HomeMy WebLinkAboutMINUTES - 09301986 - WC.1 w.,. LA)
�cam/
TO: BOARD OF SUPERVISORS
FROM: WATER COMMITTEE
DATE: SEPTEMBER 22, 1986
SUBJECT: ENDORSEMENT OF SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT
OF 1986
Specific Request(s) or Recommendation(s) & Background & Justification
RECOMMENDED ACTION
ENDORSE the Safe Drinking Water & Toxic Enforcement Act of 1986 (Proposi-
tion 65 on the November 1986 ballot) .
FINANCIAL IMPACT
No direct cost to County government.
REASONS FOR RECOMY[ENDATION/BACKGROUND
There are three major provisions to this initiative. The first provision
prohibits anyone in the course of doing business from knowingly discharging
a chemical which is known to cause cancer or reproductive toxicity into any
source of drinking water. The second provision requires that anyone in the
course of doing business who knowingly exposes an individual to a chemical
known to cause cancer or reproductive toxicity, must provide a reasonable
warning to such individual. The third provision requires that any desig-
nated government employee who obtains information in the course of their
official duties involving an illegal discharge likely to cause substantial
injury to public health or safety, must disclose such information to the
local Board of Supervisors and the local Health Officer.
Attached is a memorandum from Wendel Brunner, the Assistant Health Services
Director of Public Health, to the Water Committee recommending support for
the initiative.
Continued on attachment: Yes Signature:
Recommend of County Administrator Recommend of Board Committee
Approve Other:
Signature(s) : G
Supervisor Sunne McPeak Supervisor Robert Schroder
Action of Board on: September .10- 19,96 Approved as recommended Other X
The Board continued consideration of the above matter to. October 14, 1986 and
requested the Community Development Department staff to provide Board members information
on the pro and con arguments related to this proposed le islation.
Vote of Supervisors I HEREBY CERTIFY THAT THIS IS A TRUE
X Unanimous (Absent ) AND CORRECT COPY OF AN ACTION TAKEN
Ayes: Noes: AND ENTERED ON THE MINUTES OF THE
Absent: Abstain: BOARD OF SUPERVISORS ON DATE SHOWN.
wcBOclWT.t10 Attach
Attested September 30, 1986
Orig.Div, : Community Development PHIL BATCHELOR,
cc: County Administrator CLERK OF THE BOARD, AND
Health Services COUN'T'Y ADMINISTRATOR
BY:
DEPUTY/ CLIORK
CONTRA COSTA COUNTY
HEALTH SERVICES DEPARTMENT
Water Committee September 19, 1986
To: Supervisor Sunne McPeak Date:
Supervisor Robert Schroder
From: e Brunner, M.D., Subject: Safe Drinking i n
W ndel B unne , r.� g Water and
Assistant Health Services Director Toxic Enforcement Act
Public Health of 1986
We were asked to review the Safe Drinking Water and Toxic Enforcement Act of
1986, and make a recommendation to the Water Committee when that initiative
qualified for the ballot.
There are three major provisions to this Toxic Initiative. The first provision
prohibits anyone in the course of doing business from knowingly discharging a
chemical, which is known to cause cancer or reproductive toxicity into any source
of drinking water. The second provision requires that anyone in the course of
doing business who knowingly exposes an individual to a chemical known to cause
cancer or reproductive toxicity, must provide a reasonable warning to such indi-
vidual. The third provision requires that any designated government employee
who obtains information in the course of his official duties involving an ille-
gal discharge likely to cause substantial injury to public health or safety,
must disclose such information to the Local Board of Supervisors and Local
-- Health Officer.
Although in most cases it must surely already be against the law, I support as
sound public health prohibitions on the discharge 'of known carcinogenic and
teratogenetic chemicals into the drinking water supplies. The provisions of
this ordinance do not apply to agencies operating public water systems, so
disputes regarding chlorination, floridination, or trihalomethane production in
- public water systems are not affected by this initiative. I feel that it is
-also appropriate to warn employees and consumers when they are exposed to car-
cinogenic or teratogenetic chemicals, even if those exposures are below OSHA
limits. Such warnings are in accordance with a general consumer and employee
"right to know" policy. Finally, I feel that any government official who has
knowledge of illegal activity likely to cause substantial injury to the public
health or safety, has the obligation to report it to the Health Officer and
other agencies that can act to mitigate the threat.
There are certainly some substantial ambiguities in the language of this ini-
tiative, particularly regarding what constitutes a significant amount of toxic
discharge. The "significant amount" appears to be the amount that causes a
"significant health risk a definition that merely begs the question.
Nonetheless, regardless of the amounts involved, it is obvious that the public
drinking water supply is not an appropriate place for anyone to discharge their
A-41 3/81
Water Committee -2- September 19, 1986
excess carcinogens, and the clear intent of this initiative is valid. Likewise,
persons working with carcinogens or teratogens should be warned so that they
can make their own choices in addition to whatever protections they have under
OSHA standards.
A number of individuals and groups have objected to the provision requiring
government officials to report public health threats to the Health Officer.
They feel that such a provision is slanderous to government agency officials; it
implies that such dereliction of duty is widespread, or at least significantly
occurs. . Some members of the California Conference of Local Health Officers who
have been most active in supporting toxics control legislation are among those
who find this provision offensive. Certainly I don't see that legislation would
be indicated to require agency officials to carry out their responsibility to
protect public health and safety.
