Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

This bill would delete the requirement that a person requesting the release of the above-described information, or a petroleum refinery employer seeking to prevent disclosure, name the other as a real party in interest in an applicable action. The bill would delete the requirement that a person requesting release of this information provide notice of an action to compel disclosure to the petroleum refinery employer and would instead require the division to provide that notification. The bill would instead authorize the person to intervene in a petroleum refinery employers declaratory relief action and require the court to permit that person to intervene. The bill would also require the court to allow the petroleum refinery employer to intervene in that action. The bill would also delete the requirement that the court award attorneys fees.

Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

This bill would delete the requirement that a person requesting the release of the above-described information, or a petroleum refinery employer seeking to prevent disclosure, name the other as a real party in interest in an applicable action. The bill would delete the requirement that a person requesting release of this information provide notice of an action to compel disclosure to the petroleum refinery employer and would instead require the division to provide that notification. The bill would instead authorize the person to intervene in a petroleum refinery employers declaratory relief action and require the court to permit that person to intervene. The bill would also require the court to allow the petroleum refinery employer to intervene in that action. The bill would also delete the requirement that the court award attorneys fees.

Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

This bill would delete the requirement that a person requesting the release of the above-described information, or a petroleum refinery employer seeking to prevent disclosure, name the other as a real party in interest in an applicable action. The bill would delete the requirement that a person requesting release of this information provide notice of an action to compel disclosure to the petroleum refinery employer and would instead require the division to provide that notification. The bill would instead authorize the person to intervene in a petroleum refinery employers declaratory relief action and require the court to permit that person to intervene. The bill would also require the court to allow the petroleum refinery employer to intervene in that action. The bill would also delete the requirement that the court award attorneys fees.

Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

This bill would delete the requirement that a person requesting the release of the above-described information, or a petroleum refinery employer seeking to prevent disclosure, name the other as a real party in interest in an applicable action. The bill would delete the requirement that a person requesting release of this information provide notice of an action to compel disclosure to the petroleum refinery employer and would instead require the division to provide that notification. The bill would instead authorize the person to intervene in a petroleum refinery employers declaratory relief action and require the court to permit that person to intervene. The bill would also require the court to allow the petroleum refinery employer to intervene in that action. The bill would also delete the requirement that the court award attorneys fees.

Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

Existing law requires a petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health information regarding planned turnarounds, as defined, for the following calendar year and provide onsite access to the division for inspection. Existing law establishes procedures for the public disclosure of turnaround information designated a trade secret, including authorization for a petroleum refinery employer to seek a declaratory judgment to prevent disclosure. Existing law requires a court to award attorneys fees to a party that prevails in an action to compel or prohibit the division from disclosing turnaround information.

This bill would state the intent of the Legislature to enact legislation that would clarify the above-described process for public disclosure of trade secret information, and ensure that a petroleum refinery employer is not authorized to collect attorneys fees from individuals or organizations seeking those records.

 UNFINISHED BUSINESS  

Bill No: SB 421

Author: Hancock (D)

Amended: 6/19/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 40-0, 6/1/15 (Consent)

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk

ASSEMBLY FLOOR: 78-0, 8/27/15 (Consent) - See last page for vote

SUBJECT: Refineries: turnarounds

SOURCE: Author

DIGEST: This bill deletes the requirement that the court award attorneys’ fees to the party who prevails in an action to compel or prohibit the disclosure of petroleum refinery turnaround information by the Division of Occupational Safety and Health (Division). This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

Assembly Amendments make clarifying changes to trade secret protection of information requested to be disclosed and the appropriate service to be provided to a petroleum refinery employer of an action filed requesting release of information.

ANALYSIS:

Existing law:

1. Declares, in the California Constitution, the people’s right to transparency in government.

2. Governs, under the California Public Records Act (CPRA), the disclosure of information collected and maintained by public agencies.

3. Makes, generally, all public records accessible to the public upon request, unless the record requested is exempt from public disclosure.

4. Provides 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, and the exempt information may be withheld by the public agency with custody of the information.

5. Provides a list of information contained in a public record that may be exempt from public disclosure, provides that the listing of a statute does not itself create an exemption, and requesters of public records and public agencies are cautioned to review the applicable statute to determine the extent to which the statute, in light of the circumstances surrounding the request, exempts public records from disclosure.

6. Includes in the list of exemptions occupational safety and health investigations, confidentiality of trade secrets.

7. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified.

8. Requires, every September 15, every petroleum refinery employer to submit to the Division a full schedule of planned turnarounds for all affected units for the following calendar year, and, at the request of the Division, at least 60 days prior to the shutdown of a process unit or plant as part of a planned turnaround, requires a petroleum refinery employer to provide access onsite and allow the Division to review documentation, as specified, for the process unit or plant scheduled to be shut down for that turnaround.

9. Defines “turnaround” to mean a planned, periodic shutdown, total or partial, of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, but does not include unplanned shutdowns that occur due to emergencies or other unexpected maintenance matters in a process unit or plant, or routine maintenance, where routine maintenance consists of regular, periodic maintenance on one or more pieces of equipment at a refinery process unit or plant that may require shutdown of such equipment.

10. Requires a petroleum refinery employer to submit turnaround information to the Division, regardless of whether the employer believes that information submitted may involve the release of a trade secret, as defined; however, at the time of submission, the employer may identify all or a portion of the information submitted to the Division as a trade secret and, to the extent feasible, segregate records designated as trade secret from the other records.

11. Prohibits the Division from releasing to the public any information designated as a trade secret by the petroleum refiner employer, subject to judicial review, as provided.

12. Requires, upon the receipt of a request for the release of information to the public that includes information that the petroleum refinery employer has notified the Division is a trade secret, as specified, the Division to notify the petroleum refinery employer in writing of the request by certified mail, return receipt requested.

13. Requires the Division to release the requested information to the public, unless both of the following occur:

• within 30 days of receipt of the notice of the request for information, the petroleum refinery employer files an action in an appropriate court for a declaratory judgment that the information is subject to trade secret protection and promptly notifies the Division of that action; and

• within 120 days of receipt of the notice of the request for information, the refinery petroleum employer obtains an order prohibiting disclosure of the information to the public and promptly notifies the Division of that action.

14. Prohibits release of any information that has been designated as a trade secret by a petroleum refinery employer, except that such information may be disclosed to other officers or employees of the Division when relevant in any proceeding of the Division.

15. Provides that if the person requesting the release of the information or the petroleum refinery employer files an action to order or prohibit disclosure of trade secret information, the person instituting the proceeding is required to name the person or the petroleum refinery employer as a real party in interest.

16. Requires the petroleum refinery employer filing an action to challenge release of trade secret information to provide notice of the action to the person requesting the release of the information at the same time that the defendant in the action is served.

17. Requires the person filing an action to compel the release of information that includes information that the petroleum refinery employer has notified the Division is a trade secret to provide notice of the action to the petroleum refinery employer that submitted the information at the same time that the defendant in the action is served.

