California Legislature—2015–16 Regular Session

Assembly BillNo. 2893


Introduced by Committee on Environmental Safety and Toxic Materials (Assembly Members Alejo (Chair), Gonzalez, McCarty, and Ting)

February 29, 2016


An act to amend Sections 25185.6, 25358.1, 25358.2, and 25390.5 of the Health and Safety Code, relating to hazardous materials.

LEGISLATIVE COUNSEL’S DIGEST

AB 2893, as introduced, Committee on Environmental Safety and Toxic Materials. Department of Toxic Substances Control: enforcement.

(1) The Hazardous Waste Control Law authorizes the Department of Toxic Substances Control and authorized local enforcement officers and agencies to require specified persons to furnish and transmit certain information relating to the person’s ability to pay for or perform a response action, and further authorizes those entities to require any person who has information regarding another person’s activities that relate to the ability of the person to pay for or perform a response action to also furnish and transmit the information. Existing law makes those provisions applicable 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 how to finance a response action or otherwise for the purpose of enforcing the Hazardous Waste Control Law. A violation of the Hazardous Waste Control Law is a crime.

This bill would make those provisions applicable also if there is a reasonable basis to believe that there has been or may be a release or threatened release of hazardous wastes or hazardous material and also for the purpose of determining how to finance a corrective action.

(2) Existing law authorizes an officer or employee of the department and specified other persons to require any person who has or may have information relevant to specified matters relating to the release of hazardous substances to furnish and transmit that information. Existing law authorizes the department to disclose trade secrets received by the department pursuant to the Hazardous Waste Control Law only under specified circumstances.

This bill would require the person required to furnish and transmit the information to pay for any costs of photocopying and transmitting the information. The bill would limit the disclosure by the department of information, including trade secrets, received by the department pursuant to these provisions of the Hazardous Waste Control Law, specifying the parties to whom that disclosure is proper and requiring the disclosures be in connection with the department’s responsibilities under that law. The bill would require this information to 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. The bill would make conforming and other nonsubtantive changes. Because the bill’s provisions would expand the scope of a crime, the bill would impose a state-mandated local program.

(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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

P2    1

SECTION 1.  

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

3

25185.6.  

(a) (1) The department or a local officer or agency
4authorized to enforce this chapter pursuant to subdivision (a) of
5Section 25180, in connection with any action authorized by this
6chapter, may require any of the following persons to furnish and
7transmit, upon reasonable notice, to the designated offices of the
8department or the local officer or agency any existing information
P3    1relating to hazardous substances, hazardous wastes, or hazardous
2materials:

3(A) Any person who owns or operates any hazardous waste
4facility.

5(B) Any person who generates, stores, treats, transports, disposes
6of, or otherwise handles hazardous waste.

7(C) Any person who has generated, stored, treated, transported,
8disposed of, or otherwise handled hazardous waste.

9(D) Any person who arranges, or has arranged, by contract or
10other agreement, to store, treat, transport, dispose of, or otherwise
11handle hazardous waste.

12(E) Any person who applies, or has applied, for any permit,
13registration, or certification under this chapter.

14(2) (A) The department, or a local officer or agency authorized
15to enforce this chapter pursuant to subdivision (a) of Section 25180,
16may require a person described in paragraph (1) to furnish and
17transmit, upon reasonable notice, to the designated offices of the
18department or the local officer or agency, any information relating
19to the person’s ability to pay for, or to perform, a responsebegin insert or
20correctiveend insert
action.

21(B) This paragraph applies only if there is a reasonable basis to
22believe that there has been or may be a release or threatened release
23of a hazardous substance,begin insert hazardous wastes, or hazardous material,end insert
24 and only for the purpose of determining under this chapter how to
25finance a responsebegin insert or correctiveend insert action or otherwise for the purpose
26of enforcing this chapter.

27(b) (1) The department may require any person who has
28information regarding the activities of a person described in
29subparagraphs (A) to (E), inclusive, of paragraph (1) of subdivision
30(a) relating to hazardous substances, hazardous wastes, or
31hazardousbegin delete materials,end deletebegin insert materialsend insert to furnish and transmit, upon
32reasonable notice, that information to the designated offices of the
33department.

34(2) (A) The department may require any person who has
35information regarding the activities of a person described in
36subparagraphs (A) to (E), inclusive, of paragraph (1) of subdivision
37(a), relating to the ability of the person described in those
38subparagraphs to pay for, or to perform, a responsebegin insert or correctiveend insert
39 action, upon reasonable notice, to furnish and transmit that
40information to the designated offices of the department.

P4    1(B) This paragraph applies only if there is a reasonable basis to
2believe that there has been or may be a release or threatened release
3of a hazardous substance,begin insert hazardous wastes, or hazardous material,end insert
4 and only for the purpose of determining under this chapter how to
5finance a responsebegin insert or correctiveend insert action or otherwise for the purpose
6of enforcing this chapter.

