Bill Text: CA AB2893 | 2015-2016 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Department of Toxic Substances Control: enforcement.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2016-08-19 - Chaptered by Secretary of State - Chapter 145, Statutes of 2016. [AB2893 Detail]

Download: California-2015-AB2893-Introduced.html

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BILL NUMBER: AB 2893	INTRODUCED
	BILL TEXT


INTRODUCED BY   Committee on Environmental Safety and Toxic Materials
(Assembly Members Alejo (Chair), Gonzalez, McCarty, and Ting)

                        FEBRUARY 29, 2016

   An act to amend Sections 25185.6, 25358.1, 25358.2, and 25390.5 of
the Health and Safety Code, relating to hazardous materials.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2893, as introduced, Committee on Environmental Safety and
Toxic Materials. Department of Toxic Substances Control: enforcement.

   (1) The Hazardous Waste Control Law authorizes the Department of
Toxic Substances Control and authorized local enforcement officers
and agencies to require specified persons to furnish and transmit
certain information relating to the person's ability to pay for or
perform a response action, and further authorizes those entities to
require any person who has information regarding another person's
activities that relate to the ability of the person to pay for or
perform a response action to also furnish and transmit the
information. Existing law makes those provisions applicable only if
there is a reasonable basis to believe that there has been or may be
a release or threatened release of a hazardous substance and only for
the purpose of determining how to finance a response action or
otherwise for the purpose of enforcing the Hazardous Waste Control
Law. A violation of the Hazardous Waste Control Law is a crime.
   This bill would make those provisions applicable also if there is
a reasonable basis to believe that there has been or may be a release
or threatened release of hazardous wastes or hazardous material and
also for the purpose of determining how to finance a corrective
action.
   (2) Existing law authorizes an officer or employee of the
department and specified other persons to require any person who has
or may have information relevant to specified matters relating to the
release of hazardous substances to furnish and transmit that
information. Existing law authorizes the department to disclose trade
secrets received by the department pursuant to the Hazardous Waste
Control Law only under specified circumstances.
   This bill would require the person required to furnish and
transmit the information to pay for any costs of photocopying and
transmitting the information. The bill would limit the disclosure by
the department of information, including trade secrets, received by
the department pursuant to these provisions of the Hazardous Waste
Control Law, specifying the parties to whom that disclosure is proper
and requiring the disclosures be in connection with the department's
responsibilities under that law. The bill would require this
information to be made available to governmental agencies for use in
making studies and for use in judicial review or enforcement
proceedings involving the person furnishing the information. The bill
would make conforming and other nonsubtantive changes. Because the
bill's provisions would expand the scope of a crime, the bill would
impose a state-mandated local program.
   (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 25185.6 of the Health and Safety Code is
amended to read:
   25185.6.  (a) (1) The department or a local officer or agency
authorized to enforce this chapter pursuant to subdivision (a) of
Section 25180, in connection with any action authorized by this
chapter, may require any of the following persons to furnish and
transmit, upon reasonable notice, to the designated offices of the
department or the local officer or agency any existing information
relating to hazardous substances, hazardous wastes, or hazardous
materials:
   (A) Any person who owns or operates any hazardous waste facility.
   (B) Any person who generates, stores, treats, transports, disposes
of, or otherwise handles hazardous waste.
   (C) Any person who has generated, stored, treated, transported,
disposed of, or otherwise handled hazardous waste.
   (D) Any person who arranges, or has arranged, by contract or other
agreement, to store, treat, transport, dispose of, or otherwise
handle hazardous waste.
   (E) Any person who applies, or has applied, for any permit,
registration, or certification under this chapter.
   (2) (A) The department, or a local officer or agency authorized to
enforce this chapter pursuant to subdivision (a) of Section 25180,
may require a person described in paragraph (1) to furnish and
transmit, upon reasonable notice, to the designated offices of the
department or the local officer or agency, any information relating