18. Requires the court to award costs and reasonable attorneys’ fees to the party that prevails in litigation, but prohibits the public agency from bearing the court costs for any party named in the litigation.

This bill:

1. Removes the requirement for a court to award costs and reasonable attorneys’ fees to the prevailing party.

2. Removes the requirement for either the person who has requested the release of information or the petroleum refinery employer who files an action to name the employer or person requesting the information as a real party in interest and, instead, provides that the employer or person requesting the information may intervene in an action filed by the person requesting the information or the employer.

3. Requires, if a person requesting the release of information files an action against the Division to disclose information claimed as a trade secret, the Division to promptly notify the petroleum refinery employer in writing of the action by certified mail, return receipt requested.

4. Makes several technical and non-substantive revisions.

Background

Existing law, the California Refinery and Chemical Plant Worker Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of 1990)), establishes specified process safety management standards for refineries that handle acutely hazardous material in order to prevent or minimize the consequences of catastrophic releases of toxic, flammable, or explosive chemicals and promote worker safety through implementation of training and process safety management in refineries and other facilities.

Last year, SB 1300 (Hancock, Chapter 519, Statutes of 2014) supplemented those safety standards by establishing disclosure requirements and inspections of a petroleum refinery employer for planned turnarounds (a planned, periodic shutdown of a refinery process unit or plant) to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, as specified. SB 1300 prohibited disclosure of trade secret information contained in the turnaround reports and provided a method for judicial review of nondisclosure of claimed trade secret information. SB 1300 also authorized the court to award attorney’s fees and costs to the prevailing party. However, the Governor’s signing message instructed the author to introduce a cleanup bill and work with stakeholders to ensure that a petroleum refinery employer could not receive an award of attorney’s fees from individuals and organizations seeking those records.

This bill seeks to respond to the Governor’s signing message of SB 1300 by removing the award of attorney’s fees to a prevailing party in an action challenging disclosure of the turnaround information. This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

Comments

The author writes:

In 2014, the Legislature passed and the Governor signed into law [SB 1300 (Hancock, Chapter 519, Statutes of 2014)], Refinery Turnarounds. Specifically, [SB 1300] requires refinery employers in California to report to [the Division] annually (by September 15 of the current year) a schedule of “turnaround” maintenance periods planned for the following calendar year. During a turnaround, a unit is brought offline for maintenance and repair work.

It is reported that refineries often have over a thousand workers (including refinery employees and contractors) performing multiple work activities simultaneously in limited spaces and on intensive work schedules, potentially creating unsafe conditions and work practices. Some of the most serious worker and process safety risks at refineries occur during turnarounds, particularly during the process of shutting down and restarting the unit.

In addition to the calendar of scheduled turnarounds, [SB 1300] requires refineries to submit specific documents and reports detailing the current maintenance and structural issues of the refinery unit where a turnaround will be conducted.

Refineries will also be required to flag any scheduled maintenance and repairs of equipment being deferred to a later turnaround period. Based on [the Division’s] experience, the rush to restart refinery units as soon as possible after a turnaround shutdown has at times caused necessary scheduled repair and maintenance work to be postponed or abandoned, allowing unsafe equipment to be restarted without repairs or replacement and resulting in worker injuries and deaths.

As a result of the detailed reporting requirements of SB 1300, [the Division’s] inspectors will be able to review the refineries’ plans for scheduled work and ask for clarification when scheduled work is postponed or dropped. . . . The ultimate goal of this increased oversight of turnarounds is to lower the number of accidents, explosions, and other unplanned events at refineries and to provide greater safety protection for refinery employees and their many contractors, as well as greater protection of community residents.

Prior Legislation

SB 1300 (Hancock, Chapter 519, Statutes of 2014) - See Background.

SB 438 (Hancock, 2013), among other things, upon the request of the Division, would have required a refinery employer to provide specified documentation relating to a planned turnaround within a certain period of time. SB 438 was held on suspense in the Assembly Appropriations Committee.

AB 3672 (Elder, Chapter 1632, Statutes of 1990) - See Background.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, the bill has a negligible fiscal impact to the Division to provide notification as required.

SUPPORT: (Verified 8/25/15)

California Newspaper Publishers Association

Natural Resources Defense Council

OPPOSITION: (Verified 8/25/15)

None received

ASSEMBLY FLOOR: 78-0, 8/27/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Atkins

NO VOTE RECORDED: Frazier, Williams

ASSEMBLY FLOOR:

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED:

Prepared by: Tara Welch / JUD. / (916) 651-4113

8/28/15 16:42:46

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 421

Author: Hancock (D)

Amended: 6/19/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 40-0, 6/1/15 (Consent)

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk

ASSEMBLY FLOOR: 78-0, 8/27/15 (Consent) - See last page for vote

SUBJECT: Refineries: turnarounds

SOURCE: Author

DIGEST: This bill deletes the requirement that the court award attorneys’ fees to the party who prevails in an action to compel or prohibit the disclosure of petroleum refinery turnaround information by the Division of Occupational Safety and Health (Division). This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

Assembly Amendments make clarifying changes to trade secret protection of information requested to be disclosed and the appropriate service to be provided to a petroleum refinery employer of an action filed requesting release of information.

ANALYSIS:

Existing law:

1. Declares, in the California Constitution, the people’s right to transparency in government.

2. Governs, under the California Public Records Act (CPRA), the disclosure of information collected and maintained by public agencies.

3. Makes, generally, all public records accessible to the public upon request, unless the record requested is exempt from public disclosure.

4. Provides 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, and the exempt information may be withheld by the public agency with custody of the information.

5. Provides a list of information contained in a public record that may be exempt from public disclosure, provides that the listing of a statute does not itself create an exemption, and requesters of public records and public agencies are cautioned to review the applicable statute to determine the extent to which the statute, in light of the circumstances surrounding the request, exempts public records from disclosure.

6. Includes in the list of exemptions occupational safety and health investigations, confidentiality of trade secrets.

7. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified.

8. Requires, every September 15, every petroleum refinery employer to submit to the Division a full schedule of planned turnarounds for all affected units for the following calendar year, and, at the request of the Division, at least 60 days prior to the shutdown of a process unit or plant as part of a planned turnaround, requires a petroleum refinery employer to provide access onsite and allow the Division to review documentation, as specified, for the process unit or plant scheduled to be shut down for that turnaround.

9. Defines “turnaround” to mean a planned, periodic shutdown, total or partial, of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, but does not include unplanned shutdowns that occur due to emergencies or other unexpected maintenance matters in a process unit or plant, or routine maintenance, where routine maintenance consists of regular, periodic maintenance on one or more pieces of equipment at a refinery process unit or plant that may require shutdown of such equipment.

10. Requires a petroleum refinery employer to submit turnaround information to the Division, regardless of whether the employer believes that information submitted may involve the release of a trade secret, as defined; however, at the time of submission, the employer may identify all or a portion of the information submitted to the Division as a trade secret and, to the extent feasible, segregate records designated as trade secret from the other records.

11. Prohibits the Division from releasing to the public any information designated as a trade secret by the petroleum refiner employer, subject to judicial review, as provided.