7(c) Any person required to furnish information pursuant to this
8section shall pay any costs of photocopying or transmitting this
9information.

10(d) When requested by the person furnishing information
11pursuant to this section, the department or the local officer or
12agency shall follow the procedures established under Section
1325173.

14(e) If a person intentionally or negligently fails to furnish and
15transmit to the designated offices of the department or the local
16officer or agency any existing information required pursuant to
17this section, the department may issue an order pursuant to Section
1825187 directing compliance with the request.

19(f) The department may disclose information submitted pursuant
20to this section to authorized representatives, contractors, or other
21governmental agencies only in connection with the department’s
22responsibilities pursuant to this chapter. The department shall
23establish procedures to ensure that information submitted pursuant
24to this section is used only in connection with these responsibilities
25and is not otherwise disseminated without the consent of the person
26who provided the information to the department.

27(g) The department may also make available to the United States
28Environmental Protection Agency any and all information required
29by law to be furnished to that agency. The sharing of information
30between the department and that agency pursuant to this section
31does not constitute a waiver by the department or any affected
32 person of any privilege or confidentiality provided by law which
33pertains to the information.

34(h) A person providing information pursuant to subdivision (a)
35or (b) shall, at the time of its submission, identify all information
36that the person believes is a trade secret. Any information or record
37not identified as a trade secret is available to the public, unless
38exempted from disclosure by other provisions of law.begin insert For purposes
39of this subdivision, “trade secret” is defined as in Section 25173.end insert

P5    1(i) Notwithstanding Section 25190, a person who knowingly
2and willfully disseminates information protected by Section 25173
3or procedures established by the department pursuant to Section
425173 shall, upon conviction, be punished by a fine of not more
5than five thousand dollars ($5,000), imprisonment in a county jail
6not to exceed one year, or by both that fine and imprisonment.

begin delete

7(j) For the purposes of this section, “trade secret” has the same
8meaning as set forth in Section 25173.

end delete
9

SEC. 2.  

Section 25358.1 of the Health and Safety Code is
10amended to read:

11

25358.1.  

(a) The department, a representative of the
12department, or any person designated by the director may take the
13actions specified in this section only if there is a reasonable basis
14to believe that there has been or may be a release or threatened
15release of a hazardous substance, and only for the purpose of
16determining under this chapter the need for a response action, the
17choosing or taking of a response action, or otherwise for the
18purpose of enforcing this chapter.

19(b) Any officer or employee of the department, a representative
20of the director, or a person designated by the director may require
21any person who has or may have information relevant to any of
22the following matters to furnish the information, upon reasonable
23notice:

24(1) The identification, nature, and quantity of materials which
25have been, or are, generated, treated, stored, or disposed of at a
26hazardous substance release site or which have been, or are,
27transported to a hazardous substance release site.

28(2) The nature or extent of a release or a threatened release of
29a hazardous substance at, or from, a hazardous substance release
30site.

31(3) The ability of a person to pay for or to perform a response
32action, consistent with subsection (e) of Section 104 of the federal
33act (42 U.S.C. Sec. 9604(e)).

begin insert

34(c) Any person required to furnish information pursuant to this
35section shall pay any costs of photocopying or transmitting the
36 information.

end insert
begin delete

37(c)

end delete

38begin insert(d)end insert A person who is required to provide information pursuant
39to subdivision (b) shall, in accordance with subdivisionbegin delete (h),end deletebegin insert (i),end insert
40 allow the officer, employee, representative, or designee, upon
P6    1reasonable notice and at reasonable times, to have access to, and
2copy, all records relating to the hazardous substances for purposes
3of assisting the department in determining the need forbegin delete an action
4in response to a release or threatened release pursuant to this
5chapter.end delete
begin insert a response action.end insert

begin delete

6(d)

end delete

7begin insert(e)end insert Any officer or employee of the department, representative
8of the director, or person designated by the director may, in
9accordance with subdivisionbegin delete (h),end deletebegin insert (i),end insert enter, at reasonable times,
10any of the following properties:

11(1) Any nonresidential establishment or other place or property
12where any hazardous substances may be, or have been, produced,
13stored, treated, disposed of, or transported from.

14(2) Any nonresidential establishment or other place or property
15from which, or to which, a hazardous substance has been, or may
16have been, released.

17(3) Any nonresidential establishment or other place or property
18where a hazardous substance release is, or may be, threatened.

19(4) Any nonresidential establishment or other place or property
20where entry is needed to determine the need for a response action,
21or the appropriate remedial action, to effectuate a response action
22under this chapter.

