California Senate Bill SB965 Amended / Bill

 BILL NUMBER: SB 965AMENDED BILL TEXT AMENDED IN ASSEMBLY JUNE 21, 2012 AMENDED IN SENATE MAY 2, 2012 AMENDED IN SENATE MARCH 28, 2012 AMENDED IN SENATE MARCH 8, 2012 INTRODUCED BY Senator Wright (Coauthor: Senator Blakeslee) JANUARY 11, 2012 An act to add Section 13293 to the Water Code, relating to water quality. LEGISLATIVE COUNSEL'S DIGEST SB 965, as amended, Wright. State Water Resources Control Board and California regional water quality control boards: ex parte communications. Under existing law, the State Water Resources Control Board (state board) and the California regional water quality control boards (regional boards) 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 state board and regional boards to hold hearings necessary for carrying out their duties, as specified. The Administrative Procedure Act 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 act 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 act 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 act 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 would provide that the ex parte communications provisions of the Administrative Procedure Act do not apply to specified proceedings of the state board or a regional board. The bill would, instead, define an ex parte communication as an oral or written communication with one or more board members regarding those specified state or regional board proceedings  , and would specify the only instances in which an ex parte communication involving those specified proceedings is permissible  . The bill would permit oral ex parte communications at any time by any board member if the board member involved in the communication notifies, and provides  specified requirements  for the participation of, all  parties   interested persons  ,  as specified   as defined  . The bill would permit written ex parte communications by any  party   person  provided that the interested person  , as defined,  who makes the communications provides copies of the communication to all  parties   interested persons  , as specified. The bill would require that if an individual ex parte communication meeting or call is granted to any interested  party   person  , all other  parties   interested persons  shall also be granted individual ex parte meetings of a substantially equal period of time with the board member. The bill would authorize 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. The bill would require 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.  The bill would authorize the state board or a regional board, in the event that an interested person fails to provide the notice required by the bill, to use the remedies available under the administrative adjudication provisions of the Administrative Procedure Act.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 13293 is added to the Water Code, to read: 13293. (a) For the purposes of this section: (1) "Ex parte communication" means an oral or written communication with one or more board members concerning matters, other than  purely procedural matters   a matter of procedure or practice that is not in controversy  , under the jurisdiction of a board, regarding an action of the board that satisfies both of the following: (A) The action does not identify specific persons as dischargers, but instead allows persons to enroll or file an authorization to discharge under the action. (B) The action is for adoption, modification, or rescission of one or more of the following: (i) Waste discharge requirements pursuant to Section 13263 or 13377. (ii) Conditions of water quality certification pursuant to Section 13160. (iii) Conditional waiver of waste discharge requirements pursuant to Section 13269. (2) "Interested person" means  any   either  of the following:  (A) Any party to the proceeding or the agents or employees of any party, including persons receiving consideration to represent any of them.   (B)   (   A)  Any person  who will be required to enroll or file authorization to discharge pursuant to the action or  with a financial interest, as described in  Article 1 (commencing with Section 87100) of Chapter 7 of Title 9   Section 87103  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)   (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  , even if that association is not a party to the proceeding  . (b) Notwithstanding Section 11425.10 of the Government Code, the ex parte communications provisions of the Administrative Procedure Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code) do not apply to a board action identified in paragraph (1) of subdivision (a). This section only applies to those actions. (c) For the purposes of this section,  and except as limited by subdivision (d),  ex parte communications regarding a board action identified in paragraph (1) of subdivision (a)  shall be prohibited. Ex parte communications  may be permitted  only  as follows: (1) 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: (A) Invites all  parties   interested persons  to attend the meeting or sets up a conference call in which all  parties   interested persons  may participate. (B) Gives notice of the meeting or call as soon as possible, but no less than three days before the meeting or call. (2) Written ex parte communications may be permitted by any  party   interested person  provided that the interested person making the communication serves copies of the communication on all  parties   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  parties   persons  have been provided copies of the communication. (3) If an individual ex parte communication meeting or call is granted to any interested  party   person  , all other  parties   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  parties   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. (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   continues  the decision, it may permit ex parte communications during the first half of the interval between the  hold   originally scheduled  date and the date that the decision is calendared for final decision, and may prohibit  these   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  held   continued  . (e) All ex parte communications made regarding a board action identified in paragraph (1) of subdivision (a) 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.  (f) If an interested person fails to provide notice as required by this section, a board may use the remedies available under the administrative adjudication provisions of the Administrative Procedure Act (Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code), including the issuance of an enforcement order, or sanctions pursuant to Article 12 (commencing with Section 11455.10) of Chapter 4 of Part 1 of Division 3 of Title 2 of the Government Code.