BILL NUMBER: SB 650 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Lieu
FEBRUARY 22, 2013
An act to amend Section 25249.13 25249.7
of the Health and Safety Code, relating to toxic chemicals.
LEGISLATIVE COUNSEL'S DIGEST
SB 650, as amended, Lieu. Toxic chemicals: exposure.
The existing
(1) 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 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. 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 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.
This bill would make nonsubstantive changes to this
provision sp ecifically require the
Attorney General to post the above information on its Internet Web
site .
(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.
This bill would find and declare that it furthers the purposes of
Proposition 65.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no yes .
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) Any person that who
violates or threatens to violate Section 25249.5 or 25249.6 may be
enjoined in any a 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 any a district attorney,
by any 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 any
a 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, any a
district attorney, any a city
attorney, nor any a prosecutor has
commenced and is diligently prosecuting an action against the
violation.
(e) Any A person bringing an action
in the public interest pursuant to subdivision (d) and any
a person filing any 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
(j), inclusive, shall affect the requirements imposed by statute or a
court decision in existence on January 1, 2002, concerning whether
any a person filing any
an action in which a violation of this chapter
is alleged is required to comply with the requirements of subdivision
(d).
(f) (1) Any A person
filing an action in the public interest pursuant to subdivision (d),
any a private person filing
any an action in which a violation of this
chapter is alleged, or any a private
person settling any a 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 any a
judgment pursuant to an action brought in the public interest
pursuant to subdivision (d), or any 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) Any A person bringing an action
in the public interest pursuant to subdivision (d), or any
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) 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 , including the
posting of the information on its Internet Web site .
(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 128.6 or 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 128.6 or 128.7 of the Code of Civil
Procedure , whichever provision is applicable to the action
.
(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 any 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 any party who provides a notice
pursuant to subdivision (d) and who renders assistance in that
action.
SEC. 2. 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).
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.