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COMMITTEE DATE: February 13, 2017 AGENDA NO.

PROPOSAL: Consider Phase One Report of Hearing Board Evaluation

SYNOPSIS: At the September 2016 meeting of the Board, the Chairman directed
staff to obtain an evaluation of the Hearing Board’s operations and
effectiveness. The staff retained Professor Kenneth Manaster of the
Santa Clara School of Law to conduct the evaluation. Mr. Manaster
has published two law review articles on Hearing Board procedure
and has served on the Hearing Board for the Bay Area Air Quality
Management District. Professor Manaster will present his findings
in two phases. This item is to review Professor Manaster’s report on
the first phase of his efforts.

COMMITTEE: Personnel, February 13, 2017; Reviewed

Receive and file Phase One Report.

Wayne Nastri
Executive Officer

At the September 2016 meeting of the Board, the Chairman directed staff to obtain an
evaluation of the Hearing Board’s operations and effectiveness. The staff retained
Professor Kenneth Manaster of the Santa Clara School of Law to conduct the evaluation.
Professor Manaster has published two law review articles on Hearing Board procedure—
Kenneth A. Manaster, Fairness in the Air: California's Air Pollution Hearing Boards, 24
UCLA J. Envtl. L. & Pol'y 1 (2006) and Kenneth A. Manaster, Administrative
Adjudication of Air Pollution Disputes: The Work of Air Pollution Control District
Hearing Boards in California, 17 U.C. Davis 1117 (1984). Professor Manaster also
served on the Hearing Board for the Bay Area Air Quality Management District from
1973 to 1990, and served as the Hearing Board’s Chairman from 1978 to 1989.

Professor Manaster is conducting his evaluation of the Hearing Board in two phases. In
the first phase, which is presented here, Professor Manaster addressed the areas of
concern identified by the Board Chairman at the September 2016 meeting. Phase Two
will address long-term issues concerning the Board’s effectiveness.

The key findings/recommendations in the Phase One report are the following:

The Hearing Board is doing a good job meeting its responsibilities under the
Health & Safety Code, including public notice and scheduling cases.
Subject to the need to maintain the independence of the Hearing Board as a quasi-
judicial body, there is a need for greater communication between the Board and
the Hearing Board, which should be addressed by creating formal mechanisms for
There are misunderstandings and unrealistic expectations between the two new
members of the Hearing Board and the three veteran members, which should be
addressed by training.
The Hearing Board scheduling of cases and granting of continuances follows
proper procedures.
There is a learning curve for new Hearing Board members, and until they have
surmounted that learning curve, they should be provided with staff assistance on a
transitional basis.
New Board members require more training. “On-the-job” training techniques
should be developed.
No finding is made with regard to the adequacy of compensation of Hearing Board
members, other than to note that Board members work hard, and adequate
compensation is necessary to retain well-qualified members for the Hearing

Phase One Report




Kenneth A. Manaster

January 30, 2017


At the September 2, 2016 meeting of the South Coast Air Quality Management District ("SCAQMD")
Governing Board, the Executive Officer and General Counsel were asked to hire an outside,
independent reviewer "to evaluate the manner in which the Hearing Board is operating." Accordingly,
in November the District contracted with me to "evaluate the operations and procedures of the
SCAQMD Hearing Board" and to present written findings and recommendations "for improving the
Hearing Board's effectiveness and efficiency."

The Executive Officer, General Counsel, and I agreed in November that the project would proceed in two
phases. In Phase One, a report would be completed as soon as feasible to address the specific areas of
current concern expressed during the September Governing Board meeting. In Phase Two less
immediate, longer-term issues would be addressed. Attention would focus on additional aspects of the
Hearing Board's operations which might warrant improvement.

This Phase One Report is based on review of a range of documents germane to the Hearing Board's
statutory role and activities, observation of portions of Hearing Board public hearings, listening to audio
recordings of selected hearings and Hearing Board general meetings, and a series of over 20 in-person
or telephone interviews with individuals closely involved in various ways with the Hearing Board's work.
In a number of instances, the initial interview was followed by a supplemental interview, or by email
correspondence initiated by the interviewee or me. The interviewees included Hearing Board
members, District staff employees and attorneys, and private attorneys with extensive experience
before the Hearing Board. To promote candid statements of their views, all interviewees were assured
of confidentiality; that is, no specific statements will be attributed to specific individuals.

To the best of my knowledge, the last time the Hearing Board was subjected to an outside review was
over 25 years ago. The consulting firm of Hamilton, Rabinovitz & Alschuler, Inc. submitted a
comprehensive report of over 200 pages that broadly addressed the Hearing Board's mission, policies,
practices, composition, compensation, staff support, etc. (The South Coast Air Quality Management
District Hearing Board: Findings, Analyses and Recommendations (February 1991) ("1991 Report".)
Certain subsequent changes in the Health & Safety Code, and in the Hearing Board's membership,
compensation, and practices were prompted by that report.

Similarly, I hope that the findings and recommendations in this Report will promote better
understanding of the Hearing Board and help to improve the Board's effectiveness and efficiency.
However, it should be emphasized that the evaluation I have been asked to undertake is more narrowly
focused than the 1991 project. Accordingly, there are features of the Hearing Board's multi-faceted
operations that will not be addressed here. Instead, this Report will concentrate on the most salient,
current concerns.

The next sections of this Report will be organized as follows:

Section II: Summary of Findings on Governing Board's Specific Concerns

Section Ill: Overview ofthe Hearing Board and Its Statutory Responsibilities

Section IV: General Areas of Concern

A. Transparency: Are Hearing Board processes open and fair to the public and all
Hearing Board members?

B. Efficiency: Is the Hearing Board's workload meeting the public's needs and
appropriate for the members' compensation?

C. Readiness: Are new Hearing Board members properly prepared for the Hearing
Board's work and fairly included in it?

D. Oversight: Is communication between the Hearing Board, Governing Board, and
other oversight agencies adequate and appropriate?

Section V: Conclusion

Appendix: Suggested Issues for Phase Two Evaluation


Because the specific concerns expressed at the Governing Board meeting in September precipitated this
evaluation of the Hearing Board, and for the convenience of the reader, this section will summarize my
findings on each of them. I will paraphrase each concern expressed and will follow it with a brief
statement of my finding with respect to it. These concerns and findings will be explained more fully in
Section IV, as each specific concern falls within one or more of four General Areas of Concern addressed

Concern: The absence of a review process leaves the Governing Board unable to know if what the
Hearing Board is doing is okay.

Finding: In meeting its responsibilities to the public under the California Health and Safety
Code, what the Hearing Board is doing is acceptable, indeed much better than acceptable. Its

decisions are being made responsibly and intelligently. The most significant concerns raised-
by the Governing Board or by the interviewees-relate to the Hearing Board's processes, as only
rarely was the substance of its decisions questioned. Even one of the private attorneys
interviewed, although not always pleased with the Hearing Board's orders affecting his clients,
recognized that on the whole the Hearing Board's decisions are "pretty sound." Another
interviewee, one who criticized other aspects of the Board's processes, also stated, "The quality
of their work is impressive."

Concern: The principle should be kept in mind that people serving in a judicial capacity must have
independence. Hearing Board members are reviewed periodically by the Governing Board when their
terms are concluded and reappointment is under consideration.

