BILL NUMBER: AB 276 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Environmental Safety and Toxic Materials
(Assembly Members Alejo (Chair), Gonzalez, McCarty, and Ting)
FEBRUARY 11, 2015
An act to amend Sections 25173, 25185.6, 25190, 25358.1, 25358.2,
and 25367 of the Health and Safety Code, relating to hazardous
materials.
LEGISLATIVE COUNSEL'S DIGEST
AB 276, as introduced, Committee on Environmental Safety and Toxic
Materials. Department of Toxic Substances Control: response actions:
cleanup ability information.
(1) The Hazardous Waste Control Law regulates the use and disposal
of hazardous materials. Existing law permits the Department of Toxic
Substances Control or any local officer or agency authorized to
enforce the Hazardous Waste Control Law to require specified persons
to furnish and transmit certain information relating to hazardous
substances, hazardous wastes, and hazardous materials. Existing law
defines information that constitutes a trade secret and requires the
department to establish procedures to ensure that trade secrets
provided to the department are used only in connection with the
responsibilities of the department under the Hazardous Waste Control
Law and are not otherwise disseminated without the consent of the
persons submitting the information. A violation of the Hazardous
Waste Control Law is a crime.
This bill would also authorize the department or local officer or
agency to require the persons specified above to furnish and transmit
any information relating to those persons' abilities to pay for or
perform a response action. By expanding the scope of a crime, this
bill would impose a state-mandated local program. The bill would
authorize the department to issue an order directing compliance if a
person intentionally or negligently fails to furnish and transmit the
above-described information. The bill would authorize the department
or a local officer or agency to
This bill would revise the definition of "trade secret" to
include information related to a person's ability to pay for, or to
perform a response action. The bill would authorize the department to
disclose trade secrets to specified persons in connection with the
department's responsibilities under the Hazardous Waste Control Law.
The bill would subject any person who knowingly and willfully
disseminates information protected by these provisions and procedures
established by the department to a fine, imprisonment in a county
jail, or both. By creating a new crime, this bill would impose a
state-mandated local program.
This bill would authorize the department or a local officer or
agency to take the above-described actions only if there is a
reasonable basis to believe that there has been or may be a release
or threatened release of a hazardous substance, and only for the
purpose of determining under the Hazardous Waste Control Law the need
for a response action, the choosing or taking of a response action,
or otherwise for the purpose of enforcing the Hazardous Waste Control
Law.
(2) The Carpenter-Presley-Tanner Hazardous Substance Account Act
authorizes the department to require any potentially responsibly
party, or any person who has, or may have, acquired certain
information relating to hazardous substances and hazardous substance
release sites in the course of a commercial, ownership, or
contractual relationship with a potentially responsible party, to
furnish that information. Existing law makes any person who
intentionally makes a false statement or representation in any report
or information furnished, or fails to provide information requested,
pursuant to these provisions liable for a civil penalty. Existing
law authorizes the department to disclose trade secrets received by
the department to specified persons in connection with the department'
s responsibilities under the act and requires the department to
establish procedures to ensure that the trade secrets are only
utilized in connection with its responsibilities under the act. Any
person who knowingly and willfully disseminates information protected
by these provisions is subject to a fine, imprisonment in a county
jail, or both.
This bill would instead authorize the department to require any
person who has or may have information relating to hazardous
substances or hazardous substance release sites, regardless of how
acquired, to furnish the information, including information relating
to the ability of a responsible party or liable person to pay for or
to perform a response action. The bill would expand the liability of
a person subject to the civil penalty to a person who acted
negligently and would authorize the department to issue an order
directing compliance if a person intentionally or negligently fails
to furnish information required to be disclosed pursuant to these
provisions.
The bill would additionally include as trade secrets information
relating to the ability of any person to pay for or to perform a
response action. By expanding the scope of a crime, this bill would
impose a state-mandated local program.
(3) Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25173 of the Health and Safety Code is amended
to read:
25173. (a) The department shall establish
procedures to ensure that trade secrets used by a person regarding
methods of hazardous waste handling and disposal are utilized by the
director, the department, or any authorized representative of the
department only in connection with the responsibilities of the
department pursuant to this chapter and that such
those trade secrets are not otherwise disseminated by the
director, the department, or any authorized representative of the
department without the consent of the person. However, any
information shall be made available to governmental agencies for use
in making studies and for use in judicial review or enforcement
proceedings involving the person furnishing the information.
