The reasonableness of civil penalties in a settlement will be
evaluated based on the factors set forth in the Health and Safety Code section
25249.7(b)(2).
The following factors are "[other factors] that justice may require" to be
considered within the meaning of Health and Safety Code section
25249.7(b)(2)(G):
(a) A settlement with little or no penalty
may be entirely appropriate or not, based on the facts or circumstances of a
particular case.
(b) Recovery of
civil penalties (75% of which must be provided to the Office of Environmental
Health Hazard Assessment) serves the purpose and intent of Proposition 65.
Accordingly, civil penalties shall not be "traded" for payments of attorney's
fees.
(c) Where a settlement
provides that certain civil penalties are assessed, but may be waived in
exchange for certain conduct by the defendant, such as, for example,
reformulating products to reduce or eliminate the listed chemical, the conduct
must be related to the purposes of the litigation, provide environmental and
public health benefits within California, and provide a clear mechanism for
verification that the qualifying conditions have been satisfied.
(d) Where a settlement requires the alleged
violator to make any Additional Settlement Payments to the plaintiff or to a
third party, such Additional Settlement Payments are viewed as an "offset" to
the civil penalty. The plaintiff must demonstrate to the satisfaction of the
court that it is in the public interest to offset the civil penalty required by
statute.
Notes
Cal. Code Regs. Tit. 11, §
3203
1. New section
filed 1-17-2003; operative 1-17-2003 pursuant to Government Code section
11343.4
(Register 2003, No. 3).
2. Amendment filed 8-30-2016; operative
10-1-2016 (Register 2016, No. 36).
Note: Authority cited: Sections
25249.7(f)(4)
and
25249.7(f)(5),
Health and Safety Code. Reference: Sections
25249.7(b)(2),
25249.7(f)(4)
and
25249.7(f)(5),
Health and Safety Code.
1. New section filed
1-17-2003; operative 1-17-2003 pursuant to Government Code section
11343.4(Register
2003, No. 3).
2. Amendment filed 8-30-2016; operative
10/1/2016
(Register
2016, No. 36).
