HB1054: HB1054 Safe Drinking Water and Toxic Enforcement Act of 2026; enact

26 LC 28 0720 House Bill 1054 By: Representatives Moore of the 91st, McQueen of the 61st, Cannon of the 58th, and Bell of the 75th A BILL TO BE ENTITLED AN ACT To amend Title 31 of the Official Code of Georgia Annotated, re lating to health, so as to1 provide that persons doing business in this state shall not exp ose individuals to chemicals2 known to cause cancer or reproductive toxicity without first gi ving clear and reasonable3 warning nor discharge such chemicals into drinking water; to pr ovide for the content and4 manner of the giving of such warnings; to provide for exception s; to provide that the5 Governor shall publish lists of such chemicals; to authorize the Attorney General and, under6 specified conditions, district attorneys and other persons to s eek injunctions and civil7 penalties; to provide for the Safe Drinking Water and Toxic Enf orcement Fund and its8 purposes and funding; to provide for definitions; to provide a short title; to provide for9 related matters; to provide a contingent effective date; to rep eal conflicting laws; and for10 other purposes.11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12 SECTION 1.13 Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding14 a new chapter to read as follows:15 H. B. 1054 - 1 - 26 LC 28 0720 "CHAPTER 5516 31-55-1.17 This chapter shall be known and may be cited as the 'Safe Drink ing Water and Toxic18 Enforcement Act of 2026.' This chapter may also be known and m ay be cited as the19 'Georgia Proposition 26 Act.'20 31-55-2.21 As used in this chapter, the term:22 (1) 'Person' means an individual, trust, firm, joint stock company, corporation, company,23 partnership, limited liability company, or association.24 (2) 'Person in the course of doing business' shall not include any person employing fewer25 than ten employees in his or her business; any city, county, or school district or any26 department or agency thereof; the state or any department or agency thereof; the federal27 government or any department or agency thereof; or any entity in its operation of a public28 water system as defined in Code Section 12-5-172.29 (3) 'Reproductive toxicity' means the potential risk from a given chemical, physical, or30 biological agent to adversely affect both male and female ferti lity as well as offspring31 development. Such term may include adverse effects on sexual f unction, ovarian32 function, and fertility as well as developmental toxicity in th e offspring. Lowered33 effective fertility related to such term relates to both male a nd female effects alike and34 is reflected in decreased sperm counts, semen quality, and ovarian failure.35 (4) 'Significant amount' means any detectable amount except an amount which would36 meet the exemption test in Code Section 31-55-8 if an individual were exposed to such37 an amount in drinking water.38 (5) 'Source of drinking water' means either a present source of drinking water or water39 which is identified or designated as being suitable for domestic or municipal uses.40 H. B. 1054 - 2 - 26 LC 28 0720 (6) 'Threaten to violate' m eans to create a condition in which there is a substantial41 probability that a violation will occur.42 (7) 'Warning' within the meaning of Code Section 31-55-4 need not be provided43 separately to each exposed individual and may be provided by general methods such as44 labels on consumer products, inclusion of notices in mailings to water customers, posting45 of notices, placing notices in public news media, and the like; provided, however, that the46 warning accomplished is clear and reasonable. In order to minimize the burden on retail47 sellers of consumer products including foods, regulations imple menting Code48 Section 31-55-4 shall to the extent practicable place the oblig ation to provide any49 warning materials such as labels on the producer or packager ra ther than on the retail50 seller, except where the retail seller itself is responsible for introducing a chemical known51 to the state to cause cancer or reproductive toxicity into the consumer product in question.52 31-55-3.53 No person in the course of doing business shall knowingly discharge or release a chemical54 known to the state to cause cancer or reproductive toxicity into water or onto or into land55 where such chemical passes or probably will pass into any sourc e of drinking water,56 notwithstanding any other provision or authorization of law exc ept as provided in Code57 Section 31-55-7.58 31-55-4.59 No person in the course of doing business shall knowingly and i ntentionally expose any60 individual to a chemical known to the state to cause cancer or reproductive toxicity without61 first giving clear and reasona ble warning to such individual ex cept as provided in Code62 Section 31-55-8.63 H. B. 1054 - 3 - 26 LC 28 0720 31-55-5.64 (a) A person that violates or threatens to violate Code Section 31-55-3 or 31-55-4 may be65 enjoined in any court of competent jurisdiction in this state.66 (b)(1) A person that has violated Code Section 31-55-3 or 31-55-4 shall be liable for a67 civil