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HomeMy WebLinkAboutMINUTES - 05061997 - D3 D13 •TO: BOARD OF SUPERVISORS 5 Contra FROM: SUPERVISOR MARK DeSAULNIER Costa County DATE: April 29, 1997 ��c°sTA coUn "�P` SUBJECT: HEALTH OFFICER SUBPOENA POWERS: LEGISLATION - AB 1190 (TORLAKSON) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: SPONSOR an amendment to AB 1190 (Torlakson) which would require that the Health Officer or other representative of the County, while conducting an investigation pursuant to his or her duties under the Certified Unified Program Agency (CUPA) Program, be allowed to attend any interviews with employees or an employer where CAL-OSHA (the Division of Occupational Safety and Health of the State Department of Industrial Relations) is the lead agency and is conducting an investigation. BACKGROUND: On April 22, 1997, the Board of Supervisors discussed at some length a proposal to endorse language in AB 1190 which would provide the Health Officer with subpoena powers in order to interview employees where there had been a hazardous material incident at an oil refinery or chemical plant and Cal-OSHA was the lead agency. Supervisor Rogers had suggested as an alternative that the Board of Supervisors consider exercising its subpoena powers pursuant to Government Code Section 25170. CONTINUED ON ATTACHMENT: YES SIGNATURE: -RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): MARK DeSAULNIER ACTION OF BOARD ON - May Fi 1997 APPROVED AS RECOMMENDED OTHER X Chairman DeSaulnier introduced the item, as set forth above, and noted Assemblyman Torlakson's request that this matter be continued to May 20, 1997. Chairman DeSaulnier then invited the public to comment on the issues and the following persons spoke: Anne and Jack Bouguennec, 2825 Parkway Drive, Martinez. All persons desiring to speak having been heard, Chairman DeSaulnier ended public comment.on the matter. Following further comments from Board members, the Board took the following action: 1. CONTINUED to May 20, 1997, the recommendation of Supervisor DeSaulnier to consider sponsoring an amendment to AB1190 (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. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE —X_UNANIMOUS(ABSENT ---------------- i 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. cc ATTESTED May. 6 1997 See Page 2 APHLOR,CLERK OF THE BOARD OFS AND COUNTY MI STRAT RM382 (10/88) B It is my understanding that the Board agreed that it would be preferable for an employer to voluntarily allow its employees to be interviewed privately by the Health Officer or at least for the Health Officer or his designee to be allowed to attend the interviews conducted by Cal-OSHA. If an employer were unwilling to allow this type of interview, the Board of Supervisors would consider exercising its subpoena powers. In a conversation with Assemblyman Torlakson after the Board's April 22, 1997 meeting, he and I came to an agreement that I would ask the Board of Supervisors to sponsor an amendment to his AB 1190 which would do the following: 1. Allow the Health Officer to attend Cal-OSHA interviews with employers or employees as a participant. 2. Allow the Health Officer to submit questions to Cal-OSHA to be asked of employers or employees and to be present when the questions are answered. The attached language would accomplish this and I am, therefore, recommending that the Board of Supervisors agree to sponsor such language. cc: County Administrator Health Services Director Les Spahnn Heim, Noack, Kelly & Spahnn 1121 L Street, Suite 100 Sacramento, CA 95814 Assemblyman Tom Torlakson Room 2003, State Capitol Sacramento, CA 95814 -2- AMENDMENT TO AB 1190, AS AMENDED APRIL 15, 1997 Amendment # 1. Page 5, line 38: strike line 38 through page 6, line 13. Amendment # 2. Page 6, line 14: strike "(c)" and replace with "(b)" Amendment # 3. Page 6, following line 31, insert the following: SEC 6. Section 6313 of the Labor Code is amended to read: 6313. (a) remains as is (b) remains as is (c) In any investigation by the division in which a representative of the designated Certified Unified Program Agency (CUPA) is carrying out his or her responsibilities pursuant to Chapter 6.11 of Division 20 of the Health and Safety Code, the division shall invite a representative of the CUPA to attend any interviews with employees or the employer as a participant. The