An initiative must be accepted or rejected as it is placed before the voters. I
think this initiative would be vastly improved by tightening up the definitions
of significant health risks and eliminating the provision requiring public
agency officials to do their job. Nonetheless, I feel the basic provisions of
the Safe Water and Toxic Enforcement Act are appropriate from a public health
standpoint and deserve support.
WB:rm
cc: Mark Finucane
William Walker
_ g,y�,j�, a�,�.� ,q • rte,� �,.,r ;r
•.�s x c _ f,. a �_s`o'.�.fzr »+7n• L-{.i._Avi:.. ..x..:R%�t�
SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986
SECTION 1. The people of California find that hazardous chemicals pose a
serious potential threat to their health and well-being, that state government
agencies have failed to provide them with adequate protection, and that these
failures have been serious enough to lead to investigations by federal
agencies of the administration of California's toxic protection programs. The
people therefore declare their rights:
(a) To protect themselves and the water they drink
against chemicals that cause cancer, birth defects, or
other reproductive harm.
(b) To be informed about exposures to chemicals that
cause cancer, birth defects, or other reproductive harm.
(c) To secure strict enforcement of the laws controlling
hazardous chemicals and deter actions that threaten
public health and safety.
(d) To shift the cost of hazardous waste cleanups_ more
onto offenders and less onto law-abiding taxpayers.
The people hereby enact the provisions of this initiative in furtherance of
these rights.
SECTION 2. Chapter 6.6 (commencing with Section 25249.5) is added to Division
20 of the Health and Safety Code, to read:
CHAPTER 6.6.
SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986
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.
- 1 -
25249.7. Enforcement.
(a) Any person violating or threatening to violate Section 25249.5 or
Section 25249.6 may be enjoined in any court of competent jurisdiction.
(b) Any person who has violated Section 25249.5 or Section 25249.6 shall
be liable for a civil penalty not to exceed $2500 per day for each such
violation in addition to any other penalty established by law. Such civil
penalty may be assessed and recovered in a civil action brought in any court
of competent jurisdiction.
(c) Actions pursuant to this section may be brought by the Attorney
General in the name of the people of the State of California or by any
district attorney or 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 (1) the action is commenced more than sixty days
after the person has given notice of the violation which is the subject of the
action to the Attorney General and the district attorney and any city attorney
in whose jurisdiction the violation is alleged to occur and to the alleged
violator, and (2) neither the Attorney General nor any district attorney nor
any city attorney or prosecutor has commenced and is diligently prosecuting an
action against such violation.
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.
- 2 -
(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
- 3 -
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, and association.
(b) "Person in the course of doing business" does not include any person
employing fewer than ten employees in his 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.
- 4 -
25249.12 Implementation. The Governor shall designate a lead agency and
such other agencies as may be required to implement the provisions of this
chapter including this section. Each agency so designated may adopt and
modify regulations, standards, and permits as necessary to conform with and
implement the provisions of this chapter and to further its purposes.
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.
SECTION 3. Subdivision (d) of Section 25189.5 of the Health and Safety
Code is amended to read:
(d) The court shall also impose upon a person convicted of violating
subdivision (b) or (c) a fine of not less than five thousand dollars ($5,000)
or more than fifty one hundred thousand dollars ($50,000) ($100,000) for
each day of violation except as further provided in this subdivision. If the
act which violated subdivision (b) or (c) caused great bodily injury or caused
a substantial probability that death could result, the person convicted of
violating subdivision (b) or (c) may be punished by imprisonment in the state
prison for up to 36 months, in addition to the term specified in subdivision
(b) or (c), and may be fined up to two hundred fifty thousand dollars
($250,000) for each day of violation.
SECTION 4. Section 25180.7 is hereby added to the Health and Safety Code as
follows:
(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._
- 5 -
1
r
(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.
SECTION 5. Section 25192 of the Health and Safety Code is amended to read:
25192. (a) All civil and criminal penalties collected pursuant to this
chapter or Chapter 6.6 (commencing with Section 25249.5) shall be
apportioned in the following manner:
(1) Fifty percent shall be deposited in the Hazardous Waste Control
Account 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, or in the case of an action brought by a person
under subdivision (d) of Section 25249.7 to such person.
(3) Twenty-five percent shall be paid to the department and used to fund
the activity of the local health officers officer to enforce the provisions
of this chapter pursuant to Section 25180. If investigation by the local
police department or sheriff's office or California Highway Patrol led to the
bringing of the action, the local health officer shall pay a total of forty
percent of his portion under this subdivision to said investigating agency or
agencies to be used for the same purpose. If more than one agency is eligible
for payment under this provision, division of payment among the eligible
agencies shall be in the discretion of the local health officer.
(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).
(c) Any amounts deposited in the Hazardous Substance Account pursuant to
this section shall be included in the computation of the state account rebate
specified in Section 25347.2.
- 6 -
SECTION 6. If any provision of this initiative or the application thereof
is held invalid, that invalidity shall not affect other provisions or
applications of the initiative which can be given effect without the invalid
provision or application, and to this end the provisions of this initiative
are severable.
SECTION 7. To further its purposes this initiative may be amended by statute,
passed in each house by a two-thirds vote.
SECTION 8. This initiative shall take effect on January 1, 1987.
- 7 -