BILL ANALYSIS �
SB 965
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 965 (Wright) - As Amended: May 2, 2012
SENATE VOTE : 33-1
SUBJECT : Water Resources Control Boards: ex parte
communications.
SUMMARY : Establishes allowable ex parte communications with
State Water Resources Control Board (SWRCB) and Regional Water
Quality Control Board (RWQCB) members. Specifically, this bill :
1)Provides that ex parte communication provisions of the
Administrative Procedure Act (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) Allows 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:
i) Invites all parties to attend the meeting or sets up
a conference call in which all parties may participate.
ii) Gives notice of the meeting or call as soon as
possible, but no less than three days before the meeting
or call.
b) Permits written ex parte communications 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) Provides that if an individual ex parte communication
meeting or call is granted to any interested party, all
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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.
d) Allows the SWRCB or a RWQCB 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. If the
SWRCB or the RWQCB 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) Provides that all ex parte communications made regarding
a SWRCB or RWQCB action 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 State or Regional
water 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:
i) The date, time, and location of the communication,
and whether it was oral, written, or both.
ii) The identities of each board member involved, the
person initiating the communication, and any persons
present during the communication.
iii) 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.
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3)Defines interested person as follows:
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 in a matter at
issue before a SWRCB or the RWQCB, 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.
EXISTING LAW :
1)Prohibits communications between SWRCB or RWQCB members and
any other person about a pending, quasi-judicial matter if
such communications occur in the absence of other parties to
the matter without notice and an opportunity for all parties
to participate in the discussion.
2)Allows SWRCB or RWQCB members to have communications with the
public and governmental officials outside of a noticed public
meeting if the topic of discussion is a general issue within
the Board's jurisdiction or a rulemaking or other regulatory
proceeding.
FISCAL EFFECT : Not Known
COMMENTS :
Need for the bill . According to the author, the ex parte
communication rules of the SWRCB and RWQCBs should be reformed
to allow more communication between decision-makers and
stakeholders. The author contends that the regulated community
should have greater opportunity to talk with board members who
have such significant power to influence their activities. The
boards should adopt rules similar to those used by other state
regulatory boards such as the Air Resources Board and the
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California Coastal Commission, which allow communication between
regulators and the regulated as long as it is disclosed at
public meetings.
The author argues that, "The current rules in place at the State
Board severely restrict participation by affected stakeholders
in the state board permitting process, and prohibit
communication with Members of the State Water Board once a draft
permit or other notice of proposed action has been prepared and
released by staff of the water board. Instead, local
governments, businesses and other stakeholders are often limited
to just a few minutes of testimony before the board during a
formal hearing, despite the profound impact board decisions can
have on these regulated entities."
"These self-imposed ex parte rules adopted by the water boards
have resulted in a lack of transparency and accountability. A
strict prohibition against ex parte communications undermines
stakeholder confidence in the system."
Why limit ex parte communications? Rules regarding ex parte
communications have their roots in constitutional principles of
due process and fundamental fairness. With public agencies, ex
parte communications rules also serve an important function in
providing transparency. Ex parte communications may contribute
to public cynicism that decisions are based more on special
access and influence than on the facts, the laws, and the
exercise of discretion to promote the public interest.
Ex parte communications are concerning in adjudicative
proceedings because they involve an opportunity by one party to
influence the decision maker outside the presence of opposing
parties, thus violating due process requirements. Such
communications are not subject to rebuttal or comment by other
parties. Ex parte communications can frustrate a lengthy and
painstaking adjudicative process because certain decisive facts
and arguments would not be reflected in the record or in the
decisions.
SWRCB and RWQCB ex parte communication requirements: According
to the SWRCB the ex parte communications rules reflect the state
and regional water boards hybrid powers. Unlike the
Legislature, the state and regional water boards have attributes
of both legislative power and judicial power. The ex parte
communications prohibition arises when the water boards are
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exercising their judicial power. Rules and due process preclude
judges from receiving ex parte communications on matters pending
before them. Similarly, even when exercising legislative power,
the state and regional water boards do so within the narrow
confines of power granted by the Legislature.
The California Public Utilities Commission (CPUC) ex parte
communication model . State boards and commissions have highly
varied ex-parte communication rules and procedures. SB 965
provides an ex-parte communication reporting and public access
process similar to the provision that regulate the CPUC in which
ex parte communications are allowed but regulated for rate
setting cases, "?oral ex parte communications may be permitted
at any time by any commissioner if all interested parties are
invited and given not less than three days' notice. Written ex
parte communications may be permitted by any party provided that
copies of the communication are transmitted to all parties on
the same day." The statute further specifies that if an
individual ex parte meeting is granted, all parties must be
granted substantially equal periods of time and given three days
notice. The CPUC may establish a period not to exceed 14 days
in which ex parte communications are not permitted and may meet
in closed session during that time.
Committee Comments:
1)Does the CPUC model work for the SWRCB and RWQCBs? Several
provision of SB 965 are based on the CPUC ratepayer advocate
ex parte language. One key difference between the CPUC
language and the SWRCB and RWQCB adjudicative processes,
however, is the designation of parties. The PUC designates
parties to the proceeding, while the Water Boards do not have
a similar process. As a result SB 965 includes the reference
to "parties" rather than "persons" throughout is confusing and
unclear.
The Committee may wish to further define the interested
parties under the SWRCB to define "interested person" to those
(1) to be regulated by the action or with a financial interest
and (2) representatives of organized groups.
2)The SB 965 establishes a requirement of notification of
ex-parte communications but fails to provide clear authority
for the SWRCB or RWQCBs to enforce any violations of that
requirement pursuant to the APA enforcement orders and
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sanctions article.
The Committee may wish to provide specific sanctions for the
failure to provide the notice requirements for ex-parte
communications.
Related current legislation :
AB (Gorell) allows ex parte communication with staff and members
of the SWRCB or RWQCBs regarding pending storm water waste
discharge requirements by affected parties, provided that the
discussion is publicly disclosed. The ex-parte provisions were
removed by the author in the Assembly Environmental Safety and
Toxic Materials (ESTM) Committee: Status: held in the Assembly
Appropriations Committee.
AB 2063 (Alejo), allows ex parte communications for the
adoption, modification, or rescission of specified types of
general permits if the RWQCB or SWRCB member makes an
after-the-fact report of the communication to the board, on the
record, at the next hearing. Status: pending action in the
Senate Environmental Quality Committee.
Dual-Referral : This bill has been double referred to the
Assembly ESTM committee and to the Assembly Government
Organization (GO) committee. If the bill is approved by the
ESTM committee it will be referred to the Assembly GO committee.
REGISTERED SUPPORT / OPPOSITION :
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Support:
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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 Contract Cities Association
California Refuse Recycling Council
California State Association of Counties
Cast Aluminum Corporation
CASTCO
Cities of Artesia, Auburn, Bellflower, Camarillo, Ceres,
Commerce, 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
Inland Empire Disposal
League of California Cities
Lodi Iron Works, Inc.
Los Angeles County Waste Management Association
Magnesium Alloy Products Company, Inc.
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
TST, Inc.
Wine Institute
Opposition:
Natural Resources Defense Council
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Analysis Prepared by : Bob Fredenburg/ E.S. & T.M. / (916)
319-3965