Finding: The independence of the Hearing Board in its quasi-judicial role is critical for the
performance of its statutory duties. The Governing Board's primary review process relative to
the Hearing Board is at the time of appointment and reappointment. Additional processes are
needed, however, to foster greater Governing Board understanding-and to minimize
misunderstanding-of the Hearing Board's role under the laws governing the District. Any such
additional processes must be carefully designed and limited so as to preserve the independence
of the Hearing Board while still respecting the Governing Board's broad respcmsibilities.

Concern: The Hearing Board's internal functioning is not going well, and the members do not care
because they are an independent body.

Finding: In terms of the internal functioning of the Hearing Board, in recent months it is not
going well. Coinciding with the addition of two new Hearing Board members, this situation is a
result of a variety of overlapping misunderstandings and unrealistic expectations among the two
new members, three veteran members, and members of the Governing Board. However, all
five of the Hearing Board members definitely care about both how well the Hearing Board is
doing its work and how that work is understood and perceived by the public and the Governing

Concern: Continuances are being granted repeatedly and without public notice, automatically putting
off cases improperly.

Finding: The Hearing Board is operating in accordance with the applicable statutes, District
regulations, and established Hearing Board rules and procedures with respect to the scheduling
and continuance of cases. There is no evidence of excessive or unwarranted continuances, nor
evidence of the granting of continuances for the purpose, or with the effect, of depriving the
public of legally required notice. Similarly, there is no evidence of the scheduling of cases or
granting of continuances for the purpose of preventing the participation of any particular
Hearing Board member or members in any case.

Concern: The Hearing Board has expressed a need for staff assistants to help with the volume of
paperwork it faces.

Finding: The Hearing Board has not claimed a need for, or requested, staff assistants, though
one of the new members has done so. Historically, members have not been provided with staff
assistants, nor has a need for such assistance been asserted. However, newly appointed
members may need transitional staff assistance, especially when they quickly are faced with
unusually complex or controversial cases.


The District's website contains the following statements which accurately describe the Hearing Board
and its responsibilities:

The Hearing Board is a quasi-judicial panel authorized to hear certain cases. As state law
requires, Hearing Board members are appointed by, but act independently of, the SCAQMD
Governing Board.

The Hearing Board is authorized to hear:

• petitions by companies for variances;
• petitions for abatement orders; (An abatement order requires a company operating out of
compliance to take specific actions or to shut down its operation. This is a severe remedy
normally reserved for serious violators.)
• appeals by companies from the granting of permits, permit conditions, permit denials and
suspensions, denials of emission reduction credits and denials of pollution control plans;
• appeals by third parties.

After hearing all sides of a case in which individuals or companies come into conflict with SCAQMD
rules and regulations, the Hearing Board weighs the evidence and reaches a decision.


In an article I wrote over ten years ago, I described as follows the 5-member hearing boards that are
required by the Health and Safety Code to be established in each of the 35 air districts in the state:

These boards are unique in many respects, for they are not quite the same as anything else in
California environmental and land use regulation. One of their most striking characteristics is
that the hearing boards are predominantly composed of individuals who are not air pollution
experts, even though the decisions they make usually involve technical questions, often of an
extraordinarily sophisticated nature. Most significantly, the hearing boards are a key feature-
indeed the key feature-of California's attempt to ensure that fairness is a consistent
component of government efforts to clean and protect the air.

Although the hearing boards are little known to the public, they have tremendous importance
for air quality throughout the state. The significance of their work begins with the obvious,
direct effect of their decisions on actual air pollutant emissions. Less obvious, but also critical,
is that most hearing board cases fundamentally are efforts to make sure that pollution laws are

applied fairly. Each category of hearing board cases represents an opportunity for air quality to
be protected while ensuring that other, competing interests are fully considered.

("Fairness in the Air: California's Air Pollution Hearing Boards," UCLA Journal of Environmental
Law and Policy, Volume 24, No. 1 {2006), pages 1-104; quotations at pages 3, 5.) (Emphasis

Although the Health and Safety Code (in Sections 40800-40809) governs the functions of hearing boards
in all districts, there are additional provisions applicable only to the SCAQMD Hearing Board (for
example, Sections 40501-40503). This reflects the fact that the SCAQMD Hearing Board is itself a
unique example within this unique hearing boards category. The SCAQMD board is the only one that
functions on a nearly full-time basis, which reflects the magnitude of the South Coast area, the severity
of its air pollution challenges, its multitude of pollution sources, and the frequency of their compliance

The 1991 Report (at Executive Summary, pages xviii-xix) emphasized "the uniquely central role of air
quality management and regulation in the South Coast region, now and in the future." Its description of
the region then, and of the importance of the Hearing Board, still applies:

No other region of the State contains nearly as many individual businesses. No other region has
the combination of physical conditions and commercial activity which causes air quality
regulations to affect day-to-day business behavior so immediately, directly and continually. . ..
It follows that air quality management in the South Coast region is a different order of
magnitude of challenge to effective governance, as compared to the challenge posed in other
regions. And, the policies followed in granting exceptions to air quality regulation are of the
same order of importance as the policies represented by the regulations themselves. One
element of the special challenge is a far more constant need for an effective exception and
appeal hearing mechanism. More frequent regulatory interventions with more businesses
necessarily create more requests for temporary exceptions and more appeals of regulatory
rulings. . .. A unique challenge requires a similarly unique solution. The SCAQMD variance and
appeal institution should be designed in light of the realities of the South Coast ....

In the Job Bulletin distributed in early 2016 in connection with the appointments process, the District
described aspects ofthe Hearing Board member's role as follows:

Hearing Board Members meet up to three days a week, Tuesdays through Thursdays, from 9:00
a.m. to 4:00p.m. The Member-elected Chair is required to be available four days per week,
Tuesday through Friday, to handle ex parte variances, pre-hearing conferences, and single-
member hearings. In addition, with reasonable notice, Members must be available on
occasional evenings and weekends, in order to schedule days and times that are more
convenient for public participation on issues of strong community interest. Alternate Members
serve in lieu of regular Members, in their absence, on an as needed, per diem basis.

Members of the SCAQMD Hearing Board are compensated at a rate of $5,602.54 per month and
the Member-elected Chair of the Board is compensated at the rate of $7,283.75 per month, for
attending and preparing for Hearing Board meetings and participating in conferences on behalf
of the Hearing Board. However, for each day absent, monthly compensation shall be reduced

by $437.01. Alternate Hearing Board Members are compensated at the rate of $437.01 per

When presiding for the day over the daily calendar in the absence of the Chair, the Member-
elected Vice Chair of the Hearing Board shall be compensated an additional $100 per day and
the absent Chair's daily pay shall be reduced by $100.

In addition, each Member or Alternate Member shall receive reimbursement for travel, meals,
and lodging as prescribed by SCAQMD's Administrative Code when performing his/her official
functions or attending approved conferences, in an amount not to exceed $8,000 per year. No
other compensation or benefits are provided.

The SCAQMD Hearing Board at present has five members-three veterans (Engineer Member and Chair
Edward Camarena; Attorney Member and Vice Chair Julie Prussack, and Public Member Patricia Byrd)
and two newcomers (Public Member Nate Holden and Medical Member Roger Lerner). All of these
individuals are talented, highly intelligent, accomplished, strong-willed, and dedicated to this work. The
leadership of the Hearing Board-Chair Camarena and Vice-Chair Prussack-is extremely
knowledgeable, experienced, and hard-working, and strives to be efficient and fair.