to the person's ability to pay for, or to perform, a response  or
corrective  action.
   (B) This paragraph applies only if there is a reasonable basis to
believe that there has been or may be a release or threatened release
of a hazardous substance,  hazardous wastes, or hazardous
material,  and only for the purpose of determining under this
chapter how to finance a response  or corrective  action or
otherwise for the purpose of enforcing this chapter.
   (b) (1) The department may require any person who has information
regarding the activities of a person described in subparagraphs (A)
to (E), inclusive, of paragraph (1) of subdivision (a) relating to
hazardous substances, hazardous wastes, or hazardous 
materials,   materials  to furnish and transmit,
upon reasonable notice, that information to the designated offices of
the department.
   (2) (A) The department may require any person who has information
regarding the activities of a person described in subparagraphs (A)
to (E), inclusive, of paragraph (1) of subdivision (a), relating to
the ability of the person described in those subparagraphs to pay
for, or to perform, a response  or corrective  action, upon
reasonable notice, to furnish and transmit that information to the
designated offices of the department.
   (B) This paragraph applies only if there is a reasonable basis to
believe that there has been or may be a release or threatened release
of a hazardous substance,  hazardous wastes, or hazardous
material,  and only for the purpose of determining under this
chapter how to finance a response  or corrective  action or
otherwise for the purpose of enforcing this chapter.
   (c) Any person required to furnish information pursuant to this
section shall pay any costs of photocopying or transmitting this
information.
   (d) When requested by the person furnishing information pursuant
to this section, the department or the local officer or agency shall
follow the procedures established under Section 25173.
   (e) If a person intentionally or negligently fails to furnish and
transmit to the designated offices of the department or the local
officer or agency any existing information required pursuant to this
section, the department may issue an order pursuant to Section 25187
directing compliance with the request.
   (f) The department may disclose information submitted pursuant to
this section to authorized representatives, contractors, or other
governmental agencies only in connection with the department's
responsibilities pursuant to this chapter. The department shall
establish procedures to ensure that information submitted pursuant to
this section is used only in connection with these responsibilities
and is not otherwise disseminated without the consent of the person
who provided the information to the department.
   (g) The department may also make available to the United States
Environmental Protection Agency any and all information required by
law to be furnished to that agency. The sharing of information
between the department and that agency pursuant to this section does
not constitute a waiver by the department or any affected person of
any privilege or confidentiality provided by law which pertains to
the information.
   (h) A person providing information pursuant to subdivision (a) or
(b) shall, at the time of its submission, identify all information
that the person believes is a trade secret. Any information or record
not identified as a trade secret is available to the public, unless
exempted from disclosure by other provisions of law.  For
purposes of this subdivision, "trade secret" is defined as in Section
25173. 
   (i) Notwithstanding Section 25190, a person who knowingly and
willfully disseminates information protected by Section 25173 or
procedures established by the department pursuant to Section 25173
shall, upon conviction, be punished by a fine of not more than five
thousand dollars ($5,000), imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment. 
   (j) For the purposes of this section, "trade secret" has the same
meaning as set forth in Section 25173. 
  SEC. 2.  Section 25358.1 of the Health and Safety Code is amended
to read:
   25358.1.  (a) The department, a representative of the department,
or any person designated by the director may take the actions
specified in this section only if there is a reasonable basis to
believe that there has been or may be a release or threatened release
of a hazardous substance, and only for the purpose of determining
under this chapter the need for a response action, the choosing or
taking of a response action, or otherwise for the purpose of
enforcing this chapter.
   (b) Any officer or employee of the department, a representative of
the director, or a person designated by the director may require any
person who has or may have information relevant to any of the
following matters to furnish the information, upon reasonable notice:

   (1) The identification, nature, and quantity of materials which
have been, or are, generated, treated, stored, or disposed of at a
hazardous substance release site or which have been, or are,
transported to a hazardous substance release site.
   (2) The nature or extent of a release or a threatened release of a
hazardous substance at, or from, a hazardous substance release site.

   (3) The ability of a person to pay for or to perform a response
action, consistent with subsection (e) of Section 104 of the federal
act (42 U.S.C. Sec. 9604(e)). 
   (c) Any person required to furnish information pursuant to this
section shall pay any costs of photocopying or transmitting the
information.  
   (c) 
    (d)  A person who is required to provide information
pursuant to subdivision (b) shall, in accordance with subdivision
 (h),   (i),  allow the officer, employee,
representative, or designee, upon reasonable notice and at reasonable
times, to have access to, and copy, all records relating to the
hazardous substances for purposes of assisting the department in
determining the need for  an action in response to a release
or threatened release pursuant to this chapter.   a
response action.  
   (d) 
    (e)  Any officer or employee of the department,
representative of the director, or person designated by the director
may, in accordance with subdivision  (h),   (i),
 enter, at reasonable times, any of the following properties:
   (1) Any nonresidential establishment or other place or property
where any hazardous substances may be, or have been, produced,
stored, treated, disposed of, or transported from.
   (2) Any nonresidential establishment or other place or property
from which, or to which, a hazardous substance has been, or may have
been, released.
   (3) Any nonresidential establishment or other place or property
where a hazardous substance release is, or may be, threatened.
   (4) Any nonresidential establishment or other place or property
where entry is needed to determine the need for a response action, or
the appropriate remedial action, to effectuate a response action
under this chapter.
   (5) Any residential place or property which, if it were a
nonresidential establishment or other place or property, would
otherwise meet the criteria described in paragraphs (1) to (4),
inclusive, if the department, representative, or person designated by
the director is able to establish, based upon reasonably available
evidence, that hazardous substances have been released onto or under
the residential place or real property and if entry is made only at
reasonable times and after reasonable notification to the owners and
occupants. 
   (e) 
    (f)  Any officer or employee of the department,
representative of the director, or person designated by the director
may, in accordance with subdivision  (h),   (i),
 carry out any of the following activities:
   (1) Inspect and obtain samples from any establishment or other
place or property specified in subdivision  (d) 
 (e)  or from any location of any suspected hazardous
substance.
   (2) Inspect and obtain samples of any substances from any
establishment or place or property specified in subdivision 
(d).   (e). 
   (3) Inspect and obtain samples of any containers or labeling for
the suspected hazardous substances, and samples of the soil,
vegetation, air, water, and biota on the premises.
   (4) Set up and maintain monitoring equipment for the purpose of
assessing or measuring the actual or potential migration of hazardous
substances.
   (5) Survey and determine the topographic, geologic, and
hydrogeologic features of the land.
   (6) Photograph any equipment, sample, activity, or environmental
condition described in paragraphs (2) to (5) inclusive. 
   (f) 
    (g)  (1) If photographs are to be taken pursuant to
paragraph (6) of subdivision  (e),   (f), 
the department shall do all of the following:
   (A) Comply with all procedures established pursuant to subdivision
(b) of Section 25358.2.
   (B) Notify the person whose facility is photographed prior to
public disclosure of the photographs.
   (C) Upon the request of the person owning the facility, submit a
copy of any photograph to the person for the purpose of determining
whether trade secret information, as defined in Section 25358.2, or
facility security, would be revealed by the photograph.
   (2) "Disclosure," as used in Section 25358.2, for purposes of this
paragraph, does not include the review of the photograph by a court
of competent jurisdiction or by an administrative law judge. A court
or judge may review the photograph in camera. 
   (g) 
    (h)  An officer, employee, representative, or designee
who enters a place, establishment, or property pursuant to this
section shall make a reasonable effort to inform the owner or the
owner's authorized representative of the inspection and shall provide
split samples to the owner or the representative upon request.

   (h) 
    (i)  If the owner or the owner's authorized
representative does not voluntarily grant access to a place,
establishment, or property pursuant to this section, the officer,
employee, representative, or designee shall first obtain a warrant
pursuant to Title 13 (commencing with Section 1822.50) of Part 3 of
the Code of Civil Procedure. However, if there is an emergency posing
an immediate threat to public health and safety, the officer,
employee, representative, or designee may enter the place,
establishment, or property without the consent of the owner or owner'
s authorized representative and without the issuance of a warrant.

