in
16subdivision (e) and subdivisions (g) to (k), inclusive, affect the
17requirements imposed by statute or a court decision in existence
18on January 1, 2002, concerning whether claims raised by a person
19or public prosecutor not a party to the action are precluded by a
20settlement approved by the court.

21(g) The Attorney General shall maintain a record of the
22information submitted pursuant to subdivisions (e) and (f) and
23shall make this information available to the public.

24(h) (1) Except as provided in paragraph (2), the basis for the
25certificate of merit required by subdivision (d) is not discoverable.
26However, nothing in this subdivision precludes the discovery of
27information related to the certificate of merit if that information
28is relevant to the subject matter of the action and is otherwise
29discoverable, solely on the ground that it was used in support of
30the certificate of merit.

31(2) Upon the conclusion of an action brought pursuant to
32subdivision (d) with respect to a defendant, if the trial court
33determines that there was no actual or threatened exposure to a
34listed chemical, the court may, upon the motion of that alleged
35violator or upon the court’s own motion, review the basis for the
36belief of the person executing the certificate of merit, expressed
37in the certificate of merit, that an exposure to a listed chemical had
38occurred or was threatened. The information in the certificate of
39merit, including the identity of the persons consulted with and
40relied on by the certifier, and the facts, studies, or other data
P7    1reviewed by those persons, shall be disclosed to the court in an
2in-camera proceeding at which the moving party shall not be
3present. If the court finds that there was no credible factual basis
4for the certifier’s belief that an exposure to a listed chemical had
5occurred or was threatened, then the action shall be deemed
6frivolous within the meaning of Section 128.7 of the Code of Civil
7Procedure. The court shall not find a factual basis credible on the
8basis of a legal theory of liability that is frivolous within the
9meaning of Section 128.7 of the Code of Civil Procedure.

10(i) The Attorney General may provide the factual information
11submitted to establish the basis of the certificate of merit on request
12to a district attorney, city attorney, or prosecutor within whose
13jurisdiction the violation is alleged to have occurred, or to any
14other state or federal government agency, but in all other respects
15the Attorney General shall maintain, and ensure that all recipients
16maintain, the submitted information as confidential official
17information to the full extent authorized in Section 1040 of the
18Evidence Code.

19(j) In an action brought by the Attorney General, a district
20attorney, a city attorney, or a prosecutor pursuant to this chapter,
21the Attorney General, district attorney, city attorney, or prosecutor
22may seek and recover costs and attorney’s fees on behalf of a party
23who provides a notice pursuant to subdivision (d) and who renders
24assistance in that action.

25(k) Any person who serves a notice of alleged violation pursuant
26to paragraph (1) of subdivision (d) for an exposure identified in
27subparagraph (A), (B), (C), or (D) of paragraph (1) shall complete,
28as appropriate, and provide to the alleged violator at the time the
29notice of alleged violation is served, a notice of special compliance
30procedure and proof of compliance form pursuant to subdivision
31(l) and shall not file an action for that exposure against the alleged
32violator, or recover from the alleged violator in a settlement any
33payment in lieu of penalties or any reimbursement for costs and
34 attorney’s fees, if all of the following conditions have been met:

35(1) The notice given pursuant to paragraph (1) of subdivision
36(d) was served on or after the effective date of the act amending
37this section during the 2013-14 Regular Session and alleges that
38the alleged violator failed to provide clear and reasonable warning
39as required under Section 25249.6 regarding one or more of the
40following:

P8    1(A) An exposure to alcoholic beverages that are consumed on
2the alleged violator’s premises to the extent onsite consumption
3is permitted by law.

4(B) An exposure to a chemical known to the state to cause cancer
5or reproductive toxicity in a food or beverage prepared and sold
6on the alleged violator’s premises primarily intended for immediate
7consumption on or off premises, to the extent of both of the
8following:

9(i) The chemical was not intentionally added.