It should be obvious that a fundamental aspect of the Hearing Board is that it is intended for "hearing."
As with any judicial-type forum, the Hearing Board is mandated to listen to evidence and arguments and
decide the cases presented to it on their merits. It is not a political or legislative-type forum in which a
member is expected to advocate for a particular position or on behalf of a constituency. In other
words, the Hearing Board is not making the law or producing evidence, but rather, to the best of its
collective ability, it is applying the law to the evidence it hears.

In any group doing such complex work together, especially on a virtually full-time basis and in the public
spotlight, the meshing of five personalities is bound to be problematic, at least at times. That is one of
the challenges that this Hearing Board is currently facing. These interpersonal dynamics are not
inherently abnormal, but recently they have become unusually difficult within this Board. I hope that
some of the findings and recommendations in this Report will help to increase all members' recognition
of their respective views and challenges, and will thereby alleviate the difficulties and promote
smoother working relationships. At the same time, I do not have, and do not wish to encourage,
unrealistic expectations in this respect.


The specific concerns raised by the Governing Board fall within four general Areas of Concern. These
areas, which will be addressed in turn, involve Transparency, Efficiency, Readiness, and Oversight.

A. Transparency: Are Hearing Board processes open and fair to the public and all Hearing Board

Scheduling and notices of hearings: For over forty years, the Health & Safety Code (e.g., in Section
40808) has required "a public hearing" to be held before the Hearing Board can take action related to a
variance, abatement order, or permit dispute. Additionally, Government Code Sections 54950 et seq.
(the Ralph M. Brown Act) are considered applicable to the Hearing Board, thus requiring open meetings
and their associated features.

In order to make sure that the public can know when public hearings are to be held, the Health & Safety
Code contains a variety of provisions (e.g., in Sections 40823-40828) requiring notice of such hearings to
be distributed. The basic notice provision (Section 40823) requires at least 10-day notice to be given by
the Hearing Board to the District and the affected party in a case. It also requires the Board to "send
notice of the hearing to every person who requests such notice and obtain publication of such notice in
at least one daily newspaper of general circulation within the district." A further elaboration of this
requirement (Section 40826) provides that for regular (more than 90 days) variances, the notice must be
published "not less than 30 days prior to the hearing" and notice also shall be served upon the Executive
Officer, "the state board [California Air Resources Board, "CARB"), the Environmental Protection Agency
["EPA"], and upon the applicant or permittee."

In more recent years, the Legislature has created a few different types of variance cases and modified
the basic notice and hearing requirements. This has been done to reflect the reality that some variance
petitions present emergency situations, or preliminary requests for relief, that do not warrant published
notice, or as a practical matter do not allow time for it. These variance variations include "interim
variances" (Sections 40824, 42351), short variances of "not more than 90 days" (Section 40825), and
"emergency variances" (Section 42359.5).

In view of. the concern expressed at the Governing Board meeting about lack of public notice, it is
important to clarify that emergency variances "may issue, without notice and hearing" (Section
42359.5(a)). Furthermore, the notice requirements for interim variance applications and short variances
do not include published notice, but rather only include notification to the Executive Officer, applicant,
and in some instances CARB and EPA. Accordingly, it occasionally happens that a case is heard and
relief granted on an emergency or interim variance request, but then the compliance problem is
resolved before a hearing is held on the accompanying short or regular variance request. No further
hearing is needed because compliance has been achieved. Because the variance request is then
withdrawn by the applicant, it would appear that some variance protection-no more than 30 days for
an emergency variance or 90 days for an interim variance-has been afforded without full, published
notice. That is indeed what has transpired, and it is entirely proper within the provisions of the Health
& Safety Code.

That outcome would be unlawful, however, if there were a violation of Section 42351(c), which states:
"The hearing board shall not grant any interim variance ... which is being sought to avoid the notice and
hearing requirements of Section 40826." I have found no evidence to suggest that interim variances, or
emergency variances, have been sought before the Hearing Board in order to avoid any statutory notice
and hearing requirements.

Over the years, in order to implement the statutory hearing and notice requirements for the diverse
types of variances and for other types of cases, a set of rules and procedures has been adopted. These
provisions address in detail the notice and hearing requirements, as well as the handling of
continuances, i.e., postponements of scheduled hearings. Some of these rules have been adopted by
the Governing Board (e.g., Regulation V [Procedure Before the Hearing Board], Rule 510 [Notice] and

Rule 514 [Continuances], and Regulation VIII [Orders for Abatement], Rule 812 [Notice of Hearingand
Rule 815 [Continuances]). Other specifications are found in the Rules and Procedures of the South Coast
Air Quality Management District Hearing Board ("Hearing Board Rules"; latest revisions April13, 2016)
(e.g., Rule 7 [Hearing Board Procedures], Rule 7(j) [Continuances] and Rule 7(k) [Notice of Hearing]).

Multiple steps are followed by the Hearing Board and its Clerk's office to comply with the requirements
of these statutory provisions and rules. Appended to this Report as Attachment 1 is the "Hearing Board
Notice Quick Reference Chart," which should convey a sense of the applicable requirements. The Chart
lists different types of cases-and specified actions within cases-and their corresponding "Noticing
Requirements." Recognizing practicalities, the Chart also lists "Total Time Needed for Noticings." For
example, 45 days have been determined to be needed for the Clerk's office to prepare and submit for
publication a required 30-day notice for a regular variance.

The Clerk's office additionally has a Procedures Manual that guides its staff in scheduling cases and
drafting and distributing notices. Attachments 2 and 3 to this Report are, respectively, Procedure 3 on
"Scheduling Hearings" (currently applicable provisions at pages 3-4) and Procedure 5 on "Notices"
(omitting an additional ten pages of sample documents).

Recognizing that electronic access to information about Hearing Board proceedings can be helpful to the
parties and the public, each notice of a hearing is scanned to the particular case file. It then becomes
immediately available to the public through the District's FIND or Public Access search. An individual
can search by facility name, facility ID number, Hearing Board case number, etc. to see the entire case
file. Also, the Hearing Board Calendar-Agenda is available online and is updated at least weekly. For a
matter such as an interim variance request, which does not require published notice, the Clerk attempts
to update the online Calendar-Agenda as quickly as possible.

To the greatest extent, the scheduling process goes smoothly, with infrequent mistakes, as the Clerk's
office routinely assigns hearing dates and keeps track of the Board's schedule. The Clerk is mindful of
the Hearing Board's commitment to hearing cases expeditiously, especially for the purpose of dealing
with excess emissions as soon as possible. Only when a variance case begins to be heard can the
Hearing Board grasp the extent of the compliance problem, particularly the constituents and volume of
emissions, and begin to assess what sorts of limits on emissions or operations could be imposed as
conditions in an order.

Other considerations also factor into scheduling, and the Chair guides the Clerk when scheduling
complex or controversial cases. The setting of hearings in cases with great community interest can be
further complicated by the need to find an available, suitable venue within the community, particularly
for Saturday hearings. In such instances, generally all Hearing Board members are consulted regarding
their availability. Similarly, when there will be hearings in a particular case over numerous days, it is
attempted for purposes of continuity and efficiency to insure that members who have already
participated on earlier days will be available on subsequent days.

