BILL NUMBER: SB 965	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  AUGUST 24, 2012
	AMENDED IN ASSEMBLY  JUNE 21, 2012
	AMENDED IN SENATE  MAY 2, 2012
	AMENDED IN SENATE  MARCH 28, 2012
	AMENDED IN SENATE  MARCH 8, 2012

INTRODUCED BY   Senator Wright
    (   Principal coauthor:   Assembly Member
  Alejo   ) 
   (Coauthor: Senator Blakeslee)

                        JANUARY 11, 2012

   An act to  amend Section 13228.14 of, to add Sections 13167.6
and 13169.5 to, and to  add  Section 13293 
 Chapter 4.1 (commencing with Section 13287)  to 
Division 7 of,  the Water Code, relating to  water
quality.   water. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 965, as amended, Wright. State Water Resources Control Board
and California regional water quality control  boards: ex
parte communications.   boards.  
   Under 
    (1)     Under  existing law, the State
Water Resources Control Board (state board) and the California
regional water quality control boards (regional boards) implement the
Federal Water Pollution Control Act and the Porter-Cologne Water
Quality Control Act by prescribing waste discharge requirements for
discharges to the waters of the state, as specified. 
Existing  
   This bill would require the state board and each regional board to
establish an environmental justice coordinator with prescribed
duties. 
    (2)     Existing  law authorizes the
state board and regional boards to hold hearings necessary for
carrying out their duties, as specified. 
   This bill would also require the state board or a regional board,
if the amount of time for each individual speaker to comment or
testify at any hearing of the state board or regional board is
limited as specified, to provide at least twice the allotted time to
a member of the public who utilizes a translator, with a prescribed
exception.  
   The 
    (3)     Existing law, the 
Administrative Procedure Act  ,  establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a
state agency formulates and issues a decision. Existing law defines a
decision as an agency action of specific application that determines
a legal right, duty, privilege, immunity, or other legal interest of
a particular person.  The   While an
adjudication is pending, the  act prohibits, as an ex parte
communication,  while an adjudication is pending, 
any communication, direct or indirect, regarding any issue in the
proceeding, to the presiding officer, as defined, from an employee or
representative of an agency that is a party or from an interested
person outside the agency, without notice and opportunity for all
parties to participate in the communication. The act provides that if
the above prohibition is violated, the presiding officer shall
promptly disclose the content of the communication on record and give
all parties an opportunity to address the communication, as
specified. The act also provides that a violation of that prohibition
may be grounds for disqualification of the officer who engaged in
the ex parte communication.
   This bill would provide that the ex parte communications
provisions of the Administrative Procedure Act do not apply to
specified proceedings of the state board or a regional board. The
bill would  , instead,  define an ex parte
communication  for these purposes  as an oral or written
communication with one or more board members regarding those
specified state  board  or regional board 
proceedings, and   proceedings. This bill  would
specify the  only  instances in which an ex parte
communication involving those specified proceedings is permissible.
 The bill would permit oral ex parte communications at any
time by any board member if the board member involved in the
communication notifies, and provides specified requirements for the
participation of, all interested persons, as defined. The bill would
permit written ex parte communications by any person provided that
the interested person who makes the communications provides copies of
the communication to all interested persons, as specified. The bill
would require that if an individual ex parte communication meeting or
call is granted to any interested person, all other interested
persons shall also be granted individual ex parte meetings of a
substantially equal period of time with the board member. 
   The bill would authorize a board to prohibit ex parte
communications for a period beginning not more than 14 days before
the day of  the   a  board meeting at which
the decision in the proceeding is scheduled for board action.
   The bill would require  that, in any case,  all
ex parte communications  to  be reported, as specified, by
the interested person, regardless of whether the communication was
initiated by the interested person.
   The bill would authorize the state board or a regional board, in
the event that an interested person fails to provide  the
  any required  notice  in the manner 
required by the bill, to use the remedies available under the
administrative adjudication provisions of the Administrative
Procedure Act.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 13167.6 is added to the 
 Water Code   , to read:  
   13167.6.  (a) At any hearing of the state board, if the state
board limits the amount of time for each individual speaker to
comment or testify pursuant to Section 11125.7 or 54954.3 of the
Government Code, the state board shall provide at least twice the
allotted time to a member of the public who utilizes a translator, in
order to ensure that non-English speakers receive the same
opportunity to directly address the state board.
   (b) Subdivision (a) shall not apply if the state board utilizes
simultaneous translation equipment in a manner that allows the state
body to hear the translated public testimony simultaneously. 
   SEC. 2.    Section 13169.5 is added to the  
Water Code   , to read:  
   13169.5.  The state board and each regional board shall establish
an environmental justice coordinator duties tasks include, but are
not limited to, all of the following:
   (a) Conducting research on best practices for developing and
implementing the state board's environmental justice program.
   (b) Conducting training and developing informational material on
environmental justice for all appointees, management, and staff of
the state board or regional board.
   (c) Reviewing and incorporating into the environmental justice
program relevant legislation.
   (d) Providing assistance and guidance on environmental justice
events and activities to the executive director relative to the
California Environmental Protection Agency's Environmental Justice
Advisory Committee.
   (e) Incorporating the state board's bilingual program to ensure
full participation by all Californians. 
   SEC. 3.    Section 13228.14 of the   Water
Code   is amended to read: 
   13228.14.  (a) Any hearing or investigation by a regional board
relating to investigating the quality of waters of the state,
prescribing waste discharge requirements, issuing cease and desist
orders, requiring the cleanup or abatement of waste, or imposing
administrative civil liabilities or penalties may be conducted by a
panel of three or more members of the regional board, but any final
action in the matter shall be taken by the regional board. Due notice
of any hearing shall be given to all affected persons. After a
hearing, the panel shall report its proposed decision and order to
the regional board and shall supply a copy to all parties who
appeared at the hearing and requested a copy.
   (b) No party who appears before the panel is precluded from
appearing before the regional board at any subsequent hearing
relating to the matter. Members of the panel are not disqualified
from sitting as members of the regional board in deciding the matter.

