BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 965|
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UNFINISHED BUSINESS
Bill No: SB 965
Author: Wright (D) and Blakeslee (R)
Amended: 8/29/12
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
SENATE FLOOR : 33-1, 5/29/12
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, De Le�n, DeSaulnier, Dutton,
Emmerson, Fuller, Gaines, Harman, Hernandez, Huff, Kehoe,
La Malfa, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla,
Price, Rubio, Simitian, Steinberg, Strickland, Vargas,
Walters, Wright, Wyland
NOES: Wolk
NO VOTE RECORDED: Evans, Hancock, Leno, Pavley, Runner,
Yee
ASSEMBLY FLOOR : Not available
SUBJECT : Water quality control boards: ex parte
communications
SOURCE : Author
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DIGEST : This bill 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.
Assembly Amendments make clarifying provisions to the
Senate version of the bill.
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 Administrative Procedure Act (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
disqualification of the officer who engaged in the ex parte
communication.
This bill:
1. Allows ex-party communications with members of the SWRCB
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and the RWQCBs as follows:
A. Defines "interested person" as:
(1) A participant in the proceeding regarding a
matter before a board, or an agent, employee, or a
person receiving consideration for representing
that participant;
(2) 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
(3) 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:
(1) Waste discharge requirements;
(2) Conditions of water quality certification;
and
(3) 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.
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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 public who utilizes a
translator. The requirement for additional testimony
time would not apply in those cases where simultaneous
translation services are required.
3. Authorizes a board to prohibit ex parte communications
for a period beginning not more than 14 days before the
day of a board meeting at which the decision in the
proceeding is scheduled for board action.
4. Requires all ex parte communications to be reported, as
specified, by the interested person, regardless of
whether the communication was initiated by the
interested person.
5. Authorizes the state board or a regional board, in the
event that an interested person fails to provide any
required notice in the manner required by the bill, to
use the remedies available under the administrative
adjudication provisions of the APA.
6. Requires the state board or a regional board to make
each meeting agenda notice that the state board or a
regional board provides available in both English and
Spanish and permits the state board or a regional board
to make the agenda notice available in any other
language.
7. Requires a state body subject to the act that limits
time for public testimony to provide at least twice the
allotted time to a member of the public who utilizes a
translator to ensure that non-English speakers receive
the same opportunity to directly address the body, with
a specified exception.
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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
board member must notify all parties of the ex parte
disclosures.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/31/12)
Agricultural Council of California
California Bean Shippers Association
California Building Industry Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Council for Environmental and Economic Balance
California Grain and Feed Association
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
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California Metals Coalition
California Pear Growers Association
California Precast Concrete Association California Seed
Association
California State Floral Association
Chemical Industry Council of California
Family Winemakers of California
Golden State Builders Exchanges
Institute of Scrap Recycling Industries
League of California Cities
LKQ Corporation
Lumber Association of California & Nevada
National Federation of Independent Business
Pacific Egg and Poultry Association
Pacific Merchant Shipping Association
Rio Tinto Minerals
State of California Auto Dismantlers Association
United Contractors
Western Growers Association
Western Wood Preservers Institute
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 the
California Environmental Protection Agency. 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
that access to decision makers is critical to ensuring
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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.
The California Council for Environmental and Economic
Balance states, "This bill would end the policy at the
State Water Resources Control Board (SWRCB) and Regional
Water Quality Control Boards (RWQCBs) that prevent
stakeholders from having ex-parte discussions with board
members on specified matters. The current practice
generally limits a stakeholder's involvement to written
comments, public workshops, and 2-3 minutes of testimony at
adoption hearings. Other regulatory bodies allow
stakeholders to interact with board members as long as it
is disclosed publicly. CCEEB believes public
communications with regulators in their policy-making and
quasi-legislative roles are important and should be allowed
at the SWRCB and RWQCBs.
DLW:m 8/31/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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