BILL ANALYSIS �
SB 965
Page 1
Date of Hearing: June 28, 2012
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SB 965 (Wright) - As Amended: June 21, 2012
SENATE VOTE : 33-1
SUBJECT : Water Resources Control Board: ex parte
communications
SUMMARY : Establishes a statutory framework for allowable ex
parte communications with the State Water Resources Control
Board (SWRCB) and Regional Water Quality Control Board (RWQBC)
members. Specifically, this bill :
1)Defines "ex parte communication" as 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, as specified.
2)Defines "interested person" as 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 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.
3)Provides that ex parte communications provisions of the
Administrative Procedure Act (Act) do not apply to actions of
the SWRCB and RWQCB members concerning waste discharge
requirements, conditions of water quality certification, or
conditional waiver waste discharge requirements.
4)Allows ex parte communications as follows:
a) Oral ex parte communications may be permitted at any
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time by any board member provided that the board member
involved in the communication does each of the following:
i) Invites all interested persons to attend the meeting
or sets up a conference call in which all interested
persons 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) 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
communication.
c) 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.
5)Provides that a board may prohibit ex parte communications for
a period beginning not more than 14 days before the day of the
board meeting 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.
6)Requires ex parte communications made regarding a board action
shall be reported by the interested person, regardless of
whether the communication was initiated by the interested
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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 the 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, 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.
7)If an interested person fails to provide notice, a board may
use the remedies available under the Act, including the
issuance of an enforcement order.
EXISTING LAW
1)Authorizes the SWRCB to hold any hearings it deems necessary.
All hearings held by the SWRCB or by any member shall be open
and public.
2)Requires a regional water quality control board, after any
necessary hearing, to prescribe waste discharge requirements
as to the nature of any proposed discharge, existing
discharge, or material change in an existing discharge.
3)Directs the state water boards to issue waste discharge
requirements as required or authorized by the Federal Clean
Water Act, and directs that the state to act to ensure
consistency with the requirements for state programs
implementing the Federal Clean Water Act.
4)Prohibits, under the Act, communications between the SWRCB or
RWQBC 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.
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The Act provides that if the prohibition is violated, the
presiding officer shall promptly disclose the content of the
communication and give all parties the opportunity to address
the communication. The Act also provides that a violation may
be grounds for disqualification of the officer who engaged in
the ex parte communication.
5)Allows SCRCB 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 : Unknown
COMMENTS :
Purpose of the bill : According to the author, the ex parte
communication rules of the SWRCB and RWQCB members should be
reformed to allow more communication between decision-makers and
stakeholders. 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 California Coastal
Commission, which allow communication between regulators and the
regulated as long as it is disclosed at public meetings.
California Administrative Procedure Act : The California
Administrative Procedure Act (APA) was significantly amended in
1995 after a seven year statutorily-mandated review by the Law
Revision Commission. About 95 percent of state adjudication
agencies are not directly covered by the APA and have their own
hearings practices, which must meet minimum standards
established in the APA. The California Coastal Commission, the
Integrated Waste Management Board, and the Public Utilities
Commission are exempted from the APA's prohibition on ex parte
communications, among other state agencies.
The APA prohibits any communication, direct or indirect, to a
presiding officer in an adjudicatory proceeding from any party,
unless there is notice and an opportunity for all parties to
participate in the communication. The APA covers adjudicatory
hearings and not proceedings that consider broader policy issues
or rulemaking proceedings to adopt or amend regulations.
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However, the APA requires that rulemaking proceedings be based
on a public record. Although not required by the APA, some
agencies advise that ex parte contacts made during a rulemaking
proceeding should be fully disclosed on the record and not
allowed after the record has been closed.
Purpose of limiting ex parte communications : Rules regarding ex
parte communications have their roots in constitutional
principles of due process and fairness. In public agencies, ex
parte rules serve as a critical function in providing
transparency to the public. Ex parte communications may
contribute to public distrust and the notion 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 fundamentally offensive 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
adjudicative process because certain decisive facts and
arguments would not be reflected in the record or in the
decisions. Finally, ex parte contacts may frustrate judicial
review since the record would be missing such communications.
Little Hoover Commission : In a 2009 report titled "Clearer
Structure, Cleaner Water: Improving Performance and Outcomes at
the State Water Boards," the Little Hoover Commission (LHC)
concluded that, "Ex parte rules must be reformed to allow more
communication between decision-makers and stakeholders. 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 Integrated Waste
Management Board, which allow communication between regulators
and the regulated as long as it is disclosed at public
meetings."
Ex Parte Model: CA Public Utilities Commission : While many state
boards and commissions have ex parte communication rules and
regulations, these regulations vary widely. SB 965 provides an
ex parte communication process similar to the provisions that
regulate the California Public Utilities Commission (CPUC) in
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which ex parte communications are allowed but regulated. For
example, for rate setting cases, the CPUC allows for oral ex
parte communications at any time by any commissioner if all
interested parties are invited and given not less than a three
days' notice. 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.
Is the CPUC Model an appropriate model? : While various
organizations write in support of the concept of SB 965, they
claim that, "because the provisions of SB 965 are based on the
ex parte rules of the CPUC, this bill has significant
limitations in the contest of the State and regional water
quality control boards." They claim that many of the provisions
set forth by the bill would greatly limit the boards' ability to
learn firsthand about stakeholder issues.
Double-Referral: On June 19, 2012, this bill was approved by the
Assembly Environmental Safety and Toxic Materials Committee on a
9-0 vote.
Related Legislation : AB 2063 (Alejo), 2011-12 Legislative
Session. The bill would allow between persons interested in
pending evidentiary hearings and a member of RWQCB or the SWQCB
in the absence of other parties to the matter, if disclosed
afterwards. (Pending in Senate Environmental Quality Committee)
REGISTERED SUPPORT / OPPOSITION :
Support
Agricultural Council of California (if Amended)
California Bean Shippers Association (if Amended)
California Building Industry Association (if Amended)
California Cement Manufacturers Environmental Coalition (if
Amended)
California Chamber of Commerce (if Amended)
California Grain and Feed Association (if Amended)
California Grocers Association (if Amended)
California League of Food Processors (if Amended)
California Manufacturers & Technology Association (if Amended)
California Metals Coalition (if Amended)
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California Pear Growers Association (if Amended)
California Precast Concrete Association (if Amended)
California Seed Association (if Amended)
California State Floral Association (if Amended)
Chemical Industry Council of California (if Amended)
City of Lakewood
Coalition for Adequate School Housing
Family Winemakers of California (if Amended)
Golden State Builders Exchanges (if Amended)
Institute of Scrap Recycling Industries (if Amended)
LKQ Corporation (if Amended)
Lumber Association of California & Nevada (if Amended)
National Federation of Independent Business (if Amended)
Pacific Egg and Poultry Association (if Amended)
Pacific Merchant Shipping Association (if Amended)
Rio Tinto Minerals (if Amended)
State of California Auto Dismantlers Association (if Amended)
United Contractors (if Amended)
Western Growers Association (if Amended)
Western Wood Preservers Institute (if Amended)
Opposition
None on file
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531