BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 965| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 965 Author: Wright (D) and Blakeslee (R) Amended: 8/29/12 Vote: 21 SENATE ENVIRONMENTAL QUALITY COMMITTEE : 6-0, 4/23/12 AYES: Simitian, Strickland, Blakeslee, Hancock, Kehoe, Lowenthal NO VOTE RECORDED: Pavley SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SENATE FLOOR : 33-1, 5/29/12 AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Dutton, Emmerson, Fuller, Gaines, Harman, Hernandez, Huff, Kehoe, La Malfa, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla, Price, Rubio, Simitian, Steinberg, Strickland, Vargas, Walters, Wright, Wyland NOES: Wolk NO VOTE RECORDED: Evans, Hancock, Leno, Pavley, Runner, Yee ASSEMBLY FLOOR : Not available SUBJECT : Water quality control boards: ex parte communications SOURCE : Author CONTINUED SB 965 Page 2 DIGEST : This bill establishes allowable ex parte communications with State Water Resources Control Board (SWRCB) and Regional Water Quality Control Board (RWQCB) members and increases the public access to the SWRCB and RWQCB public processes. Assembly Amendments make clarifying provisions to the Senate version of the bill. ANALYSIS : Under existing law, the SWRCB and the California RWQCBs 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 law authorizes the SWRCB and RWQCBs to hold hearings necessary for carrying out their duties, as specified. The Administrative Procedure Act (APA) 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 APA 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 APA 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 APA 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: 1. Allows ex-party communications with members of the SWRCB CONTINUED SB 965 Page 3 and the RWQCBs as follows: A. Defines "interested person" as: (1) A participant in the proceeding regarding a matter before a board, or an agent, employee, or a person receiving consideration for representing that participant; (2) A person with a financial interest in a matter before a board, or an agent, employee, or a person receiving consideration for representing that person; and (3) A representative acting on behalf of a civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a board member on a matter before the board. B. Defines "ex parte communication" as an oral or written communication between a board member and an interested person about a matter within the board's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or on the official record of the proceeding on the matter. C. Allows ex parte communication if the contact is initiated by an interested person and directed to a SWRCB or RWQCB member regarding: (1) Waste discharge requirements; (2) Conditions of water quality certification; and (3) Conditional waivers of waste discharge requirements where the board action does not identify specific persons or dischargers, but instead allows persons to enroll or file an authorization to discharge under the action. D. Requires a notice of the ex parte communication to be provided to the SWRCB and RWQCBs record within seven days of the communication. CONTINUED SB 965 Page 4 E. Requires the SWRCB or RWQCB to place in the public record any report of an ex parte communication involving that board. 2. Requires the SWRCB and RWQCB public meeting rules to provide adequate time for public witnesses who are testifying before the SWRCB and RWQCBs. Requires that the SWRCB and RWQCBs provide at least twice the testimony time for a member of the public who utilizes a translator. The requirement for additional testimony time would not apply in those cases where simultaneous translation services are required. 3. Authorizes a board to 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. 4. Requires all ex parte communications to be reported, as specified, by the interested person, regardless of whether the communication was initiated by the interested person. 5. Authorizes the state board or a regional board, in the event that an interested person fails to provide any required notice in the manner required by the bill, to use the remedies available under the administrative adjudication provisions of the APA. 6. Requires the state board or a regional board to make each meeting agenda notice that the state board or a regional board provides available in both English and Spanish and permits the state board or a regional board to make the agenda notice available in any other language. 