Because of concerns raised by a new member last July, the Hearing Board discussed at length in August
the possibility of changing its scheduling practices. In particular, consideration was given to a proposal
developed by Chair Camarena in response to the member's concerns. This proposal would have had
the Clerk coordinate with the Chair on scheduling any case if it were known that a member had already
advised the Clerk of a planned absence. The proposal would have made it less likely that a case could
be heard when a member was going to be absent. Objections to the proposal were voiced by other

regular members and some alternates. They emphasized that an increase in postponements of cases
would result, that the Board would be less able to meet its obligation to be available to hear matters
three days a week, that to some extent alternates would become superfluous, that the possibility of
"Board member shopping" by parties would be increased, and that the Chair would be placed in the
difficult position of deciding which cases for which members should be postponed. After this
discussion, the Board member who had raised the concern took the proposal"off the table," and it has
not been revived.

Because the Hearing Board and its Clerk are consistently adhering to the legal requirements for the
scheduling and giving notice of hearings, I do not have any recommendations to offer in this regard.
suggest, however, that in Phase Two of this evaluation, it might be worthwhile to discuss with the
Hearing Board whether there are some aspects of its practices that might be changed for greater clarity
and efficiency. As of early January 2017, the Hearing Board is already considering possible changes to
its procedures to promote greater predictability in the schedule of hearings.


Continuance requests come from parties appearing before the Hearing Board, including variance
applicants, abatement case respondents, or the District staff. Less frequently, the Hearing Board needs
to postpone a matter on its own initiative because of a scheduling conflict or other obstacles.

Regardless of who initiates consideration of a continuance, the Hearing Board's practice has been to
grant such postponements only for good reason. I have looked closely to see whether continuances
have been sought by parties for strategic purposes such as to prevent public awareness of or
participation in a case, or to prevent participation by a particular Hearing Board member. I found no
such practices or motives at work.

There are many reasons why parties request continuances. According to both District and private
lawyers interviewed for this evaluation, common reasons include the need for more prehearing
preparation such as the development of additional evidence or reports, the unavailability of witnesses,
or the absence of new information to present in an ongoing matter. Recently Member Byrd and Chair
Camarena surveyed the reasons for seven continuances granted from May to December 2016. The
reasons included the need in an abatement proceeding to get more complete information on progress
and to arrange a venue for a hearing in the community, the District's need for time to resolve a permit
issue, the parties' wish to work further on developing a proposed stipulation for modification of an
abatement order, and time for the respondent in an abatement proceeding to review documents
produced pursuant to subpoena.

Hearing Board Rule 7(j)(1) on "Continuances" provides that "a moving party's first request for a
continuance of 15 days or less, concurred in by all parties to the action, shall be granted. " Such
requests of short duration typically are emailed to the Clerk's office and acted upon by a deputy clerk
there automatically. Rule 7(j)(2), however, provides that any such subsequent request, or "any request
for a continuance of more than 15 days and/or requests received with less than four working days
notice shall only be granted by the Chairman or designated member of the Hearing Board if the request
is reasonable and good cause is shown for the delay in providing notice." These provisions in the
Hearing Board rules are consistent in most respects with District Rule 514 on "Continuances," provisions
adopted by the Governing Board. Rule 514 also requires the automatic grant of a request for
continuance of 15 days or less, concurred in by the parties.

It is common in legal proceedings for delays to occur for a variety of reasons. For legal processes to
avoid error and reach sound results, it often just takes time. As Thomas Jefferson said in a letter to
George Washington on May 16, 1792, "Delay is preferable to error." (D. Shrager & E. Frost, The
Quotable Lawyer, p. 99 (New York: lnfobase, 1986). As frustrating as delays sometimes may be to the
Hearing Board, the public, the parties, and the District, all indications are that this Board's continuances
are moderate in number and consistently justified by good reasons. Accordingly, I have no
recommendations for change to offer, other than to suggest that further discussion of continuance
practices with the Hearing Board in Phase Two might reveal some possible improvements worth
considering and adopting.


I have found no evidence that cases have been scheduled for the purpose of depriving the public of
legally required notice or for the purpose of preventing any Hearing Board member or members from
participating. I have not found any evidence of manipulation or orchestration of the scheduling of
hearings. Also, there are no improprieties or abuses in the Hearing Board's handling of continuance

Accordingly, with respect to these particular, important aspects ofthe Hearing Board's processes, I
conclude that they are in accordance with the law and are transparent, open, and fair to the public and
all Hearing Board members.

B. Efficiency: Is the Hearing Board's workload meeting the public's needs and appropriate for the
members' compensation?


Hearing Board members generally come to the District on hearing days prepared for the cases to be
presented to them. This preparation is a function of the Clerk's office's procedures for making case
documents available to the members in advance. Also, most importantly, it evidences the considerable
time that members spend in reviewing case pleadings and related documents before and after hearings.

It is difficult to quantify how much time members spend on Hearing Board work, though one of them
estimates that on average a member spends about as much time outside of hearings as in hearings.
Preparing for a simple case may take about an hour. A complex, multi-day case can require three hours
or more not just for the initial hearing but for subsequent days as well if new documents or written
public comments have been submitted by the parties. Often members are working while at the District
on preparation for the next day's hearings or on review and approval of orders. When a member is new
to the work, it takes longer to prepare adequately for hearings, including familiarizing oneself with the
underlying statutes and District rules that pertain to the case. One member opines that a new member
may spend roughly 25 to 30 hours per week in addition to the time worked at the District.

The Chair spends probably half again as much time on Hearing Board work as a regular member, and the
Chair is required to be available at least four days a week, rather than three. The Chair's administrative
duties demand additional time and availability, including managing prehearing conferences, setting the
agenda for the Board's general meetings, and overseeing the Board's monthly report to the Governing
Board. Similarly, the Vice Chair has duties beyond those of a regular member. She participates in

prehearing conferences and, as the legal member, at times must dig into legal questions being raised by
the parties.

Occasionally members spend time getting ready to hear a case on a particular day only to learn that the
case has been postponed or has been withdrawn altogether. This occurrence is frustrating to the
members, especially ifthe change in schedule is last-minute and their preparation has consumed many
hours. Either before or after a hearing is scheduled, Hearing Board Rule 7(f) broadly allows a petitioner
to submit "written notice that the request for hearing is withdrawn" via mail, email, or facsimile,
thereby terminating the action. As quoted above, Hearing Board Rule 7(j)(2} requires the Chair to rule
on continuance requests "received with less than four working days notice." This provision is one of the
ways in which the Hearing Board attempts to prevent late postponements. When last-minute changes
do occur, the Clerk's office tries to alert members as quickly as possible, including by telephone.
Unfortunately, despite these measures, some degree of wasted preparation time is inevitable when
dealing with the large number and variety of legal proceedings the Hearing Board faces, and the
unpredictability of withdrawals and continuances.


Chair Camarena is widely viewed as doing an exemplary job in directing the Hearing Board's operations
and chairing hearings. Among the phrases used by interviewees to describe his work are the following:
"Exceptionally qualified." "Respected." "Manages with fairness." "Good at herding cats." "Steady
hand." "Professional." "A strong chair." "A good sense of practical realities." "Functions extremely
well." "Balances the public's needs and judicial efficiency."