representative of the CUPA may submit questions to the division to be asked of employees or the employer and the division shall ask those questions in the presence of the representative of the CUPA. Amendment # 4. Page 6, line 32. Strike "SEC 6." And insert instead "SEC 7." AMENDED IN ASSEMBLY APRIL 15, 1997 AMENDED IN ASSEMBLY APRIL 10, 1997 CALIFORNIA LEGISLATURE-1997-98 REGULAR SESSION ASSEMBLY BILL No. 1190 ? Introduced by Assembly Member Torlakson February 28, 1997 An act to amend Sections 42480 aftd 42482 25515, 42400,3, 42402 3, and 101085 of, and to add Section 42405.5 to, 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 injury to persons under specified circumstances, thereby imposing a state-mandated local program by changing the definition of a crime.The bill would authorize the air pollution. control officer of an air pollution control district or air quality management district to set aside 97 Y i _ AB 1190 — 2 — specified 2 —specified amounts of those fines or penalties to fund specified . a programs and projects. (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. This bill would authorize the local health officer to take i those actions and to subpoena specified information after the release ofa hazardous material from the premises ofa 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 1 eason. 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 f 5 fine of not more than twentyle s 6 . 5;999}fifty thousand dollars ($50,000) for each day of 7 violation, or by imprisonment in the eek jai4 for fiet 8 f nere thaft ene yetw state prison for 16 m on ths, two years, 9 or three years, or by both the that fine and imprisonment. 10 4f 11 . (b) If the conviction pursuant to subdivision (a) is for 12 a violation committed after a first conviction under this 13 section, the person shall be punished by a fine of not less ; ` { 14 thane the 4QA;R4s {$2;899} five thousand dollars 15 ($5,000) or more than € Elel4ffs ($50,000) 16 seventy--five thousand dollars . ($75,000) per day of 17 violation,or by imprisonment in the state prison for 446-,20-, 18 er -24 mentks er itt the eetinty jag feTr fiet ffiere th eee 97 - 3 — AB 1190 �cified 1 Yeff two, three, or five years, or by both the that fine and 2 imprisonment. F--..ther-_.'.ere ,take ` 3 (c) Furthermore, if the violation resekgresulted in, or ration 4 significantly ,-...n,.r:bu contributed to, an emergency, slating 5 including a fire, to which the county or city is was 6 required to respond, the person or business shall also be take 7 assessed the full cost of the county or city emergency er the 8 response, as well as the cost of cleaning up and disposing ndler, 9 of the hazardous materials. 10 SEC. 2. Section 42400.3 of the Health and Safety Code le to 11 is amended to read: I costs 12 42400.3. (a) Any person who willfully and ablish 13 intentionally emits an air contaminant, which emission 14 results in a violation of any provision of this part, or any tuired 15 rule, regulation, permit, or order of the state board or of 16 a district, pertaining Jo emission regulations or 1: yes. 17 limitations, is guilty of a misdemeanor and is subject to a 18 fine of not more than one hundred fifty thousand dollars 19 ($150,000) or imprisonment in the county jail for not Lows: 4 20 more than one year, or both that fine and imprisonment. 21 (b) Any person who willfully and intentionally emits >afety 22. an air contaminant, which,emission results in a violation 23 of Section 41700 that causes actual injury to the health or plates , ,, - 24 safety of a considerable number of persons or the public, '. by a .t 0. 25 shall, upon conviction, be punished by imprisonment in 'mss 26 the county jail for not more than one year or by lay of 27 imprisonment in the state prison for 16 months, two years, W 28 or three years, and shall be subject to a fine of not more years, 29 than five hundred thousand dollars ($500,000) . ment. 30 (c) The recovery of civil penalties pursuant to Section . 