"Trade
(b) "Trade secrets," as used in
this section, may include, but are not limited to, any formula, plan,
pattern, process, tool, mechanism, compound, procedure, production
data, or compilation of information which
that is not patented, which that
is known only to certain individuals within a commercial concern who
are using it to fabricate, produce, or compound an article of trade
or a service having commercial value, and which
that gives its user an opportunity to obtain a business
advantage over competitors who do not know or use it. "Trade
secrets" may also include information related to the ability of any
person to pay for, or perform, a response action.
SEC. 2. Section 25185.6 of the Health and Safety Code is amended
to read:
25185.6. (a) The department or any a
local officer or agency authorized to enforce this chapter
pursuant to subdivision (a) of Section 25180, in connection with any
action authorized by this chapter, may require any of the following
persons to furnish and transmit to the designated offices of the
department or the local officer or agency any existing information
relating to hazardous substances, hazardous wastes, or
hazardous materials: materials, or
the ability of those persons to pay for, or to perform, a
response action:
(1) Any person who owns or operates any hazardous waste facility.
(2) Any person who generates, stores, treats, transports, disposes
of, or otherwise handles hazardous waste.
(3) Any person who has generated, stored, treated, transported,
disposed of, or otherwise handled hazardous waste.
(4) Any person who arranges, or has arranged, by contract or other
agreement, to store, treat, transport, dispose of, or otherwise
handle hazardous waste.
(5) Any person who applies, or has applied, for any permit,
registration, or certification under this chapter.
(b) Any person required to furnish this information shall pay any
costs of photocopying or transmitting this information.
(c) When requested by the person furnishing this information the
department or the local officer or agency shall follow the procedures
established under Section 25173.
(d) If a person intentionally or negligently fails to furnish and
transmit to the designated offices of the department or the local
officer or agency any existing information required pursuant to this
section, the department may issue an order pursuant to Section 25187
directing compliance with the request.
(e) The department may disclose information submitted pursuant to
this section that is a trade secret, as defined in Section 25173, to
authorized representatives, contractors, or other governmental
agencies only in connection with the department's responsibilities
pursuant to this chapter. The department shall establish procedures
to ensure that the trade secret is used only in connection with these
responsibilities and are not otherwise disseminated without the
consent of the person who provided the information to the department.
(f) The department may also make available to the United States
Environmental Protection Agency any and all information required by
law to be furnished to that agency. The sharing of information
between the department and that agency pursuant to this section does
not constitute a waiver by the department or any affected person of
any privilege or confidentiality provided by law which pertains to
the information.
(g) A person providing information pursuant subdivision (a) shall,
at the time of its submission, identify all information that the
person believes is a trade secret. Any information or record not
identified as a trade secret is available to the public, unless
exempted from disclosure by other provisions of law.
(h) Notwithstanding Section 25190, a person who knowingly and
willfully disseminates information protected by Section 25173 or
procedures established by the department pursuant to Section 25173
shall, upon conviction, be punished by a fine of not more than five
thousand dollars ($5,000), imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment.
(i) The department, or a local officer or agency authorized to
enforce this chapter pursuant to subdivision (a) of Section 25180,
may take the actions specified in this section only if there is a
reasonable basis to believe that there has been or may be a release
or threatened release of a hazardous substance, and only for the
purpose of determining under this chapter the need for a response
action, the choosing or taking of a response action, or otherwise for
the purpose of enforcing this chapter.
(j) For the purposes of this section, "trade secret" has the same
meaning as set forth in Section 25173.
SEC. 3. Section 25190 of the Health and Safety Code is amended to
read:
25190. (a) Except as otherwise provided in
Sections 25185.6, 25189.5, 25189.6, 25189.7, and 25191,
any person who violates any provision of this chapter, or any permit,
rule, regulation, standard, or requirement issued or adopted
pursuant to this chapter, is, upon conviction, guilty of a
misdemeanor and shall be punished by a fine of not more than one
thousand dollars ($1,000) or by imprisonment for up to six months in
a county jail or by both that fine and imprisonment.
If
(b) If the conviction is for a
second or subsequent violation, the person shall, upon conviction, be
punished by imprisonment in the county jail for not more than one
year or by imprisonment pursuant to subdivision (h) of Section 1170
of the Penal Code for 16, 20, or 24 months. The court shall also
impose upon the person a fine of not less than five thousand dollars
($5,000) or more than twenty-five thousand dollars ($25,000).