23(5) Any residential place or property which, if it were a
24nonresidential establishment or other place or property, would
25otherwise meet the criteria described in paragraphs (1) to (4),
26inclusive, if the department, representative, or person designated
27by the director is able to establish, based upon reasonably available
28evidence, that hazardous substances have been released onto or
29under the residential place or real property and if entry is made
30only at reasonable times and after reasonable notification to the
31owners and occupants.

begin delete

32(e)

end delete

33begin insert(f)end insert Any officer or employee of the department, representative
34of the director, or person designated by the director may, in
35accordance with subdivisionbegin delete (h),end deletebegin insert (i),end insert carry out any of the following
36activities:

37(1) Inspect and obtain samples from any establishment or other
38place or property specified in subdivisionbegin delete (d)end deletebegin insert (e)end insert or from any
39location of any suspected hazardous substance.

P7    1(2) Inspect and obtain samples of any substances from any
2establishment or place or property specified in subdivisionbegin delete (d).end delete
3begin insert (e).end insert

4(3) Inspect and obtain samples of any containers or labeling for
5the suspected hazardous substances, and samples of the soil,
6vegetation, air, water, and biota on the premises.

7(4) Set up and maintain monitoring equipment for the purpose
8of assessing or measuring the actual or potential migration of
9hazardous substances.

10(5) Survey and determine the topographic, geologic, and
11hydrogeologic features of the land.

12(6) Photograph any equipment, sample, activity, or
13environmental condition described in paragraphs (2) to (5)
14inclusive.

begin delete

15(f)

end delete

16begin insert(g)end insert (1) If photographs are to be taken pursuant to paragraph (6)
17of subdivisionbegin delete (e),end deletebegin insert (f),end insert the department shall do all of the following:

18(A) Comply with all procedures established pursuant to
19subdivision (b) of Section 25358.2.

20(B) Notify the person whose facility is photographed prior to
21public disclosure of the photographs.

22(C) Upon the request of the person owning the facility, submit
23a copy of any photograph to the person for the purpose of
24 determining whether trade secret information, as defined in Section
2525358.2, or facility security, would be revealed by the photograph.

26(2) “Disclosure,” as used in Section 25358.2, for purposes of
27this paragraph, does not include the review of the photograph by
28a court of competent jurisdiction or by an administrative law judge.
29A court or judge may review the photograph in camera.

begin delete

30(g)

end delete

31begin insert(h)end insert An officer, employee, representative, or designee who enters
32a place, establishment, or property pursuant to this section shall
33make a reasonable effort to inform the owner or the owner’s
34authorized representative of the inspection and shall provide split
35samples to the owner or the representative upon request.

begin delete

36(h)

end delete

37begin insert(i)end insert If the owner or the owner’s authorized representative does
38not voluntarily grant access to a place, establishment, or property
39pursuant to this section, the officer, employee, representative, or
40designee shall first obtain a warrant pursuant to Title 13
P8    1(commencing with Section 1822.50) of Part 3 of the Code of Civil
2Procedure. However, if there is an emergency posing an immediate
3threat to public health and safety, the officer, employee,
4representative, or designee may enter the place, establishment, or
5property without the consent of the owner or owner’s authorized
6representative and without the issuance of a warrant.

begin insert

7(j) The department may disclose information submitted pursuant
8to this section to authorized representatives, contractors, or other
9governmental agencies only in connection with the department’s
10responsibilities pursuant to this chapter. The department shall
11establish procedures to ensure that information submitted pursuant
12to this section is used only in connection with these responsibilities
13and is not otherwise disseminated without the consent of the person
14who provided the information to the department.

end insert
begin insert

15(k) The department may also make available to the United States
16Environmental Protection Agency any information required by
17law to be furnished to that agency. The sharing of information
18between the department and that agency pursuant to this section
19does not constitute a waiver by the department or of any affected
20person of any privilege or confidentiality provided by law that
21pertains to the information.

end insert
begin delete

22(i)

end delete

23begin insert(l)end insert The department, and any person authorized by the department
24to enter upon any lands for the purpose of takingbegin delete removal or
25remedialend delete
begin insert a responseend insert action pursuant to this chapter, shall not be
26held liable, in either a civil or criminal proceeding, for trespass or
27for any other acts which are necessary to carry out thebegin delete correctiveend delete
28begin insert responseend insert action.

29

SEC. 3.  

Section 25358.2 of the Health and Safety Code is
30amended to read:

31

25358.2.  

(a) “Trade secrets,” as used in this section, may
32include, but are not limited to, any formula, plan, pattern, process,
33tool, mechanism, compound, procedure, production data, or
34compilation of information that is not patented, that is known only
35to certain individuals within a commercial concern who are using
36it to fabricate, produce, develop, or compound an article of trade
37or a service having commercial value, and that gives its user an
38opportunity to obtain a business advantage over competitors who
39do not know or use it.