Hardly any negative comments about Chair Camarena's work were made by interviewees. Because of
the Chair's prior work in enforcement within the District, however, two individuals mentioned that they
previously had had some doubts about whether he would be overly inclined to favor the District's
position and witnesses in cases. These doubts were largely allayed, and one of those interviewees
acknowledged that the Chair is "generally objective."

Vice Chair Prussack also is viewed favorably with respect to her legal expertise and her clear and active
participation in hearings. In particular, Chair Camarena frequently relies on Vice Chair Prussack to deal
with evidentiary objections and some procedural questions that arise during hearings. This sharing of
duties appears to work well, especially in complex cases.

With respect to the impact of her opinions on interpretation of applicable law during hearings, and on
provisions to be included in Hearing Board orders (including stipulated orders for abatement), a number
of interviewees questioned whether other members are deferring to the legal member's views to an
unwarranted degree. Reportedly in the past, excessive deference to the legal member ofthe Board has
been noted, just as it has been raised with respect to Vice Chair Prussack, the current legal member.
This deference is of particular concern regarding broad legal standards such as "reasonable control" and
"good cause." It may well be that some other members do not view themselves as equal participants in
the discussion and analysis of how the law-even its very general standards-applies to the facts in
some cases. I suggest that Phase Two of this evaluation should include discussion of whether this
imbalance exists and, if so, how it can be rectified.

Number of Hearings

Over the ten fiscal years beginning July 1, 2006 and ending June 30, 2016, the Hearing Board met an
average of 80 days per year. The busiest year was 2006 with 103 days, and the lowest was 2014 with
62. 2012 and 2015 each had 64 hearing days. Presently the pace of hearing days is above the average,
for the Board has met on 43 days between July 1, 2016 and January 10, 2017.

Although these numbers tell us something about how adequately the Hearing Board is responding to the
need for it to perform its statutory duties, they do not tell the whole story. There are at least two other
important, interrelated factors indicative that the Board works hard:

First, over the past year or so, the Hearing Board has dealt with more complex, controversial,
high-profile cases than usual. Indeed some interviewees assert that the Board is dealing with
more such cases than ever before. Be that as it may, it would be a mistake to assess how well
the Board is doing its job simply by looking at how often it meets. Each of the recent
challenging cases (for example, Exide Technologies, Sunshine Canyon, Paramount, and SoCal
Gas) has been far more demanding than ordinary variance or abatement cases. Each has
demanded each member to become familiar with extensive documentation, citizen testimony,
expert testimony, differing options for remedies, and other issues, including strongly felt
community emotions and economic considerations.

Second, the Hearing Board has had more hearings on Saturdays and in affected communities
than normal, perhaps more than ever. Between January 9, 2016 and November 5, 2016, the
Board conducted nine Saturday hearings in various locations, including Commerce, Granada
Hills, and Northridge areas.

I find little reason to believe that anything that the Hearing Board is doing or not doing contributes
significantly to changes in the number of cases it hears and the number of days it works. There is a
myriad of factors in play that are uninfluenced by the Hearing Board and that cumulatively and
intermittently may diminish the Board's caseload. Interviewees have speculated on many ofthem, but
it is impossible to ascribe specific weight to any of them. These speculations include:

• Economic cycle impacts, particularly the 2008 recession.
• Fewer new regulations with future compliance dates adopted by the SCAQMD Governing
• Cost comparisons by potential variance applicants, leading them to conclude that filing fees,
excess emission fees, notice publication costs, and legal fees probably exceed possible penalties
the District might exact.
• Transition of some large facilities into RECLAIM for smaller equipment, such that emission
limit caps and recordkeeping requirements are more salient than other regulatory restrictions.
• Improved compliance because of better control equipment or operating practices, and more
professionally trained environmental personnel at facilities.
• Greater District emphasis on large facilities' compliance, leaving undetected violations at
smaller facilities that are inspected less frequently.
•Greater operating flexibility built into District permits for predictable problems and
circumstances, such as startup conditions.

I looked closely at whether private attorneys, or even the District's attorneys, were counseling against
taking matters to the Hearing Board because of any perceived biases or dysfunction there, as has
happened relative to hearing boards in other districts. Some outside attorneys mentioned that
unpredictability in how Hearing Board members might view their clients' cases is sometimes a factor in
advising clients against seeking variance relief. A few of the attorneys believe that the Hearing Board is
generally predisposed against, or at least skeptical of, variance protection, rather than understanding it
as a worthwhile statutory safety valve for temporary, justifiable relief. In some instances, uncertainty
about whether a variance petition will be granted, coupled with an unfavorable cost comparison, leads
to the working out of a stipulated abatement order with the District. In short, there is some occasional
avoidance of the Hearing Board because of the uncertainty of outcomes and the costs, but there does
not seem to be any widespread sentiment that avoidance is warranted.


There are intimations in the September Governing Board discussion that perhaps Hearing Board
members are overpaid. Conversely, there are members of the Hearing Board, particularly the two new
members, who believe the Hearing Board members are underpaid. The latter viewpoint in part reflects
misunderstanding on the part ofthe new members as to just how demanding and time-consuming it is
to serve on this Board. Those members have acknowledged their misunderstanding, as will be
discussed more fully in Section IV.C below.

I do not believe the scope of my evaluation ofthe Board was intended to invite my views on how much
the members should be paid. In any event, opinions on that question would best be rendered by
human resources and compensation professionals, with expertise I do not have. I only offer two
observations that I believe are pertinent:

First, the Hearing Board members work hard at this job. It is virtually a full-time position,
although it is a bit unusual in that at times the pace of hearings is slow and at other times it is
extremely demanding throughout the week and even on weekends. The work is not easy, as
the issues presented are often complicated and the necessary judgment calls frequently require
deep analysis and careful balancing of competing considerations.

Second, if the Hearing Board is to be composed of well-qualified individuals who understand and
are dedicated to this work, compensation must be adequate to induce such persons to serve.
This point was explicitly recognized by the Governing Board when it adopted Resolution No. 07-
23 on November 2, 2007. The Resolution stated, "[T]he AQMD Governing Board finds it
appropriate to modify the compensation of the members and alternate members of the AQMD
Hearing Board to ensure the ability to attract and retain qualified members."

Findings and Recommendations

In terms of their preparation, leadership, and quantity and quality of work, I believe the Hearing Board is
serving the public's needs efficiently and effectively. I recommend that in Phase Two further attention
be given to the possibility that not all Hearing Board members fully appreciate the equal responsibility
that each of them has to apply the law to the facts. I also recommend that attention be given to the
possibility that the costs associated with seeking a variance are more burdensome than they need to be
and that they are having the undesirable effect of dissuading potential variance applicants from coming

forward to seek the relief that will help them come into compliance under conditions tailored by the
Board to reduce excess emissions.

I offer no opinion or recommendation as to whether the Hearing Board members' compensation is
appropriate for the service they provide. If the Governing Board believes there should be an analysis of
whether the present compensation levels are too high, too low, or acceptable as they are, the necessary
expertise for compensation analysis should be brought to bear.

C. Readiness: Are new Hearing Board members properly prepared for the Hearing Board's work and
fairly included in it?

Qualifications and Preparation

As was observed during the September Governing Board meeting, the Hearing Board members serve in
"a judicial function" that requires the type of independence traditionally expected of judges. Apart
from all other attributes and skills that may qualify an individual to serve on the Hearing Board,
understanding of this judge-like role is essential. , Without this understanding, citizens appointed to the
Hearing Board may have the talents and energy that make them qualified to do the job well, but they
may not be ready to do so.