penalty not to exceed $2,500.00 per day for each violation in addition to any other68 penalty established by law. Such civil penalty may be assessed and recovered in a civil69 action brought in any court of competent jurisdiction in this state.70 (2) In assessing the amount of a civil penalty for a violation of this chapter, the court71 shall consider all of the following:72 (A) The nature and extent of the violation;73 (B) The number and severity of the violations;74 (C) The economic effect of the penalty on the violator;75 (D) Whether the violator took good faith measures to comply with this chapter;76 (E) The willfulness of the violator's misconduct;77 (F) The deterrent effect that the imposition of the penalty wo uld have on both the78 violator and the regulated community as a whole; and79 (G) Any other factor that justice may require.80 (c) Actions pursuant to this Code section may be brought by the Attorney General, by a81 district attorney, or as provided in subsection (d) of this Code section.82 (d) Actions pursuant to this Code section may be brought by a person in the public interest83 if both of the following requirements are met:84 (1) The private action is commenced more than 60 days from the date that the person has85 given notice of an alleged violation of Code Section 31-55-3 or 31-55-4 that is the subject86 of the private action to the Attorney General, the district attorney of the judicial circuit87 in which the alleged violator is located, and the alleged violator. If the notice alleges a88 violation of Code Section 31-55-4, the notice of the alleged vi olation shall include a89 certificate of merit executed by the attorney for the noticing party or by the noticing90 H. B. 1054 - 4 - 26 LC 28 0720 party, if the noticing party is not represented by an attorney. The certificate of merit shall91 state that the person executing the certificate has consulted with one or more persons with92 relevant and appropriate experience or expertise who have revie wed facts, studies, or93 other data regarding the exposure to the listed chemical that is the subject of the action,94 and that, based on that information, the person executing the certificate believes there is95 a reasonable and meritorious case for the private action. Factual information sufficient96 to establish the basis of the certificate of merit, including t he information identified in97 paragraph (2) of subsection (h) of this Code section, shall be attached to the certificate98 of merit that is served on the Attorney General; and99 ( 2 ) N e i t h e r t h e A t t o r n e y G e n e r a l n o r t h e d i s t r i c t a t t o r n e y h a s commenced and is100 diligently prosecuting an action against the violation.101 (e)(1)(A) If, after reviewing the factual information sufficient to establish the basis for102 the certificate of merit and meeting and conferring with the noticing party regarding the103 basis for the certificate of merit, the Attorney General believes there is no merit to the104 action, the Attorney General shall serve a letter to the notici ng party and the alleged105 violator stating the Attorney General believes there is no merit to the action.106 (B) If the Attorney General does not serve a letter pursuant to subparagraph (A) of this107 paragraph, this shall not be construed as an endorsement by the Attorney General of the108 merit of the action.109 (2) A person bringing an action in the public interest pursuant to subsection (d) of this110 Code section and a person filing an action in which a violation of this chapter is alleged111 shall notify the Attorney General that the action has been filed. Neither this subsection112 nor the procedures provided in subsections (f), (g), (h), (i), (j), and (k) of this Code113 section shall affect the requirements imposed by statute concer ning whether a person114 filing an action in which a violation of this chapter is alleged is required to comply with115 the requirements of subsection (d) of this Code section.116 H. B. 1054 - 5 - 26 LC 28 0720 (f)(1) A person filing an action in the public interest pursuant to subsection (d) of this117 Code section, a private person filing an action in which a viol ation of this chapter is118 alleged, or a private person settling a violation of this chapter alleged in a notice given119 pursuant to paragraph (1) of subsection (d) of this Code section shall, after the action or120 violation is subject either to a settlement or to a judgment, submit to the Attorney General121 a reporting form that includes the results of that settlement o r judgment and the final122 disposition of the case, even if dismissed. At the time of the filing of a judgment123 pursuant to an action brought in the public interest pursuant to subsection (d) of this Code124 section, or an action brought by a private person in which a vi olation of this chapter is125 alleged, the plaintiff shall file an affidavit verifying that t he report required by this126 subsection has been accurately completed and submitted to the Attorney General.127 (2) A person bringing an action in the public interest pursuant to subsection (d) of this128 