31 42402, 42402.1, 42402.2 or 42402.3 precludes prosecution is for 32 pursuant to this section for the same offense. When a ,r this 33 district refers a violation to a prosecuting agency, the )t less -i 34 filing of a criminal complaint is grounds requiring the 'ollars '' �- 35 dismissal of any civil action brought pursuant to this 000* 36 article for the same offense. ly of 37 (d) Each day during any portion of which a violation $8; 38 occurs constitutes a separate.offense. a ene ' 39 Ste- -2 97 97 C AB 1190 — 4 - 1 SEC. 3. Section 42402.3 of the Health and Safety Code 2 is amended to read: 3 42402.3. (a) Any person who willfully and 4 intentionally emits an air contaminant, which emission 5 results in a violation of this part, or any rule, regulation, 6 permit, or order of the state board or of a district, 7 pertaining to emission regulations or limitations, is liable 8 for a civil penalty of not more than one hundred.fifty 9 thousand dollars ($150,000) . 10- (b) Any person who willfully and intentionally emits 11 an air contaminant, which emission results in a violation 12 of Section 41700 that causes actual injury to the health or 13 safety of a considerable number of persons or the public, 14 is liable for a civil penalty of not more than five hundred 15 thousand dollars ($500,000) . 16 (c) Each day during any portion of which a violation 17 occurs is a separate offense. 18 SEG. 3. 19 SEC. 4. Section 42405.5 is added to the Health and 20 Safety Code, to read: 21 42405.5. Notwithstanding Section 42405, the district 22 awe ®f y set aside an aimoemt net 23 to emceed 28 pereent of a-fty fifte of penalty affietints 24 assessed ift eetse in emeessof twe hundred fifty 25 theusand Elellars ($250,006-)-, feT-the p ese e€ftffidiftair- 26 pelltttiefl., eentrel programs, and other prejeets Elesigtied 27 to prreteet the heedth and safety of Oe neet 28 eemnittnkyr. 29 4: air pollution control officer shall set aside an 30 amount not to exceed 25 percent of any fine or penalty 31 amounts assessed in a particular case in excess of two 32 hundred thousand dollars ($200,000), for the purpose of 33 funding air pollution control programs, or other projects 34 designed to protect the health and safety of an affected 35 community. Those funds shall be allocated to the county 36 board of supervisors if the incident occurred in an 37 unincorporated area and, if the incident occurred within 38 the boundaries of a city, to the city council. 39 SEC. 5 Section 101085 of the Health and Safety Code 40 is amended to read.• 97 -- 5 -- AB 1190 ode �� 1 101085. (a) After the declaration of a. health 2 emergency or a county health emergency pursuant to Ind 3 Section 101080, the director or local health officer may do :ion 4 any or all of the following: oni 5 (1) Require any person or organization. that the -ict6 director or local health officer shall specify to furnish any .ble € 7 information known relating to the properties, .reactions, ifty 8 and identity of the material that has been released; or 9 spilled; or that has escaped. The director or local health Zits 10 officer may require information to be furnished, under ion 11 penalty of perjury, by the person, company, corporation, or 12 or other organization that had custody of the material, lic, 13 and, if the material is was being transferred or -ed 14 transported, by any person, company, corporation, or 15 organization that caused the material to be transferred or .ion 16 transported. This information shall be furnished to the 17 director or local health officer upon request in sufficient 18 detail, as determined by the director or local health -nd 19 officer, as required to tape any action necessary to abate 20 the health emergency or county health emergency or -ict 21 protect the health of persons in the county, or any area 22 thereof, who are, or may be affected. However, the 23 burden, including costs, of furnishing the information fty 24 shall bear a reasonable relationship to the need for the sir- €, } 25 information and the benefits to be obtained ther-ere ed 26 from having that Information. ed 27 (2) Provide the information, or any necessary portions 28 thereof, or any other necessary information available to an 29 the director or local health officer, to state or local rty 30 agencies responding to the health emergency or county wo 31 health emergency, or to medical and other professional Of 32 personnel treating victims of the local health emergency. Its 33 (3) Sample, analyze, or otherwise determine the ed \, 34 identifying and other technical information relating to qty 35 the health emergency or county health emergency as -2n 36 necessary to respond to or abate the county health ?in 37 emergency and protect the public health. 