Recent difficulties in the Hearing Board's functioning in large part coincided with the transition of adding
the two new members who joined in July 2016. Although both of these new members are extremely
well qualified, a variety of misunderstandings and unrealistic expectations-by themselves, the other
Hearing Board members, and the Governing Board-left them unprepared in important respects.
Integrating a practicing physician or an experienced legislator into a judicial function could simply not be
easy under any circumstances. The challenge has proven to be especially great when-as noted
above-among the first cases they faced have been some of the most complex and controversial cases
this Board has ever encountered.

Misunderstandings and Unrealistic Expectations

As quoted in Section Ill, the District's website and Job Bulletin succinctly describe the Hearing Board and
the basic expectation for members' presence at the District up to three days a week. Presumably the
new members were familiar with this information. Even assuming that, there were numerous critical
aspects of the demands of this work that were not successfully communicated to them. It would seem
to be the responsibility of the Governing Board in appointing new members to make sure that they are
both qualified for the job and ready to do it well. In the latter respect, it should be ascertained by the
Governing Board that the potential member understands that this quasi-judicial work is probably very
different from anything he or she has done before. Furthermore, it should be determined whether the
potential appointee is fully ready to learn how to function like a judge. That is probably the greatest and
most important challenge facing a new Hearing Board member.

There are other challenges, too. For example, Dr. Lerner, a practicing physician, was surprised to find
out that Hearing Board service requires a tremendous amount of time to be spent outside of the actual
hearings in preparing for the cases and in addressing other aspects of the Board's operations with the
other members. To do this work well, while serving his patients, has been daunting, though he is
determined to succeed. He not only misunderstood how much time would be required outside of the

hearings, but he somehow also was surprised to learn how many days each month his presence at the
District would be required. Clearly the appointment process failed to convey full and accurate
information about the heavy commitment this nearly full-time position entails. As a result, the doctor
entered into this position with unrealistic expectations. It would seem that those expectations mirror
unrealistic or incomplete expectations on the part of the Governing Board as to the nature of the
Hearing Board's work and as to how readily a Hearing Board member can dive into the work and quickly
become an effective participant in it.

Similarly, as to Senator Holden, I believe the Governing Board and he did not understand the magnitude
of the job. Again, the tremendous time commitment was not anticipated. Furthermore, it is unrealistic
to expect an individual with such long and distinguished experience in an elected, legislative capacity to
suddenly feel at home, and consistently contribute effectively, in the work of a quasi-judicial body.

There have been many aspects of the Hearing Board's operations in recent months in which one or both
ofthe new members' misunderstandings of the Hearing Board, and of their functions within it, have
been evident and problematic. Their misunderstandings in various ways have interfered with the
smooth administration and conduct of Hearing Board functions. The misunderstandings have included
the following, although some of these have recently resolved:

• The volume of hours of work required, both in hearings and outside of hearings, whether at
the District or at the member's home or office.
• The inappropriateness of the introduction of evidence by a Hearing Board member.
• The legal responsibility of all Hearing Board members equally to represent the interests of the
public, as this quasi-judicial work is very different from the constituency representation
expected of an elected official such as a legislator. Although the two public members are
selected from the public, they are no more obligated to work for the public than the other
members who are selected from particular professions.
• The impropriety of individual conversations with parties or witnesses, including citizen
witnesses, at any time outside of the on-the-record hearing itself.
• The need for all members of the Hearing Board to share the making of motions and the
corresponding oversight of the drafting of orders for the resolution of cases.
• The necessity of reviewing Consent Calendar matters in advance and of advising in advance if
the member wishes to take the matter off that Calendar.
• The necessity of advising the Hearing Board Clerk at least 24 hours in advance of a member's
absence so that an alternate member can be called upon to prepare and participate instead.
• The importance of patient listening, civility, and calm and clear expression-judicial
deportment-with regard to questioning and deliberating about the evidence and arguments of
witnesses and counsel.
• The importance of the Chair's responsibility to manage the hearing process efficiently and
limit time spent on a party's or member's statements and questions of questionable relevance
to the issues in the case.
• The Governing Board's Resolution determining that compensation will be deducted for a
member's absence from a day of hearings.
• The scope of responsibilities and functions of the Clerk's office.


The arrival of the two new members has been accompanied by a series of training sessions organized by
the three incumbent members, and especially by the Chair and Vice Chair. Although these sessions
have been ambitious and fairly comprehensive, there seems to be general agreement that they have not
achieved the desired results. Although a lot has been learned, it is not clear if the depth and breadth of
gained familiarity with the Hearing Board's duties are commensurate with the time spent.

In part, I believe the questionable impact of the training thus far is a function of the above-mentioned
misunderstandings with which the new members arrived. As one interviewee commented, training will
only be effective for individuals who arrive already having a basic understanding of the Hearing Board's
role and who are ready to learn how to do that job. Unfortunately, the transition in the Hearing Board
over the past six months has included unrealistic expectations, on the part of the three veteran
members, about the likely effectiveness of their training efforts.

The Job Bulletin quoted in Section Ill also contains the following statement, which is based on Governing
Board Resolution 07-23:

Newly appointed regular Members or Alternate Members having no prior experience on
SCAQMD's Hearing Board are expected to participate in an orientation period not to exceed 15
days or until the Alternate sits in the place of a regular Member, whichever occurs first, at a
compensation of $150 per day for actual days spent. The orientation is to develop familiarity
with SCAQMD Hearing Board methods and procedures.

This orientation opportunity appears to be helpful, but nowhere near enough to prepare new members
for the demands and complexity of the work. In the words of one member, the training program
"should be sharpened."

Although it was hoped that the main components of the training for the new members in 2016 could
take place before they took office on July 1, scheduling constraints facing the Board and the new
members and alternates made that infeasible. Instead, the sessions before July 1 were followed by a
series of sessions extending through the rest of the year, with additional programs anticipated for early
2017. Speakers thus far have included the three incumbent members, SCAQMD General Counsel, and
the outside counsel to the Hearing Board (discussing ethics concerns and the Brown Act). It is expected
that in coming months there will be a session conducted by a SCAQMD staff member on engineering
and compliance issues, as a session of this sort was done a few years ago.

Also, one of the new alternates, who had attended a "variance workshop" conducted by the California
Air Resources Board, made a presentation in November about the content of that workshop. In
December a training exercise for members was initiated, requiring them to examine a variance petition,
listen to an audio recording of a hearing on the petition, study the pertinent law, and then be prepared
to discuss how the case should be decided.

There has been some discussion of offering Hearing Board members the opportunity to attend training
courses for administrative law judges and hearing officers offered by the National Judicial College.
Some Hearing Board members have observed that attendance at such courses would be most beneficial
if it occurred either before, or very soon after, a new member begins service. I believe courses offered

by the College could help to instill more solid understanding of the quasi-judicial role, and in that
general sense would be worthwhile. Many unique aspects of the Hearing Board's statutory obligations,
however, would not be dealt with in those courses, so plainly they could not substitute for training
tailored to the functioning of this Board.