Code section or a private person bringing an action in which a violation of this chapter129 is alleged shall, after the action is either subject to a settl ement, with or without court130 approval, or to a judgment, submit to the Attorney General a re port that includes131 information on any corrective action being taken as a part of the settlement or resolution132 of the action.133 (3) The Attorney General shall develop a reporting form that specifies the information134 that shall be reported, including, but not limited to, for purp oses of paragraph (2) of135 subsection (e) of this Code section, the date the action was fi led and the nature of the136 relief sought, and, for purposes of this subsection, the amount of the settlement or civil137 penalty assessed, other financial terms of the settlement, and any other information the138 Attorney General deems appropriate.139 (4) If there is a settlement of an action brought by a person in the public interest under140 subsection (d) of this Code section, the plaintiff shall submit the settlement, other than141 a voluntary dismissal in which no consideration is received fro m the defendant, to the142 H. B. 1054 - 6 - 26 LC 28 0720 court for approval upon noticed motion, and the court may approve the settlement only143 if the court makes all of the following findings:144 (A) The warning that is required by the settlement complies with this chapter;145 (B) The award of attorney's fees is reasonable under Georgia law; and146 (C) The penalty amount is reasonable based on the criteria set forth in paragraph (2)147 of subsection (b) of this Code section.148 (5) The plaintiff subject to paragraph (4) of this subsection has the burden of producing149 evidence sufficient to sustain each required finding. The plaintiff shall serve the motion150 and all supporting papers on the Attorney General, who may appear and participate in a151 proceeding without intervening in the case.152 (6) Neither this subsection nor the procedures provided in paragraph (2) of subsection (e)153 and subsections (g), (h), (i), (j), and (k) of this Code section shall affect the requirements154 imposed by statute concerning whether claims raised by a person or public prosecutor not155 a party to the action are precluded by a settlement approved by the court.156 (g) The Attorney General shall maintain a record of the inform ation submitted pursuant157 to subsections (e) and (f) of this Code section and shall make this information available to158 the public.159 (h)(1) The basis for the certificate of merit required by subs ection (d) of this Code160 section shall be discoverable only to the extent that the infor mation is relevant to the161 subject matter of the action and not subject to the attorney-client privilege, the attorney162 work product privilege, or any other legal privilege.163 (2) Upon the conclusion of an action brought pursuant to subse ction (d) of this Code164 section with respect to a defendant, if the trial court determines that there was no actual165 or threatened exposure to a listed chemical, the court may, upo n the motion of that166 alleged violator or upon the court's own motion, review the bas is for the belief of the167 person executing the certificate of merit, expressed in the cer tificate of merit, that an168 exposure to a listed chemical had occurred or was threatened. The information in the169 H. B. 1054 - 7 - 26 LC 28 0720 certificate of merit, including the identity of the persons consulted with and relied on by170 the certifier and the facts, studies, or other data reviewed by those persons, shall be171 disclosed to the court in an in-camera proceeding at which the moving party shall not be172 present. If the court finds that there was no credible factual basis for the certifier's belief173 that an exposure to a listed chemical had occurred or was threatened, then the action shall174 be deemed frivolous within the meaning of Code Section 9-15-14. The court shall not175 find a factual basis credible on the basis of a legal theory of liability that is frivolous176 within the meaning of Code Section 9-15-14.177 (i) The Attorney General may provide the factual information submitted to establish the178 basis of the certificate of merit on request to a district attorney within whose judicial circuit179 the violation is alleged to have occurred or to any other state or federal government agency,180 but, in all other respects, the Attorney General shall maintain and ensure that all recipients181 maintain the submitted information as confidential official information to the full extent182 authorized.183 (j) In an action brought by the A ttorney General or a district attorney pursuant to this184 chapter, the Attorney General or district attorney may seek and recover costs and attorney's185 fees on behalf of a party who provides a notice pursuant to sub section (d) of this Code186 section and who renders assistance in that action.187 (k) Any person who serves a notice of alleged violation pursua nt to paragraph (1) of188 subsection (d) of this Code section for an exposure identified in such paragraph, as189 appropriate, shall