BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 421


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          Date of Hearing:   July 14, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          421 (Hancock) - As Amended June 19, 2015


          SENATE VOTE:  40-0


          SUBJECT:  REFINERIES: TURNAROUNDS


          KEY ISSUES:  


          1)SHOULD THE LAW REGARDING PUBLIC DISCLOSURE OF INFORMATION  
            CONTAINED IN PETROLEUM REFINERY TURNAROUND REPORTS BE AMENDED  
            TO REMOVE A PROVISION REQUIRING THE AWARD OF ATTORNEY'S FEES  
            TO THE PREVAILING PARTY IN AN ACTION CHALLENGING DISCLOSURE OF  
            SUCH REPORTS OR THE INFORMATION CONTAINED WITHIN THEM?


          2)SHOULD THE LAW REGARDING PUBLIC DISCLOSURE OF INFORMATION  
            CONTAINED IN PETROLEUM REFINERY TURNAROUND REPORTS BE AMENDED  
            TO ALLOW, RATHER THAN REQUIRE, A PARTY TO INTERVENE IN AN  
            ACTION INVOLVING THE RELEASE OF INFORMATION IN A REPORT THAT  
            WAS PREVIOUSLY IDENTIFIED BY THE REFINERY AS TRADE SECRET  
            INFORMATION?

                                      SYNOPSIS










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          This bill responds to Governor Brown's signing message of SB  
          1300 (Hancock, Chapter 519, Statutes of 2014), legislation  
          introduced in response to the Chevron USA refinery explosion in  
          2012, regarding "petroleum refinery turn-around reports" that  
          petroleum refinery employers (Refineries) are required to issue  
          every year regarding planned, periodic shutdowns to perform  
          maintenance, overhaul, and repair operations at the facilities  
          and to inspect, test and replace process materials and  
          equipment.  In his signing message, the governor relayed that  
          the author had agreed to introduce clean-up legislation this  
          year to ensure that SB 1300 "does not authorize petroleum  
          refineries to collect attorney's fees from individuals and  
          organizations" who seek to obtain turnaround reports from the  
          Division of Occupational Safety and Health (the Division).  This  
          bill removes the requirement in existing law that a court must  
          award attorney's fees to the party who prevails in an action  
          challenging the disclosure of information contained in a  
          petroleum refinery turnaround report that contains information  
          which the court determines is exempt as trade secret information  
          from public disclosure (even when the prevailing party is a  
          Refinery and the other party is an individual or organization  
          seeking a turnaround report from the Division), but does not  
          prohibit the award of attorney's fees to the prevailing party in  
          such a case.  This bill also clarifies that a Refinery that  
          seeks to prevent disclosure of information in a turnaround  
          report, or a party who seeks to obtain it, may intervene in an  
          action regarding the disclosure of such information, but the  
          intervener is not required to be named in the action as a party  
          in interest.  This bill is supported by the California Newspaper  
          Publishers Association and the Natural Resources Defense  
          Council, and has no known opposition. 


          SUMMARY:  Makes changes to existing law governing petroleum  
          refinery turnaround reports to ensure that the public has access  
          to public information contained in the reports, while protecting  
          the trade secret information within such reports.  Specifically,  
          this bill:









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          1)Removes, in a case involving a motion to compel or prohibit  
            disclosure of a refinery report containing trade secret  
            information, the mandatory award of costs and attorney's fees  
            to the prevailing party.
          2)Removes the requirement for a party in a suit to compel or  
            prohibit the disclosure of a refinery turnaround report  
            containing trade secret information, to name the other party  
            in the suit as a real party in interest, and instead allows  
            either party to intervene in an action filed by the other  
            party.


          EXISTING LAW:   


          1)Provides that the California Public Records Act (PRA) governs  
            the disclosure of information collected and maintained by  
            public agencies.  (Government Code Section 6250 et seq.  All  
            subsequent citations refer to the Government Code, unless  
            otherwise indicated.)


          2)Provides that all public records are accessible to the public  
            upon request, unless the requested is exempt from public  
            disclosure.  (Section 6254.)


          3)Provides exceptions to the general rule that all records are  
            public and subject to disclosure for specific records and  
            information contained within records that are otherwise public  
            records.  (Section 6275.)


          4)Provides exceptions from public disclosure for specified  
            records, including occupational safety and health  
            investigations, and confidential trade secrets.  (Sections  
            6276.32, 6276.44.)









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          5)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 receive a copy of, any public record 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.  (Sections 6258, 6259(d).)


          6)Requires, on September 15th of every year, a Refinery to  
            submit to the Division a full schedule of planned turnarounds  
            of all affected units in the next calendar year and requires a  
            Refinery, at the request of the Division and at least 60 days  
            prior to the shutdown of a process unit or plant as part of a  
            planned turnaround, to provide access onsite, and allow the  
            Division to review, specified documentation about the process  
            unit or plant scheduled to be shut down for that turnaround.   
            (Labor Code Section 7872(a), (c).)


          7)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.   
            (Labor Code Section 7872(a).)