The current training efforts are commendable, particularly the December exercise, but as ambitious as
they are, they are probably not yet up to the task. In particular, I question whether the heavy emphasis
on "talking heads" and comprehensive coverage is best. To expect a new member to digest a great
volume of legal, technical, and procedural information in a short time through listening to a succession
of speakers, reading handouts, and viewing slides seems unrealistic.

Integration into a new, quasi-judicial role may well be advanced more effectively with a shift in
emphasis to more experiential learning techniques. Simulated hearings might be held, in which the
new members would act in their new roles and be subject to interruptions for constructive comments
by designated trainers such as present or former Hearing Board members. Also, the Hearing Board
might agree to set aside some time shortly after actual hearings to candidly critique how they have
performed their role. These types of exercises, albeit potentially awkward, would promote the
"practice makes perfect" mode of learning on the job, so to speak. In this regard, it might be fruitful
for the Hearing Board to learn more about the techniques used by the National Judicial College in its
administrative law judge courses and by California courts in the training of new Superior Court judges.
Although the content of training by such outside entities likely would be of limited relevance, the
educational techniques might be worthy of adaptation for the Hearing Board's training efforts.

Staff Assistants

As noted in Section II above, the Hearing Board has not asked for staff assistants to be provided for its
members. Only Senator Holden has requested this and urged that he and other members need both
additional compensation and staff assistants for the heavy workload the Board faces.

To the best of my knowledge, Board members have not previously had such assistants nor felt the need
for them. However, the 1991 Report did address the following question:

Should the Board engage legally trained staff to prescreen petitions, identify and summarize
issues, and assist unrepresented petitioners in preparing petitions which fulfill the requirements
of the Board's standardized forms and procedures for presentation of evidence? (1991 Report,
page 111.)

Although that report identified the lack of legally trained staff as a gap in resources, it did not "seem
very central" to the problems identified for the Board at that time. Accordingly, no change in this
respect was recommended. Similarly, I do not see a need at this time for the hiring of a staff assistant
for each of the Hearing Board members on an ongoing basis.

However, on a transitional basis for new members, I believe the availability of staff assistance-beyond
the functions of the Clerk's office-could be worthwhile. Unless the initial readiness difficulties
discussed above are overcome, and unless the training program is transformed in both effectiveness and
speed...,.....and perhaps even regardless of whether those changes occur-it will remain unrealistic to
assume that any new member quickly will work effectively and appropriately when beginning in the new

quasi-judicial role. As mentioned earlier, with reference to the present transition, it is simply not
realistic to expect that a practicing physician or experienced legislator will easily and quickly move into
this demanding quasi-judicial function, especially when complex cases are on the docket right away.

Accordingly, I recommend that consideration be given to providing transitional staff assistance to new
members. Almost certainly there would be added cost associated with such assistance. In the event
that the Governing Board decides to provide such help, Section 40501.1{e) prescribes that the SCAQMD
budget "shall have a line item to provide necessary staff and other support dedicated to the hearing
board.". I believe transitional support should be for a period no shorter than six months and no longer
than the first one and a half years of service, i.e., half of the initial three-year term.

Although the best means of providing transitional assistance is not obvious, the following are some
options that seem worthy of consideration:

• Provision of a legally trained staff assistant with no current affiliation with SCAQMD {e.g.,
paralegal, law graduate, or attorney) for each new member. {This is analogous to an individual
law clerk assigned to a judge.) ·
• Provision of a legally trained staff assistant with no current affiliation with SCAQMD {e.g.,
paralegal, law graduate, or attorney) to be shared by multiple new members. {This is analogous
to a research attorney assigned to multiple judges on the same court, as is found in Superior
Courts in some counties.)

• Assignment of a member of the Hearing Board's outside counsel's office or the District
General Counsel's office (e.g., paralegal or attorney) to be shared by multiple new members.
{There are undeniable ethical and potential conflicts issues associated with this approach, and
new legislation might be needed to effect it. For example, something like Health & Safety Code
Section 40809 might be advisable. That section, which does not apply to the SCAQMD,
contemplates that a county counsel's office "may represent both the district and the hearing
board ... as long as the same individual attorney does not represent both the district and the
hearing board.")
• Assignment of an incumbent member to mentor each new member.
• Assignment of "a qualified alternate or any former hearing board member" to mentor each
new member. {The quoted phrase appears in Health & Safety Code Section 40501.1{d), albeit
addressing a different function.) {Note also that Resolution 07-23 disallows compensation for an
alternate attending a hearing if the regular member also is present "unless approved by the
• Overlapping the term of an outgoing member with the service of an incoming member to
provide a "shadowing" or mentoring period. {This would require either earlier appointment of
the new member or some extension of the outgoing member's service and compensation.)
• Provision of a stipend to each new member to allow for the hiring of an outside assistant of
the member's choosing. {Although I am not familiar with the program, I believe the availability
of staff assistants for Governing Board members may follow this approach.)

Findings and Recommendations

I see no problem with respect to the Hearing Board's fair inclusion new members in its work. The
training efforts initiated and organized by the incumbent members, and additional communications
between them and the new members, are all aimed at integrating the new members as smoothly as
possible. The readiness of the new members to perform their new roles, however, has been hampered

by a raft of misunderstandings of the nature of the Hearing Board and of the responsibilities of its
individual members.

This Phase One Report is not intended to evaluate the process by which the Governing Board reviews
and selects new appointees to the Hearing Board. The strength ofthe qualifications of both the
incumbent members and the new members demonstrates that the Governing Board has made some
exemplary selections over the years. Unfortunately, the limited readiness of the two newest members
to bear their new responsibilities suggests that more intensive inquiry by the Governing Board, and
more intensive provision of information to potential new appointees, are needed. In particular, the
nature of the quasi-judicial role, and the time-consuming burdens of this virtually full-time job, need to
be made much clearer before selections are finalized. I recommend that the Governing Board evaluate
ways in which these important emphases can be conveyed. Perhaps all applicants for appointment
should be required to observe a number of Hearing Board hearings and general meetings, or perhaps
they should be required to attend an information session about the Hearing Board conducted by it or by
the General Counsel.

Regarding the present training program, and the recent, serious misunderstandings discussed above, I
recommend that future training sessions bluntly and forthrightly emphasize the need to correct these
misunderstandings. I am aware that written information distributed to the members by the Chair, and
presentations in the training sessions as well, already have confronted these problems, but reiteration
appears necessary. To the extent that any members believe I have misstated what is misunderstood, or
to the extent that any members wish to suggest changes in aspects of the way the Hearing Board
functions, these also are matters that need to be taken up within the Hearing Board as soon as possible.

Lastly, I recommend that the Hearing Board include more experiential learning in the Hearing Board
training approach, through mock hearings and more simulation exercises, as mentioned above. It also
would be helpful for new members to be appointed and start being compensated earlier, perhaps by
March 1, in order that attendance at training sessions and observation of hearings could be much
farther along by the July 1 start date for service. The options outlined above for transitional staff
assistance also should be examined closely by the Governing Board, with input from the Hearing Board
as to which options would seem most worthwhile to pursue.

D. Oversight: Is Communication between the Hearing Board, Governing Board, and Other Oversight
Agencies Adequate and Appropriate?

