HomeMy WebLinkAboutMINUTES - 05201997 - D15 D 16
TO: BOARD OF SUPERA PSORS �'SE L Contra
rR°"": PHIL BATCHELOR, COUNTY ADMINISTRATOR
Costa
County
DATE: May 14, 1997 O°STq COUNT 6T
SUBJECT: SUBPOENA POWERS FOR THE COUNTY HEALTH OFFICER
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
AGREE to SPONSOR an amendment to AB 1190 (Torlakson) which would authorize
the Board of Supervisors to delegate its subpoena power pursuant to Government
Code Section 25170 to the County Health Officer or other specified County official
for the purpose of interviewing employees of refineries or chemical plants in a
confidential setting following an incident in order to assist the Board of Supervisors
to get at the root cause of the incident and take appropriate steps to prevent a
reoccurrence of the factor which was determined to be the root cause of the incident.
BACKGROUND:
On April 22, 1997, The Board of Supervisors discussed sponsoring an amendment
to Assemblyman Torlakson's AB 1190 which would provide an opportunity for the
Health Officer to interview employees of refineries and chemical plants in a
confidential manner, utilizing the power of the Board of Supervisors pursuant to
Government Code Section 25170, if necessary, in order to achieve the goal of
getting an opportunity for the Health Officer to obtain the necessary information.
On May 6, 1997, at the request of Supervisors DeSaulnier, this item was put over for
two weeks while staff attempted to work out language which would be acceptable
to the Board and Assemblyman Torlakson.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
:SIGNATURE(S):
ACTION OF BOARD ON May APPROVED AS RECOMMENDED OTHER
See addendum for Board action.
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 BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED May 20, 1997
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
CC: See Page 2 SUPE SORS AND C NTY ADMINISTRATOR
BY DEPUTY
I\
One possible basis for a compromise would be to use the Board of Supervisors'
subpoena powers, but add language to that section which would provide the Board
of Supervisors with the option of delegating to the Health Officer or another specified
County official the right to conduct the necessary interviews in confidence on behalf
of the Board of Supervisors. Attached is a copy of the current language of
Government Code Section 25170 and a copy of the section with a proposed
amendment to it.
If the language of the proposed amendment is acceptable to the Board of
Supervisors, we will forward it to Assemblyman Torlakson with a request that he
amend AB 1190 in order to include this language in lieu of the subpoena language
which is now contained in AB 1190. A copy of the May 5, 1997, version of AB 1190
is also attached for the Board's information.
cc: County Administrator
Health Services Director
County Counsel
District Attorney
Sheriff-Coroner
Assemblyman Tom Torlakson
Room 2003 State Capitol
Sacramento, CA 95814 ,
-2-
PROPOSED AMENDMENT TO GOVERNMENT CODE
SECTION 25170 AS AN AMENDMENT TO AB 11901
AS AMENDED MAY 511997
25170. U Whenever the board of supervisors deems it necessary or important to
examine any person as a witness upon any subject or matter within the jurisdiction,
of the board, or to examine any officer of the county in relation to the discharge of
his or her official duties as to the receipt or disposition by him or her of any money,
or concerning the possession or disbursement by him or her of any property
belonging to the county, or to use, inspect, or examine any books, account, voucher,
or document in the possession or under the control of any person or officer relating
to the affairs or interests of the county, the chairman of the board shall issue a
subpena, in proper form, commanding the person or officer to appear before it, at a
time and place therein specified, to be examined as a witness. The subpena may
require the person or"officer to produce all books, papers, and documents in his or
her possession or under his or her control, relating to the affairs or interests of the
county.
(b) As an alternative to the process in subdivision (a), where there has been an
incident at a refinery or chemical plant within the county, the board of supervisors
may delegate to the county health officer or other specified county official, the
responsibility to examine any individual who has been subpoenaed by the chairman
for the purpose of obtaining information as to the root cause of the incident, and to
report to the board of supervisors what actions the board of supervisors should take
to prevent a similar incident for occurring again. The county health officer or other
specified county official may examine the subpoenaed individual in private.
