Proposition 65: enforcement: certificate of merit: factual basis.

The Safe Drinking Water and Toxic Enforcement Act of 1986, an initiative measure approved by the voters as Proposition 65 at the November 4, 1986, statewide general election (Proposition 65) , prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from knowingly discharging or releasing such a chemical into water, or into or onto land and passing into any source of drinking water, except as specified. The act imposes civil penalties upon persons who violate those prohibitions, and provides for the enforcement of those prohibitions by the Attorney General, a district attorney, or specified city attorneys or prosecutors. The act also provides for enforcement by an action brought by any person in the public interest, if that private action is commenced more than 60 days after the person has given notice of the violation that is the subject of the action to the Attorney General and the district attorney, the city attorney, or the prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice made by a person bringing an action in the public interest alleges a violation of the act's warning requirement, existing law requires that the notice include a certificate of merit stating 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 believes there is a reasonable and meritorious case for the private action. Existing law requires factual information sufficient to establish the basis of the certificate of merit to be attached to the certificate of merit that is served on the Attorney General. This bill would require, if the Attorney General believes there is no merit to the action after reviewing the factual information sufficient to establish the basis for the certificate of merit and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General to serve a letter to the noticing party and the alleged violator stating the Attorney General believes there is no merit to the action, as specified. Existing law authorizes the trial court, upon the motion of the alleged violator or the court's own motion, to review the basis for the certificate of merit upon conclusion of an action brought in the public interest and, as part of that review, requires the information in the certificate of merit to be disclosed to the court in an in-camera proceeding at which the moving party is not present. Existing law deems the action to be frivolous if the court finds in that review that there is no credible factual basis for the certified belief that an exposure to a listed chemical has occurred or was threatened. Existing law provides that, except when the trial court reviews the basis for the certificate of merit, the basis for the certificate is not discoverable. This bill would make the basis for the certificate of merit discoverable to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege. Existing law authorizes the Governor's Office of Business and Economic Development to provide various services and information to businesses relating to, among other things, business development, obtaining state and local permits, and other regulatory information pertinent to business operations in the state. This bill would require the office to post in a conspicuous location on its Internet Web site, and include with any informational materials provided to businesses relating to a business's obligations under state law, specified information relating to Proposition 65 requirements. Proposition 65 provides that it may be amended by a statute, passed by a 23 vote of each house of the Legislature, to further its purposes. This bill would find and declare that it furthers the purposes of Proposition 65.