12. Requires, upon the receipt of a request for the release of information to the public that includes information that the petroleum refinery employer has notified the Division is a trade secret, as specified, the Division to notify the petroleum refinery employer in writing of the request by certified mail, return receipt requested.

13. Requires the Division to release the requested information to the public, unless both of the following occur:

• within 30 days of receipt of the notice of the request for information, the petroleum refinery employer files an action in an appropriate court for a declaratory judgment that the information is subject to trade secret protection and promptly notifies the Division of that action; and

• within 120 days of receipt of the notice of the request for information, the refinery petroleum employer obtains an order prohibiting disclosure of the information to the public and promptly notifies the Division of that action.

14. Prohibits release of any information that has been designated as a trade secret by a petroleum refinery employer, except that such information may be disclosed to other officers or employees of the Division when relevant in any proceeding of the Division.

15. Provides that if the person requesting the release of the information or the petroleum refinery employer files an action to order or prohibit disclosure of trade secret information, the person instituting the proceeding is required to name the person or the petroleum refinery employer as a real party in interest.

16. Requires the petroleum refinery employer filing an action to challenge release of trade secret information to provide notice of the action to the person requesting the release of the information at the same time that the defendant in the action is served.

17. Requires the person filing an action to compel the release of information that includes information that the petroleum refinery employer has notified the Division is a trade secret to provide notice of the action to the petroleum refinery employer that submitted the information at the same time that the defendant in the action is served.

18. Requires the court to award costs and reasonable attorneys’ fees to the party that prevails in litigation, but prohibits the public agency from bearing the court costs for any party named in the litigation.

This bill:

1. Removes the requirement for a court to award costs and reasonable attorneys’ fees to the prevailing party.

2. Removes the requirement for either the person who has requested the release of information or the petroleum refinery employer who files an action to name the employer or person requesting the information as a real party in interest and, instead, provides that the employer or person requesting the information may intervene in an action filed by the person requesting the information or the employer.

3. Requires, if a person requesting the release of information files an action against the Division to disclose information claimed as a trade secret, the Division to promptly notify the petroleum refinery employer in writing of the action by certified mail, return receipt requested.

4. Makes several technical and non-substantive revisions.

Background

Existing law, the California Refinery and Chemical Plant Worker Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of 1990)), establishes specified process safety management standards for refineries that handle acutely hazardous material in order to prevent or minimize the consequences of catastrophic releases of toxic, flammable, or explosive chemicals and promote worker safety through implementation of training and process safety management in refineries and other facilities.

Last year, SB 1300 (Hancock, Chapter 519, Statutes of 2014) supplemented those safety standards by establishing disclosure requirements and inspections of a petroleum refinery employer for planned turnarounds (a planned, periodic shutdown of a refinery process unit or plant) to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, as specified. SB 1300 prohibited disclosure of trade secret information contained in the turnaround reports and provided a method for judicial review of nondisclosure of claimed trade secret information. SB 1300 also authorized the court to award attorney’s fees and costs to the prevailing party. However, the Governor’s signing message instructed the author to introduce a cleanup bill and work with stakeholders to ensure that a petroleum refinery employer could not receive an award of attorney’s fees from individuals and organizations seeking those records.

This bill seeks to respond to the Governor’s signing message of SB 1300 by removing the award of attorney’s fees to a prevailing party in an action challenging disclosure of the turnaround information. This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

Comments

The author writes:

In 2014, the Legislature passed and the Governor signed into law [SB 1300 (Hancock, Chapter 519, Statutes of 2014)], Refinery Turnarounds. Specifically, [SB 1300] requires refinery employers in California to report to [the Division] annually (by September 15 of the current year) a schedule of “turnaround” maintenance periods planned for the following calendar year. During a turnaround, a unit is brought offline for maintenance and repair work.

It is reported that refineries often have over a thousand workers (including refinery employees and contractors) performing multiple work activities simultaneously in limited spaces and on intensive work schedules, potentially creating unsafe conditions and work practices. Some of the most serious worker and process safety risks at refineries occur during turnarounds, particularly during the process of shutting down and restarting the unit.

In addition to the calendar of scheduled turnarounds, [SB 1300] requires refineries to submit specific documents and reports detailing the current maintenance and structural issues of the refinery unit where a turnaround will be conducted.

Refineries will also be required to flag any scheduled maintenance and repairs of equipment being deferred to a later turnaround period. Based on [the Division’s] experience, the rush to restart refinery units as soon as possible after a turnaround shutdown has at times caused necessary scheduled repair and maintenance work to be postponed or abandoned, allowing unsafe equipment to be restarted without repairs or replacement and resulting in worker injuries and deaths.

As a result of the detailed reporting requirements of SB 1300, [the Division’s] inspectors will be able to review the refineries’ plans for scheduled work and ask for clarification when scheduled work is postponed or dropped. . . . The ultimate goal of this increased oversight of turnarounds is to lower the number of accidents, explosions, and other unplanned events at refineries and to provide greater safety protection for refinery employees and their many contractors, as well as greater protection of community residents.

Prior Legislation

SB 1300 (Hancock, Chapter 519, Statutes of 2014) - See Background.

SB 438 (Hancock, 2013), among other things, upon the request of the Division, would have required a refinery employer to provide specified documentation relating to a planned turnaround within a certain period of time. SB 438 was held on suspense in the Assembly Appropriations Committee.

AB 3672 (Elder, Chapter 1632, Statutes of 1990) - See Background.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, the bill has a negligible fiscal impact to the Division to provide notification as required.

SUPPORT: (Verified 8/25/15)

California Newspaper Publishers Association

Natural Resources Defense Council

OPPOSITION: (Verified 8/25/15)

None received

ASSEMBLY FLOOR: 78-0, 8/27/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Atkins

NO VOTE RECORDED: Frazier, Williams

Prepared by: Tara Welch / JUD. / (916) 651-4113

8/28/15 17:17:33

**** END ****

Date of Hearing: August 19, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

SBPCA Bill Id:SB 421

Author:(Hancock) – As Amended Ver:June 19, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill, with respect to existing law governing petroleum refinery turnaround reports:

1. Removes-in a case involving a motion to compel or prohibit disclosure of a refinery report containing trade secret information-the requirement for the court to provide an award of costs and attorney’s fees to the prevailing party. (The court would maintain discretion to make such an award.)

2. Removes the requirement for a party—in a suit to compel or prohibit the disclosure of a refinery turnaround report containing trade secret information—to name the other party in the suit as a real party in interest, and instead allows either party to intervene in an action filed by the other party.

3. Requires the Division of Occupational Health and Safety, within the Department of Industrial Relations, if a person requesting the release of information identified by a refinery as a trade secret files an action against division to order disclosure of that information, to promptly notify the refinery of the action by certified mail.

FISCAL EFFECT:

Negligible fiscal impact to the division to provide notification as required.