10(ii) The chemical was formed by cooking or similar preparation
11of food or beverage components necessary to render the food or
12beverage palatable or to avoid microbiological contamination.

13(C) An exposure to environmental tobacco smoke caused by
14entry of persons (other than employees) on premises owned or
15operated by the alleged violator where smoking is permitted at any
16location on the premises.

17(D) An exposure to chemicals known to the state to cause cancer
18or reproductive toxicity in engine exhaust, to the extent the
19exposure occurs inside a facility owned or operated by the alleged
20violator and primarily intended for parking noncommercial
21vehicles.

22(2) Within 14 days after service of the notice, the alleged violator
23has done all of the following:

24(A) Corrected the alleged violation.

25(B) (i) Agreed to pay a civil penalty for the alleged violation
26of Section 25496.6 in the amount of five hundred dollars ($500),
27to be adjusted quinquennially pursuant to clause (ii), per facility
28or premises where the alleged violation occurred, of which 75
29percent shall be deposited in the Safe Drinking Water and Toxic
30Enforcement Fund, and 25 percent shall be paid to the person that
31served the notice as provided in Section 25249.12.

32(ii) On April 1, 2019, and at each five-year interval thereafter,
33the dollar amount of the civil penalty provided pursuant to this
34subparagraph shall be adjusted by the Judicial Council based on
35the change in the annual California Consumer Price Index for All
36Urban Consumers, published by the Department of Industrial
37Relations, Division of Labor Statistics, for the most recent five-year
38period ending on December 31 of the year preceding the year in
39which the adjustment is made, rounded to the nearest five dollars
40($5). The Judicial Council shall quinquennially publish the dollar
P9    1amount of the adjusted civil penalty provided pursuant to this
2subparagraph, together with the date of the next scheduled
3adjustment.

4(C) Notified, in writing, the person that served the notice of the
5alleged violation, that the violation has been corrected. The written
6notice shall include the notice of special compliance procedure
7and proof of compliance form specified in subdivision (l), which
8was provided by the person serving notice of the alleged violation
9and which shall be completed by the alleged violator as directed
10in the notice.

11(3) The alleged violator shall deliver the civil penalty to the
12person that served the notice of the alleged violation within 30
13days of service of that notice, and the person that served the notice
14of violation shall remit the portion of the penalty due to the Safe
15Drinking Water and Toxic Enforcement Fund within 30 days of
16receipt of the funds from the alleged violator.

17(l)  The notice required to be provided to an alleged violator
18pursuant to subdivision (k) shall be presented as follows:

PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED

[2 pages]

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).

12

SEC. 2.  

Section 116760.40 of the Health and Safety Code is
13amended to read:

14

116760.40.  

The department may undertake any of the following
15actions to implement the Safe Drinking Water State Revolving
16Fund:

17(a) Enter into agreements with the federal government for federal
18contributions to the fund.

19(b) Accept federal contributions to the fund.

20(c) Use moneys in the fund for the purposes permitted by the
21federal act.

22(d) Provide for the deposit of matching funds and other available
23and necessary moneys into the fund.

24(e) Make requests, on behalf of the state, for deposit into the
25fund of available federal moneys under the federal act.

26(f) Determine, on behalf of the state, that public water systems
27that receive financial assistance from the fund will meet the
28requirements of, and otherwise be treated as required by, the federal
29act.

30(g) Provide for appropriate audit, accounting, and fiscal
31management services, plans, and reports relative to the fund.

32(h) Take additional incidental action as may be appropriate for
33adequate administration and operation of the fund.

34(i) Enter into an agreement with, and accept matching funds
35from, a public water system. A public water system that seeks to
36enter into an agreement with the department and provide matching
37funds pursuant to this subdivision shall provide to the department
38evidence of the availability of those funds in the form of a written
39resolution, or equivalent document, from the public water system
40before it requests a preliminary loan commitment.

