BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 421 (Hancock)
Version: May 4, 2015
Hearing Date: May 12, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Refineries: turnarounds
DESCRIPTION
This bill would delete the requirement that the court award
attorneys' fees to the party who prevails in an action to compel
or prohibit the disclosure of petroleum refinery turnaround
information by the Division of Occupational Safety and Health.
This bill would also clarify that a petroleum refinery employer
or a person requesting the disclosure of turnaround information
may intervene in an action to prohibit or compel the disclosure
of the turnaround information.
BACKGROUND
Existing law, the California Refinery and Chemical Plant Worker
Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of
1990)), establishes specified process safety management
standards for refineries that handle acutely hazardous material
in order to prevent or minimize the consequences of catastrophic
releases of toxic, flammable, or explosive chemicals and promote
worker safety through implementation of training and process
safety management in refineries and other facilities.
Last year, SB 1300 (Hancock, Chapter 519, Statutes of 2014)
supplemented those safety standards by establishing disclosure
requirements and inspections of a petroleum refinery employer
for planned turnarounds (a planned, periodic shutdown of a
refinery process unit or plant) to perform maintenance,
overhaul, and repair operations and to inspect, test, and
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replace process materials and equipment, as specified. SB 1300
prohibited disclosure of trade secret information contained in
the turnaround reports and provided a method for judicial review
of nondisclosure of claimed trade secret information. SB 1300
also authorized the court to award attorney's fees and costs to
the prevailing party. However, the Governor's signing message
instructed the author to introduce a cleanup bill and work with
stakeholders to ensure that a petroleum refinery employer could
not receive an award of attorney's fees from individuals and
organizations seeking those records.
This bill seeks to respond to the Governor's signing message of
SB 1300 by removing the award of attorney's fees to a prevailing
party in an action challenging disclosure of the turnaround
information. This bill would also clarify that a petroleum
refinery employer or a person requesting the disclosure of
turnaround information may intervene in an action to prohibit or
compel the disclosure of the turnaround information.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
right to transparency in government. ("The people have the
right of access to information concerning the conduct of the
people's business, and therefore, the meetings of public bodies
and the writings of public officials and agencies shall be open
to public scrutiny....") (Cal. Const., art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA), governs
the disclosure of information collected and maintained by public
agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public
records are accessible to the public upon request, unless the
record requested is exempt from public disclosure. (Gov. Code
Sec. 6254.) There are 30 general categories of documents or
information that are exempt from disclosure, essentially due to
the character of the information, and unless it is shown that
the public's interest in disclosure outweighs the public's
interest in non-disclosure of the information, the exempt
information may be withheld by the public agency with custody of
the information.
Existing law provides a list of information contained in a
public record that may be exempt from public disclosure.
Existing law provides that the listing of a statute in this
article does not itself create an exemption, and requesters of
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public records and public agencies are cautioned to review the
applicable statute to determine the extent to which the statute,
in light of the circumstances surrounding the request, exempts
public records from disclosure. (Gov. Code Sec. 6275.)
Included in the list of exemptions are occupational safety and
health investigations, confidentiality of trade secrets. (Gov.
Code Secs. 6276.32, 6276.44.)
Existing law provides that any person may institute proceedings
for injunctive or declarative relief or writ of mandate in any
court of competent jurisdiction to enforce his or her right to
inspect or to receive a copy of any public record or class of
public records and authorizes an award of court costs and
reasonable attorney fees to the plaintiff should the plaintiff
prevail in litigation, and those costs and fees are required to
be paid by the public agency, as specified. (Gov. Code Secs.
6258, 6259(d).)
Existing law , every September 15, requires every petroleum
refinery employer to submit to the Division of Occupational
Safety and Health (Cal/OSHA) a full schedule of planned
turnarounds for all affected units for the following calendar
year, and, at the request of Cal/OSHA, at least 60 days prior to
the shutdown of a process unit or plant as part of a planned
turnaround, requires a petroleum refinery employer to provide
access onsite and allow Cal/OSHA to review documentation, as
specified, for the process unit or plant scheduled to be shut
down for that turnaround. (Lab. Code Sec. 7872.)