COUNTIES—BOARD OF SUPERVISORS
Title 3
Article 9
SUBPENAS
Section
25170. Board investigations; production of records.
25171. Committee hearings; powers of chairman.
25172. Service of subpena; return.
25173. Punishment for failure to obey subpena.
25174. Attachment for failure to obey subpena.
25175. Procedure on attachment; penalties.
25176. Expenses of witnesses.
Article 9 was added by Stats.1947, c. 424, p. 1111, § 1.
Cross References
Subpenas, generally, see Code of Civil Procedure § 1985 et seq.
Service in administrative adjudication, see § 11510.
I
Library References
Counties c=47, 48. C.J.S. Counties § 81 et seq. i
Witnesses a7 to 15. C.J.S. Witnesses § 13 et seq.
i
§ 25170. Board investigations; production of records
Whenever the board of supervisors deems it necessary or important to
examine any person as a witness upon any subject or matter within the i
jurisdiction of the board, or to examine any officer of the county in relation
to the discharge of his official duties as to the receipt or disposition by him of
any money, or concerning the possession or disbursement by him of any
property belonging to the county, or to use, inspect, or examine any books,
account, voucher, or document in the possession or under the control of the
person or officer relating to the affairs or interests of the county, the
chairman of the board shall issue a subpena; in proper form, commanding the
person or officer to appear before it, at a time and place therein specified, to
be examined as a witness. The subpena may require the person or officer to j
produce all books, papers, and documents in his possession or under his
control, relating to the affairs or interests of the county.
(Added by Stats.1947, c. 424, p. 1111, § 1.)
Historical Note
Derivation: Po1.C. § 4065, added by Stats.
1907, c. 282, p.' 376, § 1.
Forms
See West's California Code Forms, Government. j
Cross References
Administrative adjudication and proceedings, see § 11500 et seq.
WESTLAW Electronic Research
See WESTLAW Electronic Research Guide following the Preface.
322 j
i
AMENDED IN ASSEMBLY MAY 5, 1997
AMENDED IN ASSEMBLY APRIL 15, 1997
AMENDED IN ASSEMBLY APRIL 10, 1997
CALIFORNIA LEGISLATURE-19917-98 REGULAR SESSION
ASSEMBLY BILL No. 1190
Introduced by Assembly Member Torlakson
February 28, 1997
An act to amend Sections 25515, 42400.3, 42402.3, and 101085
of;aftd to add Seetien 42405.5 te; the Health and Safety Code,,
relating to air pollution.
LEGISLATIVE COUNSEL'S DIGEST
AB 1190, as amended, Torlakson. Air pollution: hazardous
waste: penalties.
(1) Existing law prescribes criminal penalties, including
specified fines, and civil penalties, for specified violations of
air pollution control laws, rules and regulations, permits, and
agency orders, and for releases or threatened releases of
hazardous material.
This bill would increase the amounts of certain criminal
fines and civil penalties for those violations and would specify
penalties for the discharge of air contaminants or other
material that cause actual injury, as defined, to the health or
safety ofa considerable number ofpersons or the public under
specified circumstances, thereby imposing a state-mandated
local program by changing the definition of a crime..The b4U
wetA &utherrize Oie a4ir pe4ul4etft, eentrel e€€ieer of adt ftir
96
i
AB 1190 — 2 --
pellutier3 eeal estr-iet e a to
set etside speeded a.tftettnts of these fines e - penal6es to fdnd
speefed pregraffis and pre
(2) Existing law authorizes a local health officer to take
prescribed actions to obtain information after the declaration
of a health emergency or county health emergency relating
to a release, spill, or escape of hazardous waste. y
This bill would authorize the local health officer to take
those actions and to subpoena specified information after the
release of a hazardous material from the premises of a handler,
as those terms are defined.
(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,
1 SECTION 1. Section 25515 of the Health and Safety
2 Code is amended to read:
3 25515. (a) Any person or business who violates
4 Section 25507 shall, upon conviction, be punished by a
5 fine of not more than fifty thousand dollars ($50,000) for
6 each day of violation, or.by imprisonment in the state
7 prism fer M Vis;two years, er twee years countyjail
8 for not more than one year, or by both that fine and
9 imprisonment.
10 (b) If the conviction pursuant to subdivision (a) is for
11 a violation committed after a first conviction under this
12 section, the person shall be punished by a fine of not less
13 than five thousand. dollars ($5,000) or more than
14 seventy-five thousand dollars ($75,000) per day of
15 violation, or by imprisonment in the state prison for twe;
16 Offee, er fi-v,�e year-s, or by be that die anJ
17 nt: 16, 20, or 24 months or in the county jail
96
- 3 — 4D AB 1190
1 for not more than one year, or by both that fine and
a fiffid - 2 imprisonment.
