BILL NUMBER: SB 965 AMENDED
BILL TEXT
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
(Coauthor: Senator Blakeslee)
JANUARY 11, 2012
An act to add Section 13293 to the Water Code, relating to water
quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 965, as amended, Wright. State Water Resources Control Board
and California regional water quality control boards: ex parte
communications.
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 law authorizes the state board and regional
boards to hold hearings necessary for carrying out their duties, as
specified.
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 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 as an oral or
written communication with one or more board members regarding those
specified state or regional board proceedings , and 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 parties interested persons ,
as specified as defined . The bill
would permit written ex parte communications by any party
person provided that the interested person
, as defined, who makes the communications
provides copies of the communication to all parties
interested persons , as specified. The bill
would require that if an individual ex parte communication meeting or
call is granted to any interested party
person , all other parties 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 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 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 notice
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 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 purely procedural matters 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 any either
of the following:
(A) Any party to the proceeding or the agents or employees of any
party, including persons receiving consideration to represent any of
them.
(B)
( 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 Article 1
(commencing with Section 87100) of Chapter 7 of Title 9
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.
(C)
(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 , even if that
association is not a party to the proceeding .
(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) shall
be prohibited. Ex parte communications 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 parties interested persons
to attend the meeting or sets up a conference call in which
all parties 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
party interested person provided that
the interested person making the communication serves copies of the
communication on all parties 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 parties persons
have been provided copies of the communication.
(3) If an individual ex parte communication meeting or call is
granted to any interested party person
, all other parties 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 parties 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 holds continues
the decision, it may permit ex parte communications during the first
half of the interval between the hold
originally scheduled date and the date that the decision is
calendared for final decision, and may prohibit these
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 held 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.