Existing law defines "turnaround" to mean a planned, periodic
shutdown, total or partial, of a refinery process unit or plant
to perform maintenance, overhaul, and repair operations and to
inspect, test, and replace process materials and equipment, but
does not include unplanned shutdowns that occur due to
emergencies or other unexpected maintenance matters in a process
unit or plant, or routine maintenance, where routine maintenance
consists of regular, periodic maintenance on one or more pieces
of equipment at a refinery process unit or plant that may
require shutdown of such equipment. (Lab. Code Sec. 7872(a).)
Existing law requires a petroleum refinery employer to submit
turnaround information to Cal/OSHA, regardless of whether the
employer believes that information submitted may involve the
release of a trade secret, as defined; however, at the time of
submission, the employer may identify all or a portion of the
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information submitted to Cal/OSHA as a trade secret and, to the
extent feasible, segregate records designated as trade secret
from the other records. (Lab. Code Sec. 7873(b)(1).)
Existing law prohibits Cal/OSHA from releasing to the public any
information designated as a trade secret by the petroleum
refiner employer, subject to judicial review, as provided.
(Lab. Code Sec. 7873(b)(2).)
Existing law , upon the receipt of a request for the release of
information to the public that includes information that the
petroleum refinery employer has notified Cal/OSHA is a trade
secret, as specified, requires Cal/OSHA to notify the petroleum
refinery employer in writing of the request by certified mail,
return receipt requested. (Lab. Code Sec. 7873(c)(1).)
Existing law requires Cal/OSHA to release the requested
information to the public, unless both of the following occur:
within 30 days of receipt of the notice of the request for
information, the petroleum refinery employer files an action
in an appropriate court for a declaratory judgment that the
information is subject to trade secret protection and promptly
notifies Cal/OSHA of that action; and
within 120 days of receipt of the notice of the request for
information, the refinery petroleum employer obtains an order
prohibiting disclosure of the information to the public and
promptly notifies Cal/OSHA of that action. (Lab. Code Sec.
7873(c)(2).)
Existing law prohibits release of any information that has been
designated as a trade secret by a petroleum refinery employer,
except that such information may be disclosed to other officers
or employees of Cal/OSHA when relevant in any proceeding of
Cal/OSHA. (Lab. Code Sec. 7873(d)(1).)
Existing law provides that if the person requesting the release
of the information or the petroleum refinery employer files an
action to order or prohibit disclosure of trade secret
information, the person instituting the proceeding is required
to name the person or the petroleum refinery employer as a real
party in interest. (Lab. Code Sec. 7873(d)(2).)
Existing law also requires the petroleum refinery employer
filing an action to challenge release of trade secret
information to provide notice of the action to the person
requesting the release of the information at the same time that
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the defendant in the action is served. (Lab. Code Sec.
7873(d)(2)(A).)
Existing law requires the person filing an action to compel the
release of information that includes information that the
petroleum refinery employer has notified Cal/OSHA is a trade
secret to provide notice of the action to the petroleum refinery
employer that submitted the information at the same time that
the defendant in the action is served. (Lab. Code Sec.
7873(d)(2)(B).)
Existing law requires the court to award costs and reasonable
attorneys' fees to the party that prevails in litigation, but
prohibits the public agency from bearing the court costs for any
party named in the litigation. (Lab. Code Sec. 7873(d)(3).)
This bill would remove the requirement for a court to award
costs and reasonable attorneys' fees to the prevailing party.
This bill would remove the requirement for either the person who
has requested the release of information or the petroleum
refinery employer who files an action to name the employer or
person requesting the information as a real party in interest
and, instead, provides that the employer or person requesting
the information may intervene in an action filed by the person
requesting the information or the employer.
This bill would also make several technical and non-substantive
revisions.
COMMENT
1. Stated need for the bill
The author writes:
In 2014, the Legislature passed and the Governor signed into
law [SB 1300 (Hancock, Chapter 519, Statutes of 2014)],
Refinery Turnarounds. Specifically, [SB 1300] requires
refinery employers in California to report to [the Division of
Occupational Health and Safety (Cal/OSHA)] annually (by
September 15 of the current year) a schedule of "turnaround"
maintenance periods planned for the following calendar year.
During a turnaround, a unit is brought offline for maintenance
and repair work.
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It is reported that refineries often have over a thousand
workers (including refinery employees and contractors)
performing multiple work activities simultaneously in limited
spaces and on intensive work schedules, potentially creating
unsafe conditions and work practices. Some of the most
serious worker and process safety risks at refineries occur
during turnarounds, particularly during the process of
shutting down and restarting the unit.