provide to the alleged violator at the time the notice of alleged violation190 is served a notice of special compliance procedure and proof of compliance form pursuant191 to subsection (l) of this Code section and shall not file an action for that exposure against192 the alleged violator, or recover from the alleged violator in a settlement any payment in lieu193 of penalties or any reimbursement for costs and attorney's fees , if all of the following194 conditions have been met:195 H. B. 1054 - 8 - 26 LC 28 0720 (1) The notice given pursuant to paragraph (1) of subsection (d) of this Code section was196 served on or after January 1, 2027, and alleges that the alleged violator failed to provide197 clear and reasonable warning as required under Code Section 31-55-4 regarding one or198 more of the following:199 (A) An exposure to alcoholic beverages that are consumed on th e alleged violator's200 premises to the extent onsite consumption is permitted by law;201 (B) An exposure to a chemical known to the state to cause canc er or reproductive202 toxicity in a food or beverage prepared and sold on the alleged violator's premises203 primarily intended for immediate consumption on or off premises, to the extent of both204 of the following:205 (i) The chemical was not intentionally added; and206 (ii) The chemical was formed by cooking or similar preparation of food or beverage207 components necessary to render the food or beverage palatable o r to avoid208 microbiological contamination;209 (C) An exposure to environmental tobacco smoke caused by entry of persons, other210 than employees, on premises owned or operated by the alleged violator where smoking211 is permitted at any location on the premises; or212 (D) An exposure to chemicals known to the state to cause cance r or reproductive213 toxicity in engine exhaust, to the extent the exposure occurs inside a facility owned or214 operated by the alleged violator and primarily intended for par king noncommercial215 vehicles;216 (2) Within 14 days after service of the notice, the alleged vio lator has done all of the217 following:218 (A) Corrected the alleged violation;219 (B)(i) Agreed to pay a civil penalty for the alleged violation of Code Section 31-55-4220 in the amount of $500.00, to be adjusted every five years pursuant to division (ii) of221 this subparagraph, per facility or premises where the alleged v iolation occurred, of222 H. B. 1054 - 9 - 26 LC 28 0720 which 75 percent shall be deposited in the Safe Drinking Water and Toxic223 Enforcement Fund, and 25 percent shall be paid to the person that served the notice224 as provided in Code Section 31-55-9.225 (ii) On April 1, 2031, and at each five-year interval thereafter, the dollar amount of226 the civil penalty provided pursuant to this subparagraph shall be adjusted by the227 Judicial Council of Georgia based on the change in the annual G eorgia Consumer228 Price Index for All Urban Consumers published by the Bureau of Labor Statistics of229 the United States Department of Labor for the most recent five-year period ending on230 December 31 of the year preceding the year in which the adjustment is made, rounded231 to the nearest $5.00. The Judicial Council of Georgia shall every five years publish232 the dollar amount of the adjusted civil penalty provided pursuant to this subparagraph,233 together with the date of the next scheduled adjustment; and234 (C) Notified, in writing, the person that served the notice of the alleged violation that235 the violation has been corrected. The written notice shall include the notice of special236 compliance procedure and proof of compliance form specified in subsection (l) of this237 Code section, which was provided by the person serving notice of the alleged violation238 and which shall be completed by the alleged violator as directed in the notice; and239 (3) The alleged violator shall deliver the civil penalty to the person that served the notice240 of the alleged violation within 30 days of service of that notice, and the person that served241 the notice of violation shall remit the portion of the penalty due to the Safe Drinking242 Water and Toxic Enforcement Fund within 30 days of receipt of t he funds from the243 alleged violator.244 (l) The Attorney General shall promulgate a form for the notic e which is required to be245 provided to an alleged violator pursuant to subsection (k) of this Code section by April 1,246 2027. Such notice shall provide for identification of the persons bringing the notice and247 provide a contact individual with an address for mail and electronic communications with248 such persons; a statement of intent to pursue private action if the public enforcement249 H. B. 1054 - 10 - 26 LC 28 0720 agencies do not commence or diligently pursue an action to rectify the problem complained250 of; a summary of the provisions of this chapter; a statement of the alleged violation; the251 number and duration of the alleged violations; a specific identification of the product which252 is the subject of the complaint; the chemical allegedly causing the exposure; the routes of253 such exposure; the types