3 (c) Furthermore, if the violation resulted in, or
o take 4 significantly contributed to, .an emergency, including a
tration 5 fire, to which the county or city was required to respond,
Matin 6 the person or business shall also be assessed the full cost
g *; 7 of the county or city emergency response, as well as the
o take ` 8 cost of cleaning up and disposing of the hazardous
.-er the 9 materials.
.ndler, 10 SEC. 2. Section 42400.3 of the Health and Safety Code
11 is amended to read:
ite to 12 42400.3. (a) Any person who willfully and
I costs 13 intentionally emits an air contaminant, which emission
:ablish 14 results.in a violation of any provision of this part, or any
15 rule, regulation, permit, or order of the state board or of
juired 16 a district, pertaining to emission regulations or
17 limitations, is guilty of a misdemeanor and is subject to a
yes. 18 fine of not more than one hundred fifty thousand dollars
19 ($150,000) or imprisonment in the county jail for not
20 more than one year, or both that fine and l imprisonment
.
Mows: _ 21 (b) (1) AnY person who willfully and intentionally
22 emits an air contaminant, which emission results in a
Safety 23 violation of Section 41700 that causes actual injury to the
24 health or safety of a considerable number of persons or
Folates L.. 25 the public, shall, upon conviction, be punished by
1 by a 26 imprisonment in the eetinty jeA feT- net ffiere thatt ene
0) for 27 yeaf e -by . �t43e state prism�44 tks,
stag 28 twe yells; ff three years, be sweet to et fitte of
�tyjail 29 fiat more five �r r-ed {-$500,008
e and 30 the county jail for not more than one year, and shall be
31 subject to a fine ofnot more than five hundred thousand
is for 32 dollars ($5001 000).
.r this 33 (2) As used in paragraph (1), `actual injury"means
A less Y, {� 34 any physical injury that, in. the opinion of.a licensed
than ��` . 35 physician and surgeon, requires medical treatment
)y of 36 involving more than a physical examina tion.
r tom. 37 (c) The recovery of civil penalties pursuant to Section
and 38 42402, 42402.1, 42402.2 or 42402.3 precludes prosecution
Fyia l 39 pursuant to this section for the same offense. When a
i40 district refers a violation .to a prosecuting agency, the
96 ' 96
,r
AB 1190 — 4 -
1 filing of a criminal complaint is grounds requiring the
2 dismissal of any civil action brought pursuant to this
3 article for the same offense.
4 (d) Each day during any portion of which a violation
5 occurs constitutes a separate offense.
6 SEC. 3. Section 42402.3 of the Health and Safety Code _
7 is amended to read:
8 42402.3. (a) Any person who willfully and
9 intentionally emits an air contaminant, which emission
10 results in a violation of this part, or any rule, regulation,
11 permit, or order of the state board or of a district,
12 pertaining to emission regulations or limitations, is liable
13 for a civil penalty of not more than one hundred fifty
14 thousand dollars ($150,000) .
15 (b) (1) Any person who willfully and intentionally
16 emits an air contaminant, which emission results in a
17 violation of Section 41700 that causes actual injury to the
18 health or safety of a considerable number of persons or
19 the public,is liable for a civil penalty of not more than five
20 hundred thousand dollars ($500,000) .
21 (2) As used in paragraph (1), `actual injury"means
22 any physical injury that, in the opinion c?f a licensed
23 physician and surgeon, requires medical treatment
24 involving more than a physical examination.
25 (c) Each day during any portion of which a violation
26 occurs is a separate offense.
27 SEG: 4: eetien 4-2405.5 is added to the Health and
28 Safety cede, to ready
29 42495=5: Netwit4istanding geeSen42495, the &triet
30 air peft ee ewer shaR set aside aat amen
31 to emeeed 25 pereent e€ any fie e►- penal ametints
32 assessed in a partieular ease in emeess of twe hundred
33 delafs-($200,000)-,far the pur-pese e€fhad4ng air
34 paha ee el , of ether prejeets designed to
35 preteet the health aftd safety e€ean .