SEC. 4. Section 25358.1 of the Health and Safety Code is amended
to read:
25358.1. (a) The department, a representative of the department,
or any person designated by the director may take the actions
specified in this section only if there is a reasonable basis to
believe that there has been or may be a release or
threatened release of a hazardous substance, and only for the purpose
of determining under this chapter the need for a response action,
the choosing or taking of a response action, or otherwise for the
purpose of enforcing this chapter.
(b) Any officer or employee of the department, a representative of
the director, or a person designated by the director may require
any potentially responsible party, or any person who has, or
may have, acquired information relevant to any of the following
matters in the course of a commercial, ownership, or contractual
relationship with any potentially responsible party, a
person who has or may have information or documents relevant to any
of the following to furnish, upon reasonable notice, the
relevant information or documents relating to the
following matters: documents:
(1) The identification, nature, and quantity of materials which
have been, or are, generated, treated, stored, or disposed of at a
hazardous substance release site or which have been, or are,
transported to a hazardous substance release site.
(2) The nature or extent of a release or a threatened release of a
hazardous substance at, or from, a hazardous substance release site.
(3) The ability of a responsible party or liable person to pay
for, or to perform, a response action, consistent with the
requirements of subsection (e) of Section 104 of the federal act (42
U.S.C. Sec. 9604 (e)).
(c) A person who is required to provide information pursuant to
subdivision (b) shall, in accordance with subdivision (h), allow the
officer, employee, representative, or designee, upon reasonable
notice and at reasonable times, to have access to, and copy, all
records relating to the hazardous substances for purposes of
assisting the department in determining the need for an action in
response to a release or threatened release pursuant to this chapter.
(d) Any officer or employee of the department, representative of
the director, or person designated by the director may, in accordance
with subdivision (h), enter, at reasonable times, any of the
following properties:
(1) Any nonresidential establishment or other place or property
where any hazardous substances may be, or have been, produced,
stored, treated, disposed of, or transported from.
(2) Any nonresidential establishment or other place or property
from which, or to which, a hazardous substance has been, or may have
been, released.
(3) Any nonresidential establishment or other place or property
where a hazardous substance release is, or may be, threatened.
(4) Any nonresidential establishment or other place or property
where entry is needed to determine the need for a response action, or
the appropriate remedial action, to effectuate a response action
under this chapter.
(5) Any residential place or property which, if it were a
nonresidential establishment or other place or property, would
otherwise meet the criteria described in paragraphs (1) to (4),
inclusive, if the department, representative, or person designated by
the director is able to establish, based upon reasonably available
evidence, that hazardous substances have been released onto or under
the residential place or real property and if entry is made only at
reasonable times and after reasonable notification to the owners and
occupants.
(e) Any officer or employee of the department, representative of
the director, or person designated by the director may, in accordance
with subdivision (h), carry out any of the following activities:
(1) Inspect and obtain samples from any establishment or other
place or property specified in subdivision (d) or from any location
of any suspected hazardous substance.
(2) Inspect and obtain samples of any substances from any
establishment or place or property specified in subdivision (d).
(3) Inspect and obtain samples of any containers or labeling for
the suspected hazardous substances, and samples of the soil,
vegetation, air, water, and biota on the premises.
(4) Set up and maintain monitoring equipment for the purpose of
assessing or measuring the actual or potential migration of hazardous
substances.
(5) Survey and determine the topographic, geologic, and
hydrogeologic features of the land.
(6) Photograph any equipment, sample, activity, or environmental
condition described in paragraphs (2) to (5) inclusive.
(f) (1) If photographs are to be taken pursuant to paragraph (6)
of subdivision (e), the department shall do all of the following:
(A) Comply with all procedures established pursuant to subdivision
(b) of Section 25358.2.
(B) Notify the person whose facility is photographed prior to
public disclosure of the photographs.
(C) Upon the request of the person owning the facility, submit a
copy of any photograph to the person for the purpose of determining
whether trade secret information, as defined in Section 25358.2, or
facility security, would be revealed by the photograph.
(2) "Disclosure," as used in Section 25358.2, for purposes of this
paragraph, does not include the review of the photograph by a court
of competent jurisdiction or by an administrative law judge. A court
or judge may review the photograph in camera.
