BILL ANALYSIS �
SB 965
Page 1
REPLACE : 08/30/2012
SENATE THIRD READING
SB 965 (Wright)
As Amended August 24, 2012
Majority vote
SENATE VOTE : 33-1
ENVIRONMENTAL SAFETY 9-0GOVERNMENTAL ORGANIZATION
15-0
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|Ayes:|Wieckowski, Miller, |Ayes:|Hall, Nestande, Atkins, |
| |Campos, Chesbro, Davis, | |Block, Chesbro, Cook, |
| |Donnelly, Feuer, Bonnie | |Galgiani, Garrick, Gatto, |
| |Lowenthal, Morrell | |Hill, Jeffries, Ma, |
| | | |Perea, Silva, Bradford |
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APPROPRIATIONS 17-0
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|Ayes:|Fuentes, Harkey, | | |
| |Blumenfield, Bradford, | | |
| |Charles Calderon, Campos, | | |
| |Davis, Donnelly, Gatto, | | |
| |Hall, Hill, Lara, | | |
| |Mitchell, Nielsen, Norby, | | |
| |Solorio, Wagner | | |
| | | | |
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SUMMARY : 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. Specifically,
this bill :
1)Allows ex-party communications with members of the SWRCB and
the RWQCBs as follows:
a) Defines "interested person" as:
i) A participant in the proceeding regarding a matter
before a board, or an agent, employee, or a person
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receiving consideration for representing that
participant;
ii) 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,
iii) 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:
i) Waste discharge requirements;
ii) Conditions of water quality certification; and,
iii) 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.
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
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public who utilizes a translator. The requirement for
additional testimony time would not apply in those cases where
simultaneous translation services are required.
3)Requires the SWRCB and RWQCBs to establish an environmental
justice (EJ) coordinator whose duties include:
a) Identify best practices for State and regional boards EJ
programs;
b) Conduct training and develop informational materials on
EJ issues for State and regional board staff;
c) Incorporate relevant EJ legislation into State and
regional programs;
d) Provide assistance to the California Environmental
Protection Agency (Cal-EPA) Environmental Justice Advisory
Committee; and,
e) Incorporate the SWRCB bilingual program into public
meetings to insure full participation for all Californians.
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.
3)Establishes the Cal-EPA Interagency Working Group on
Environmental Justice (IWG) to assist the Secretary with
developing an EJ strategy.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill would result in minor, absorbable costs to
the SWRCB and the regional boards to manage ex parte
communication requirements.
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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
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
�Water] 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
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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
SWRCB and RWQCBs hybrid powers. Unlike the Legislature, the
SWRCB and RWQCBs have attributes of both legislative power and
judicial power. The ex parte communications prohibition arises
when the SWRCB or RWQCBs are 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 SWRCB and RWQCBs do so
within the narrow confines of power granted by the Legislature.
Environmental justice process at Cal-EPA. Senate Bill 89
(Escutia, Chapter 728, Statutes of 2000) established the Cal-EPA
IWG to assist the Secretary with developing an EJ strategy, and
the Cal-EPA Advisory Committee on Environmental Justice
(Advisory Committee) to assist and advise the IWG in making
recommendations to the Secretary on the strategy.
In 2004, Cal-EPA completed an agency-wide strategy (Inter-Agency
Environmental Justice Strategy) to identify and address any gaps
in existing programs, policies, and activities that may impede
the achievement of environmental justice. The strategy is the
overarching environmental justice document for the Cal-EPA
boards, departments, and office, including the SWRCB and the
RWQCBs, follow.
Related current legislation :
AB 2117 (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 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
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after-the-fact report of the communication to the board, on the
record, at the next hearing. Status: held in the Senate
Environmental Quality Committee.
Analysis Prepared by : Bob Fredenburg/ E.S. & T.M. / (916)
319-3965
FN: 0005633