BILL ANALYSIS Ó SB 421 Page 1 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 SB 421 Page 2 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: SB 421 Page 3 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.) SB 421 Page 4 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).) SB 421 Page 5 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 SB 421 Page 6 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) SB 421 Page 7 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. SB 421 Page 8 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. SB 421 Page 9 . . . 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. SB 421 Page 10 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 SB 421 Page 11 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. SB 421 Page 12 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. SB 421 Page 13 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