P13   1(j) Charge public water systems that elect to provide matching
2funds a fee to cover the actual cost of obtaining the federal funds
3pursuant to Section 1452(e) of the federal act (42 U.S.C. Sec.
4300j-12) and to process the loan application. The fee shall be
5waived by the department if sufficient funds to cover those costs
6are available from other sources.

7(k) Use money returned to the fund under Section 116761.85
8and any other source of matching funds, if not prohibited by statute,
9as matching funds for the federal administrative allowance under
10Section 1452(g) of the federal act (42 U.S.C. Sec. 300j-12).

11(l) Establish separate accounts or subaccounts as required or
12allowed in the federal act and related guidance, for funds to be
13used for administration of the fund and other purposes. Within the
14fund the department shall establish the following accounts,
15including, but not limited to:

16(1) A fund administration account for state expenses related to
17administration of the fund pursuant to Section 1452(g)(2) of the
18federal act.

19(2) A water system reliability account for department expenses
20pursuant to Section 1452(g)(2)(A), (B), (C), or (D) of the federal
21act.

22(3) A source protection account for state expenses pursuant to
23Section 1452(k) of the federal act.

24(4) A small system technical assistance account for department
25expenses pursuant to Section 1452(g)(2) of the federal act.

26(5) A state revolving loan account pursuant to Section 1452(a)(2)
27of the federal act.

28(6) A wellhead protection account established pursuant to
29Section 1452(a)(2) of the federal act.

30(7) A fees and charges account for state expenses in providing
31assistance under this chapter.

32(m) Deposit federal funds for administration and other purposes
33into separate accounts or subaccounts as allowed by the federal
34act.

35(n) Determine, on behalf of the state, whether sufficient progress
36is being made toward compliance with the enforceable deadlines,
37goals, and requirements of the federal act and the California Safe
38Drinking Water Act, Chapter 4 (commencing with Section 116270).

39(o) To the extent permitted under federal law, including, but
40not limited to, Section 1452(a)(2) and (f)(4) of the federal Safe
P14   1Drinking Water Act (42 U.S.C. Sec. 300j-12(a)(2) and (f)(4)), use
2any and all amounts deposited in the fund, including, but not
3limited to, loan repayments and interest earned on the loans, as a
4source of reserve and security for the payment of principal and
5interest on revenue bonds, the proceeds of which are deposited in
6the fund.

7(p) Request the Infrastructure and Economic Development Bank
8(I-Bank), established under Chapter 2 (commencing with Section
963021) of Division 1 of Title 6.7 of the Government Code, to issue
10revenue bonds, enter into agreements with the I-Bank, and take
11all other actions necessary or convenient for the issuance and sale
12of revenue bonds pursuant to Article 6.3 (commencing with Section
1363048.55) of Chapter 2 of Division 1 of Title 6.7 of the
14Government Code. The purpose of the bonds is to augment the
15 fund.

16

SEC. 3.  

Section 116760.44 of the Health and Safety Code is
17amended to read:

18

116760.44.  

(a) The department may deposit administrative
19fees and charges paid by public water systems and other available
20and necessary money into the administrative account of the fund.

21(b) (1) Notwithstanding subdivision (a), the department may
22deposit the following moneys into the fees and charges account:

23(A) Administrative fees received pursuant to Section 116761.70.

24(B) Notwithstanding Section 16475 of the Government Code,
25interest earned upon the moneys deposited into the fees and charges
26account.

27(2) The department may expend moneys in the fees and charges
28account for administrative costs of providing assistance under this
29chapter, to the extent consistent with federal law and regulations.

30

SEC. 4.  

Section 116761.70 of the Health and Safety Code is
31amended to read:

32

116761.70.  

(a)  Not more than 4 percent of the capitalization
33grant may be used by the department for administering this chapter.
34The department may establish a reasonable schedule of
35administrative fees for loans, which shall be paid by the applicant
36and recipient, as appropriate, to reimburse the state for the costs
37of the state administration of this chapter.

