This text contains new statutory language added by Assembly Bill 1756 (Committee on Budget, Chapter 228, Statutes of 2003) which was signed into law by Governor Gray Davis on August 9, 2003. The new language took effect on August 11, 2003.
25249.6. Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.
25249.7. Enforcement.
(a) Any person that violates or threatens to violate Section 25249.5
or 25249.6 may be enjoined in any court of competent jurisdiction.
(b) (1) Any person who has violated Section 25249.5 or 25249.6 shall
be liable for a civil penalty not to exceed two thousand five hundred
dollars ($2500) per day for each violation in addition to any other
penalty established by law. That civil penalty may be assessed and
recovered in a civil action brought in any court of competent jurisdiction.
(2) In assessing the amount of a civil penalty for a violation of
this chapter, the court shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(c) Actions pursuant to this section may be brought by the Attorney
General in the name of the people of the State of California, by
any district attorney, by any city attorney of a city having a population
in excess of 750,000, or, with the consent of the district attorney,
by a city prosecutor in any city or city and county having a full-time
city prosecutor, or as provided in subdivision (d).
(d) Actions pursuant to this section may be brought by any person
in the public interest if both of the following requirements are
met:
(1) The private action is commenced more than 60 days from the date
that the person has given notice of an alleged violation of Section
25249.5 or 25249.6 that is the subject of the private action to
the Attorney General and the district attorney, city attorney, or
prosecutor in whose jurisdiction the violation is alleged to have
occurred, and to the alleged violator. If the notice alleges a violation
of Section 25249.6, the notice of the alleged violation shall include
a certificate of merit executed by the attorney for the noticing
party, or by the noticing party, if the noticing party is not represented
by an attorney. The certificate of merit shall state that the person
executing the certificate has consulted with one or more persons
with relevant and appropriate experience or expertise who has reviewed
facts, studies, or other data regarding the exposure to the listed
chemical that is the subject of the action, and that, based on that
information, the person executing the certificate believes there
is a reasonable and meritorious case for the private action. Factual
information sufficient to establish the basis of the certificate
of merit, including the information identified in paragraph (2)
of subdivision (h), shall be attached to the certificate of merit
that is served on the Attorney General.
(2) Neither the Attorney General, any district attorney, any city
attorney nor any prosecutor has commenced and is diligently prosecuting
an action against the violation.
(e) Any person bringing an action in the public interest pursuant
to subdivision (d) and any person filing any action in which a violation
of this chapter is alleged shall notify the Attorney General that
the action has been filed. Neither this subdivision nor the procedures
provided in subdivisions (f) to (j), inclusive, shall affect the
requirements imposed by the statute or a court decision in existence
on January 1, 2002 concerning whether any person filing any action
in which a violation of this chapter is alleged is required to comply
with the requirements of subdivision (d).
(f) (1) Any person bringing an action in the public interest pursuant
to subdivision (d), any person filing any action in which a violation
of this chapter is alleged, or any private person settling any violation
of this chapter alleged in a notice given pursuant to paragraph
(1) of subdivision (d), shall, after the action or violation is
either subject to a settlement or to a judgment, submit to the Attorney
General a reporting form that includes the results of that settlement
or judgment and the final disposition of the case, even if dismissed.
At the time of the filing of any judgment pursuant to an action
brought in the public interest pursuant to subdivision (d), or any
action brought by a private person in which a violation of this
chapter is alleged, the plaintiff shall file an affidavit verifying
that the report required by this subdivision has been accurately
completed and submitted to the Attorney General.
(2) Any person bringing an action in the public interest pursuant
to subdivision (d) or any private person bringing an action in which
a violation of this chapter is alleged, shall, after the action
is either subject to a settlement, with or without court approval,
or to a judgment, submit to the Attorney General a report that includes
information on any corrective action being taken as a part of the
settlement or resolution of the action.