          8)Requires a Refinery to submit turnaround information to the  
            Division, regardless of whether the employer believes the  
            information submitted may involve the release of a trade  
            secret; however, at the time of submission, the employer may  
            identify all or a portion of the information submitted to the  
            Division as a trade secret and, to the extent feasible,  
            segregate records that it designates as trade secret  
            information from the other records it provides.  (Labor Code  
            Section 7873(b)(1).)









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          9)Prohibits the Division from releasing to the public any  
            information designated as a trade secret by the petroleum  
            refiner employer, subject to judicial review, as provided.   
            (Labor Code Section 7873(b)(2).)


          10)Requires the Division, upon the receipt of a request by the  
            public for the release of information that includes  
            information the petroleum refinery has identified as trade  
            secret information, to notify the petroleum refinery in  
            writing of the request by certified mail, with return receipt  
            requested.  (Labor Code Section 7873(c)(1).)


          11)Requires the Division to release requested trade secret  
            information to the public, unless both of the following occur:


             a)   Within 30 days of receipt of the notice of the request  
               for information, the Refinery files an action in an  
               appropriate court for a declaratory judgment that the  
               information is subject to trade secret protection and  
               promptly notifies the Division of that action; and
             b)   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 the Division of that action.   
               (Labor Code Section 7873(c)(2).)


          12)Provides that if the person requesting the release of trade  
            secret information or the Refinery 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 Refinery as a real party in interest.  (Labor Code Section  
            7873(d)(2).)
          13)Requires a Refinery who files an action to challenge release  
            of trade secret information to provide notice of the action to  








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            the person requesting the release of the information at the  
            same time that the defendant in the action is served.  (Labor  
            Code Section 7873(d)(2)(A).)


          14)Requires the person filing an action to compel the release of  
            information that includes information that the Refinery has  
            notified the Division is a trade secret to provide notice of  
            the action to the Refinery that submitted the information at  
            the same time that the defendant in the action is served.   
            (Labor Code Section 7873(d)(2)(B).)


          15)Requires the court to award costs and reasonable attorney's  
            fees to the prevailing party in trade secret disclosure  
            litigation, but prohibits the public agency from bearing the  
            court costs for any party named in the litigation.  (Labor  
            Code Section 7873(d)(3).)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  The California Refinery and Chemical Plant Worker  
          Safety Act of 1990 (AB 3672 (Elder), Chap. 1632, Stats. 1990)  
          established specified 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 safety standards in  
          petroleum refineries. 


          Last year, in response to the catastrophic pipe rupture at the  
          Chevron USA Refinery in Richmond, California in 2012 that  
          released a flammable hydrocarbon vapor cloud, engulfed nineteen  
          Chevron employees, created a large plume of toxic gas over the  
          Richmond area, and caused approximately 15,000 people to seek  
          medical treatment, SB 1300 (Hancock, Chap. 519, Stats. 2014)  








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          supplemented safety standards in then-existing law by  
          establishing disclosure requirements and mandating inspections  
          of petroleum refinery employers (Refineries) 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.  SB 1300 prohibited the disclosure of trade  
          secret information contained in those turnaround reports and  
          provided a method for judicial review of a refinery's refusal to  
          disclose information contained in a turnaround report on the  
          basis that it included trade secret information.  SB 1300 also  
          required the court to award attorney's fees and costs to the  
          prevailing party in a dispute about the disclosure of  
          information in a turnaround report.  In his signing message for  
          SB 1300 Governor Brown stated: 


                 The author has committed to introduce clean up  
                 legislation next year and work with stakeholders to  
                 clarify the public disclosure process to ensure that this  
                 law does not authorize petroleum refineries to collect  
                 attorney's fees from individuals or organizations seeking  
                 those records.  I fully support those efforts.


          This bill makes a number of changes to the law enacted by SB  
          1300.  According to the author:


               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)] 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.


               SB 1300 defines trade secret to include the scheduling,  
               duration, layout, configuration and type of work to be  
               performed during the turnaround.  It also provides for the  
               release of the schedule and duration of the turnaround  
               after the work is complete.


               Refineries will also be required to flag any scheduled  
               maintenance and repairs of equipment being deferred to a  
               later turnaround period.  Based on [the Division'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, [the Division's] inspectors will be able to review  
               the refineries' plans for scheduled work and ask for  
               clarification when scheduled work is postponed or dropped.  








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               . . .  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.


          Governor Brown's Concerns.  Governor Brown indicated, in his  
          signing message of SB 1300, that the law regarding disclosure of  
          turnaround reports should be amended to "clarify the public  
          disclosure process to ensure that this law does not authorize  
          petroleum refineries to collect attorney's fees from individuals  
          or organizations seeking those records."  The signing message  
          seems to indicate that the law should prohibit Refineries from  
          obtaining attorney's fees from individuals and organizations who  
          seek, but do not prevail, in efforts to seek information in  
          refinery turnaround reports.  This bill does not prohibit the  
          award of attorney's fees to a Refinery.  Instead, it eliminates  
          the mandatory award of attorney's fees and costs to a prevailing  
          party in litigation for the disclosure of such records.  


