BILL NUMBER: AB 276 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 1, 2015
PASSED THE ASSEMBLY SEPTEMBER 2, 2015
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN SENATE JUNE 11, 2015
AMENDED IN ASSEMBLY MAY 28, 2015
AMENDED IN ASSEMBLY MARCH 17, 2015
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 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, 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 parties
to furnish and transmit certain information relating to hazardous
substances, hazardous wastes, and hazardous materials. A violation of
the Hazardous Waste Control Law is a crime.
This bill would authorize the department or local officer or
agency to require those parties to furnish and transmit any
information relating to the parties' abilities to pay for or perform
a response action 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 how to finance a response action or
otherwise for the purpose of enforcing the Hazardous Waste Control
Law. The bill would also authorize the department to require any
person who has information regarding the activities of one of those
parties relating to hazardous substances, hazardous wastes, or
hazardous materials to furnish and transmit that information. The
bill would authorize the department to require any person who has
information regarding the activities of one of those parties relating
to the ability of the party to pay for or perform a response action
to furnish and transmit that information 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 how to finance
a response action or otherwise for the purpose of enforcing the
Hazardous Waste Control Law. 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.
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.
This bill would authorize the department to disclose information
received pursuant to the above-specified provisions 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 trade secret information
protected by specified 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.
(2) The Carpenter-Presley-Tanner Hazardous Substance Account Act
authorizes the department to require any potentially responsible
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.
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 person to pay for or to perform a response
action. The bill would make liable for the civil penalty 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.
(3) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25185.6 of the Health and Safety Code is
amended to read:
25185.6. (a) (1) 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, upon reasonable notice, 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:
(A) Any person who owns or operates any hazardous waste facility.
(B) Any person who generates, stores, treats, transports, disposes
of, or otherwise handles hazardous waste.
(C) Any person who has generated, stored, treated, transported,
disposed of, or otherwise handled hazardous waste.
(D) Any person who arranges, or has arranged, by contract or other
agreement, to store, treat, transport, dispose of, or otherwise
handle hazardous waste.
(E) Any person who applies, or has applied, for any permit,
registration, or certification under this chapter.
(2) (A) The department, or a local officer or agency authorized to
enforce this chapter pursuant to subdivision (a) of Section 25180,
may require a person described in paragraph (1) to furnish and
transmit, upon reasonable notice, 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.
(B) This paragraph applies 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 how to finance a response action or otherwise for
the purpose of enforcing this chapter.
(b) (1) The department may require any person who has information
regarding the activities of a person described in subparagraphs (A)
to (E), inclusive, of paragraph (1) of subdivision (a) relating to
hazardous substances, hazardous wastes, or hazardous materials, to
furnish and transmit, upon reasonable notice, that information to the
designated offices of the department.
(2) (A) The department may require any person who has information
regarding the activities of a person described in subparagraphs (A)
to (E), inclusive, of paragraph (1) of subdivision (a), relating to
the ability of the person described in those subparagraphs to pay
for, or to perform, a response action, upon reasonable notice, to
furnish and transmit that information to the designated offices of
the department.
(B) This paragraph applies 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 how to finance a response action or otherwise for
the purpose of enforcing this chapter.
(c) Any person required to furnish information pursuant to this
section shall pay any costs of photocopying or transmitting this
information.
(d) When requested by the person furnishing information pursuant
to this section, the department or the local officer or agency shall
follow the procedures established under Section 25173.
(e) 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.
(f) The department may disclose information submitted pursuant to
this section 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 information submitted pursuant to
this section is used only in connection with these responsibilities
and is not otherwise disseminated without the consent of the person
who provided the information to the department.
(g) 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.
(h) A person providing information pursuant to subdivision (a) or
(b) 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.
(i) 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.
(j) For the purposes of this section, "trade secret" has the same
meaning as set forth in Section 25173.
SEC. 2. 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).
SEC. 3. 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
person who has or may have information relevant to any of the
following matters to furnish the information, upon reasonable notice:
(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 person to pay for or to perform a response
action, consistent with 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 owner's
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. 4. 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.
(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.
SEC. 5. 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.
SEC. 6. 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.