38(b) The fee schedule authorized pursuant to subdivision (a) shall
39be designed to generate total annual revenue in an amount that
40does not exceed the total annual cost to the department for
P15   1administration of this chapter, including, but not limited to, the
2costs of servicing loans made pursuant to this chapter.

3(c) The fee schedule may contain, and the department may
4assess, both of the following administrative fees:

5(1) An application fee, to be paid by all applicants, to reimburse
6the department for the costs of reviewing the application. The
7application fee shall be collected at the time of submission of the
8application.

9(2) A loan disbursal fee, to be paid by loan recipients, to pay
10all other costs of the department associated with administering this
11chapter, including, but not limited to, costs associated with
12servicing the loan. In total, the loan disbursal fee shall not exceed
131 percent of the principal loan amount and may be assessed on, or
14at the time of, each disbursement of loan funds. The department
15may invoice the funding recipient for the loan disbursement fee.
16The fee shall be due and payable by the funding recipient within
1790 days following the date of the invoice. Loan disbursal fees shall
18not be deferred during project construction.

19(d) Notwithstanding subdivision (a), (b), or (c), if a funding
20recipient demonstrates to the department that the assessment of
21administrative fees would make the costs of the loan unaffordable
22to a recipient, the department shall waive or reduce the fees, as
23appropriate.

24(e) The department shall annually adjust the fee schedule of
25charges for loans to be issued in that fiscal year to set the fees at
26a rate that approximates without exceeding, the total annual cost
27to the department for administration of this chapter during that
28fiscal year, including, but not limited to, the costs of servicing
29loans made pursuant to this chapter.

end delete
30begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 25249.7 of the end insertbegin insertHealth and Safety Codeend insert
31begin insert is amended to read:end insert

32

25249.7.  

(a) A person who violates or threatens to violate
33Section 25249.5 or 25249.6 may be enjoined in any court of
34competent jurisdiction.

35(b) (1) A person who has violated Section 25249.5 or 25249.6
36is liable for a civil penalty not to exceed two thousand five hundred
37dollars ($2,500) per day for each violation in addition to any other
38penalty established by law. That civil penalty may be assessed and
39recovered in a civil action brought in any court of competent
40jurisdiction.

P16   1(2) In assessing the amount of a civil penalty for a violation of
2this chapter, the court shall consider all of the following:

3(A) The nature and extent of the violation.

4(B) The number of, and severity of, the violations.

5(C) The economic effect of the penalty on the violator.

6(D) Whether the violator took good faith measures to comply
7with this chapter and the time these measures were taken.

8(E) The willfulness of the violator’s misconduct.

9(F) The deterrent effect that the imposition of the penalty would
10have on both the violator and the regulated community as a whole.

11(G) Any other factor that justice may require.

12(c) Actions pursuant to this section may be brought by the
13Attorney General in the name of the people of the State of
14California, by a district attorney, by a city attorney of a city having
15a population in excess of 750,000, or, with the consent of the
16district attorney, by a city prosecutor in a city or city and county
17having a full-time city prosecutor, or as provided in subdivision
18(d).

19(d) Actions pursuant to this section may be brought by a person
20in the public interest if both of the following requirements are met:

21(1) The private action is commenced more than 60 days from
22the date that the person has given notice of an alleged violation of
23Section 25249.5 or 25249.6 that is the subject of the private action
24to the Attorney General and the district attorney, city attorney, or
25prosecutor in whose jurisdiction the violation is alleged to have
26occurred, and to the alleged violator. If the notice alleges a
27violation of Section 25249.6, the notice of the alleged violation
28shall include a certificate of merit executed by the attorney for the
29noticing party, or by the noticing party, if the noticing party is not
30represented by an attorney. The certificate of merit shall state that
31the person executing the certificate has consulted with one or more
32persons with relevant and appropriate experience or expertise who
33has reviewed facts, studies, or other data regarding the exposure
34to the listed chemical that is the subject of the action, and that,
35based on that information, the person executing the certificate
36believes there is a reasonable and meritorious case for the private
37action. Factual information sufficient to establish the basis of the
38certificate of merit, including the information identified in
39paragraph (2) of subdivision (h), shall be attached to the certificate
40of merit that is served on the Attorney General.

P17   1(2) Neither the Attorney General, a district attorney, a city
2attorney, nor a prosecutor has commenced and is diligently
3prosecuting an action against the violation.

4(e) A person bringing an action in the public interest pursuant
5to subdivision (d) and a person filing an action in which a violation
6of this chapter is alleged shall notify the Attorney General that the
7action has been filed. Neither this subdivision nor the procedures
8provided in subdivisions (f) to (k), inclusive, affect the
9requirements imposed by statute or a court decision in existence
10on January 1, 2002, concerning whether a person filing an action
11in which a violation of this chapter is alleged is required to comply
12with the requirements of subdivision (d).

13(f) (1) A person filing an action in the public interest pursuant
14to subdivision (d), a private person filing an action in which a
15violation of this chapter is alleged, or a private person settling a
16violation of this chapter alleged in a notice given pursuant to
17paragraph (1) of subdivision (d), shall, after the action or violation
18is subject either to a settlement or to a judgment, submit to the
19Attorney General a reporting form that includes the results of that
20settlement or judgment and the final disposition of the case, even
21if dismissed. At the time of the filing of a judgment pursuant to
22an action brought in the public interest pursuant to subdivision (d),
23or an action brought by a private person in which a violation of
24this chapter is alleged, the plaintiff shall file an affidavit verifying
25that the report required by this subdivision has been accurately
26completed and submitted to the Attorney General.

27(2) A person bringing an action in the public interest pursuant
28to subdivision (d), or a private person bringing an action in which
29a violation of this chapter is alleged, shall, after the action is either
30subject to a settlement, with or without court approval, or to a
31judgment, submit to the Attorney General a report that includes
32information on any corrective action being taken as a part of the
33settlement or resolution of the action.

34(3) The Attorney General shall develop a reporting form that
35specifies the information that shall be reported, including, but not
36limited to, for purposes of subdivision (e), the date the action was
37filed, the nature of the relief sought, and for purposes of this
38subdivision, the amount of the settlement or civil penalty assessed,
39other financial terms of the settlement, and any other information
40the Attorney General deems appropriate.

P18   1(4) If there is a settlement of an action brought by a person in
2the public interest under subdivision (d), the plaintiff shall submit
3the settlement, other than a voluntary dismissal in which no
4consideration is received from the defendant, to the court for
5approval upon noticed motion, and the court may approve the
6settlement only if the court makes all of the following findings:

7(A) The warning that is required by the settlement complies
8with this chapter.

9(B) The award of attorney’s fees is reasonable under California
10law.

11(C) The penalty amount is reasonable based on the criteria set
12forth in paragraph (2) of subdivision (b).

13(5) The plaintiff subject to paragraph (4) has the burden of
14producing evidence sufficient to sustain each required finding.
15The plaintiff shall serve the motion and all supporting papers on
16the Attorney General, who may appear and participate in a
17proceeding without intervening in the case.

18(6) Neither this subdivision nor the procedures provided in
19subdivision (e) and subdivisions (g) to (k), inclusive, affect the
20requirements imposed by statute or a court decision in existence
21on January 1, 2002, concerning whether claims raised by a person
22or public prosecutor not a party to the action are precluded by a
23settlement approved by the court.

24(g) The Attorney General shall maintain a record of the
25information submitted pursuant to subdivisions (e) and (f) and
26shall make this information available to the public.

27(h) (1) Except as provided in paragraph (2), the basis for the
28certificate of merit required by subdivision (d) is not discoverable.
29However, nothing in this subdivision precludes the discovery of
30information related to the certificate of merit if that information
31is relevant to the subject matter of the action and is otherwise
32discoverable, solely on the ground that it was used in support of
33the certificate of merit.

34(2) Upon the conclusion of an action brought pursuant to
35subdivision (d) with respect to a defendant, if the trial court
36determines that there was no actual or threatened exposure to a
37listed chemical, the court may, upon the motion of that alleged
38violator or upon the court’s own motion, review the basis for the
39belief of the person executing the certificate of merit, expressed
40in the certificate of merit, that an exposure to a listed chemical had
P19   1occurred or was threatened. The information in the certificate of
2merit, including the identity of the persons consulted with and
3relied on by the certifier, and the facts, studies, or other data
4reviewed by those persons, shall be disclosed to the court in an
5in-camera proceeding at which the moving party shall not be
6present. If the court finds that there was no credible factual basis
7for the certifier’s belief that an exposure to a listed chemical had
8occurred or was threatened, then the action shall be deemed
9frivolous within the meaning of Section 128.7 of the Code of Civil
10Procedure. The court shall not find a factual basis credible on the
11basis of a legal theory of liability that is frivolous within the
12meaning of Section 128.7 of the Code of Civil Procedure.

13(i) The Attorney General may provide the factual information
14submitted to establish the basis of the certificate of merit on request
15to a district attorney, city attorney, or prosecutor within whose
16jurisdiction the violation is alleged to have occurred, or to any
17other state or federal government agency, but in all other respects
18the Attorney General shall maintain, and ensure that all recipients
19maintain, the submitted information as confidential official
20information to the full extent authorized in Section 1040 of the
21Evidence Code.

22(j) In an action brought by the Attorney General, a district
23attorney, a city attorney, or a prosecutor pursuant to this chapter,
24the Attorney General, district attorney, city attorney, or prosecutor
25may seek and recover costs and attorney’s fees on behalf of a party
26who provides a notice pursuant to subdivision (d) and who renders
27assistance in that action.

28(k) Any person who serves a notice of alleged violation pursuant
29to paragraph (1) of subdivision (d) for an exposure identified in
30subparagraph (A), (B), (C), or (D) of paragraph (1) shall complete,
31as appropriate, and provide to the allegedbegin delete violator,end deletebegin insert violator at the
32time the notice of alleged violation is served,end insert
a notice of special
33compliance procedure and proof of compliance form pursuant to
34subdivision (l) and shall not file an action for that exposure against
35the alleged violator, or recover from the alleged violator in a
36settlement any payment in lieu of penalties or any reimbursement
37for costs and attorney’s fees, if all of the following conditions have
38been met:

39(1) The notice given pursuant to paragraph (1) of subdivision
40(d) was served on or after the effective date of the act amending
P20   1this section during the 2013-14 Regular Session and alleges that
2the alleged violator failed to provide clear and reasonable warning
3as required under Section 25249.6 regarding one or more of the
4begin delete following, and no other violation:end deletebegin insert following:end insert

5(A) An exposure to alcoholic beverages that are consumed on
6the alleged violator’s premises to the extent onsite consumption
7is permitted by law.

8(B) An exposure to a chemical known to the state to cause cancer
9or reproductive toxicity in a food or beverage prepared and sold
10on the alleged violator’s premises primarily intended for immediate
11consumption on or off premises, to the extent of both of the
12following:

13(i) The chemical was not intentionally added.

14(ii) The chemical was formed by cooking or similar preparation
15of food or beverage components necessary to render the food or
16beverage palatable or to avoid microbiological contamination.

17(C) An exposure to environmental tobacco smoke caused by
18entry of persons (other than employees) on premises owned or
19operated by the alleged violator where smoking is permitted at any
20location on the premises.

21(D) An exposure to chemicals known to the state to cause cancer
22or reproductive toxicity in engine exhaust, to the extent the
23exposure occurs inside a facility owned or operated by the alleged
24violator and primarily intended for parking noncommercial
25vehicles.

26(2) Within 14 days after service of the notice, the alleged violator
27has done all of the following:

28(A) Corrected the alleged violation.

29(B) (i) Agreed to pay a civil penalty for the alleged violation
30of Section 25496.6 in the amount of five hundred dollars ($500),
31to be adjusted quinquennially pursuant to clause (ii), per facility
32or premises where the alleged violation occurred, of which 75
33percent shall be deposited in the Safe Drinking Water and Toxic
34Enforcement Fund, and 25 percent shall be paid to the person that
35served the notice as provided in Section 25249.12.

36(ii) On April 1, 2019, and at each five-year interval thereafter,
37the dollar amount of the civil penalty provided pursuant to this
38subparagraph shall be adjusted by the Judicial Council based on
39the change in the annual California Consumer Price Index for All
40Urban Consumers, published by the Department of Industrial
P21   1Relations, Division of Labor Statistics, for the most recent five-year
2period ending on December 31 of the year preceding the year in
3which the adjustment is made, rounded to the nearest five dollars
4($5). The Judicial Council shall quinquennially publish the dollar
5amount of the adjusted civil penalty provided pursuant to this
6subparagraph, together with the date of the next scheduled
7adjustment.

8(C) Notified, in writing, the person that served the notice of the
9alleged violation, that the violation has been corrected. The written
10notice shall include the notice of special compliance procedure
11and proof of compliance form specified in subdivision (l), which
12was provided by the person serving notice of the alleged violation
13and which shall be completed by the alleged violator as directed
14in the notice.

15(3) The alleged violator shall deliver the civil penalty to the
16person that served the notice of the alleged violation within 30
17days of service of that notice, and the person that served the notice
18of violation shall remit the portion of the penalty due to the Safe
19Drinking Water and Toxic Enforcement Fund within 30 days of
20receipt of the funds from the alleged violator.

21(l)  The notice required to be provided to an alleged violator
22pursuant to subdivision (k) shall be presented as follows:

P22   1PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE
2INSERTED

[2 pages]

P24   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

begin deleteSEC. 5.end delete
13begin insertSEC. 2.end insert  

Section 116835 of the Health and Safety Code is
14amended to read:

15

116835.  

(a) A water treatment device for which a health or
16safety claim is made shall not be sold or otherwise distributed
17unless the device is included on the list of water treatment devices
18published on thebegin delete department’send deletebegin insert state board’send insert Internet Web site
19pursuant to Section 116845.

20(b) After July 1, 2015, the exterior packaging of a water
21treatment device for which a health or safety claim is made, and
22that is offered for sale in a retail establishment in California, shall
23clearly identify the contaminant or contaminants that the device
24has been certified pursuant to subdivision (a) to remove or reduce.
25If a device has been certified to remove or reduce more than five
26contaminants, at least five contaminants shall be listed on the
27exterior packaging followed by a statement directing consumers
28to visit the manufacturer’s Internet Web site to obtain information
29regarding additional contaminants that the device is certified to
30remove or reduce.

31(c) After July 1, 2015, the manufacturer of a water treatment
32device for which it makes a health or safety claim shall include
33with each water treatment device offered for sale in California a
34decal that may be affixed to the device by the consumer that states,
35at a minimum, the following:
36
37“Please refer to the owner’s manual for proper maintenance and
38operation. If this device is not maintained and operated as specified
39in the owner’s manual, there is a risk of exposure to contaminants.
40For more information, visit the manufacturer’s Internet Web site
P25   1at
2Manufacturer’s Internet Web site
or thebegin delete California Department of Public
3Health’send delete
begin insert State Water Resources Control Board’send insert Internet
4Web site atbegin delete www.cdph.ca.govend deletebegin insert www.swrcb.ca.govend insert.”

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