36 These fids shah be ageeated to the eek beafd of
37 if the e.A �a
38 area ead; if the e,,.,ti ffe Hthizz the
39 of ft eity; to the eity eeuneil.
40 Ste. 5.
96
- 5 — AB 1190
the 1 SEC. 4. Section 101085 of the Health and Safety Code
this 2 is amended to read:
3 101085. (a) After the declaration of a health
tion 4 emergency or a county health emergency pursuant to
5 Section 101080, the director or local health officer may do
ode _ 6 any or all of the following:
7 (1) Require any person or organization that the
and 8 director or local health officer shall specify to furnish any
cion 9 information known relating to the properties, reactions,
ion, 10 and identity of the material that has been released or
rict, 11 spilled or that has escaped. The director or local health
ible 12 officer may require information to be furnished, under
Fifty 13 penalty of perjury, by the person, company, corporation,
14 or other organization that had custody of the material,
Lally . 15 and, if the material was being transferred or transported,
in a 16 by any person, company, corporation, or organization
the 17 that caused the material to be transferred or transported.
;.s or 18 This information shall be furnished to the director or local
five 19 health officer upon request in sufficient detail, as
director or
health officer, as
pans ` I' ° Ef_ 21 determined
e tuirr d to take any action necessary to abate the health
q Y . Y
2sed 22 emergency or county health emergency or protect the
tent 23 health of persons in the county, or any area thereof, who
24 are, or may be,affected. However, the burden, including
tion r j3 l . 25 costs,of furnishing the information shall bear a reasonable
26 relationship to the need for the information and the
aid 27 benefits to be obtained from having that information.
28 (2) Provide the information, or any necessary portions
29 thereof, .or any other necessary information available to
Ilet 30 the director or local health officer, to state or local
WAS 31 agencies responding to the health emergency or county
ired 32 Health emergency, or to medical and other professional
g air- 33 personnel treating victims of the local health emergency.
'4 to 34 (3) Sample, analyze, or otherwise determine the
35 identifying and other technical information relating .to
d of 36 the health emergency or county health emergency as
abed 37 necessary to respond to or abate the county health
Sieg 38 emergency and protect the public health.
39 (b) (1) After a release of a hazardous material from
s r 40 the premises of a handler, which release poses a
96 96
AB 1190 — 6 -
1 significant present or potential hazard to human health
2 and safety, property, or the environment, the local health
3 officer, in addition to the powers specified in subdivision
4 (a), may subpoena any books, papers,and documents in
5 the possession or control of a handler, employee,
6 representative, agent, or designee of the handler,relating
7 to the release of the hazardous material, and may
8 . subpoena any person or any employee, representative,
9 agent, or designee of the handler, and require those
10 persons to testify under oath concerning all matters
11 relevant to.the release of the hazardous material.
12 (2) For purposes of this subdivision, the terms
13 "release," "hazardous material," and "handler". shall
14 have the meaning given in Section 25501.
15 (c) This section does not limit or abridge any of the
16 following.powers or duties:
17 (1) Those granted to the State Water Resources
18 Control Board and to each California regional water
19 quality control board by Division 7 (commencing with
20 Section 13000) of the Water Code.
21 (2) Those granted to the State Air Resources Board or
22 to. any air pollution control district or air quality
.23 management district by Division 26 (commencing with
24. Section 39000) .
25 (3) Those granted to . the Director of Food and
26 Agriculture or to any county agricultural commissioner
27 by Division .6 (commencing with Section 11401) or by
28 Division 7 (commencing with Section 12501) of the Food
?zshl 29 and Agricultural Code.
30 SEG. 6.
31 SEC. 5. No reimbursement is required by this act
32 pursuant to Section 6 of Article XIII B of the California
33 Constitution because the only costs that may be incurred
34 by a local agency or school district will be incurred
35 because this act . creates a new crime or infraction,
36 eliminates a crime or infraction, or changes the penalty
37 for a crime or infraction, within the meaning of Section
38 17556 of the Government Code, or changes the definition
39 of a crime within the meaning of Section 6 of Article
40 XIII B of the California Constitution.
96
- 7 — AB 1190
alth 1 Notwithstanding Section 17580 of the Government
alth 2 Code,unless otherwise specified, the provisions of this act
Sion 3 shall become operative on the same date that the act
:s in 4 takes effect pursuant to the California Constitution.