   (c) The regional board, after making an independent review of the
record and taking additional evidence as may be necessary, may adopt,
with or without revision, or reject, the proposed decision and order
of the panel. 
   (d) (1) At any hearing of a regional board, if the regional board
limits the amount of time for each individual speaker to comment or
testify pursuant to Section 11125.7 or 54954.3 of the Government
Code, the regional board shall provide at least twice the allotted
time to a member of the public who utilizes a translator, in order to
ensure that non-English speakers receive the same opportunity to
directly address the state board.  
   (2) Paragraph (1) shall not apply if a regional board utilizes
simultaneous translation equipment in a manner that allows the
regional body to hear the translated public testimony simultaneously.

   SEC. 4.    Chapter 4.1 (commencing with Section
13287) is added to Division 7 of the   Water Code  
, to read:  
      CHAPTER 4.1.  EX PARTE COMMUNICATIONS


   13287.  (a) For the purposes of this section:
   (1) "Board" means the state board or a regional board.
   (2) "Ex parte communication" means an oral or written
communication with one or more board members concerning matters,
other than a matter of procedure or practice that is not in
controversy, under the jurisdiction of a board, regarding a pending
action of the board that satisfies both of the following:
   (A) The action does not identify specific persons as dischargers,
but instead allows persons to enroll or file an authorization to
discharge under the action.
   (B) The action is for adoption, modification, or rescission of one
or more of the following:
   (i) Waste discharge requirements pursuant to Section 13263 or
13377.
   (ii) Conditions of water quality certification pursuant to Section
13160.
   (iii) Conditional waiver of waste discharge requirements pursuant
to Section 13269.
   (3) "Interested person" means any of the following:
   (A) Any person who will be required to enroll or file
authorization to discharge pursuant to the action at issue before the
board or that person's agents or employees, including persons
receiving consideration to represent that person.
   (B) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter at issue before a board, or that person'
s agents or employees, including persons receiving consideration to
represent that person.
   (C) A representative acting on behalf of any formally organized
civic, environmental, neighborhood, business, labor, trade, or
similar association who intends to influence the decision of a board
member on a matter before the board.
   (b) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to a board action identified in paragraph (2) of subdivision (a).
This section only applies to those actions.
   (c) For the purposes of this section, and except as limited by
subdivision (d), ex parte communications regarding a board action
identified in paragraph (2) of subdivision (a) may be permitted as
follows:
   (1) All ex parte communications shall be reported by the
interested person, regardless of whether the communication was
initiated by the interested person.
   (2) A notice of ex parte communication shall be filed with the
board within seven working days of the communication. The notice may
address multiple ex parte communications in the same proceeding,
provided that notice of each communication identified therein is
timely. The notice shall include all of the following information:
   (A) The date, time, and location of the communication, and whether
it was oral or written, or both.
   (B) The identities of each board member involved, the person
initiating the communication, and any persons present during the
communication.
   (C) A description of the interested person's communication and the
content of this communication. A copy of any written, audiovisual,
or other material used for or during the communication shall be
attached to this description.
   (3) Board staff shall promptly post any notices provided pursuant
to paragraph (2) on the board's Internet Web site and distribute the
notice on any available electronic distribution list concerning the
action.
   (d) A board may prohibit ex parte communications for a period
beginning not more than 14 days before the day of a board meeting at
which the decision in the proceeding is scheduled for board action.
If a board continues the decision, it may permit ex parte
communications during the interval between the originally scheduled
date and the date that the decision is calendared for final decision,
and may prohibit ex parte communications for 14 days before the day
of the board meeting to which the decision is continued.
   (e) If an interested person fails to provide any required notice
in the manner required by this section, the board may use any of the
remedies available pursuant to the administrative adjudication
provisions of the Administrative Procedure Act (Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of Title 2 of
the Government Code), including the issuance of an enforcement
order, or sanctions pursuant to Article 12 (commencing with Section
11455.10) of Chapter 4 of Part 1 of Division 3 of Title 2 of the
Government Code.  
  SECTION 1.    Section 13293 is added to the Water
Code, to read:
   13293.  (a) For the purposes of this section:
   (1) "Ex parte communication" means an oral or written
communication with one or more board members concerning matters,
other than a matter of procedure or practice that is not in
controversy, under the jurisdiction of a board, regarding an action
of the board that satisfies both of the following:
   (A) The action does not identify specific persons as dischargers,
but instead allows persons to enroll or file an authorization to
discharge under the action.
   (B) The action is for adoption, modification, or rescission of one
or more of the following:
   (i) Waste discharge requirements pursuant to Section 13263 or
13377.
   (ii) Conditions of water quality certification pursuant to Section
13160.
   (iii) Conditional waiver of waste discharge requirements pursuant
to Section 13269.
   (2) "Interested person" means either of the following:
   (A) Any person who will be required to enroll or file
authorization to discharge pursuant to the action or with a financial
interest, as described in Section 87103 of the Government Code, in a
matter at issue before a board, or that person's agents or
employees, including persons receiving consideration to represent
that person.
   (B) A representative acting on behalf of any formally organized
civic, environmental, neighborhood, business, labor, trade, or
similar association who intends to influence the decision of a board
member on a matter before the board.
   (b) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to a board action identified in paragraph (1) of subdivision (a).
This section only applies to those actions.
   (c) For the purposes of this section, and except as limited by
subdivision (d), ex parte communications regarding a board action
identified in paragraph (1) of subdivision (a) may be permitted only
as follows:
   (1) Oral ex parte communications may be permitted at any time by
any board member provided that the board member involved in the
communication does each of the following:
   (A) Invites all interested persons to attend the meeting or sets
up a conference call in which all interested persons may participate.

