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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