(3) The Attorney General shall develop a reporting form that specifies
the information that shall be reported, including, but not limited
to, for purposes of subdivision (e), the date the action was filed,
the nature of the relief sought, and for purposes of this subdivision,
the amount of the settlement or civil penalty assessed, other financial
terms of the settlement, and any other information the Attorney
General deems appropriate.
(4) If there is a settlement of an action brought by a person in
the public interest under subdivision (d), the plaintiff shall submit
the settlement, other than a voluntary dismissal in which no consideration
is received from the defendant, to the court for approval upon noticed
motion, and the court may approve the settlement only if the court
makes all of the following findings:
(A) Any warning that is required by the settlement complies with this chapter.
(B) Any award of attorney's fees is reasonable under California law.
(C) Any penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).
(5) The plaintiff subject to paragraph (4) has the burden of producing
evidence sufficient to sustain each required finding. The plaintiff
shall serve the motion and all supporting papers on the Attorney
General, who may appear and participate in any proceeding without
intervening in the case.
(6) Neither this subdivision nor the procedures provided in subdivision
(e) and subdivisions (g) to (j), inclusive, shall affect the requirements
imposed by statute or a court decision in existence on the January
1, 2002 concerning whether claims raised by any person or public
prosecutor not a party to the action are precluded by a settlement
approved by the court.
(g) The Attorney General shall maintain a record of the information
submitted pursuant to subdivisions (e) and (f) and shall make this
information available to the public.
(h) (1) Except as provided in paragraph (2), the basis for the certificate
of merit required by subdivision (d) is not discoverable. However,
nothing in this subdivision shall preclude the discovery of information
related to the certificate of merit if that information is relevant
to the subject matter of the action and is otherwise discoverable,
solely on the ground that it was used in support of the certificate
of merit.
(2) Upon the conclusion of an action brought pursuant to subdivision
(d) with respect to any defendant, if the trial court determines
that there was no actual or threatened exposure to a listed chemical,
the court may, upon the motion of that alleged violator or upon
the court's own motion, review the basis for the belief of the person
executing the certificate of merit, expressed in the certificate
of merit, that an exposure to a listed chemical had occurred or
was threatened. The information in the certificate of merit, including
the identity of the persons consulted with and relied on by the
certifier, and the facts, studies, or other data reviewed by those
persons, shall be disclosed to the court in an in-camera proceeding
at which the moving party shall not be present. If the court finds
that there was no credible factual basis for the certifier's belief
that an exposure to a listed chemical has occurred or was threatened,
then the action shall be deemed frivolous within the meaning of
Section 128.6 or 128.7 of the Code of Civil Procedure, whichever
provision is applicable to the action. The court shall not find
a factual basis credible on the basis of a legal theory of liability
that is frivolous within the meaning of Section 128.6 or 128.7 of
the Code of Civil Procedure, whichever provision is applicable to
the action.
(i) The Attorney General may provide the factual information submitted
to establish the basis of the certificate of merit on request to
any district attorney, city attorney, or prosecutor within whose
jurisdiction the violation is alleged to have occurred, or to any
other state or federal government agency, but in all other respects
the Attorney General shall maintain, and ensure that all recipients
maintain, the submitted information as confidential official information
to the full extent authorized in Section 1040 of the Evidence Code.
(j) In any action brought by the Attorney General, a district attorney,
a city attorney, or a prosecutor pursuant to this chapter, the Attorney
General, district attorney, city attorney, or prosecutor may seek
and recover costs and attorney's fees on behalf of any party who
provides a notice pursuant to subdivision (d) and who renders assistance
in that action.
25249.8. List of Chemicals Known
to Cause Cancer or Reproductive Toxicity. (a) On or before March
1, 1987, the Governor shall cause to be published a list of those
chemicals known to the state to cause cancer or reproductive toxicity
within the meaning of this chapter, and he shall cause such list
to be revised and republished in light of additional knowledge at
least once per year thereafter. Such list shall include at a minimum
those substances identified by reference in Labor Code Section 6382(b)(1)
and those substances identified additionally by reference in Labor
Code Section 6382(d).