7. Requires a state body subject to the act that limits time for public testimony to provide at least twice the allotted time to a member of the public who utilizes a translator to ensure that non-English speakers receive the same opportunity to directly address the body, with a specified exception. CONTINUED SB 965 Page 5 Background Ex parte rules for boards and commissions . Ex parte communications are made in private between an interested party in a decisionmaking process and an official in a decisionmaking position. Because they can introduce an element of bias in a decisionmaking process federal and state law as well as agency policy prescribe requirements for ex parte communications for specified proceedings. Because boards and commissions can vary in the type of proceedings held, the process of each may vary for each board or commission. SWRCB . SWRCB regulations (Title 23 California Code of Regulations, Section 648) conform to the APA relative to adjudicatory proceedings, including the limitations on ex parte communications. Should a prohibited ex parte communication be received during an adjudicatory proceeding, the board member must disclose the communication on the record. Disclosure requires either (1) including a written ex parte communication in the record, along with any response from the board member, or (2) memorializing an oral communication by including a memorandum in the record stating the substance of the communication, identifying who was present at the time of the communication and any response from the member. The board member must notify all parties of the ex parte disclosures. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/31/12) Agricultural Council of California California Bean Shippers Association California Building Industry Association California Cement Manufacturers Environmental Coalition California Chamber of Commerce California Council for Environmental and Economic Balance California Grain and Feed Association California Grocers Association California League of Food Processors California Manufacturers & Technology Association CONTINUED SB 965 Page 6 California Metals Coalition California Pear Growers Association California Precast Concrete Association California Seed Association California State Floral Association Chemical Industry Council of California Family Winemakers of California Golden State Builders Exchanges Institute of Scrap Recycling Industries League of California Cities LKQ Corporation Lumber Association of California & Nevada National Federation of Independent Business Pacific Egg and Poultry Association Pacific Merchant Shipping Association Rio Tinto Minerals State of California Auto Dismantlers Association United Contractors Western Growers Association Western Wood Preservers Institute ARGUMENTS IN SUPPORT : According to the author's office, there is no existing statute governing ex parte communications at proceedings of the SWRCB or RWQCBs. The author's office states that board staff believe that state and regional water board members and staff must follow ex parte rules similar to rules that must be followed by judges, defendants and plaintiffs in courts. The author's office argues that all administrative avenues have been exhausted, in that the board staff and counsel have heretofore resisted calls to conform the ex parte regulations of the boards to be consistent with those used by other regulatory agencies within and outside of the California Environmental Protection Agency. According to the author's office, the Little Hoover Commission, the Department of Water Resources and other public and private entities and individuals have strongly suggested the board staff modify its rules. Supporters argue that this bill will make members of SWRCB more accessible to the public, including stakeholders that are regulated by the SWRCB and RWQCBs. Supporters argue that access to decision makers is critical to ensuring CONTINUED SB 965 Page 7 effective and balanced public policy. Supporters state that several years ago, the staff of the SWRCB determined that the process of the adoption of standards and permits was a quasi-judicial process, despite the fact that many storm water permits and other actions taken by SWRCB clearly do not fall within that category. As a result of this interpretation board members are prohibited from communicating with stakeholders in developing permits and policies, even though these permits may often apply to large groups of stakeholders in the regulated community. The supporters argue that this restriction on communication, or ex parte rules limit the regulated entities' ability to discuss important and complex issues with board members despite the profound fiscal impact board decisions can have on these regulated entities. Supporters believe that the current process diminishes the ability of local governments, businesses and other stakeholders to provide valuable information to the water boards since their opportunity to comment is often limited to a few minutes of testimony during a formal hearing. The California Council for Environmental and Economic Balance states, "This bill would end the policy at the State Water Resources Control Board (SWRCB) and Regional Water Quality Control Boards (RWQCBs) that prevent stakeholders from having ex-parte discussions with board members on specified matters. The current practice generally limits a stakeholder's involvement to written comments, public workshops, and 2-3 minutes of testimony at adoption hearings. Other regulatory bodies allow stakeholders to interact with board members as long as it is disclosed publicly. CCEEB believes public communications with regulators in their policy-making and quasi-legislative roles are important and should be allowed at the SWRCB and RWQCBs. DLW:m 8/31/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED SB 965 Page 8 CONTINUED