   (B) Gives notice of the meeting or call as soon as possible, but
no less than three days before the meeting or call.
   (2) Written ex parte communications may be permitted by any
interested person provided that the interested person making the
communication serves copies of the communication on all other
interested persons on the same day the communication is sent to a
board member, or makes arrangements with the board staff to ensure
that all interested persons have been provided copies of the
communication.
   (3) If an individual ex parte communication meeting or call is
granted to any interested person, all other interested persons shall
also be granted individual ex parte meetings of a substantially equal
period of time with the board member. The interested person
requesting the initial individual meeting shall notify the other
interested persons that its request has been granted, and shall file
a certificate of service of this notification at least three days
before the meeting or call.
   (d) A board may prohibit ex parte communications for a period
beginning not more than 14 days before the day of the board meeting
at which the decision in the proceeding is scheduled for board
action. If the board continues the decision, it may permit ex parte
communications during the first half of the interval between the
originally scheduled date and the date that the decision is
calendared for final decision, and may prohibit ex parte
communications for the second half of the period, provided that the
period of prohibition shall begin not more than 14 days before the
day of the board meeting to which the decision is continued.
   (e) All ex parte communications made regarding a board action
identified in paragraph (1) of subdivision (a) shall be reported by
the interested person, regardless of whether the communication was
initiated by the interested person. A notice of ex parte
communication shall be filed with the board within three working days
of the communication. The notice may address multiple ex parte
communications in the same proceeding, provided that notice of each
communication identified therein is timely. The notice shall include
all of the following information:
   (1) The date, time, and location of the communication, and whether
it was oral, written, or both.
   (2) The identities of each board member involved, the person
initiating the communication, and any persons present during the
communication.
   (3) A description of the interested person's communication and the
content of this communication. A copy of any written, audiovisual,
or other material used for or during the communication shall be
attached to this description.
   (f) If an interested person fails to provide notice as required by
this section, a board may use the remedies available under the
administrative adjudication provisions of the Administrative
Procedure Act (Chapter 4.5 (commencing with Section 11400) of Part 1
of Division 3 of Title 2 of the Government Code), including the
issuance of an enforcement order, or sanctions pursuant to Article 12
(commencing with Section 11455.10) of Chapter 4 of Part 1 of
Division 3 of Title 2 of the Government Code.