of harm resulting from such exposure; a demand for preservation254 of evidence by all noticed recipients to include all documents relating to the presence of255 the chemical in the product; purchase and sales information for the product, which shall256 include, but not be limited to, purchasers and suppliers, quantities sold and in inventory,257 the identity of the manufacturers, producers, packagers, import ers, suppliers, and258 distributors, quantity sold or distributed per transaction, as well as the suppliers of the raw259 material, and the current inventory of the product in Georgia; efforts to comply with the260 provisions of this chapter with respect to the product, and communications with any person261 relating to the presence or potential presence of the chemical in the product.262 (m) An alleged violator may satisfy the conditions set forth in subsection (k) of this Code263 section only one time for a violation arising from the same exp osure in the same facility264 or on the same premises.265 (n) Nothing in subsection (k) of this Code section shall prevent the Attorney General or266 a district attorney in whose judicial circuit a violation is al leged to have occurred from267 filing an action pursuant to subsection (c) of this Code section against an alleged violator. 268 In any such action, the amount of any civil penalty for a viola tion shall be reduced to269 reflect any payment made by the alleged violator for the same alleged violation pursuant270 to subparagraph (k)(2)(B) of this Code section.271 (o) If a violation of this chapter is alleged or the application or construction of provisions272 of this chapter is at issue in a proceeding in the Supreme Cour t or the Court of Appeals,273 each party shall serve a copy of the party's brief or petition and brief on the Attorney274 General. Service on the Attorney General shall be accomplished by serving the brief, or275 petition and brief, at the service address designated by the Attorney General. A brief shall276 H. B. 1054 - 11 - 26 LC 28 0720 not be accepted or filed unless the proof of service shows service on the Attorney General. 277 A party failing to comply with this subsection shall be given a reasonable opportunity to278 cure the failure before the court imposes sanction, and, in tha t instance, the court shall279 allow the Attorney General reasonable additional time to file a brief in the matter.280 31-55-6.281 (a) On or before January 1, 2027, the Governor shall cause to be published a list of those282 chemicals known to the state to cause cancer or reproductive toxicity as provided in this283 chapter, and the Attorney General shall cause such list to be revised and republished in284 light of additional knowledge at least once per year thereafter. Such list shall include at a285 minimum those substances listed as human or animal carcinogens by the International286 Agency for Research on Cancer, as amended, and those substances within the scope of the287 federal Hazard Communication Standard, 29 C.F.R. Section 1910.1200, as amended.288 (b) A chemical is known to the state to cause cancer or reprod uctive toxicity within the289 meaning of this chapter if, in the opinion of the state's qualified experts, it has been clearly290 shown through scientifically valid testing according to general ly accepted principles to291 cause cancer or reproductive toxicity; if a body considered to be authoritative by such292 experts has formally identified it as causing cancer or reproductive toxicity; or if an agency293 of the state or federal government has formally required it to be labeled or identified as294 causing cancer or reproductive toxicity.295 (c) On or before January 1, 2027, and at least once per year thereafter, the Governor shall296 cause to be published a separate list of those chemicals that at the time of publication are297 required by state or federal law to have been tested for potent ial to cause cancer or298 reproductive toxicity but that the state's qualified experts ha ve not found to have been299 adequately tested as required.300 (d) The Governor shall identify and consult with the state's qualified experts as necessary301 to carry out his or her duties under this Code section.302 H. B. 1054 - 12 - 26 LC 28 0720 (e) In carrying out the duties of the Governor under this Code section, the Governor and303 his or her designees shall not be considered to be adopting or amending a regulation within304 the meaning of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'305 31-55-7.306 (a) Code Section 31-55-3 shall not apply to any discharge or release that takes place less307 than 20 months subsequent to the listing of the chemical in question on the list required to308 be published under subsection (a) of Code Section 31-55-6.309 (b)(1) Code Section 31-55-3 shall not apply to any discharge or release that meets both310 of the following criteria:311 (A) The discharge or release will not cause any significant amount of the discharged312 or released chemical to enter any source of drinking water; and313 (B) The discharge or release is in conformity with all other l aws and with every314 