Amended in Assembly March 17, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 276

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 begin delete 25173, end delete 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 amended, 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 begin insert require the persons specified above to furnish and transmit information relating to those persons’ ability to pay for or perform a response action 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. end insert

This bill would begin delete 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 end delete authorize the department to disclose begin delete trade secrets end delete begin insert information received pursuant to the above-specified provisions end insert 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 begin insert trade secret end insert information protected by begin delete these end delete begin insert specified end insert 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.

begin delete

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.

end delete

(2) The Carpenter-Presley-Tanner Hazardous Substance Account Act authorizes the department to require any potentially begin delete responsibly end delete begin insert responsible end insert 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. begin delete 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. end delete

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 begin delete expand the liability of a person subject to end delete begin insert make liable for end insert the civil penalty begin delete to end delete a person who acted begin delete negligently end delete begin insert negligently, end insert 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.

begin delete

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.

end delete begin delete

(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.

end delete begin delete

This bill would make legislative findings to that effect.

end delete begin delete

(4)

end delete

begin insert ( end insert begin insert 3) end insert  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:

begin delete

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 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.

(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 that is not patented, 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 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.

end delete

begin delete SEC. 2. end delete
begin insert SECTION 1. end insert   

Section 25185.6 of the Health and Safety Code
is amended to read:

25185.6.  

(a) The department or 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, hazardous 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 begin delete that is a trade secret, as defined in Section 25173, end delete
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 begin delete the trade secret end delete begin insert information submitted pursuant to
this section end insert is used only in connection with these responsibilities
and begin delete are end delete begin insert is end insert 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 begin insert to end insert 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 begin delete take the actions specified in this section end delete begin insert require a person
described in subdivision (a) to furnish and transmit to the
designated offices of the department or the local officer or agency
any information relating to the person’s ability to pay for, or to
perform, a response action end insert 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.

begin delete SEC. 3. end delete
begin insert SEC. 2. end insert   

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.

(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).

begin delete SEC. 4. end delete
begin insert SEC. 3. end insert   

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
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:

(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 begin delete the requirements
of end delete 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 begin delete owners’ end delete
begin insert owner’s end insert 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.

begin delete SEC. 5. end delete
begin insert SEC. 4. end insert   

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 that is not patented, 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 that gives its user an
opportunity to obtain a business advantage over competitors who
do not know or use it. begin delete “Trade secrets” may also include information
related to the ability of any person to pay for, or perform, a
response action. end delete

(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 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
(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.

begin delete SEC. 6. end delete
begin insert SEC. 5. end insert   

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:

(1) Intentionally or negligently makes any false statement or
representation in any report or information furnished pursuant to
Section 25358.1.

(2) Intentionally or negligently fails to provide any information
requested pursuant to Section 25358.1.

(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.

begin delete

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.

end delete

begin delete SEC. 8. end delete
begin insert SEC. 6. end insert   

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.