BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 965|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 965
Author: Wright (D) and Blakeslee (R)
Amended: 5/2/12
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
SUBJECT : Water quality control boards: ex parte
communications
SOURCE : Author
DIGEST : This bill provides that the ex parte
communications provisions of the Administrative Procedure
Act (APA) do not apply to specified proceedings of the
State Water Resources Control Board (SWRCB) or a regional
water quality control board (RWQCB). This bill, instead,
defines an ex parte communication as an oral or written
communication with one or more board members regarding
those specified state or regional board proceedings. It
permits oral ex parte communications at any time by any
board member if the board member involved in the
communication notifies, and provides for the participation
of, all parties, as specified. It permits written ex parte
communications by any party provided that the interested
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person, as defined, who makes the communications provides
copies of the communication to all parties, as specified.
It requires that if an individual ex parte communication
meeting or call is granted to any interested party, all
other parties shall also be granted individual ex parte
meetings of a substantially equal period of time with the
board member. It authorizes 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. It
requires 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.
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 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
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disqualification of the officer who engaged in the ex parte
communication.
Specifics of SB 965
1. Provides that ex parte communication provisions of the
APA do not apply to actions of the SWRCB and RWQCBs
concerning waste discharge requirements, conditions of
water quality certification, or conditional waiver waste
discharge requirements.
2. Allows ex parte communications as follows:
(a) 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:
(1) Invites all parties to attend the meeting or
sets up a conference call in which all parties may
participate.
(2) Gives notice of the meeting or call as soon
as possible, but no less than three days before
the meeting or call.
(b) Written ex parte communications may be permitted
by any party provided that the interested person
making the communication serves copies of the
communication on all parties 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 have been provided copies of the
communication.
(c) If an individual ex parte communication meeting or
call is granted to any interested party, all other
parties 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 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.
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(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 the decision, it may permit ex parte
communications during the first half of the interval
between the hold date and the date that the decision
is calendared for final decision, and may prohibit
these 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.
(e) All ex parte communications made regarding a board
action identified in Point 1 of the beginning of
Specifics of SB 965 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.
3. Defines interested person as follows:
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(a) Any party to the proceeding or the agents or
employees of any party, including persons receiving
consideration to represent any of them.
(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, even if that
association is not a party to the proceeding.
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
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board member must notify all parties of the ex parte
disclosures.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/22/12)
Arroyo Grande City Manager Steven Adams
Association of California Water Agencies
Atlas Pacific Corporation
Auburn Director of Public Works
Bazz Houston Company
Buddy Bar Casting
California Building Industry Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Contract Cities Association
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Precast Concrete Association
California Refuse Recycling Council
California State Association of Counties
Cast Aluminum Corporation
CASTCO
Chemical Industry Council of California
Cities of Artesia, Auburn, Bellflower, Camarillo, Ceres,
Goleta, Kingsburg, Lakewood, Monterey, Santa Maria, Pismo
Beach, Placerville, Redding, Rocklin, Roseville,
Vacaville, Vernon, Watsonville, and Yreka
Department of Defense Regional Environmental Coordinator
Region 9
Golden State Builders Exchanges
Inland Empire Disposal
Institute of Scrap Recycling Industries California Chapters
League of California Cities
LKQ Corporation
Lodi Iron Works, Inc.
Los Angeles County Waste Management Association
Lumber Association of California & Nevada
Magnesium Alloy Products Company, Inc.
National Federation of Independent Business
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Orange County Board of Supervisors
Pacific Alloy Casting Company, Inc.
Pacific Merchant Shipping Association
Peace Officers Research Association of California
Placerville Public Works Department
Rangers Die Casting Company
Roseville Police Officers Association
Sacramento Stormwater Quality Partnership
San Bernardino County Stormwater Program
San Gabriel Valley Council of Governments
San Juan Water District
Solid Waste Association of Orange County
SSA Marine
State of California Auto Dismantlers Association
TST, Inc.
United Contractors
Western Growers Association
Western Wood Preservers Institute
Wine Institute
OPPOSITION : (Verified 5/22/12)
Natural Resources Defense Council
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 CalEPA.
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
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that access to decision makers is critical to ensuring
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.
ARGUMENTS IN OPPOSITION : Natural Resources Defense
Council states that this bill "would weaken
long-established ex parte communications provisions of the
Administrative Procedure Act, which prohibit the public,
including industry or special interest concerns, from
communicating with Water Board members regarding any
pending or impending adjudicative proceeding before that
Board. This bill represents a misguided undertaking at
best; it is of vital importance that the state maintain the
highest standards of conduct for those charged with making
decisions that cover one of the most essential
environmental and public health portfolios in the state.
The prohibitions against ex parte communications are
designed to prevent actions by Board members that could be
deemed a conflict of interest. This is critical given that
Water Board proceedings are often heavily contested; it
would be analogous to allowing plaintiffs and defendants in
a court proceeding to communicate with the judge. The
Water Board's proceedings further address chronic issues of
pollution to the state's surface and ground water
resources, with direct impact to the public health and
welfare. The nature of the Water Boards' responsibilities
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demands continued support for the existing ex parte
requirements."
DLW:mw 5/23/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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