Oversight Agencies

Outside oversight of the Hearing Board's work is provided by the California Air Resources Board. Health
& Safety Code Section 42360 requires every variance order issued by the Hearing Board to be submitted
to CARB within 30 days of issuance. Sections 42362-42363 authorize CARB to revoke or modify any
variance if "the variance does not require compliance with a required schedule of increments of
progress or emission standards as expeditiously as practicable, or the variance does not meet" statutory
requirements. The Hearing Board also submits to CARB all orders for abatement.

Although CARB reviews orders submitted to it, it is exceedingly rare for CARB to revoke an order issued
by any hearing board in the state. In my 2006 article (at pages 36-37, 89), I noted that CARB's
revocation power "has been in the Code since 1975, but the power it confers has hardly ever been

exercised. Nonetheless, the state board often brings its authority to hearing boards' attention. More
concretely, ARB frequently indicates that specific orders need fuller explanation, in order to avoid
exercise of the state agency's authority to override or change them. . .. The possibility that ARB will
exercise its authority to remove or modify variance orders can be a strong inducement for hearing
boards to make sure their procedures and orders are in accord with statutory requirements."

An additional inducement to proper performance of the Hearing Board's duty in one important realm of i
its work comes from the U.S. Environmental Protection Agency. The complex, 14-page provisions of
SCAQMD Rule 518.2 ("Federal Alternative Operating Conditions") apply to facilities subject to the i
federal operating permit requirements of Title V of the federal Clean Air Act. The Rule allows facilities
to seek from the Hearing Board alternative operating conditions that can afford protection akin to a l
variance. I
Section 518.2(a) states, "Incorporation of an Alternative Operating Condition into a Title V permit
pursuant to the requirements of this rule would shield the petitioner from enforcement pursuant to the
·federal Clean Air Act or otherwise applicable requirements specifically modified by the Alternative
Operating Condition." Hearing Board actions under Rule 518.2 are subject to a 30-day public comment
period and a concurrent 45-day review by EPA (Section 518.2(f)(1)). If EPA objects to the Alternative

Operating Condition, the Condition "shall be ineffective unless the Hearing Board adopts and submits to
U.S. EPA a revised Alternative Operating Condition which conforms to such objection ... " (Section
518.2(f)(6)). Plainly the Hearing Board's activities under Rule 518.2 are undertaken with keen
awareness that EPA is, or soon will be, looking over its shoulder.

Governing Board
As noted in Section II regarding Hearing Board independence, and as discussed further in Section IV. C
regarding new members' readiness, the Governing Board's primary review process relative to the
Hearing Board occurs at the time of appointment and reappointment of individual members.
Additionally, each month the Hearing Board Chair submits a written report to the Governing Board.
These are the only processes by which the Governing Board is informed in a predictable, organized
fashion about the Hearing Board's functioning. Additionally, when major proceedings before the
Hearing Board appear to include a prospect of litigation, the General Counsel briefs the Governing Board
as needed.

Each monthly report contains a table listing the cases heard during the month and basic information
regarding the reason for each matter, the District's position, the Board's action, the type and length of
order, and the excess emissions. The report also identifies all of the specific SCAQMD rule sections for
which variances or abatement orders were requested. Each monthly report appears on the Consent
Calendar for the Governing Board's monthly meeting. The report is not presented in person by any
Hearing Board member, and apparently there are never questions or discussion by the Governing Board
about the report. Perhaps this quiet response is indicative that the report is informative and reassuring
enough to the Governing Board that no further time need be spent on it. More likely, I suggest, is that
the report, or at least the detailed listing of rule sections, is not helpful to the Governing Board. I
recommend that the Governing Board should discuss and convey to the Hearing Board its collective
opinion of these monthly submittals so that possibly they can be adapted to be more responsive to the
Governing Board's preferences regarding the content and frequency of information it would like to

I also believe that processes should be established to enhance the Governing Board's understanding of
the Hearing Board's statutory role and its functioning. Unfortunately, when I asked interviewees about
the Governing Board's understanding of the Hearing Board, their responses were unhesitating and
virtually unanimous: "It does not know what the Hearing Board does." The Governing Board
understands the Hearing Board "not at all." "I don't think they understand at all." The Governing
Board "does not grasp the Hearing Board's value and role." I also learned that only a few Governing
Board members have ever observed Hearing Board proceedings. Obviously I cannot say with certainty
whether Governing Board members generally do or do not understand the purposes and importance of
the Hearing Board, but I can say with certainty that the widespread perception is that the Governing
Board is uninformed about the Hearing Board.

I recommend that steps be taken promptly to create orderly methods for improved communication
between the Hearing Board and the Governing Board, enabling the latter to understand the former
more fully. The principal reason for creating new, regularized avenues of communication is to protect
the independence ofthe Hearing Board while allowing the Governing Board to exercise its overriding
responsibility for the effective functioning of the District.

If there are hardly any regular channels for mutual understanding between the Hearing Board and
Governing Board, there are serious prices to be paid within both bodies when the only alternative is
private conversations. These prices include increased risks of inaccurate information, limited
knowledge by colleagues of what other colleagues are saying or hearing, and corroded collegiality and
trust. Additionally, implicit or explicit threats to the independent operation and judgment of the
Hearing Board are more likely to be perceived.

Findings and Recommendations

I recommend that the Hearing Board and Governing Board explore means of regularizing
communication between them. The practice of submitting monthly written Hearing Board reports
should be reevaluated, as there is scant evidence that the Governing Board finds it useful.

Most importantly, both bodies should examine and discuss ways in which mutual understanding could
be enhanced and channels could be established for inclusive and informative exchange of information
on an ongoing basis. I suggest the following options be included for consideration:

• "A simple face to face meeting of the Governing Board and the Hearing Board could probably
clear up a number of issues/question that have been raised by the Governing Board." (Quoting
a recent interviewee.)

• Presentation ofthe periodic-whether monthly or otherwise-Hearing Board reports to the
Governing Board by the Hearing Board Chair or other member in person, allowing an
opportunity for oral explanation of key aspects of the report and questions by the Governing

• Observation of some Hearing Board proceedings by individual Governing Board members to
improve their understanding of how cases are handled.

• Presentation by the Hearing Board to the Governing Board of an overview of the Hearing
Board's role and operations, perhaps with input from the General Counsel as well. This might
be included in a scheduled Governing Board retreat.
• Assignment to an existing or newly created Governing Board committee of the responsibility
to maintain periodic communication with the Hearing Board regarding its operations and any I
concerns that may arise in either body.
I hope that the SCAQMD Governing Board, Hearing Board, General Counsel, and other interested
SCAQMD units will find this Phase One Report helpful, as well as responsive to the concerns that
prompted this evaluation.

In the Appendix that follows this Conclusion, I list suggested topics for consideration in Phase Two. The
list is presented in no particular order and is based on both suggestions from interviewees and topics
that otherwise have come to my attention, some of which are mentioned above in this Phase One
Because of the nature of most of the suggested topics, perhaps they can be best addressed through
public discussions with the Hearing Board, rather than the preparation of an additional written report.
would be pleased to participate in those discussions and to offer my ideas on whichever of these topics
are considered worthy of consideration and on other topics that may be raised.

To the extent that the discussions would identify specific tasks in which I might be helpful, such as the
drafting of possible procedural rule changes, I would be happy to assist in that way as well. Similarly, I
would be happy to discuss any of the matters in this Phase One Report, or issues arising subsequently in
Phase Two, with the Governing Board or one or more of its committees.

Respectfully submitted,

Kenneth A. Manaster