          Nevertheless, the bill does improve the law governing public  
          requests for records in turnaround reports because it eliminates  
          the requirement that attorney's fees are awarded to the  
          prevailing party in litigation seeking those records.  The  
          current wording appears to be a carefully negotiated compromise  
          in light of the fact that it does not appear to be feasible to  
          advance a bill to the governor that does what the governor said  
          he thought it should do.  Therefore, this bill seems to be a  
          modest step in helping individuals and organizations that seek  
          turnaround reports and bring PRA actions to obtain public  
          information that is in the custody of the Division.  As this  
          bill is currently drafted, a court may elect to award attorney's  
          fees to individuals or organizations that prevail in seeking to  
          compel or disclose such records, but is not required to do so. 










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          Proprietary Information/Trade Secret.  The California Public  
          Records Act (PRA) governs the disclosure of information  
          collected and maintained by public agencies.  (Section 6250 et  
          seq.)  All public records are presumed to be open and available  
          to the public for viewing or copying upon request, unless the  
          record requested is exempt from public disclosure.  (Section  
          6253.)  The PRA specifically exempts dozens of types of records  
          and information from disclosure, essentially due to the  
          character of the records and information, many of which are  
          listed Section 6254, but some of which are listed in stand-alone  
          sections of the PRA.  In addition, the PRA contains a  
          "catch-all" provision that prohibits disclosure of documents  
          where, based upon "the facts of the particular case, the public  
          interest served by nondisclosure clearly outweighs the public  
          interest served by disclosure of the record."  (Section 6255.) 


          One specific exemption in the PRA is for "Occupational health  
          and safety investigations."  (Section 6276.32.)  Another  
          exception is for trade secret information.  (Section 6276.44.)   
          In addition, Labor Code Section 7873(b)(2) prohibits the  
          Division from releasing any information designated as a trade  
          secret by the refinery to the public, subject to judicial  
          review.  The exception at issue in this bill is for trade secret  
          information that a refinery identifies in the turnaround report  
          filed with the Division.  


          Because the Division is prohibited from releasing information  
          within those reports which is designated as trade secret  
          information, the Division is required to notify the refinery  
          when it receives a public records request for a record that  
          includes information the refinery has previously identified as  
          trade secret information.  (Section 7873(c)(2).)  The refinery  
          has 30 days, after receiving notification, to file an action  
          with the court to prohibit the release of the requested  
          information.  The refinery has 120 days to obtain a court order  
          and notify the Division of the order.  If the refinery fails to  
          obtain a court order prohibiting release of the requested  








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          information, the Division must release the requested information  
          to the public.  (Section 7873(c)(2).)  Any person may initiate  
          proceedings to enforce his or her right to inspect, or to obtain  
          a copy, of any public record.  (Section 6258.) 


          Allowing an Interested Party to Intervene.  When a party brings  
          an action to either compel or prohibit the disclosure of trade  
          secret information in a refinery's turnaround report, current  
          law requires the moving party to add the opposing party to the  
          action as a party in interest.  The opposing party may or may  
          not be interested in being involved in the action.  This bill  
          allows, but does not require, the party to be included in the  
          action.  This provision of the bill allows a party to consider  
          their level of interest in obtaining the requested information,  
          and the possible results of possible litigation, before  
          intervening in the action.


          Prior Legislation:  SB 438 (Hancock, 2013), among other things,  
          would have required a refinery to provide, upon the request of  
          the Division, specified documentation relating to a planned  
          turnaround of a refinery to the Division.  SB 438 was held on  
          the Suspense file in the Assembly Appropriations Committee.


          ARGUMENTS IN SUPPORT:  This bill enjoys support from two  
          organizations that opposed SB 1300 last year.  The California  
          Newspaper Publishers Association writes in support:


               SB 421would delete the requirement in existing law that a  
               person requesting the release of information that might be  
               considered a trade secret, or a Refinery seeking to prevent  
               disclosure, name the other as a real party in interest in  
               an applicable action.  The bill would allow a requester to  
               intervene in a ?declaratory relief action and would require  
               the court to permit that person to intervene.









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               The bill would also delete the requirement that the court  
               award attorney's fees to a prevailing party.


          Another supporter, the Natural Resources Defense Council (NRDC)  
          writes:


               NRDC opposed SB 1300? due to amendments late in the process  
               which would have allowed oil companies to sue individuals  
               or community groups for requesting public records regarding  
               refinery turnarounds.  We were also concerned about  
               language that allowed refinery operators to determine what  
               information would be deemed a "trade secret."


               We support SB 421 because it responds to Governor Brown's  
               signing message for SB 1300 in which he called for clean-up  
               legislation.  SB 421 corrects the statute to clarify  
               provisions regarding access to information and the judicial  
               process.


          






















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          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Newspaper Publishers Association


          Natural Resources Defense Council




          Opposition


          None on file




          Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334  
          Alison Merrilees/JUD./(916) 319-2334