COMMENTS:

Purpose. SB 1300 (Hancock)/ Chapter 519, Statutes of 2014, which stemmed from the Chevron USA refinery explosion in Richmond in 2012, required refineries to issue reports every year regarding planned, periodic shutdowns to perform maintenance, overhaul, and repair operations at the facilities, and to inspect, test and replace process materials and equipment. In his signing message, the Governor indicated that the author had agreed to introduce clean-up legislation to ensure that SB 1300 “does not authorize petroleum refineries to collect attorney’s fees from individuals and organizations” who seek to obtain turnaround reports from the Division of Occupational Safety and Health (the Division).

This bill removes the requirement in existing law that a court must award attorney’s fees to the party who prevails in an action challenging the disclosure of information contained in a petroleum refinery turnaround report that contains information which the court determines is exempt as trade secret information from public disclosure (even when the prevailing party is a Refinery and the other party is an individual or organization seeking a turnaround report from the Division), but does not prohibit the award of attorney’s fees to the prevailing party in such a case. This bill also clarifies that a Refinery that seeks to prevent disclosure of information in a turnaround report, or a party who seeks to obtain it, may intervene in an action regarding the disclosure of such information, but the intervener is not required to be named in the action as a party in interest.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: July 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 421

Author:(Hancock) – As Amended Ver:June 19, 2015

SENATE VOTE: 40-0

SUBJECT: REFINERIES: TURNAROUNDS

KEY ISSUES:

1. SHOULD THE LAW REGARDING PUBLIC DISCLOSURE OF INFORMATION CONTAINED IN PETROLEUM REFINERY TURNAROUND REPORTS BE AMENDED TO REMOVE A PROVISION REQUIRING THE AWARD OF ATTORNEY’S FEES TO THE PREVAILING PARTY IN AN ACTION CHALLENGING DISCLOSURE OF SUCH REPORTS OR THE INFORMATION CONTAINED WITHIN THEM?

2. SHOULD THE LAW REGARDING PUBLIC DISCLOSURE OF INFORMATION CONTAINED IN PETROLEUM REFINERY TURNAROUND REPORTS BE AMENDED TO ALLOW, RATHER THAN REQUIRE, A PARTY TO INTERVENE IN AN ACTION INVOLVING THE RELEASE OF INFORMATION IN A REPORT THAT WAS PREVIOUSLY IDENTIFIED BY THE REFINERY AS TRADE SECRET INFORMATION?

SYNOPSIS

This bill responds to Governor Brown’s signing message of SB 1300 (Hancock, Chapter 519, Statutes of 2014), legislation introduced in response to the Chevron USA refinery explosion in 2012, regarding “petroleum refinery turn-around reports” that petroleum refinery employers (Refineries) are required to issue every year regarding planned, periodic shutdowns to perform maintenance, overhaul, and repair operations at the facilities and to inspect, test and replace process materials and equipment. In his signing message, the governor relayed that the author had agreed to introduce clean-up legislation this year to ensure that SB 1300 “does not authorize petroleum refineries to collect attorney’s fees from individuals and organizations” who seek to obtain turnaround reports from the Division of Occupational Safety and Health (the Division). This bill removes the requirement in existing law that a court must award attorney’s fees to the party who prevails in an action challenging the disclosure of information contained in a petroleum refinery turnaround report that contains information which the court determines is exempt as trade secret information from public disclosure (even when the prevailing party is a Refinery and the other party is an individual or organization seeking a turnaround report from the Division), but does not prohibit the award of attorney’s fees to the prevailing party in such a case. This bill also clarifies that a Refinery that seeks to prevent disclosure of information in a turnaround report, or a party who seeks to obtain it, may intervene in an action regarding the disclosure of such information, but the intervener is not required to be named in the action as a party in interest. This bill is supported by the California Newspaper Publishers Association and the Natural Resources Defense Council, and has no known opposition.

SUMMARY: Makes changes to existing law governing petroleum refinery turnaround reports to ensure that the public has access to public information contained in the reports, while protecting the trade secret information within such reports. Specifically, this bill:

1. Removes, in a case involving a motion to compel or prohibit disclosure of a refinery report containing trade secret information, the mandatory award of costs and attorney’s fees to the prevailing party.

2. Removes the requirement for a party in a suit to compel or prohibit the disclosure of a refinery turnaround report containing trade secret information, to name the other party in the suit as a real party in interest, and instead allows either party to intervene in an action filed by the other party.

EXISTING LAW:

1. Provides that the California Public Records Act (PRA) governs the disclosure of information collected and maintained by public agencies. (Government Code Section 6250 et seq. All subsequent citations refer to the Government Code, unless otherwise indicated.)

2. Provides that all public records are accessible to the public upon request, unless the requested is exempt from public disclosure. (Section 6254.)

3. Provides exceptions to the general rule that all records are public and subject to disclosure for specific records and information contained within records that are otherwise public records. (Section 6275.)

4. Provides exceptions from public disclosure for specified records, including occupational safety and health investigations, and confidential trade secrets. (Sections 6276.32, 6276.44.)

5. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect, or receive a copy of, any public record and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified. (Sections 6258, 6259(d).)

6. Requires, on September 15^th of every year, a Refinery to submit to the Division a full schedule of planned turnarounds of all affected units in the next calendar year and requires a Refinery, at the request of the Division and at least 60 days prior to the shutdown of a process unit or plant as part of a planned turnaround, to provide access onsite, and allow the Division to review, specified documentation about the process unit or plant scheduled to be shut down for that turnaround. (Labor Code Section 7872(a), (c).)

7. Defines “turnaround” to mean a planned, periodic shutdown, total or partial, of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment. (Labor Code Section 7872(a).)

8. Requires a Refinery to submit turnaround information to the Division, regardless of whether the employer believes the information submitted may involve the release of a trade secret; however, at the time of submission, the employer may identify all or a portion of the information submitted to the Division as a trade secret and, to the extent feasible, segregate records that it designates as trade secret information from the other records it provides. (Labor Code Section 7873(b)(1).)

9. Prohibits the Division from releasing to the public any information designated as a trade secret by the petroleum refiner employer, subject to judicial review, as provided. (Labor Code Section 7873(b)(2).)

10. Requires the Division, upon the receipt of a request by the public for the release of information that includes information the petroleum refinery has identified as trade secret information, to notify the petroleum refinery in writing of the request by certified mail, with return receipt requested. (Labor Code Section 7873(c)(1).)

11. Requires the Division to release requested trade secret information to the public, unless both of the following occur:

    1. Within 30 days of receipt of the notice of the request for information, the Refinery files an action in an appropriate court for a declaratory judgment that the information is subject to trade secret protection and promptly notifies the Division of that action; and

    2. Within 120 days of receipt of the notice of the request for information, the refinery petroleum employer obtains an order prohibiting disclosure of the information to the public and promptly notifies the Division of that action. (Labor Code Section 7873(c)(2).)

12. Provides that if the person requesting the release of trade secret information or the Refinery files an action to order or prohibit disclosure of trade secret information, the person instituting the proceeding is required to name the person or the Refinery as a real party in interest. (Labor Code Section 7873(d)(2).)

13. Requires a Refinery who files an action to challenge release of trade secret information to provide notice of the action to the person requesting the release of the information at the same time that the defendant in the action is served. (Labor Code Section 7873(d)(2)(A).)

14. Requires the person filing an action to compel the release of information that includes information that the Refinery has notified the Division is a trade secret to provide notice of the action to the Refinery that submitted the information at the same time that the defendant in the action is served. (Labor Code Section 7873(d)(2)(B).)

15. Requires the court to award costs and reasonable attorney’s fees to the prevailing party in trade secret disclosure litigation, but prohibits the public agency from bearing the court costs for any party named in the litigation. (Labor Code Section 7873(d)(3).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: The California Refinery and Chemical Plant Worker Safety Act of 1990 (AB 3672 (Elder), Chap. 1632, Stats. 1990) established specified safety management standards for refineries that handle acutely hazardous material in order to prevent or minimize the consequences of catastrophic releases of toxic, flammable, or explosive chemicals and promote worker safety through implementation of training and safety standards in petroleum refineries.

Last year, in response to the catastrophic pipe rupture at the Chevron USA Refinery in Richmond, California in 2012 that released a flammable hydrocarbon vapor cloud, engulfed nineteen Chevron employees, created a large plume of toxic gas over the Richmond area, and caused approximately 15,000 people to seek medical treatment, SB 1300 (Hancock, Chap. 519, Stats. 2014) supplemented safety standards in then-existing law by establishing disclosure requirements and mandating inspections of petroleum refinery employers (Refineries) for planned turnarounds (a planned, periodic shutdown of a refinery process unit or plant) to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment. SB 1300 prohibited the disclosure of trade secret information contained in those turnaround reports and provided a method for judicial review of a refinery’s refusal to disclose information contained in a turnaround report on the basis that it included trade secret information. SB 1300 also required the court to award attorney’s fees and costs to the prevailing party in a dispute about the disclosure of information in a turnaround report. In his signing message for SB 1300 Governor Brown stated:

The author has committed to introduce clean up legislation next year and work with stakeholders to clarify the public disclosure process to ensure that this law does not authorize petroleum refineries to collect attorney’s fees from individuals or organizations seeking those records. I fully support those efforts.

This bill makes a number of changes to the law enacted by SB 1300. According to the author:

In 2014, the Legislature passed and the Governor signed into law SB 1300 [(Hancock, Chapter 519, Statutes of 2014)], Refinery Turnarounds. Specifically, [SB 1300] requires refinery employers in California to report to [the Division)] annually (by September 15 of the current year) a schedule of “turnaround” maintenance periods planned for the following calendar year. During a turnaround, a unit is brought offline for maintenance and repair work.

It is reported that refineries often have over a thousand workers (including refinery employees and contractors) performing multiple work activities simultaneously in limited spaces and on intensive work schedules, potentially creating unsafe conditions and work practices. Some of the most serious worker and process safety risks at refineries occur during turnarounds, particularly during the process of shutting down and restarting the unit.

In addition to the calendar of scheduled turnarounds, [SB 1300] requires refineries to submit specific documents and reports detailing the current maintenance and structural issues of the refinery unit where a turnaround will be conducted.

SB 1300 defines trade secret to include the scheduling, duration, layout, configuration and type of work to be performed during the turnaround. It also provides for the release of the schedule and duration of the turnaround after the work is complete.

Refineries will also be required to flag any scheduled maintenance and repairs of equipment being deferred to a later turnaround period. Based on [the Division’s] experience, the rush to restart refinery units as soon as possible after a turnaround shutdown has at times caused necessary scheduled repair and maintenance work to be postponed or abandoned, allowing unsafe equipment to be restarted without repairs or replacement and resulting in worker injuries and deaths.

As a result of the detailed reporting requirements of SB 1300, [the Division’s] inspectors will be able to review the refineries’ plans for scheduled work and ask for clarification when scheduled work is postponed or dropped. . . . The ultimate goal of this increased oversight of turnarounds is to lower the number of accidents, explosions, and other unplanned events at refineries and to provide greater safety protection for refinery employees and their many contractors, as well as greater protection of community residents.

Governor Brown’s Concerns. Governor Brown indicated, in his signing message of SB 1300, that the law regarding disclosure of turnaround reports should be amended to “clarify the public disclosure process to ensure that this law does not authorize petroleum refineries to collect attorney’s fees from individuals or organizations seeking those records.” The signing message seems to indicate that the law should prohibit Refineries from obtaining attorney’s fees from individuals and organizations who seek, but do not prevail, in efforts to seek information in refinery turnaround reports. This bill does not prohibit the award of attorney’s fees to a Refinery. Instead, it eliminates the mandatory award of attorney’s fees and costs to a prevailing party in litigation for the disclosure of such records.

Nevertheless, the bill does improve the law governing public requests for records in turnaround reports because it eliminates the requirement that attorney’s fees are awarded to the prevailing party in litigation seeking those records. The current wording appears to be a carefully negotiated compromise in light of the fact that it does not appear to be feasible to advance a bill to the governor that does what the governor said he thought it should do. Therefore, this bill seems to be a modest step in helping individuals and organizations that seek turnaround reports and bring PRA actions to obtain public information that is in the custody of the Division. As this bill is currently drafted, a court may elect to award attorney’s fees to individuals or organizations that prevail in seeking to compel or disclose such records, but is not required to do so.

Proprietary Information/Trade Secret. The California Public Records Act (PRA) governs the disclosure of information collected and maintained by public agencies. (Section 6250 et seq.) All public records are presumed to be open and available to the public for viewing or copying upon request, unless the record requested is exempt from public disclosure. (Section 6253.) The PRA specifically exempts dozens of types of records and information from disclosure, essentially due to the character of the records and information, many of which are listed Section 6254, but some of which are listed in stand-alone sections of the PRA. In addition, the PRA contains a “catch-all” provision that prohibits disclosure of documents where, based upon “the facts of the particular case, the public interest served by nondisclosure clearly outweighs the public interest served by disclosure of the record.” (Section 6255.)

One specific exemption in the PRA is for “Occupational health and safety investigations.” (Section 6276.32.) Another exception is for trade secret information. (Section 6276.44.) In addition, Labor Code Section 7873(b)(2) prohibits the Division from releasing any information designated as a trade secret by the refinery to the public, subject to judicial review. The exception at issue in this bill is for trade secret information that a refinery identifies in the turnaround report filed with the Division.

Because the Division is prohibited from releasing information within those reports which is designated as trade secret information, the Division is required to notify the refinery when it receives a public records request for a record that includes information the refinery has previously identified as trade secret information. (Section 7873(c)(2).) The refinery has 30 days, after receiving notification, to file an action with the court to prohibit the release of the requested information. The refinery has 120 days to obtain a court order and notify the Division of the order. If the refinery fails to obtain a court order prohibiting release of the requested information, the Division must release the requested information to the public. (Section 7873(c)(2).) Any person may initiate proceedings to enforce his or her right to inspect, or to obtain a copy, of any public record. (Section 6258.)

Allowing an Interested Party to Intervene. When a party brings an action to either compel or prohibit the disclosure of trade secret information in a refinery’s turnaround report, current law requires the moving party to add the opposing party to the action as a party in interest. The opposing party may or may not be interested in being involved in the action. This bill allows, but does not require, the party to be included in the action. This provision of the bill allows a party to consider their level of interest in obtaining the requested information, and the possible results of possible litigation, before intervening in the action.

Prior Legislation: SB 438 (Hancock, 2013), among other things, would have required a refinery to provide, upon the request of the Division, specified documentation relating to a planned turnaround of a refinery to the Division. SB 438 was held on the Suspense file in the Assembly Appropriations Committee.

ARGUMENTS IN SUPPORT: This bill enjoys support from two organizations that opposed SB 1300 last year. The California Newspaper Publishers Association writes in support:

SB 421would delete the requirement in existing law that a person requesting the release of information that might be considered a trade secret, or a Refinery seeking to prevent disclosure, name the other as a real party in interest in an applicable action. The bill would allow a requester to intervene in a …declaratory relief action and would require the court to permit that person to intervene.

The bill would also delete the requirement that the court award attorney’s fees to a prevailing party.

Another supporter, the Natural Resources Defense Council (NRDC) writes:

NRDC opposed SB 1300… due to amendments late in the process which would have allowed oil companies to sue individuals or community groups for requesting public records regarding refinery turnarounds. We were also concerned about language that allowed refinery operators to determine what information would be deemed a “trade secret.”

We support SB 421 because it responds to Governor Brown’s signing message for SB 1300 in which he called for clean-up legislation. SB 421 corrects the statute to clarify provisions regarding access to information and the judicial process.

REGISTERED SUPPORT / OPPOSITION:

Support

California Newspaper Publishers Association

Natural Resources Defense Council

Opposition

None on file

Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334 Alison Merrilees/JUD./(916) 319-2334

 CONSENT  

Bill No: SB 421

Author: Hancock (D)

Amended: 5/4/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Refineries: turnarounds

SOURCE: Author

DIGEST: This bill deletes the requirement that the court award attorneys’ fees to the party who prevails in an action to compel or prohibit the disclosure of petroleum refinery turnaround information by the Division of Occupational Safety and Health. This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

ANALYSIS:

Existing law:

1. Declares, in the California Constitution, the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”)

2. Governs, under the California Public Records Act (CPRA), the disclosure of information collected and maintained by public agencies. Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information.

3. Provides a list of information contained in a public record that may be exempt from public disclosure, but the listing of a statute does not itself create an exemption, and requesters of public records and public agencies are cautioned to review the applicable statute to determine the extent to which the statute, in light of the circumstances surrounding the request, exempts public records from disclosure. Included in the list of exemptions are occupational safety and health investigations, confidentiality of trade secrets.

4. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified.

5. Requires, every September 15, every petroleum refinery employer to submit to the Division of Occupational Safety and Health (Cal/OSHA) a full schedule of planned turnarounds for all affected units for the following calendar year, and, at the request of Cal/OSHA, at least 60 days prior to the shutdown of a process unit or plant as part of a planned turnaround, requires a petroleum refinery employer to provide access onsite and allow Cal/OSHA to review documentation, as specified, for the process unit or plant scheduled to be shut down for that turnaround.

6. Defines “turnaround” to mean a planned, periodic shutdown, total or partial, of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, but does not include unplanned shutdowns that occur due to emergencies or other unexpected maintenance matters in a process unit or plant, or routine maintenance, where routine maintenance consists of regular, periodic maintenance on one or more pieces of equipment at a refinery process unit or plant that may require shutdown of such equipment.

7. Requires a petroleum refinery employer to submit turnaround information to Cal/OSHA, regardless of whether the employer believes that information submitted may involve the release of a trade secret, as defined; however, at the time of submission, the employer may identify all or a portion of the information submitted to Cal/OSHA as a trade secret and, to the extent feasible, segregate records designated as trade secret from the other records.

8. Prohibits Cal/OSHA from releasing to the public any information designated as a trade secret by the petroleum refiner employer, subject to judicial review, as provided.

9. Requires, upon the receipt of a request for the release of information to the public that includes information that the petroleum refinery employer has notified Cal/OSHA is a trade secret, as specified, Cal/OSHA to notify the petroleum refinery employer in writing of the request by certified mail, return receipt requested, and requires Cal/OSHA to release the requested information to the public, unless both of the following occur:

• within 30 days of receipt of the notice of the request for information, the petroleum refinery employer files an action in an appropriate court for a declaratory judgment that the information is subject to trade secret protection and promptly notifies Cal/OSHA of that action; and

• within 120 days of receipt of the notice of the request for information, the refinery petroleum employer obtains an order prohibiting disclosure of the information to the public and promptly notifies Cal/OSHA of that action.

10. Prohibits release of any information that has been designated as a trade secret by a petroleum refinery employer, except that such information may be disclosed to other officers or employees of Cal/OSHA when relevant in any proceeding of Cal/OSHA.

11. Provides that if the person requesting the release of the information or the petroleum refinery employer files an action to order or prohibit disclosure of trade secret information, the person instituting the proceeding is required to name the person or the petroleum refinery employer as a real party in interest.

12. Requires the petroleum refinery employer filing an action to challenge release of trade secret information to provide notice of the action to the person requesting the release of the information at the same time that the defendant in the action is served.

13. Requires the person filing an action to compel the release of information that includes information that the petroleum refinery employer has notified Cal/OSHA is a trade secret to provide notice of the action to the petroleum refinery employer that submitted the information at the same time that the defendant in the action is served.

14. Requires the court to award costs and reasonable attorneys’ fees to the party that prevails in litigation, but prohibits the public agency from bearing the court costs for any party named in the litigation.

This bill:

1. Removes the requirement for a court to award costs and reasonable attorneys’ fees to the prevailing party.

2. Removes the requirement for either the person who has requested the release of information or the petroleum refinery employer who files an action to name the employer or person requesting the information as a real party in interest and, instead, provides that the employer or person requesting the information may intervene in an action filed by the person requesting the information or the employer.

3. Makes several technical and non-substantive revisions.

Background

Existing law, the California Refinery and Chemical Plant Worker Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of 1990)), established specified process safety management standards for refineries that handle acutely hazardous material in order to prevent or minimize the consequences of catastrophic releases of toxic, flammable, or explosive chemicals and promote worker safety through implementation of training and process safety management in refineries and other facilities.

Last year, SB 1300 (Hancock, Chapter 519, Statutes of 2014) supplemented those safety standards by establishing disclosure requirements and inspections of a petroleum refinery employer for planned turnarounds (a planned, periodic shutdown of a refinery process unit or plant) to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, as specified. SB 1300 prohibited disclosure of trade secret information contained in the turnaround reports and provided a method for judicial review of nondisclosure of claimed trade secret information. SB 1300 also authorized the court to award attorney’s fees and costs to the prevailing party. However, the Governor’s signing message instructed the author to introduce a cleanup bill and work with stakeholders to ensure that a petroleum refinery employer could not receive an award of attorney’s fees from individuals and organizations seeking those records.

This bill seeks to respond to the Governor’s signing message of SB 1300 by removing the award of attorney’s fees to a prevailing party in an action challenging disclosure of the turnaround information. This bill also clarifies that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

Comments

The author writes:

In 2014, the Legislature passed and the Governor signed into law [SB 1300 (Hancock, Chapter 519, Statutes of 2014)], Refinery Turnarounds. Specifically, [SB 1300] requires refinery employers in California to report to [the Division of Occupational Health and Safety (Cal/OSHA)] annually (by September 15 of the current year) a schedule of “turnaround” maintenance periods planned for the following calendar year. During a turnaround, a unit is brought offline for maintenance and repair work.

It is reported that refineries often have over a thousand workers (including refinery employees and contractors) performing multiple work activities simultaneously in limited spaces and on intensive work schedules, potentially creating unsafe conditions and work practices. Some of the most serious worker and process safety risks at refineries occur during turnarounds, particularly during the process of shutting down and restarting the unit.

In addition to the calendar of scheduled turnarounds, [SB 1300] requires refineries to submit specific documents and reports detailing the current maintenance and structural issues of the refinery unit where a turnaround will be conducted.

Refineries will also be required to flag any scheduled maintenance and repairs of equipment being deferred to a later turnaround period. Based on Cal/OSHA’s experience, the rush to restart refinery units as soon as possible after a turnaround shutdown has at times caused necessary scheduled repair and maintenance work to be postponed or abandoned, allowing unsafe equipment to be restarted without repairs or replacement and resulting in worker injuries and deaths.

As a result of the detailed reporting requirements of SB 1300, Cal/OSHA’s inspectors will be able to review the refineries’ plans for scheduled work and ask for clarification when scheduled work is postponed or dropped. . . . The ultimate goal of this increased oversight of turnarounds is to lower the number of accidents, explosions, and other unplanned events at refineries and to provide greater safety protection for refinery employees and their many contractors, as well as greater protection of community residents.

Prior Legislation

SB 1300 (Hancock, Chapter 519, Statutes of 2014) - See Background.

SB 438 (Hancock, 2013), among other things, upon the request of the Division of Occupational Safety and Health, would have required a refinery employer to provide specified documentation relating to a planned turnaround within a certain period of time. SB 438 was held on suspense in the Assembly Appropriations Committee.

AB 3672 (Elder, Chapter 1632, Statutes of 1990) - See Background.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 5/26/15)

California Newspaper Publishers Association

OPPOSITION: (Verified 5/26/15)

None received

Prepared by: Tara Welch / JUD. / (916) 651-4113

5/27/15 12:10:58

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015 - 2016 Regular Session

Bill No: SB 421 (Author:Hancock)

Amended: Version: May 4, 2015

Hearing Date: May 12, 2015

Fiscal: Yes

Urgency: No

Consultant: TMW

SUBJECT

Refineries: turnarounds

DESCRIPTION

This bill would delete the requirement that the court award attorneys’ fees to the party who prevails in an action to compel or prohibit the disclosure of petroleum refinery turnaround information by the Division of Occupational Safety and Health. This bill would also clarify that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

BACKGROUND

Existing law, the California Refinery and Chemical Plant Worker Safety Act of 1990, (AB 3672 (Elder, Chapter 1632, Statutes of 1990)), establishes specified process safety management standards for refineries that handle acutely hazardous material in order to prevent or minimize the consequences of catastrophic releases of toxic, flammable, or explosive chemicals and promote worker safety through implementation of training and process safety management in refineries and other facilities.

Last year, SB 1300 (Hancock, Chapter 519, Statutes of 2014) supplemented those safety standards by establishing disclosure requirements and inspections of a petroleum refinery employer for planned turnarounds (a planned, periodic shutdown of a refinery process unit or plant) to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, as specified. SB 1300 prohibited disclosure of trade secret information contained in the turnaround reports and provided a method for judicial review of nondisclosure of claimed trade secret information. SB 1300 also authorized the court to award attorney’s fees and costs to the prevailing party. However, the Governor’s signing message instructed the author to introduce a cleanup bill and work with stakeholders to ensure that a petroleum refinery employer could not receive an award of attorney’s fees from individuals and organizations seeking those records.

This bill seeks to respond to the Governor’s signing message of SB 1300 by removing the award of attorney’s fees to a prevailing party in an action challenging disclosure of the turnaround information. This bill would also clarify that a petroleum refinery employer or a person requesting the disclosure of turnaround information may intervene in an action to prohibit or compel the disclosure of the turnaround information.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, declares the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)

Existing law, the California Public Records Act (CPRA), governs the disclosure of information collected and maintained by public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information.

Existing law provides a list of information contained in a public record that may be exempt from public disclosure. Existing law provides that the listing of a statute in this article does not itself create an exemption, and requesters of public records and public agencies are cautioned to review the applicable statute to determine the extent to which the statute, in light of the circumstances surrounding the request, exempts public records from disclosure. (Gov. Code Sec. 6275.) Included in the list of exemptions are occupational safety and health investigations, confidentiality of trade secrets. (Gov. Code Secs. 6276.32, 6276.44.)

Existing law provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified. (Gov. Code Secs. 6258, 6259(d).)

Existing law, every September 15, requires every petroleum refinery employer to submit to the Division of Occupational Safety and Health (Cal/OSHA) a full schedule of planned turnarounds for all affected units for the following calendar year, and, at the request of Cal/OSHA, at least 60 days prior to the shutdown of a process unit or plant as part of a planned turnaround, requires a petroleum refinery employer to provide access onsite and allow Cal/OSHA to review documentation, as specified, for the process unit or plant scheduled to be shut down for that turnaround. (Lab. Code Sec. 7872.)

Existing law defines “turnaround” to mean a planned, periodic shutdown, total or partial, of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, but does not include unplanned shutdowns that occur due to emergencies or other unexpected maintenance matters in a process unit or plant, or routine maintenance, where routine maintenance consists of regular, periodic maintenance on one or more pieces of equipment at a refinery process unit or plant that may require shutdown of such equipment. (Lab. Code Sec. 7872(a).)

Existing law requires a petroleum refinery employer to submit turnaround information to Cal/OSHA, regardless of whether the employer believes that information submitted may involve the release of a trade secret, as defined; however, at the time of submission, the employer may identify all or a portion of the information submitted to Cal/OSHA as a trade secret and, to the extent feasible, segregate records designated as trade secret from the other records. (Lab. Code Sec. 7873(b)(1).)

Existing law prohibits Cal/OSHA from releasing to the public any information designated as a trade secret by the petroleum refiner employer, subject to judicial review, as provided. (Lab. Code Sec. 7873(b)(2).)

Existing law, upon the receipt of a request for the release of information to the public that includes information that the petroleum refinery employer has notified Cal/OSHA is a trade secret, as specified, requires Cal/OSHA to notify the petroleum refinery employer in writing of the request by certified mail, return receipt requested. (Lab. Code Sec. 7873(c)(1).) Existing law requires Cal/OSHA to release the requested information to the public, unless both of the following occur:

• within 30 days of receipt of the notice of the request for information, the petroleum refinery employer files an action in an appropriate court for a declaratory judgment that the information is subject to trade secret protection and promptly notifies Cal/OSHA of that action; and

• within 120 days of receipt of the notice of the request for information, the refinery petroleum employer obtains an order prohibiting disclosure of the information to the public and promptly notifies Cal/OSHA of that action. (Lab. Code Sec. 7873(c)(2).)

Existing law prohibits release of any information that has been designated as a trade secret by a petroleum refinery employer, except that such information may be disclosed to other officers or employees of Cal/OSHA when relevant in any proceeding of Cal/OSHA. (Lab. Code Sec. 7873(d)(1).)

Existing law provides that if the person requesting the release of the information or the petroleum refinery employer files an action to order or prohibit disclosure of trade secret information, the person instituting the proceeding is required to name the person or the petroleum refinery employer as a real party in interest. (Lab. Code Sec. 7873(d)(2).)

Existing law also requires the petroleum refinery employer filing an action to challenge release of trade secret information to provide notice of the action to the person requesting the release of the information at the same time that the defendant in the action is served. (Lab. Code Sec. 7873(d)(2)(A).)

Existing law requires the person filing an action to compel the release of information that includes information that the petroleum refinery employer has notified Cal/OSHA is a trade secret to provide notice of the action to the petroleum refinery employer that submitted the information at the same time that the defendant in the action is served. (Lab. Code Sec. 7873(d)(2)(B).)

Existing law requires the court to award costs and reasonable attorneys’ fees to the party that prevails in litigation, but prohibits the public agency from bearing the court costs for any party named in the litigation. (Lab. Code Sec. 7873(d)(3).)

This bill would remove the requirement for a court to award costs and reasonable attorneys’ fees to the prevailing party.

This bill would remove the requirement for either the person who has requested the release of information or the petroleum refinery employer who files an action to name the employer or person requesting the information as a real party in interest and, instead, provides that the employer or person requesting the information may intervene in an action filed by the person requesting the information or the employer.

This bill would also make several technical and non-substantive revisions.

COMMENT

1. Stated need for the bill

The author writes:

In 2014, the Legislature passed and the Governor signed into law [SB 1300 (Hancock, Chapter 519, Statutes of 2014)], Refinery Turnarounds. Specifically, [SB 1300] requires refinery employers in California to report to [the Division of Occupational Health and Safety (Cal/OSHA)] annually (by September 15 of the current year) a schedule of “turnaround” maintenance periods planned for the following calendar year. During a turnaround, a unit is brought offline for maintenance and repair work.

It is reported that refineries often have over a thousand workers (including refinery employees and contractors) performing multiple work activities simultaneously in limited spaces and on intensive work schedules, potentially creating unsafe conditions and work practices. Some of the most serious worker and process safety risks at refineries occur during turnarounds, particularly during the process of shutting down and restarting the unit.

In addition to the calendar of scheduled turnarounds, [SB 1300] requires refineries to submit specific documents and reports detailing the current maintenance and structural issues of the refinery unit where a turnaround will be conducted.

Refineries will also be required to flag any scheduled maintenance and repairs of equipment being deferred to a later turnaround period. Based on Cal/OSHA’s experience, the rush to restart refinery units as soon as possible after a turnaround shutdown has at times caused necessary scheduled repair and maintenance work to be postponed or abandoned, allowing unsafe equipment to be restarted without repairs or replacement and resulting in worker injuries and deaths.

As a result of the detailed reporting requirements of SB 1300, Cal/OSHA’s inspectors will be able to review the refineries’ plans for scheduled work and ask for clarification when scheduled work is postponed or dropped. . . . The ultimate goal of this increased oversight of turnarounds is to lower the number of accidents, explosions, and other unplanned events at refineries and to provide greater safety protection for refinery employees and their many contractors, as well as greater protection of community residents.

2. Eliminating attorney’s fees for prevailing party

Existing law authorizes either a person requesting turnaround information or the petroleum refinery employer to file an action to release or prohibit the release of information that the petroleum refinery employer has designated to be a trade secret. Existing law requires the court to award costs and reasonable attorneys’ fees to the prevailing party. This bill would strike the award of costs and reasonable attorneys’ fees.

The author states that when SB 1300 was signed by Governor Brown, he required a commitment to introduce clean up legislation this year and to work with stakeholders to clarify the public disclosure process to ensure that petroleum refineries could not collect attorney’s fees from individuals or organizations seeking turnaround records. (See Governor Edmund G. Brown, Jr. letter to Members of the Cal. State Senate re Sen. Bill No. 1300 (2013-2014 Reg. Sess.) Sept. 20, 2014.) Accordingly, this bill seeks to remove the award of attorney’s fees from the prevailing party. Notably, existing law, the California Public Records Act, provides the prevailing plaintiff the ability to receive an award of attorney’s fees and costs, and those costs and fees are required to be paid by the public agency, as specified. (Gov. Code Sec. 6259(d).) This provision means that the person requesting disclosure of information from the public agency would receive attorney’s fees and costs. The public policy behind this provision is so that the public is not discouraged from seeking judicial review of information claimed to be confidential or exempt from disclosure by the public agency, which furthers the purpose of transparency of government agencies.

SB 1300, on the other hand, authorizes both the person seeking release of turnaround information and the petroleum refinery employer to file an action to release the information or maintain its confidentiality. In either case, the public agency (most likely Cal/OSHA, the entity to whom the employer is required to provide the turnaround information) is the defendant. Because the defendant public agency, for all intents and purposes, is the middleman holding the information, the public agency is not required to bear the court costs for any party named in the litigation. Accordingly, this bill would simply maintain that each party would be liable for its own attorneys’ fees and costs.

3. Clarifying ability to intervene in disclosure action

Existing law requires either the person seeking release of turnaround information or the petroleum refinery employer who has filed the court action to provide notice to the petroleum refinery employer or the person requesting the information. This bill would strike those provisions and, instead, authorize the petroleum refinery employer or the person requesting release of the information to intervene in the action. This means that, if the petroleum refinery employer files an action as the plaintiff against the defendant public agency, the person seeking release of the information could intervene in that action to make a case for why disclosure of the information is in the best interests of the public. Conversely, if the person seeking release of the information files the action as the plaintiff against the defendant public agency, then the petroleum refinery employer would be authorized to intervene in that action to argue why maintaining the confidentiality of the information is more important than the public’s need for transparency.

Support: None Known

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

SB 1300 (Hancock, Chapter 519, Statutes of 2014) See Background; Comments 1 and 2.

SB 438 (Hancock, 2013), among other things, upon the request of the Division of Occupational Safety and Health, would have required a refinery employer to provide specified documentation relating to a planned turnaround within a certain period of time. SB 438 was held on suspense in the Assembly Appropriations Committee.

AB 3672 (Elder, Chapter 1632, Statutes of 1990) See Background.

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