applicable regulation, permit, requirement, and order.315 (2) In any action brought to enforce Code Section 31-55-3, the burden of showing that316 a discharge or release meets the criteria of this subsection shall be on the defendant.317 31-55-8.318 (a) Code Section 31-55-4 shall not apply to any of the following:319 (1) An exposure for which federal law governs warnings in a manner that preempts state320 authority;321 (2) An exposure that takes place less than 12 months subsequen t to the listing of the322 chemical in question on the list required to be published under subsection (a) of Code323 Section 31-55-6; and324 (3) An exposure for which the person responsible can show that the exposure poses no325 significant risk assuming lifetime exposure at the level in question for substances known326 to the state to cause cancer, and that the exposure will have no observable effect assuming327 H. B. 1054 - 13 - 26 LC 28 0720 exposure at 1,000 times the level in question for substances known to the state to cause328 reproductive toxicity, based on evidence and standards of comparable scientific validity329 to the evidence and standards which form the scientific basis f or the listing of such330 chemical pursuant to subsection (a) of Code Section 31-55-6.331 (b) In any action brought to enforce Code Section 31-55-4, the burden of showing that an332 exposure meets the criteria of this Code section shall be on the defendant.333 31-55-9.334 (a) The Governor shall designate a lead agency and other agencies that may be required335 to implement this chapter, including this Code section. Each agency so designated may336 adopt and modify rules and regulations, standards, and permits as necessary to conform337 with and implement this chapter and to further its purposes.338 (b) The Safe Drinking Water and Toxic Enforcement Fund is here by established in the339 state treasury. The director of the lead agency designated by the Governor to implement340 this chapter may expend the funds in the Safe Drinking Water an d Toxic Enforcement341 Fund, upon appropriation by the General Assembly, to implement and administer this342 chapter. The lead agency designated by the Governor under this Code section shall submit343 a report to the Governor, Lieutenant Governor, and Speaker of t he House of344 Representatives on December 1 of each calendar year detailing the revenues and expenses345 of such fund.346 (c) In addition to any other money that may be deposited in the Safe Drinking Water and347 Toxic Enforcement Fund, all of the following amounts shall be deposited in the fund:348 (1) Seventy-five percent of all civil and criminal penalties c ollected pursuant to this349 chapter; and350 (2) Any interest earned upon the money deposited into the Safe Drinking Water and351 Toxic Enforcement Fund.352 H. B. 1054 - 14 - 26 LC 28 0720 (d) Twenty-five percent of all civil and criminal penalties collected pursuant to this chapter353 shall be paid to the office of the Attorney General or the district attorney, whichever office354 brought the action, or, in the case of an action brought by a person under subsection (d) of355 Code Section 31-55-5, to that person.356 31-55-10.357 Nothing in this chapter shall alter or diminish any legal oblig ation otherwise required in358 common law or by statute or regulation, and nothing in this chapter shall create or enlarge359 any defense in any action to enforce such legal obligation. Penalties and sanctions imposed360 under this chapter shall be in addition to any penalties or san ctions otherwise prescribed361 by law.362 31-55-11.363 The Department of Economic Development shall post in a conspicu ous location on its364 public website, and include with any informational materials pr ovided to businesses365 relating to a business's obligations under state law, a disclaimer that states the following:366 'The Safe Drinking Water and Toxic Enforcement Act of 2026 requ ires businesses to367 provide a clear and reasonable warning before knowingly and int entionally exposing368 anyone to chemicals that are known to the state to cause cancer or birth defects or other369 reproductive harm. It is important to know that a product that receives certification from370 the United States Food and Drug Administration, or another fede ral agency or state371 agency, is not necessarily exempt from Georgia requirements for chemical exposure372 warnings. Businesses should be aware of the levels of harmful chemicals in their373 products and of applicable requirements under the Safe Drinking Water and Toxic374 Enforcement Act of 2026.'"375 H. B. 1054 - 15 - 26 LC 28 0720 SECTION 2.376 This Act shall become effective on January 1, 2027, if a constitutional amendment is adopted377 by the electors at the 2026 General Election authorizing the cr eation of the Safe Drinking378 Water and Toxic Enforcement Fund. If such constitutional amendment is not adopted at the379 2026 General Election, then this Act shall not become effective and shall be repealed by380 operation of law on such date.381 SECTION 3.382 All laws and parts of laws in conflict with this Act are repealed.383 H. B. 1054 - 16 -