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96 96
Related to D.15
The following language has been cleared with Assemblyman Torlakson's Office and
appears to be consistent with the position Supervisor DeSaulnier has been advocating.
Please substitute it for the language contained in item D.15.
PROPOSED AMENDMENT TO AB 1190 (TORLAKSON)
Section 101087 is added to the Health & Safety Code, to read:
101087. (a) For purposes of this section, the terms "handler," "hazardous material,"
"release," and "threatened release," shall have the meaning given in Section 25501.
(b) When there has been a release or threatened release of a hazardous material
at a refinery or chemical plant operated by a handler within the county, which release
or threatened release posed a significant present or potential hazard to human
health and safety, property, or the environment, the board of supervisors may
delegate to the county health officer or other specified county official the
responsibility to examine any individual who has been subpoenaed by the
chairperson of the board of supervisors for the purpose of obtaining information as
to the root cause of the release or threatened release, and to report to the board of
supervisors what actions the board of supervisors should take to prevent a similar
incident from occurring again. The county health officer or other specified county
official may examine the subpoenaed individual in private.
RECEIVED
MAY 2 0 WT
CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO.
ADDENDUM TO ITEM D. 15
MAY 20, 1997
On this date, the Board of Supervisors considered the report
from the County Administrator relative to sponsoring an amendment
to AB 1190 (Torlakson) which is consistent with the Board' s
discussion on April 22 , 1997, regarding the use of the Board' s
subpoena powers to obtain information about the root cause of
accidents at oil refineries and chemical plants .
Mr. Claude Van Marter, County Administrator' s Office,
presented the report and material showing amended language,
similar to the language in the report but moving the amendment
back to the Health and Safety Code . Mr. Van Marter recommended
that the Board endorse the revised language and request
Assemblyman Torlakson to amend it into AB 1190 .
The Board discussed the matter.
Supervisor Rogers expressed support for taking this step and
the proposed amended language suggested by Mr. Van Marter, and he
also expressed his concern relative to issuing subpoenas .
Supervisor Rogers suggested including language that would specify
that the County Health Department has attempted to obtain
voluntary cooperation and has been unable to do so, making it
clear that voluntary efforts would be exhausted before subpoenas
are issued.
Mr. Van Marter advised that Mr. Roger' s language could be
suggested to Assemblyman Torlakson for his consideration and
determination of appropriateness .
Supervisor DeSaulnier clarified that the amended language
could be submitted to Assemblyman Torlakson but if he did not
feel comfortable with that he could stay with the proposed
amended language submitted today.
Supervisor Rogers submitted his addition to the amended
language to be proposed: To add after the end of (b) the
following language : Prior to issuing a subpoena under
subdivision (b) , the Board of Supervisors shall make a written
finding that the County Health Officer or other specified County
official has made reasonable attempts to do a voluntary
examination, and that such attempts were unsuccessful .
The Board discussed the matter.
IT IS BY THE BOARD ORDERED that the amended language to be
submitted to Assemblyman Torlakson for consideration and
inclusion in AB 1190 is ENDORSED.
Related to D.15
The following language has been cleared with Assemblyman Torlakson's Office and
appears to be consistent with the position Supervisor DeSaulnier has been advocating.
Please substitute it for the language contained in item D.15.
PROPOSED AMENDMENT TO AB 1190 (TORLAKSON)
Section 101087 is added to the Health & Safety Code, to read:
101087. (a) For purposes of this section, the terms "handler," "hazardous material,"
"release," and "threatened release," shall have the meaning given in Section 25501.
(b) When there has been a release or threatened release of a hazardous material
at a refinery or chemical plant operated by a handler within the county, which release
or threatened release posed a significant present or potential hazard to human
health and safety, property, or the environment, the board of supervisors may
delegate to the county health officer or other specified county official the
responsibility to examine any individual who has been subpoenaed by the
chairperson of the board of supervisors for the purpose of obtaining information as
to the root cause of the release or threatened release, and to report to the board of
supervisors what actions the board of supervisors should take to prevent a similar
incident from occurring again. The county health officer or other specified county
official may examine the subpoenaed individual in private.
RECEIVED
CLAY 20W
CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO.
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