P9    1(b) The department begin delete may disclose trade secrets received by the
2department pursuant to this chapter to authorized representatives,
3contractors, or other governmental agencies only in connection
4with the department’s responsibilities pursuant to this chapter. The
5departmentend delete
shall establish procedures to ensure that tradebegin delete secrets
6areend delete
begin insert secret information isend insert utilizedbegin insert by the departmentend insert only in
7connection withbegin delete theseend deletebegin insert theend insert responsibilitiesbegin insert of the department
8pursuant to this chapterend insert
andbegin delete areend deletebegin insert isend insert not otherwise disseminated
9without the consent of the person who provided the information
10to the department.begin insert However, any information shall be made
11available to governmental agencies for use in making studies and
12for use in judicial review or enforcement proceedings involving
13the person furnishing the information.end insert

begin delete

14(c) The department may also make available to the United States
15 Environmental Protection Agency any and all information required
16by law to be furnished to that agency. The sharing of information
17between the department and that agency pursuant to this section
18does not constitute a waiver by the department or any affected
19person of any privilege or confidentiality provided by law which
20pertains to the information.

end delete
begin delete

21(d)

end delete

22begin insert(c)end insert Any person providing information pursuant to subdivision
23(b) of Section 25358.1 shall, at the time of its submission, identify
24all information which the person believes is a trade secret. Any
25information or record not identified as a trade secret is available
26to the public, unless exempted from disclosure by other provisions
27of law.

begin delete

28(e)

end delete

29begin insert(d)end insert Any person who knowingly and willfully disseminates
30information protected by this section or procedures established by
31the department pursuant to subdivision (b) shall, upon conviction,
32be punished by a fine of not more than five thousand dollars
33($5,000), imprisonment in the county jail not to exceed one year,
34or by both that fine and imprisonment.

35

SEC. 4.  

Section 25390.5 of the Health and Safety Code is
36amended to read:

37

25390.5.  

For the purposes of this article, the orphan share shall
38be determined in the following manner:

P10   1(a) The orphan share shall be expressed as a percentage in
2multiples of five, up to, and, including, but not greater than, 75
3percent.

4(b) The potentially responsible party filing a claim for
5reimbursement of the orphan share shall provide the administrator
6of the fund with a written potentially responsible party search
7report that shall include a list of all potentially responsible parties
8identified for the site, the factual and legal basis for identifying
9those parties, and a proposed orphan share percentage. The
10potentially responsible party shall also provide the administrator
11with the factual documentation necessary to support the proposed
12orphan share percentage.

13(c) Upon receipt of the information required by subdivision (a),
14the administrator of the fund shall invite all identified potentially
15responsible parties and the department and the regional board to
16submit any additional information relating to the proposed orphan
17share percentage or to the list of identified potentially responsible
18parties.

19(d) The administrator of the fund, in consultation with the
20department or the regional board, shall determine a final orphan
21share percentage based on the volume, toxicity, and difficulty of
22removal of the contaminants contributed to the site by the party
23or parties responsible for the orphan share. The administrator shall
24determine the orphan share timely and efficiently and is not
25required to precisely determine all relevant factors, as long as the
26 determination is generally equitable. In addition, the administrator
27may consider the results of any apportionment or allocation
28conducted by voluntary arbitration or mediation or by a civil action
29filed by a potentially responsible party, or any other apportionment
30or allocation decision that is helpful when determining the orphan
31share percentage.

32(e) A potentially responsible party shall not assert, and the
33administrator of the fund shall not determine, that the orphan share
34percentage includes the share of liability attributable to a potentially
35responsible party’s acts that occurred before January 1, 1982,
36unless that share of responsibility is attributable to a person who
37is defunct or insolvent.

38(f) In determining the orphan share percentage under this section,
39the administrator of the fund may perform any of the activities
40authorized in subdivisions (b) andbegin delete (c)end deletebegin insert (d)end insert of Section 25358.1.

P11   1(g) The administrator of the fund shall issue all orphan share
2percentage determinations in writing, with notification to all
3appropriate parties. The decision of the administrator with respect
4to either apportionment or payment of claims is a final agency
5action for the purposes of judicial review of the decision by any
6party to the proceedings resulting in the decision; however, judicial
7review of the administrator’s decision is limited to a showing of
8fraud by a party submitting information under this subdivision.
9The administrator shall be represented by the Attorney General in
10any action brought under this article.

11

SEC. 5.  

No reimbursement is required by this act pursuant to
12Section 6 of Article XIII B of the California Constitution because
13the only costs that may be incurred by a local agency or school
14district will be incurred because this act creates a new crime or
15infraction, eliminates a crime or infraction, or changes the penalty
16for a crime or infraction, within the meaning of Section 17556 of
17the Government Code, or changes the definition of a crime within
18the meaning of Section 6 of Article XIII B of the California
19Constitution.



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