(b) A chemical is known to the state to cause cancer or reproductive
toxicity within the meaning of this chapter if in the opinion of
the state's qualified experts it has been clearly shown through
scientifically valid testing according to generally accepted principles
to cause cancer or reproductive toxicity, or if a body considered
to be authoritative by such experts has formally identified it as
causing cancer or reproductive toxicity, or if an agency of the
state or federal government has formally required it to be labeled
or identified as causing cancer or reproductive toxicity.
(c) On or before January 1, 1989, and at least once per year thereafter,
the Governor shall cause to be published a separate list of those
chemicals that at the time of publication are required by state
or federal law to have been tested for potential to cause cancer
or reproductive toxicity but that the state's qualified experts
have not found to have been adequately tested as required.
(d) The Governor shall identify and consult with the state's qualified
experts as necessary to carry out his duties under this section.
(e) In carrying out the duties of the Governor under this section,
the Governor and his designates shall not be considered to be adopting
or amending a regulation within the meaning of the Administrative
Procedure Act as defined in Government Code Section 11370.
25249.9. Exemptions from Discharge Prohibition.
(a) Section 25249.5 shall not apply to any discharge or release
that takes places less than twenty months subsequent to the listing
of the chemical in question on the list required to be published
under subdivision (a) of Section 25249.8.
(b) Section 25249.5 shall not apply to any discharge or release
that meets both of the following criteria:
(1) The discharge or release will not cause any significant amount
of the discharged or released chemical to enter any source of drinking
water.
(2) The discharge or release is in conformity with all other laws
and with every applicable regulation, permit, requirement, and order.
In any action brought to enforce Section 25249.5, the burden of
showing that a discharge or release meets the criteria of this subdivision
shall be on the defendant.
25249.10. Exemptions from Warning Requirement.
Section 25249.6 shall not apply to any of the following:
(a) An exposure for which federal law governs warning in a manner
that preempts state authority.
(b) An exposure that takes place less than twelve months subsequent
to the listing of the chemical in question on the list required
to be published under subdivision (a) of Section 25249.8.
(c) An exposure for which the person responsible can show that the
exposure poses no significant risk assuming lifetime exposure at
the level in question for substances known to the state to cause
cancer, and that the exposure will have no observable effect assuming
exposure at one thousand (1000) times the level in question for
substances known to the state to cause reproductive toxicity, based
on evidence and standards of comparable scientific validity to the
evidence and standards which form the scientific basis for the listing
of such chemical pursuant to subdivision (a) of Section 25249.8.
In any action brought to enforce Section 25249.6, the burden of
showing that an exposure meets the criteria of this subdivision
shall be on the defendant.
25249.11. Definitions. For purposes of this chapter:
(a) "Person" means an individual, trust, firm, joint stock
company, corporation, company, partnership, limited liability company,
and association.
(b) "Person in the course of doing business" does not
include any person employing fewer than 10 employees in his or her
business; any city, county, or district or any department or agency
thereof or the state or any department or agency thereof or the
federal government or any department or agency thereof; or any entity
in its operation of a public water system as defined in Section
4010.1.
(c) "Significant amount" means any detectable amount except
an amount which would meet the exemption test in subdivision (c)
of Section 25249.10 if an individual were exposed to such an amount
in drinking water.
(d) "Source of drinking water" means either a present
source of drinking water or water which is identified or designated
in a water quality control plan adopted by a regional board as being
suitable for domestic or municipal uses.
(e) "Threaten to violate" means to create a condition
in which there is a substantial probability that a violation will
occur.
(f) "Warning" within the meaning of Section 25249.6 need
not be provided separately to each exposed individual and may be
provided by general methods such as labels on consumer products,
inclusion of notices in mailings to water customers, posting of
notices, placing notices in public news media, and the like, provided
that the warning accomplished is clear and reasonable. In order
to minimize the burden on retail sellers of consumer products including
foods, regulations implementing Section 25249.6 shall to the extent
practicable place the obligation to provide any warning materials
such as labels on the producer or packager rather than on the retail
seller, except where the retail seller itself is responsible for
introducing a chemical known to the state to cause cancer or reproductive
toxicity into the consumer product in question.