38 (b) (1) After a release of a hazardous material from de 39 the premises of a handler, which release poses a 2 40 significant present or potential hazard to human health 97 97 AB 1190 — 6 - 1 and safety,property, or the environment, the local health : p P Y� - 2 officer, in addition to the powers specified in subdivision 3 (a), may subpoena any books, papers, and documents in 4 the possession or control of a handler, employee, 5 representative, agent, or designee of the handler,relating 6 to the release of the hazardous material, and may _ 7 subpoena any person or any employee, representative, 8 agent, or designee of the handler, and require those 9 persons to testify under oath concerning all matters 10 relevant to the release of the hazardous material. 11 (2) For purposes of this subdivision, the terms 12 "release, " "hazardous material," and "handler" shall . 13 have the meaning given in Section 25501. 14 (c) This section does not limit or abridge any of the 15 following powers or duties: 16 (1) Those granted to the State Water Resources 17 Control Board and to each California regional water 18 quality control board by Division 7 (commencing with 19 Section 13000) of the Water Code. TTtlj seiiien a.Ise Cees 20 fiet liffii a Agee powers of des 21 (2) Those granted to the State Air Resources Board or ' 22 to any airpollution control district or air quality 23 management district by Division 26 (commencing with 24 Section 39000) . 25 T449 seetiet cdees not liffik et abridge of the pewers 5 26 or Eltities 27 (3) Those granted to the Director of Food- and 28 Agriculture or to any county agricultural commissioner 29 by Division 6 (commencing with Section 11401) or by 30 Division 7 (commencing with Section 12501) of the Food 31 and Agricultural Code. 32 SEC. 6. No reimbursement is required by this act 33 pursuant to Section 6 of Article XIII B of the California 34 Constitution because the only costs that may be incurred 35 by a local agency or school district will be incurred 36 because this act creates a new crime or infraction, 37 eliminates a crime or infraction, or changes the penalty 38 for a crime or infraction, within the meaning of Section 39 17556 of the Government Code, or changes the definition t 97 I - 7 — AB 1190 4.1th 1 of a crime within the meaning of Section 6 of Article ivn 2 XIII B of the California Constitution. -s°in 3 Notwithstanding Section 17580 of the Government ,ee4 Code,unless otherwise specified, the provisions of this act � g- 5 shall become operative on the same date that the act nay 6 takes effect pursuant to the California Constitution. ive, )ese ters rens hall the Ices ater vith lees dor dity .vith and )ner by 'ood act rnia 'red 'red -ion, .alty tion tion 97 97 . CONSIDER WITH .3 OFFICE OF THE COUNTY ADMINISTRATOR CONTRA COSTA COUNTY Administration Building 651 Pine Street, 11th Floor Martinez DATE: May 1, 1997 TO: Supervisor Mark DeSaulnier Supervisor Jim Rogers Supervisor Gayle B. Uilkema Supervisor Donna Gerber Supervisor Joe Canciamilla FROM: Claude L. Van Ma4efi'istant County Administrator SUBJECT: SUBPOENA POWERS OF THE COUNTY HEALTH OFFICER Supervisor DeSaulnier has placed an item on the Board agenda for May 6, 1997 having to do with a proposed amendment to Assemblyman Torlakson's AB 1190. As additional background for the Board's discussion of this item, I would note the following: 1. The motion approved by the Board on April 22, 1997 read approximately as follows: "DECLARE the intent of the Board of Supervisors to subpoena refinery and chemical plant employees [pursuant to Government Code Section 25170] concerning questions relating to the root cause of refinery and chemical plant accidents when the County Health Officer has been refused such testimony and DIRECT staff to present other options for the Board's consideration regarding testimony that can be presented directly to the County Health Officer and staff in private in order to provide the best possible environment for full disclosure. DIRECT the County Administrator to report back to the Board in 30 days on the progress that has been made on a broader approach of preparing a policy or protocol that suits the Board's needs and demands and requirements for getting to the bottom of what these problems have been." . J - 2 - On the recommendation by the Health Services Director that the Board sponsor an amendment to AB 1190 to provide the County Health Officer with subpoena powers, the Board deferred action