2005 California Health and Safety Code Sections 25249.5-25249.13 ACT OF 1986

HEALTH AND SAFETY CODE
SECTION 25249.5-25249.13

25249.5.  Prohibition On Contaminating Drinking Water With Chemicals
Known to Cause Cancer or Reproductive Toxicity.  No person in the
course of doing business shall knowingly discharge or release a
chemical known to the state to cause cancer or reproductive toxicity
into water or onto or into land where such chemical passes or
probably will pass into any source of drinking water, notwithstanding
any other provision or authorization of law except as provided in
Section 25249.9.
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.  (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 ($2,500) 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 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 filing an action in the public interest
pursuant to subdivision (d), any private 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 subject either 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 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 had 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 place 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 116275.
   (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.


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