(g) An officer, employee, representative, or designee who enters a
place, establishment, or property pursuant to this section shall
make a reasonable effort to inform the owner or the owners'
authorized representative of the inspection and shall provide split
samples to the owner or the representative upon request.
(h) If the owner or the owner's authorized representative does not
voluntarily grant access to a place, establishment, or property
pursuant to this section, the officer, employee, representative, or
designee shall first obtain a warrant pursuant to Title 13
(commencing with Section 1822.50) of Part 3 of the Code of Civil
Procedure. However, if there is an emergency posing an immediate
threat to public health and safety, the officer, employee,
representative, or designee may enter the place, establishment, or
property without the consent of the owner or owner's authorized
representative and without the issuance of a warrant.
(i) The department, and any person authorized by the department to
enter upon any lands for the purpose of taking removal or remedial
action pursuant to this chapter, shall not be held liable, in either
a civil or criminal proceeding, for trespass or for any other acts
which are necessary to carry out the corrective action.
SEC. 5. Section 25358.2 of the Health and Safety Code is amended
to read:
25358.2. (a) "Trade secrets," as used in this section, may
include, but are not limited to, any formula, plan, pattern, process,
tool, mechanism, compound, procedure, production data, or
compilation of information which that
is not patented, which that is known
only to certain individuals within a commercial concern who are using
it to fabricate, produce, develop, or compound an article of trade
or a service having commercial value, and which
that gives its user an opportunity to obtain a business
advantage over competitors who do not know or use it. "Trade
secrets" may also include information related to the ability of any
person to pay for, or perform, a response action.
(b) The department may disclose trade secrets received by the
department pursuant to this chapter to authorized representatives,
contractors, or other governmental agencies only in connection with
the department's responsibilities pursuant to this chapter. The
department shall establish procedures to ensure that these
trade secrets are utilized only in connection with these
responsibilities and are not otherwise disseminated without the
consent of the person who provided the information to the department.
(c) The department may also make available to the United
States Environmental Protection Agency any and all information
required by law to be furnished to that agency. The sharing of
information between the department and that agency pursuant to this
section does not constitute a waiver by the department or any
affected person of any privilege or confidentiality provided by law
which pertains to the information.
(d) Any person providing information pursuant to subdivision
(a) (b) of Section 25358.1 shall, at
the time of its submission, identify all information which the person
believes is a trade secret. Any information or record not identified
as a trade secret is available to the public, unless exempted from
disclosure by other provisions of law.
(e) Any person who knowingly and willfully disseminates
information protected by this section or procedures established by
the department pursuant to subdivision (b) shall, upon conviction, be
punished by a fine of not more than five thousand dollars ($5,000),
imprisonment in the county jail not to exceed one year, or by both
that fine and imprisonment.
SEC. 6. Section 25367 of the Health and Safety Code is amended to
read:
25367. (a) Any person who commits any of
the following acts shall be liable for a civil penalty not to exceed
twenty-five thousand dollars ($25,000) for each separate violation,
or for continuing violations, for each day during which that
violation continues:
(a)
(1) Intentionally or negligently makes any
false statement or representation in any report or information
furnished pursuant to Section 25358.1.
(b)
(2) Intentionally or negligently fails to
provide any information requested pursuant to Section 25358.1.
(c)
(3) Refuses or prevents, without sufficient cause, any
activity authorized pursuant to Section 25358.1 or 25358.3.
(b) If a person intentionally or negligently fails to furnish and
transmit to any officer or employee of the department, a
representative of the director, or a person designated by the
director any information required to be disclosed pursuant to Section
25358.1, the department may issue an order directing compliance with
the request. The order shall be issued only after notice and
opportunity for consultation as is reasonably appropriate under the
circumstances.
SEC. 7. The Legislature finds and declares that Sections 1 and 5
of this act, which amend Sections 25173 and 25358.2 of the Health and
Safety Code, respectively, impose a limitation on the public's right
of access to the meetings of public bodies or the writings of public
officials and agencies within the meaning of Section 3 of Article I
of the California Constitution. Pursuant to that constitutional
provision, the Legislature makes the following findings to
demonstrate the interest protected by this limitation and the need
for protecting that interest:
The need to protect the competitiveness of entities providing to
the Department of Toxic Substances Control financial information that
may affect the business of the provider of the information if it
becomes known to competitors outweighs the interest in public
disclosure of that information.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.