25249.12. (a) The Governor shall designate a lead agency
and other agencies that may be required to implement this chapter,
including this section. Each agency so designated may adopt and
modify regulations, standards, and permits as necessary to conform
with and implement this chapter and to further its purposes.
(b) The Safe Drinking Water and Toxic Enforcement Fund is hereby
established in the State Treasury. The director of the lead agency
designated by the Governor to implement this chapter may expend
the funds in the Safe Drinking Water and Toxic Enforcement Fund,
upon appropriation by the Legislature, to implement and administer
this chapter.
(c) In addition to any other money that may be deposited in the
Safe Drinking Water and Toxic Enforcement Fund, all of the following
amounts shall be deposited in the fund:
(1) Seventy-five percent of all civil and criminal penalties collected
pursuant to this chapter.
(2) Any interest earned upon the money deposited into the Safe Drinking
Water and Toxic Enforcement Fund.
(d) Twenty-five percent of all civil and criminal penalties collected
pursuant to this chapter shall be paid to the office of the city
attorney, city prosecutor, district attorney, or Attorney General,
whichever office brought the action, or in the case of an action
brought by a person under subdivision (d) of Section 25249.7, to
that person.
25249.13. Preservation Of Existing Rights, Obligations, and Penalties. Nothing in this chapter shall alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and nothing in this chapter shall create or enlarge any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.
25180.7. (a) Within the meaning of this section, a "designated
government employee" is any person defined as a "designated
employee" by Government Code Section 82019, as amended. (b)
Any designated government employee who obtains information in the
course of his official duties revealing the illegal discharge or
threatened illegal discharge of a hazardous waste within the geographical
area of his jurisdiction and who knows that such discharge or threatened
discharge is likely to cause substantial injury to the public health
or safety must, within seventy-two hours, disclose such information
to the local Board of Supervisors and to the local health officer.
No disclosure of information is required under this subdivision
when otherwise prohibited by law, or when law enforcement personnel
have determined that such disclosure would adversely affect an ongoing
criminal investigation, or when the information is already general
public knowledge within the locality affected by the discharge or
threatened discharge. (c) Any designated government employee who
knowingly and intentionally fails to disclose information required
to be disclosed under subdivision (b) shall, upon conviction, be
punished by imprisonment in the county jail for not more than one
year or by imprisonment in state prison for not more than three
years. The court may also impose upon the person a fine of not less
than five thousand dollars ($5000) or more than twenty-five thousand
dollars ($25,000). The felony conviction for violation of this section
shall require forfeiture of government employment within thirty
days of conviction.
(d) Any local health officer who receives information pursuant to
subdivision (b) shall take appropriate action to notify local news
media and shall make such information available to the public without
delay.
25192. (a) All civil and criminal penalties collected pursuant
to this chapter shall be apportioned in the following manner:
(1) Fifty percent shall be deposited in the Hazardous Substance
Account in the General Fund.
(2) Twenty-five percent shall be paid to the office of the city
attorney, city prosecutor, district attorney, or Attorney General,
whichever office brought the action.
(3) Twenty-five percent shall be paid to the department and used
to fund the activity of the CUPA, the local health officer, or other
local public officer or agency authorized to enforce the provisions
of this chapter pursuant to Section 25180, whichever entity investigated
the matter that led to the bringing of the action. If investigation
by the local police department or sheriff's office or California
Highway Patrol led to the bringing of the action, the CUPA, the
local health officer, or the authorized officer or agency, shall
pay a total of 40 percent of its portion under this subdivision
to that investigating agency or agencies to be used for the same
purpose. If more than one agency is eligible for payment under this
paragraph, division of payment among the eligible agencies shall
be in the discretion of the CUPA, the local health officer, or the
authorized officer or agency.
(b) If a reward is paid to a person pursuant to Section 25191.7,
the amount of the reward shall be deducted from the amount of the
civil penalty before the amount is apportioned pursuant to subdivision
(a).
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