   (j) The department may disclose information submitted pursuant to
this section to authorized representatives, contractors, or other
governmental agencies only in connection with the department's
responsibilities pursuant to this chapter. The department shall
establish procedures to ensure that information submitted pursuant to
this section is used only in connection with these responsibilities
and is not otherwise disseminated without the consent of the person
who provided the information to the department.  
   (k) The department may also make available to the United States
Environmental Protection Agency any information required by law to be
furnished to that agency. The sharing of information between the
department and that agency pursuant to this section does not
constitute a waiver by the department or of any affected person of
any privilege or confidentiality provided by law that pertains to the
information.  
   (i) 
    (l)  The department, and any person authorized by the
department to enter upon any lands for the purpose of taking 
removal or remedial   a response action pursuant
to this chapter, shall not be held liable, in either a civil or
criminal proceeding, for trespass or for any other acts which are
necessary to carry out the  corrective  
response  action.
  SEC. 3.  Section 25358.2 of the Health and Safety Code is amended
to read:
   25358.2.  (a) "Trade secrets," as used in this section, may
include, but are not limited to, any formula, plan, pattern, process,
tool, mechanism, compound, procedure, production data, or
compilation of information that is not patented, that is known only
to certain individuals within a commercial concern who are using it
to fabricate, produce, develop, or compound an article of trade or a
service having commercial value, and that gives its user an
opportunity to obtain a business advantage over competitors who do
not know or use it.
   (b) The department  may disclose trade secrets received by
the department pursuant to this chapter to authorized
representatives, contractors, or other governmental agencies only in
connection with the department's responsibilities pursuant to this
chapter. The department  shall establish procedures to
ensure that trade  secrets are   secret
information is  utilized  by the department  only in
connection with  these   the 
responsibilities  of the department pursuant to this chapter
 and  are   is  not otherwise
disseminated without the consent of the person who provided the
information to the department.  However, any information shall be
made available to governmental agencies for use in making studies
and for use in judicial review or enforcement proceedings involving
the person furnishing the information.  
   (c) The department may also make available to the United States
Environmental Protection Agency any and all information required by
law to be furnished to that agency. The sharing of information
between the department and that agency pursuant to this section does
not constitute a waiver by the department or any affected person of
any privilege or confidentiality provided by law which pertains to
the information.  
   (d) 
    (c)  Any person providing information pursuant to
subdivision (b) of Section 25358.1 shall, at the time of its
submission, identify all information which the person believes is a
trade secret. Any information or record not identified as a trade
secret is available to the public, unless exempted from disclosure by
other provisions of law. 
   (e) 
    (d)  Any person who knowingly and willfully disseminates
information protected by this section or procedures established by
the department pursuant to subdivision (b) shall, upon conviction, be
punished by a fine of not more than five thousand dollars ($5,000),
imprisonment in the county jail not to exceed one year, or by both
that fine and imprisonment.
  SEC. 4.  Section 25390.5 of the Health and Safety Code is amended
to read:
   25390.5.  For the purposes of this article, the orphan share shall
be determined in the following manner:
   (a) The orphan share shall be expressed as a percentage in
multiples of five, up to, and, including, but not greater than, 75
percent.
   (b) The potentially responsible party filing a claim for
reimbursement of the orphan share shall provide the administrator of
the fund with a written potentially responsible party search report
that shall include a list of all potentially responsible parties
identified for the site, the factual and legal basis for identifying
those parties, and a proposed orphan share percentage. The
potentially responsible party shall also provide the administrator
with the factual documentation necessary to support the proposed
orphan share percentage.
   (c) Upon receipt of the information required by subdivision (a),
the administrator of the fund shall invite all identified potentially
responsible parties and the department and the regional board to
submit any additional information relating to the proposed orphan
share percentage or to the list of identified potentially responsible
parties.
   (d) The administrator of the fund, in consultation with the
department or the regional board, shall determine a final orphan
share percentage based on the volume, toxicity, and difficulty of
removal of the contaminants contributed to the site by the party or
parties responsible for the orphan share. The administrator shall
determine the orphan share timely and efficiently and is not required
to precisely determine all relevant factors, as long as the
determination is generally equitable. In addition, the administrator
may consider the results of any apportionment or allocation conducted
by voluntary arbitration or mediation or by a civil action filed by
a potentially responsible party, or any other apportionment or
allocation decision that is helpful when determining the orphan share
percentage.
   (e) A potentially responsible party shall not assert, and the
administrator of the fund shall not determine, that the orphan share
percentage includes the share of liability attributable to a
potentially responsible party's acts that occurred before January 1,
1982, unless that share of responsibility is attributable to a person
who is defunct or insolvent.
   (f) In determining the orphan share percentage under this section,
the administrator of the fund may perform any of the activities
authorized in subdivisions (b) and  (c)   (d)
 of Section 25358.1.
   (g) The administrator of the fund shall issue all orphan share
percentage determinations in writing, with notification to all
appropriate parties. The decision of the administrator with respect
to either apportionment or payment of claims is a final agency action
for the purposes of judicial review of the decision by any party to
the proceedings resulting in the decision; however, judicial review
of the administrator's decision is limited to a showing of fraud by a
party submitting information under this subdivision. The
administrator shall be represented by the Attorney General in any
action brought under this article.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.