In addition to the calendar of scheduled turnarounds, [SB
1300] requires refineries to submit specific documents and
reports detailing the current maintenance and structural
issues of the refinery unit where a turnaround will be
conducted.
Refineries will also be required to flag any scheduled
maintenance and repairs of equipment being deferred to a later
turnaround period. Based on Cal/OSHA's experience, the rush
to restart refinery units as soon as possible after a
turnaround shutdown has at times caused necessary scheduled
repair and maintenance work to be postponed or abandoned,
allowing unsafe equipment to be restarted without repairs or
replacement and resulting in worker injuries and deaths.
As a result of the detailed reporting requirements of SB 1300,
Cal/OSHA's inspectors will be able to review the refineries'
plans for scheduled work and ask for clarification when
scheduled work is postponed or dropped. . . . The ultimate
goal of this increased oversight of turnarounds is to lower
the number of accidents, explosions, and other unplanned
events at refineries and to provide greater safety protection
for refinery employees and their many contractors, as well as
greater protection of community residents.
2. Eliminating attorney's fees for prevailing party
Existing law authorizes either a person requesting turnaround
information or the petroleum refinery employer to file an action
to release or prohibit the release of information that the
petroleum refinery employer has designated to be a trade secret.
Existing law requires the court to award costs and reasonable
attorneys' fees to the prevailing party. This bill would strike
the award of costs and reasonable attorneys' fees.
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The author states that when SB 1300 was signed by Governor
Brown, he required a commitment to introduce clean up
legislation this year and to work with stakeholders to clarify
the public disclosure process to ensure that petroleum
refineries could not collect attorney's fees from individuals or
organizations seeking turnaround records. (See Governor Edmund
G. Brown, Jr. letter to Members of the Cal. State Senate re Sen.
Bill No. 1300 (2013-2014 Reg. Sess.) Sept. 20, 2014.)
Accordingly, this bill seeks to remove the award of attorney's
fees from the prevailing party. Notably, existing law, the
California Public Records Act, provides the prevailing plaintiff
the ability to receive an award of attorney's fees and costs,
and those costs and fees are required to be paid by the public
agency, as specified. (Gov. Code Sec. 6259(d).) This provision
means that the person requesting disclosure of information from
the public agency would receive attorney's fees and costs. The
public policy behind this provision is so that the public is not
discouraged from seeking judicial review of information claimed
to be confidential or exempt from disclosure by the public
agency, which furthers the purpose of transparency of government
agencies.
SB 1300, on the other hand, authorizes both the person seeking
release of turnaround information and the petroleum refinery
employer to file an action to release the information or
maintain its confidentiality. In either case, the public agency
(most likely Cal/OSHA, the entity to whom the employer is
required to provide the turnaround information) is the
defendant. Because the defendant public agency, for all intents
and purposes, is the middleman holding the information, the
public agency is not required to bear the court costs for any
party named in the litigation. Accordingly, this bill would
simply maintain that each party would be liable for its own
attorneys' fees and costs.
3. Clarifying ability to intervene in disclosure action
Existing law requires either the person seeking release of
turnaround information or the petroleum refinery employer who
has filed the court action to provide notice to the petroleum
refinery employer or the person requesting the information.
This bill would strike those provisions and, instead, authorize
the petroleum refinery employer or the person requesting release
of the information to intervene in the action. This means that,
if the petroleum refinery employer files an action as the
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plaintiff against the defendant public agency, the person
seeking release of the information could intervene in that
action to make a case for why disclosure of the information is
in the best interests of the public. Conversely, if the person
seeking release of the information files the action as the
plaintiff against the defendant public agency, then the
petroleum refinery employer would be authorized to intervene in
that action to argue why maintaining the confidentiality of the
information is more important than the public's need for
transparency.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1300 (Hancock, Chapter 519, Statutes of 2014) See Background;
Comments 1 and 2.
SB 438 (Hancock, 2013), among other things, upon the request of
the Division of Occupational Safety and Health, would have
required a refinery employer to provide specified documentation
relating to a planned turnaround within a certain period of
time. SB 438 was held on suspense in the Assembly
Appropriations Committee.
AB 3672 (Elder, Chapter 1632, Statutes of 1990) See Background.
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