Prop. 65 Enforcement Regulations

There are 27 Titles that comprise the California Code of Regulations, which contain all of the adopted regulations in the State of California. In Title 11, “Law,” Division 4, there are regulations for “Proposition 65 Private Enforcement.” Division 4 has three chapters. The following is an overview of these regulations.

Chapter 1 deals with general provisions and contains 9 sections and 4 appendices, and it contains the following:

§ 3000. Authority. This chapter sets forth procedures necessary to comply with applicable provisions of state law and those who bring legal actions alleging the existence of violations of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Code sections 25249.5 or 25249.6) (“Proposition 65”) must comply with the applicable requirements of this chapter.

§ 3001. Definitions. This section defines the following terms: “Subject to a Settlement”; “Subject to a Judgment”; “Private Proposition 65 Action”; “Other Private Action Alleging Violations of Proposition 65”; “Settlement”; “Additional Settlement Payment”; and, “Private Enforcer.”

§ 3002. Complaints. A private enforcer who commences a private Proposition 65 action must serve a file-endorsed copy of the complaint, and a completed version of the Report of Civil Complaint Filing form attached as Appendix A to these regulations, upon the Attorney General within five days after receipt of the file-endorsed copy of the complaint from the court. Any amended complaint shall be served upon the Attorney General within five days after filing with the court along with a Supplemental Report of Civil Complaint Filing.

§ 3003. Settlements. In settlements of private Proposition 65 actions, the private enforcer is required to serve the settlement on the Attorney General with a Report of Settlement in the specified form within five days after the action is subject to a settlement, or concurrently with service of the motion for judicial approval of settlement pursuant to the Health and Safety Code.

For settlements of other private actions alleging Proposition 65 violations, the private enforcer is required to serve the Attorney General with the Settlement and a Report of Settlement in the specified form within two days after the action is subject to a Settlement. The Attorney General then has thirty days after actual receipt to review the settlement.

For settlements of noticed violations without complaint, a private enforcer who has agreed to a settlement of any violation alleged in a notice given pursuant to the Health and Safety Code without filing a complaint must serve the Attorney General with the Settlement and a Report of Settlement in the specified form within five days after any violation alleged in the notice is subject to a Settlement.

§ 3004. Judgments. Within ten days after a case is subject to a judgment, a private enforcer is required to serve on the Attorney General a copy of any judgment or order entitling a party to entry of judgment entered in a private Proposition 65 action or other private action alleging violations of Proposition 65 and a completed version of the Report of Entry of Judgment form.

§ 3005. Electronic Filing. All documents required to be filed pursuant to specified sections must be filed electronically, by submitting the forms and the documents on-line to the Attorney General’s website.

§ 3006. Manner of Service. When this chapter requires that any document or information be provided to the Attorney General, unless the document is served electronically, service must be in a manner prescribed by the Code of Civil Procedure.

§ 3007. OSHA Matters. For matters in which violations with respect to occupational exposures are alleged, compliance with the Director of the Division of Occupational Safety and Health’s Special Procedures for Supplementary Enforcement of State Plan Requirements concerning Proposition 65 constitutes compliance with these requirements.

§ 3008. Affidavit of Compliance. A private enforcer must file with the court a declaration or affidavit, meeting all applicable requirements of the Code of Civil Procedure, verifying compliance with all requirements of this chapter. In addition, in a private Proposition 65 action, the declaration or affidavit is required to be filed when reply papers in support of the motion for approval of the settlement would be filed. It must also include specified information.

Chapter 2 deals with certificates and merit and contains 4 sections and it contains the following:

§ 3100. General. Any notice of alleged violations provided pursuant to the Health and Safety Code must include a Certificate of Merit. A second copy of the entire notice and Certificate of Merit must be served on the Attorney General.

§ 3101. Contents. The Health and Safety Code requires that the certifier state that the certifier “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.”

In addition, “reasonable and meritorious case for the private action” requires not only documentation of exposure to a listed chemical, but also a reasonable basis for concluding that the entire action has merit. The Certificate of Merit is required to contain specified statements, and appear in the specified form contained in this section.

those persons.

§ 3102. Supporting Documentation.  The “Attorney General Copy” of the notice of violation and Certificate of Merit are required to be physically attach the information set forth in this section. In addition, supporting documentation must be provided in a legible and organized format. References to studies or other information are not sufficient.

Chapter 3 deals with settlement guidelines and contains 6 sections, and it contains the following:

§ 3200. Authority and Scope. This chapter contains the Attorney General’s guidelines for review of settlements by persons proceeding “in the public interest” pursuant to the Health and Safety Code. The provisions of this chapter are guidelines, which are not binding on litigants or the courts, but provide the Attorney General’s view as to the legality and appropriateness of various types of settlement provisions, and the type of evidence sufficient for the private plaintiff to sustain its burden of supporting the proposed settlement.

§ 3201. Attorney’s Fees. Code of Civil Procedure section 1021.5 permits an award of attorney’s fees to a “successful party . . . in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit . . . has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”

These guidelines are intended to be consistent with existing law interpreting Code of Civil Procedure section 1021.5, but provide assistance to the litigants and the court in applying them to issues commonly arising under Proposition 65. These guidelines apply to settlements under which the basis for a fee award is provided by Code of Civil Procedure section 1021.5. Where there is a different or additional basis for an award of fees, parts of these guidelines may not apply.

This section contains guidelines related to successful party; public benefit; necessity of private enforcement; reasonable fees; documentation; and, “contingent fee” awards.

§ 3202. Clear and Reasonable Warnings. In order to approve a settlement, the court must find that “Any warning that is required by the settlement complies with” the clear and reasonable warning requirement of Proposition 65. This guideline provides additional information concerning the Attorney General’s interpretation of the statute and existing regulations governing clear and reasonable warnings and factors that will be considered in the Attorney General’s review of settlements. In addition, there are specific subdivisions on: supporting evidence; warning language; premises warnings for environmental tobacco smoke; and, environmental exposure warnings.

§ 3203. Reasonable Civil Penalty. The reasonableness of civil penalties in a settlement must be evaluated based on the factors set forth in the Health and Safety Code. In addition, there are specified factors that are deemed “[other factors] that justice may require” to be considered within the meaning of the Health and Safety Code.

§ 3204. Additional Settlement Payments. Additional settlement payments should not be included in any settlement that is not subject to judicial approval and ongoing judicial oversight. The Attorney General is required to consider settling parties’ adherence to specified guidelines in determining whether to object to any Additional Settlement Payments in a proposed in-court settlement. In addition, to enable the Attorney General and the Court to evaluate settlements that provide for Additional Settlement Payments, and to promote transparency in how such payments will be spent, any settlements providing for Additional Settlement Payments, or their supporting papers, should provide specified information.

§ 3205. Other Provisions. Certain other provisions of a settlement may either be unlawful or contrary to public policy, and could provide the basis for an objection by the Attorney General. There are limitations specified on releases or other language describing the intended scope of claims resolved or barred by the settlement.