Amended in Senate April 15, 2013

Senate Bill No. 650

Introduced by Senator Lieu

February 22, 2013

An act to amend Section begin delete 25249.13 end delete begin insert 25249.7 end insert of the Health and Safety Code, relating to toxic chemicals.

LEGISLATIVE COUNSEL’S DIGEST

SB 650, as amended, Lieu. Toxic chemicals: exposure.

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The existing

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begin insert (1) end insert begin insert   end insert begin insert The end insert 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 discharging or releasing such a chemical into any source of drinking water, except as specified. The act provides that it does not alter or diminish any legal obligation otherwise required in common law or by statute or regulation, or create or enlarge any defense in any action to enforce a legal obligation. begin insert The act requires a person bringing an action in the public interest, or a private person filing an action in which a violation of the act is alleged, to provide to specified entities, including to the Attorney General, a notice of an alleged violation at least 60 days prior to the filing of the action and to report to the Attorney General the results of a settlement end insert begin insert or judgment and the final disposition of a case brought by the person. The act requires the Attorney General to maintain a record of the notice and report and to make the information available to the public. end insert

This bill would begin delete make nonsubstantive changes to this provision end delete begin insert specifically require the Attorney General to post the above information on its Internet Web site end insert .

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

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

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

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begin insert Section 25249.7 of the end insert begin insert Health and Safety Code end insert
begin insert is amended to read: end insert

25249.7.  

(a) Any person begin delete that end delete begin insert who end insert violates or threatens to
violate Section 25249.5 or 25249.6 may be enjoined in begin delete any end delete begin insert a end insert court
of competent jurisdiction.

(b) (1) Any person who has violated Section 25249.5 or 25249.6
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. 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 begin delete any end delete begin insert a end insert district attorney, by begin delete any end delete begin insert a end insert 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 begin delete any end delete begin insert a end insert city or city
and county having a full-time city prosecutor, or as provided in
subdivision (d).

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

(1) 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.

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

(e)  begin delete Any end delete begin insert A end insert person bringing an action in the public interest
pursuant to subdivision (d) and begin delete any end delete begin insert a end insert person filing begin delete any end delete begin insert an end insert 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 (j),
inclusive, shall affect the requirements imposed by statute or a
court decision in existence on January 1, 2002, concerning whether
begin delete any end delete begin insert a end insert person filing begin delete any end delete begin insert an end insert action in which a violation of this
chapter is alleged is required to comply with the requirements of
subdivision (d).

(f) (1)  begin delete Any end delete begin insert A end insert person filing an action in the public interest
pursuant to subdivision (d), begin delete any end delete begin insert a end insert private person filing begin delete any end delete begin insert an end insert
action in which a violation of this chapter is alleged, or begin delete any end delete begin insert a end insert
private person settling begin delete any end delete begin insert a end insert violation of this chapter alleged in a
notice given pursuant to 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 begin delete any end delete begin insert a end insert judgment pursuant to an action brought in the public
interest pursuant to subdivision (d), or begin delete any end delete begin insert an end insert 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)  begin delete Any end delete begin insert A end insert person bringing an action in the public interest
pursuant to subdivision (d), or begin delete any end delete begin insert a end insert 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) Any warning that is required by the settlement complies
with this chapter.

(B) Any award of attorney’s fees is reasonable under California
law.

(C) Any 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 any
proceeding without intervening in the case.

(6) Neither this subdivision nor the procedures provided in
subdivision (e) and subdivisions (g) to (j), inclusive, shall affect
the requirements imposed by statute or a court decision in existence
on January 1, 2002, concerning whether claims raised by any
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 begin insert , including the
posting of the information on its Internet Web site end insert .

(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 shall preclude 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 any 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 begin delete 128.6 or end delete 128.7 of the Code
of Civil Procedure, whichever provision is applicable to the action.
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 begin delete 128.6 or end delete 128.7 of the Code of Civil Procedure begin delete , whichever
provision is applicable to the action end delete .

(i) The Attorney General may provide the factual information
submitted to establish the basis of the certificate of merit on request
to any 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 begin delete any end delete begin insert an end insert 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 any
party who provides a notice pursuant to subdivision (d) and who
renders assistance in that action.

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begin insert SEC. 2. end insert   

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The Legislature finds and declares that this act furthers
the purposes of the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of
Division 20 of the Health and Safety Code).

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SECTION 1.  

Section 25249.13 of the Health and Safety Code
is amended to read:

25249.13.  

(a) This chapter does not alter or diminish any legal
obligation otherwise required in common law or by statute or
regulation, and it does not create or enlarge any defense in any
action to enforce a legal obligation.

(b) Penalties and sanctions imposed under this chapter shall be
in addition to any penalties or sanctions otherwise prescribed by
law.

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