BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 421|
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UNFINISHED BUSINESS
Bill No: SB 421
Author: Hancock (D)
Amended: 6/19/15
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
SENATE FLOOR: 40-0, 6/1/15 (Consent)
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,
Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,
Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner,
Stone, Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 78-0, 8/27/15 (Consent) - See last page for
vote
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
(Division). 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
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disclosure of the turnaround information.
Assembly Amendments make clarifying changes to trade secret
protection of information requested to be disclosed and the
appropriate service to be provided to a petroleum refinery
employer of an action filed requesting release of information.
ANALYSIS:
Existing law:
1) Declares, in the California Constitution, the people's right
to transparency in government.
2) Governs, under the California Public Records Act (CPRA), the
disclosure of information collected and maintained by public
agencies.
3) Makes, generally, all public records accessible to the
public upon request, unless the record requested is exempt
from public disclosure.
4) Provides 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, and the exempt
information may be withheld by the public agency with custody
of the information.
5) Provides a list of information contained in a public record
that may be exempt from public disclosure, provides that 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
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surrounding the request, exempts public records from
disclosure.
6) Includes in the list of exemptions occupational safety and
health investigations, confidentiality of trade secrets.
7) 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.
8) Requires, every September 15, every petroleum refinery
employer to submit to the Division a full schedule of planned
turnarounds for all affected units for the following calendar
year, and, at the request of the Division, 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 the Division to review
documentation, as specified, for the process unit or plant
scheduled to be shut down for that turnaround.
9) 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.
10)Requires a petroleum refinery employer to submit turnaround
information to the Division, 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 the Division as a trade secret
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and, to the extent feasible, segregate records designated as
trade secret from the other records.
11)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.
12)Requires, upon the receipt of a request for the release of
information to the public that includes information that the
petroleum refinery employer has notified the Division is a
trade secret, as specified, the Division to notify the
petroleum refinery employer in writing of the request by
certified mail, return receipt requested.
13)Requires the Division 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 the Division 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 the Division 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 the Division when relevant in
any proceeding of the Division.
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.
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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
of information that includes information that the petroleum
refinery employer has notified the Division 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)Requires, if a person requesting the release of information
files an action against the Division to disclose information
claimed as a trade secret, the Division to promptly notify the
petroleum refinery employer in writing of the action by
certified mail, return receipt requested.
4)Makes several technical and non-substantive revisions.
Background
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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
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
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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.
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 [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. . . . 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
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SB 1300 (Hancock, Chapter 519, Statutes of 2014) - See
Background.
SB 438 (Hancock, 2013), among other things, upon the request of
the Division, 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
According to the Assembly Appropriations Committee, the bill has
a negligible fiscal impact to the Division to provide
notification as required.
SUPPORT: (Verified8/25/15)
California Newspaper Publishers Association
Natural Resources Defense Council
OPPOSITION: (Verified8/25/15)
None received
ASSEMBLY FLOOR: 78-0, 8/27/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
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Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Wood, Atkins
NO VOTE RECORDED: Frazier, Williams
Prepared by:Tara Welch / JUD. / (916) 651-4113
8/28/15 17:17:33
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