BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 421|
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                                      CONSENT 


          Bill No:  SB 421
          Author:   Hancock (D)
          Amended:  5/4/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 5/12/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SUBJECT:   Refineries: turnarounds


          SOURCE:    Author


          DIGEST:  This bill deletes 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 also clarifies 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.


          ANALYSIS:   


          Existing law:


            1)  Declares, in the California Constitution, the people's  
              right to transparency in government.  ("The people have the  








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              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....") 


            2)  Governs, under the California Public Records Act (CPRA),  
              the disclosure of information collected and maintained by  
              public agencies.  Generally, all public records are  
              accessible to the public upon request, unless the record  
              requested is exempt from public disclosure.  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.


            3)  Provides a list of information contained in a public  
              record that may be exempt from public disclosure, but the  
              listing of a statute does not itself create an exemption,  
              and requesters of 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.  Included in the list of exemptions are  
              occupational safety and health investigations,  
              confidentiality of trade secrets.


            4)  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.









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            5)  Requires, every September 15, 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.


            6)  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.


            7)  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 information submitted to Cal/OSHA as a trade  
              secret and, to the extent feasible, segregate records  
              designated as trade secret from the other records.


            8)  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.


            9)  Requires, upon the receipt of a request for the release of  
              information to the public that includes information that the  








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              petroleum refinery employer has notified Cal/OSHA is a trade  
              secret, as specified, Cal/OSHA to notify the petroleum  
              refinery employer in writing of the request by certified  
              mail, return receipt requested, and 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. 

            1)  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.


            2)  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.


            3)  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 the defendant in the  
              action is served.


            4)  Requires the person filing an action to compel the release  








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              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.


            5)  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.


          This bill:


          1)Removes the requirement for a court to award costs and  
            reasonable attorneys' fees to the prevailing party.


          2)Removes 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.


          3)Makes several technical and non-substantive revisions.




          Background


          Existing law, the California Refinery and Chemical Plant Worker  
          Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of  
          1990)), established specified process safety management  
          standards for refineries that handle acutely hazardous material  
          in order to prevent or minimize the consequences of catastrophic  








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          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  
          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 also clarifies 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.

          Comments


          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  








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            and repair work.

            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.

          Prior Legislation


          SB 1300 (Hancock, Chapter 519, Statutes of 2014) - See  
          Background.

          SB 438 (Hancock, 2013), among other things, upon the request of  








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          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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified5/26/15)


          California Newspaper Publishers Association


          OPPOSITION:   (Verified5/26/15)


          None received


          Prepared by:Tara Welch / JUD. / (916) 651-4113
          5/27/15 12:10:58


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