on the recommendation as follows: "...unless and until we get to the point where for some reason we think we have been put in a position where we find out that our plan is not working and if we get to that point that I think we need to say what's the problem and then go back to it with State legislation but I feel with this approach that we in fact can get this information that we need and . . . although I support the general direction of the State legislation I would personally as soon defer action on it." [Supervisor Rogers] 2. At one point in the discussion of this item on April 22, 1997, Dr. Walker made the following comment: "We simply need to be in the room to make sure that the questions that are being asked of employees are asked to get the information that we need. We could be a passive participant but we need to be able to at least feed questions to the CAL-OSHA investigator so that we can save the problem of having to re-interview employees more than once." This comment from Dr. Walker was the basis for the language that has been drafted as a suggested amendment to AB 1190. Health Services Department staff have concerns about the last sentence of the proposed amendment which the Board may wish to remove or modify. 3. It should be noted that the amendment being proposed for AB 1190 addresses only those relatively few cases where CAL-OSHA is involved. For other accidents, we would be left with the procedure outlined by the Board in the above motion on April 22, 1997. CLVM:amb Van05-1-97 cc: Health Services Director Request to SPeak Form ( THREE (3) MINUTE LIMIT) Complete this form and place h in the box near the speakers' rostrum before addressing the Board. Cjr/U� Naffle: N/YE OG/Cti6c/tJc�' i Phone; • S �2 �� i��/,9,�°T/it/�Z� I am speaking for myself ,.�or organ - oww of wpni adtaN CHECK ONE 1 wish to speak on Agenda Item #- pate: L My comments will be; general Ifo�ainst_____._. 1 wish'to speak on the subject of . _ 1 do not wish to speak but leave these comments for the Board to consider: Time for Refineries to Move The community has endured enough. It is time for Tosco and the other refineries to move elsewhere. Forget that 7 of the top ten taxpayers to Contra Costa County are the industrial companies. Forget about the community service that these refineries contribute to the counties. Forget about the hundreds of thousands of dollars that go to United Way and all the other needy agencies. Forget about the people who work for these companies and spend their wages in the community. Forget about the housing that the workers buy or rent. Forget about the endorsements and sponsorships that the refineries contribute to. Forget, forget, and forget. If the sirens doesn't activate the way they should, let's blame the refineries, after all, they footed the multi-million dollar tab. By no means, blame the county officials. Blame the refineries, if local agencies can't walk around, getting in the way of the emergency crews to quell whatever the emergency is. Blame the refineries who were here before the houses that the planning commission okayed to be built. Isn't it the purpose of planning commissions to look ahead to the future before permitting a development to proceed? If the development is allowed to proceed,then the buyers are forewarned of the industries that surround them. Refineries do not plan accidents, but there will be accidents, as sure as people have accidents. You plan for accidents and do the best you can to prevent them. All refineries have safety procedures and safety meeting are mandatory. Anyone can have the best procedures, the best equipment, best training, the utmost skills, but there will be an accident. This is called common sense and lately, this seems to be lacking in some. Let's put some blame where it belongs, on the hysteria creating media and on agencies fighting for their own survival and say Thank You to Tosco and the other refineries for their contributions to the communities. Thank you for your time. 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Aima: c « 13o u 6-t1t 6,,f1 /E e 'flOflt:�f/d) ,Z Z JP-�.Z,��3 (may; Mrz. 1 am speaking for myself✓or organization: ovianK of agants�tioN CHECK ONE 1 wish to speak on Agenda flan #= Oat9'-7 My comments will be: general _for-t;Jagainst . _ I wish to speak on the abject of 1 do not wish to speak but leave these comments for the Board to consider: