Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 86-706
:
of : JUNE 18, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE WILLIAM M. MEDIGOVICH, Director, Governor's Office
of Emergency Services, has requested an opinion on the following question:
Are the requirements of chapter 6.95 of division 20 of the Health and
Safety Code for certain entities to prepare hazardous materials release response plans
applicable to the University of California, the state universities, the community colleges,
or to state agencies generally?
CONCLUSION
The requirements of chapter 6.95 of division 20 of the Health and Safety
Code for certain entities to prepare hazardous materials release response plans are not
applicable to the University of California, to the state universities, to community
colleges, or to state agencies generally.
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ANALYSIS
Prior to the enactment of chapter 6.95 (§§ 25500- 25520) of division 20 of
the Health and Safety Code in 1985 (Stats. 1985, ch. 1167, § 1), basic information on the
location, type, quantity and health risks of hazardous materials handled by businesses,
which could be accidentally released into the environment, was not automatically readily
available on the local level to firefighters, health officials, planners, and other interested
persons. (§ 25500.) The Legislature found that the ready availability of such information
was necessary in order to protect the public health and safety and environment from the
release or threatened release of such materials. (Ibid.) Accordingly, it enacted chapter
6.95 to provide a formal mechanism whereby the information would be locally collected,
collated, stored and made available as necessary to enable an informed response to be
made to an accidental release of hazardous materials.1
Under the chapter, any "business" which handles hazardous materials must
establish and implement a "business plan" for emergency response to their release or
threatened release. (§ 25503.5, subd. (a).)2 The plans must accord with minimum
1
Of course at the time mechanisms already existed for responding to releases of hazardous
substances, among which were provisions for state toxic disaster planning under the California
Emergency Services Act (Gov. Code, tit. 2, div. 1, ch. 7, § 8550, et seq.) whereby the Office of
Emergency Services was to maintain a notification and reporting system to facilitate operation of
the integrated state toxic response procedures contained in the state toxic disaster contingency
plan. (Id., § 8574.8; cf., id., ch. 3.7.) (See 65 Ops.Cal.Atty.Gen. 32, 35 (1985).) The effort
however was statewide in its centralization and implementation. (Id., § 8574.8; see also, Veh.
Code, § 2450, et seq., the Hazardous Substances Highway Spill and Abatement Act; 65
Ops.Cal.Atty.Gen., supra, at p. 34.).) While some local entities had requirements for business to
submit data on hazardous materials they handled, state law did not require that local effort to be
made. Chapter 6.95 now does.
2
A "hazardous material" is ". . . any material that because of its quantity, concentration, or
physical or chemical characteristics, poses a significant present or potential hazard to human
health and safety or to the environment if released into the workplace or the environment."
"Hazardous materials" include, but are not limited to, hazardous substances, hazardous waste,
and "any material which a handler or the administering agency has a reasonable basis for
believing that it would be injurious to the health and safety of persons or harmful to the
environment if released into the workplace or the environment." (§ 25501, subd. (j).)
"Hazardous substances" are defined by subdivision (k) of section 25501; "hazardous waste" by
its subdivision (l). (See also §§ 25115, 25117, 25316.)
Release includes, "any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment, unless permitted or
authorized by a regulatory agency." (§ 25501, subd. (n).)
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standards adopted by the Office of Emergency Services after consultation with the State
Fire Marshal and other appropriate public entities (§§ 25503, subd. (a); 25503.5, subd.
(a)) and must include an inventory of hazardous substances and a categorization of
hazardous wastes handled by the business, and sufficient information on how and where
they are handled to allow fire, safety, health, and other appropriate personnel to prepare
adequate emergency responses to potential releases of them. (§§ 25504, subd. (a); 25505,
subd. (d); 25509, 25509.3, 25510.) The business plans must also (1) set forth emergency
response plans and procedures to deal with a reportable release or threatened release of a
hazardous material (including, (a) immediate notification to local emergency rescue
personnel, (b) procedures for mitigation to minimize potential harm or damage to
persons, property, or the environment, and (c) evacuation plans and procedures for the
business site), and (2) training for employees in safety procedures for that eventuality.
(§ 25504, subds. (b), (c).)
The duty for implementing chapter 6.95 is placed on the counties (§ 25502,
subd. (a)), but a city may, by ordinance or resolution, assume that responsibility within its
jurisdiction. (Id., subd. (b).) A county, and any such city assuming the responsibility,
must designate one of its departments, offices, or other agencies as an "administering
agency" responsible for administering and enforcing the mechanism of chapter 6.95. (Id.,
subd. (c); cf. § 25501, subd. (a).) That is done through an "area plan" for emergency
response to the actual or threatened release of hazardous materials adopted by the
administering agency. These area plans--which also must meet minimum standards set by
the Office of Emergency Services (§ 25503, subd. (a))-- provide for (1) procedures and
protocols for emergency rescue personnel; (2) preemergency planning; (3) notification
and coordination of onsite activities with state, local and federal agencies, responsible
parties, and special districts; (4) training of appropriate employees; (5) required supplies
and information; and (6) access to emergency response contractors and hazardous waste
disposal sites. (Id., subd. (c).) In addition, the administering agency must also provide
the Office of Emergency Planning with (1) the basic provisions of a plan to conduct
onsite inspection of businesses subject to chapter 6.95 to ensure compliance with it and to
identify safety hazards that could cause or contribute to a release of hazardous material
into the workplace or environment, and (2) a plan to institute a data management system
for efficient access to and utilization of the information collected under the chapter. (Id.,
subd. (e).)
Any business which "handles" hazardous materials (cf., fn. 2, ante) must
submit its "business plan", reviewed biennially, to the administering agency (§ 22505,
subds. (a), (b), (c); cf. § 25501, subd. (i) ("handler")), and it must also annually submit to
"Handle" is defined to include: "to use, generate, process, produce, package, treat, store,
emit, discharge, or dispose of a hazardous material in any fashion." (§ 25501, subd. (h).)
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the agency an inventory of them on an "inventory form." (§ 25505, subd. (d).) In
addition, the business must report to the agency and to the Office of Emergency Services,
any release or threatened release of hazardous material immediately upon discovery.
(§ 25507.)3
Administering agencies are required to maintain records of all "business
plans" and index them by street address and company name. (§ 25505.) The plans and
their revisions are available to public inspection, except for those portions specifying the
precise locations where hazardous materials are handled. (Ibid.) The entire plan,
however, is available to any state or local agency (ibid.) and an agency must provide all
information obtained from the business' completed annual inventory form to emergency
rescue personnel upon request on a 24-hour basis. (§ 25503.5, subd. (c).)4
We thus see how Chapter 6.95 fills the prior void (cf. fn. 1, ante) by
establishing a mechanism whereby information about hazardous materials handled by
businesses in the state is collected locally by a known agency which can then make it
available appropriately as needed. Needless to say, the chapter imposes a burden of
responsibility upon "businesses" to adopt acceptable plans and provide annual
inventories. (Cf., fn. 3, ante.) We are asked whether the University of California, the
state universities, the community colleges, and state agencies generally, are subject to its
requirements. We conclude that they are not.
Chapter 6.95 imposes its obligations on "businesses" that handle hazardous
materials, section 25503.5, subdivision (a) thereof providing:
3
Any "person" or "business" which violates the provisions dealing with business plans and
inventory reporting (§§ 25503.5-25505, 25508-25510) is civilly liable to the administering
county or city for up to $2,000 for each day the violation occurs; a knowing violation after
reasonable notice of it, increases the penalty to $5,000 a day. (§ 25514.) A failure to report a
release or threatened release of hazardous materials under section 25507 carries a fine of up to
$25,000 a day of violation and/or imprisonment in county jail; a second violation raises the
possibility to $50,000 a day and state prison. (§ 25515.) The term "person" is not defined in
chapter 6.95.
4
"Emergency rescue personnel" is defined to mean:
". . . any public employee, including, but not limited to, any fireman,
firefighter, or emergency rescue personnel, as defined in Section 245.1 of the Penal
Code, who responds to any condition caused, in whole or in part, by a hazardous
material that jeopardizes, or could jeopardize, public health or safety or the
environment." (§ 25501, subd. (f).)
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"Any business . . . which handles a hazardous material or a mixture
containing a hazardous material which has a quantity at any one time
during the reporting year equal to, or greater than, a total weight of 500
pounds, or a total volume of 55 gallons, or 200 cubic feet at standard
temperature and pressure for compressed gas, shall establish and implement
a business plan for emergency response to a release or threatened release of
a hazardous material in accordance with the standards in the regulations
adopted pursuant to Section 25503."5
(Cf., § 25501, subd. (i): "handler" means "any business which handles a hazardous
material.")
"Business" is defined by section 25501, subdivision (c) to mean:
". . . an employer, self-employed individual, trust, firm, joint stock
company, corporation, partnership, or association. For purposes of this
chapter, 'business' includes a business organized for profit and a nonprofit
business."
The Legislature has said that this definition is to govern the construction of chapter 6.95
unless the context indicates otherwise. (§ 25501; cf., Rideau v. Togrimson (1939) 12
Cal. 2d 633, 636; In re Marriage of Stephens (1984) 156 Cal. App. 3d 909, 913.) It might
be argued that since the University of California, the state universities, the community
colleges, and state agencies generally are employers, that they are to be covered by the
rubric of chapter 6.95. However, we do not believe the matter may be resolved that
simply.
As a general rule, public agencies are not considered to be bound by
general words of a statute which set forth duties or which limit rights and interests unless
they are included within its directive, either expressly or by necessary implication, and
their being included does not result in an infringement upon their sovereign powers. (See,
5
Exceptions are made for: hazardous material contained solely in a consumer product for
direct distribution to and use by the general public (unless the administering agency finds that the
handling of certain quantities of the product warrants the submission of a business plan); certain
hazardous substances that are found not to present a danger if released; unusual circumstances
justifying exemptions for a handler where the exemption would not pose a significant hazard to
human health or safety or affect the ability of the agency and emergency rescue personnel to
effectively respond to the release of a hazardous material; and businesses operating a farm for
cultivating the soil or raising or harvesting agricultural or horticultural commodities if certain
conditions are met. (§ 25503.5, subd. (b).)
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e.g., Regents of University of California v. Superior Court (1976) 17 Cal. 3d 533, 536;
C.J. Kubach Co. v. McGuire (1926) 199 Cal. 215, 217; Nutter v. City of Santa Monica
(1946) 74 Cal. App. 2d 292, 300; Philbrook v. State Personnel Board (1942) 53
Cal. App. 2d 222, 228; 67 Ops.Cal.Atty.Gen. 256, 259, fn. 2 (1984); 65 Ops.Cal.Atty.Gen.
88, 91 (1982); 63 Ops.Cal.Atty.Gen. 616, 620 (1980); 36 Ops.Cal.Atty.Gen. 179, 180
(1960).)6 The Legislature has not expressly included public agencies within the ambit of
chapter 6.95 as it has in kindred legislation7 and one would ordinarily presume from the
fact of such other inclusion that they were not meant to be included here:
"[W]here the Legislature omits a particular provision in a later
enactment related to the same subject matter, [that] deliberate omission
indicates a different intention which may not be supplanted in the process
of . . . construction." (Kaiser Steel Corp. v. County of Solano (1979) 90
Cal. App. 3d 662, 667; see also, Fogarty v. Superior Court (1981) 117
Cal. App. 3d 316, 320; Marsh v. Edwards Theatres Circuit, Inc. (1976) 64
Cal. App. 3d 881, 891.)
Put simply, if the Legislature did mean to include state agencies within the workings of
chapter 6.95, the kindred legislation demonstrates it knew how to do so. (Cf., Safer v.
6
The University is essentially a state institution (Estate of Purington (1926) 199 Cal. 661,
661, Estate of Royer (1899) 123 Cal. 614, 623), and has been deemed a state agency for certain
purposes (see, e.g. Regents of University of California v. City of Santa Monica (1978) 77
Cal. App. 3d 130, 135-137; 63 Ops.Cal.Atty.Gen. 231, 135-137 (1980).) And while it is intended
to operate as independently as possible, "it is well settled that general police power regulations
governing private parties and corporations may be applied to the University." (San Francisco
Labor Council v. Regents of University of California (1980) 26 Cal. 3d 785, 789; Wallace v.
Regents of the University of California (1925) 75 Cal. App. 274, 278; 20 Ops.Cal.Atty.Gen. 30,
36 (1952).) The state universities (62 Ops.Cal.Atty.Gen. 443, 446, 447 (1979)) and the
community college districts (Butler v. Compton Junior College Dist. (1947) 77 Cal. App. 2d 717,
728; 70 Ops.Cal.Atty.Gen. [#86-703; May 19, 1987, at p. 4]) have also been considered agencies
of the state.
7
See, e.g., Health & Saf. Code, div. 20, ch. 6.5. (Hazardous Waste Management Control),
25118: "person" means "an individual, . . . business concern, corporation . . . [and] also includes
any city, county, district, and the state or any department or agency thereof. . . ."; Id., ch. 6.7
(Underground Storage of Hazardous Substances), 25281, subd. (h): "person" means "an
individual, trust, firm, corporation . . . [and] also includes any city, county, district, the state, any
department or agency thereof . . ."; (Id., ch. 6.8 (Hazardous Substance Account to provide
funding for response (abatement, clean-up) to releases of hazardous substances that pose a threat
to the public health or environment), § 25319: "'Person' . . . also includes . . . the state or any
department or agency thereof."
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Superior Court (1975) 15 Cal. 3d 230, 238; Board of Trustees v. Judge (1975) 50
Cal. App. 3d 920, 927.)
Nevertheless, it still may be that the Legislature did intend to include the
subject entities within the working of chapter 6.95 and we must determine that possibility
of implied inclusion. To explore it, "it is proper to consider all matters which, under the
rule[s] of statutory interpretation, shed light on the legislative intention. [Citation.]"
(People v. Centr-O-Mart (1950) 34 Cal. 2d 702, 704.)
We first examine the words at issue to determine whether their meaning is
ambiguous. (Sand v. Superior Court (1983) 34 Cal. 3d 567, 570; People v. Knowles
(1950) 35 Cal. 2d 175, 182.) The salient question, of course, is the meaning of the term
"business", but inasmuch as that has already been specifically defined for the workings of
chapter 6.95 ( 25501, subd. (c)), it is the meaning of the word "employer" as used in the
definition that focuses concern: Was that meant to include public employers?8 Once
again, the term "business" is defined by section 25501, subdivision (c) to mean:
" . . . an employer, self-employed individual, trust, firm, joint stock
company, corporation, partnership, or association. For purposes of this
8
There is nothing inherently impermissible in such inclusion. The rule that calls for
exclusion of governmental entities from the operational embrace of the general words of a statute
in the absence of express provisions to the contrary (see, e.g., fn. 7, ante) is predicated on the
notion that their inclusion would result in an infringement upon sovereign powers; "'[w]here no
infringement of sovereign powers would result, the reason underlying [the] rule of construction
ceases to exist and the Legislature may properly be held to have intended that the statute apply to
governmental bodies even though it used general statutory language only. [Citations.]'" (City of
Los Angeles v. City of San Fernando (1975) 14 Cal. 3d 199; accord, Regents of University of
California v. Superior Court, supra, 17 Cal. 3d 533, 536.) Thus, under the latter principle,
"government entities have been held subject to legislation which by its terms applies simply to
any 'person.' [Citations.]" (63 Ops.Cal.Atty.Gen. 616, 620, supra, and cases cited thereat.) We
see no significant difference in operative effect in this respect between the word "person" and the
word "employer." (See, State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1979)
88 Cal. App. 3d 43, 54-57.) The question would still be whether "the particular legislation affects
the fundamental purposes and functions of the governmental body. Immunity is granted if
statutorily mandated activities are impaired. [Citations], while no exemption is provided when
the agency's public purposes are unaffectd. [Citations.]" (63 Ops.Cal.Atty.Gen. supra, at 620,
621; accord, 62 Ops.Cal. Atty.Gen. 140, 142 (1979).) Since we are going to conclude from the
statutory wording and its legislative history that the Legislature did not mean to subsume
governmental agencies under the rubric of chapter 6.95's "employer", we need not explore this
other area.
7
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chapter, 'business' includes a business organized for profit and a nonprofit
business."
The noteworthy aspect about the "operative" part of the definition9 is that the term
"employer" seems very out of place. All of the other terms--self-employed individual,
trust, firm, joint stock company, corporation, partnership, association--are forms of
business organization; the term "employer" is not. Nevertheless, that it is set among them
can give us a clue to the scope of its intended meaning. Under the doctrine of noscitur a
sociis, where the meaning of a particular word is doubtful when taken by itself, the doubt
may be removed and the true meaning ascertained by reference to the meaning of its
associated words. (58 Cal.Jur.3d, Statutes, § 136; cf. People v. Stout (1971) 18
Cal. App. 3d 172, 177; People v. Buese (1963) 220 Cal. App. 2d 802, 807; 64
Ops.Cal.Atty.Gen. 173, 177 (1981).) Here the terms "associated with" the word
"employer" are not only forms of business organization, but are terms which apply to the
conduct of private, non-governmental activity (cf., 70 Ops.Cal.Atty.Gen. [slip opn.,
supra, at p. 4]) and under the just-mentioned doctrine we should expect that the
Legislature used the term "employer" with a like cast. (See 67 Ops.Cal.Atty.Gen. 355,
360 (1984).)10 Any doubt in that regard is quickly disspelled by the legislative history of
the definitional section.
9
Inasmuch as "business" is also defined in section 25501, subdivision (c) to include "a
nonprofit business," it has been suggested that indicates a legislative intent for government
agencies to be included in the overall definition. However, rather than help matters, that part of
the definition, being cast in crucial aspect with the very term it seeks to help define, invites
circularity and compounds the problem. (Cf., 69 Ops.Cal.Atty.Gen. 88, 93 (1983).)
10
Along this line we would also note that even if the term "business" were not specifically
defined to limit our exploration of its meaning, including governmental agencies within its rubric
would still give us pause. Elementary statutory construction demands that statutory words be
given their ordinary and usual meaning. (California Teachers Assn. v. San Diego Community
College Dist. (1981) 28 Cal. 2d 692, 698; People v. Belleci (1979) 24 Cal. 3d 879, 884; Rich v.
State Board of Optometry (1965) 235 Cal. App. 3d 591, 606-607), and not a tortured construction
seeking hidden meanings. (Madrid v. Justice Court (1975) 52 Cal. App. 3d 819, 824; Rich v.
State Board of Optometry, supra, at 604; People v. Knowles (1950) 35 Cal. 2d 175, 183.) The
ordinary import of the term business suggests private proprietary and commercial activity, and
not governmental function. (Cf., 70 Ops.Cal.Atty.Gen. [slip opn., supra, at p. 4] (public
agencies are not "corporations").) When the Legislature has meant to include non-commercial or
proprietary activity within a definition of "business", it has specifically done so. (See, e.g.,
25110.5 (definition of "business" for the working purpose of chapter 6.5 (Hazardous Waste
Management Control).) That it has not done so here "is significant to show that a different
intention existed." (Anthony v. Superior Court (1980) 109 Cal. App. 3d 346, 355-356.)
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The legislative history of a statute is a most valuable tool to ascertain the
Legislature's intentions regarding a perceived ambiguity. (Sand v. Superior Court, supra,
34 Cal. 3d 567, 570; Rich v. State Board of Optometry, supra, 235 Cal. App. 2d 591, 607;
65 Ops.Cal.Atty.Gen. 32, 35, supra.) Here the gestation of section 25501, subdivision (c)
is particularly telling.
When the bill which wrought chapter 6.95 was first introduced in the
Assembly on March 8, 1985, (AB 2185), section 25501, subdivision (c) defined the term
"business" as it did when finally enacted. However, on April 15, 1985, by amendments
to the bill in the Assembly, the definition was changed to read as follows:
"(c) 'Business' means an employer, self-employed individual, trust,
firm, joint stock company, corporation, partnership, association, city,
county, district, and the state, or any department or agency thereof. For
purposes of this chapter, a business includes a business organized for profit
and a nonprofit business." (Emphasis added.)
So amended, the definition of "business" clearly embraced governmental entities and
agencies of the state. (Compare, fn. 7, ante.) But just as clearly, it placed them in
apposition to private entities where the term "employer" was originally found. Since the
purpose of an amendment is to make a meaningful change to what went before (cf.,
Judson Steel Corp. v. Workers' Comp. Appeal Bd. (1978) 22 Cal. 3d 658, 666, fn. 6;
Jordan v. Consolidated Mut. Ins. Co. (1976) 59 Cal. App. 3d 26, 48; 67 Ops.Cal.Atty.Gen.
355, 359, fn. 5, supra; 64 Ops.Cal.Atty.Gen. 240, 255 (1981)) we can presume therefrom
that if the word "employer" would have already sufficed to embrace governmental or
public employers, the amendment would not have been necessary to bring those public
bodies within the definitional rubric of "business". (Cf., White v. County of Sacramento
(1982) 31 Cal. 3d 676, 681; Fields v. Eu (1976) 18 Cal. 3d 322, 328-329.)
The subdivision so amended--with public entities specifically brought
within its definition of "business" and hence the coverage of chapter 6.95--survived
further amendments to the bill in the Assembly on May 30, June 12, and July 11.
However, when the bill was amended in the Senate on September 5, 1985, the definition
of "business" set forth in section 25501, subdivision (c) was changed back to its original,
and finally enacted, form. Again, we can only learn from that deletion of all references to
bodies politic in the definition of "business" that (a) such entities were not to be included
thereunder; and (b) that the term "employer" should not now suffice, as it did not before,
to bring them thereunder. (Cf., 67 Ops.Cal. Atty.Gen. 355, 359, fn. 5, supra.)
When, as here, the Legislature rejects language from a bill, it is most
persuasive to the conclusion that the law as enacted should not be construed to contain it.
9
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(Stroh v. Midway Restaurants Systems, Inc. (1986) 180 Cal. 3d 1040, 1055; Ventura v.
City of San Jose (1984) 154 Cal. App. 3d 1076, 1080; Ford Motor Co. v. County of Tulare
(1983) 145 Cal. App. 3d 688, 692; Rich v. State Board of Optometry, supra, 235
Cal. App. 2d 591, 607.) Accordingly, we conclude that chapter 6.95 was not meant to
apply to public agency employers, such as the University of California, the state
universities, the community colleges, or state agencies generally.
The statutory situation here is thus markedly different from that presented
with similar issues before where the language used was sufficiently elastic to permit a
broad interpretation that could accommodate a legislative purpose to embrace public
entities. (See e.g., 36 Ops.Cal. Atty.Gen. 179 (1960) (Earthquake Protection Law to
cover "every building of any character"); 20 Ops.Cal.Atty.Gen. 30 (1952) (Health & Saf.
Code, § 13143: Fire Marshal to adopt minimum standards for fire protection for "any
building or structure used or intended for [certain uses]").) Whatever other differences
may exist, section 25501, subdivision (c) is not so accommodating. Though it too uses
the word "any", broad as it is, it is still but an adjective modifying "business" and it is that
noun which determines the scope of chapter 6.95. Regarding it, we have shown how the
legislative history of its defined meaning makes it clear beyond doubt's peradventure that
the term "business" was not meant to apply to public entities as employers. Again, the
true intent and meaning of a statute is not found by implying hidden meanings in words
(Madrid v. Justice Court, supra, 52 Cal. App. 3d 819, 824) and however laudatory a
statutory purpose, one should not ". . . add to or alter the words of [a] statute to
accomplish a purpose that does not appear on [its] face or from its legislative history . . .;
nor should [one] seek hidden meanings not suggested by the statute or by the available
extrinsic aids. [Citations.]" (Rich v. State Board of Optometry, supra, 235 Cal.app.3d
591, 604.)
The words of section 25501, subdivision (c) itself convince that the
definition of "business" was not meant to apply to public employers and the legislative
history of the subdivision fortifies that conclusion. Therefore, as they would not be
"businesses" within its definitional structure, we conclude that the requirements of
chapter 6.95 of division 20 of the Health and Safety Code do not apply to the University
of California, the state universities, the community colleges, or to state agencies
generally.
*****
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