BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 291
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          Date of Hearing:   June 17, 2013

                    ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
                               Steven Bradford, Chair
                  SB 291 (Hill) - As Introduced:  February 14, 2013

           SENATE VOTE  :   36-0
           
            SUBJECT  :   Safety enforcement: gas and electrical corporations

           SUMMARY  :   This bill requires the California Public Utilities  
          Commission (PUC) to develop and implement procedures for  
          issuance of citations by PUC staff to gas corporations and  
          electrical corporations for correction and punishment of safety  
          violations.   Specifically,  this bill  :   

          a)Requires the PUC to develop and implement procedures for  
            issuing citations to gas and electric corporations for  
            correction and punishment of safety violations.

          b)Requires the PUC to development and implement an appeals  
            process regarding issuances and appeal of citations.

           EXISTING LAW  :

          1)Permits powers and duties of public officers of the PUC to be  
            delegated to deputies of the officers or authorized personnel  
            unless expressly prohibited by law. (Public Utilities Code,  
            PUC §7)

          2)Declares that any public utility that violates or fails to  
            comply with any part or provision of any order, decision,  
            decree, rule, direction, demand, or requirement of the PUC is  
            subject to a penalty between $500 and $50,000 for each  
            offense. (PUC §2107)  

          3)PUC administrative rules, adopted by Resolutions of the PUC  
            allow PUC staff to issue citations for violations of PUC and  
            federal regulations:

                 Gas corporation safety compliance. (Resolution ALJ-274)
                 Water and sewer utilities. (Resolution W-4799)
                 Electricity resource adequacy (E-4195) 
                 Renewables Portfolio Standard filing requirements  
               (E-4257)








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                 Propane (USRB-001)
                 Transportation entities: household goods carriers,  
               charter party carriers, and passenger stage corporations  
               (ROSB-002 and ALJ-187)
                 Telecommunication (UEB-002)
                 Mobilehome parks (SU-24)

             1)   Specifies that fines imposed shall be deposited to the  
               General Fund (PUC §§ 2000, 2104, 2104.5)

             2)   Authorizes the California Energy Commission (CEC), after  
               one or more hearings, to amend the conditions of, or revoke  
               the certification for, any power plant facility application  
               it has certified for any of the following reasons: a  
               material false statement set forth in the application; any  
               significant failure to comply with the terms or conditions  
               of approval of the application, a violation of any  
               regulation or order issued by the commission. Further  
               authorizes the CEC to issue a complaint for which a civil  
               penalty is proposed and hold a hearing within 60 days of  
               serving the compliant. Penalties assessed are to take into  
               account  In setting the penalty the CEC is required to take  
               into consideration the nature, circumstance, extent, and  
               gravity of the violation or violations, whether the  
               violation is susceptible to removal or resolution, the cost  
               to the state in pursuing the enforcement action, and with  
               respect to the violator, the ability to pay, the effect on  
               ability to continue in business, any voluntary removal or  
               resolution efforts undertaken, any prior history of  
               violations, the degree of culpability, economic savings, if  
               any, resulting from the violation, and such other matters  
               as justice may require. Any money recovered by the CEC is  
               to be deposited in the General Fund.
               (Public Resources Code 25534, 25534.1, 25534.2)

           FISCAL EFFECT  :  Unknown.

           COMMENTS  :   

           1)Author's Statement  . "SB 291 requires the PUC to develop  
            procedures to delegate citation authority to staff for  
            electric safety violations.

            "Both the National Transportation Safety Board and the PUC's  
            own Independent Review Panel found the PUC's enforcement  








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            posture to have been weak before the San Bruno explosion.   
            Both bodies made the same specific recommendation: allow staff  
            to have the direct authority to fine for pipeline safety  
            violations.

            "The reason for this is that the PUC's traditional enforcement  
            mechanism-opening a formal investigation-is administratively  
            burdensome.  Formal investigations can take over a year and  
            are usually only done in the case of accidents that involve  
            multiple fatalities or extensive property damage, as in the  
            Southern California wildfires or the San Bruno explosion.

            "Smaller violations that may nonetheless indicate serious  
            problems had been largely ignored at the PUC.  After the San  
            Bruno reports came out, the PUC promptly followed their  
            recommendations for gas safety, but it has not yet done so for  
            electric safety, even though there have averaged 11 fatalities  
            per year from 2008 to 2011 on the facilities CPUC-  
            jurisdiction electric facilities.

            "The PUC has delegated authority to staff to fine for  
            violations of gas safety, rail safety, water and sewer public  
            health, electric resource adequacy, RPS filing requirements,  
            and others.

            "Electric safety is of paramount concern to the health and  
            wellbeing of Californians, and this bill will make sure the  
            PUC to recognize it as such."

           2)Authority to issue Citations Currently Exists but Procedures  
            Vary  . The author points out that the PUC has already delegated  
            authority to staff to fine for violations of gas safety, rail  
            safety, water and sewer public health, electric resource  
            adequacy, RPS filing requirements, and others.

            Resolution ALJ-274 authorizes PUC staff to issue a written  
            citation to any gas corporation, stating the specific  
            violation, the amount of the fine, and information about how  
            to appeal the citation. Each citation will assess the maximum  
            penalty amount provided for by § 2107. Each day of an ongoing  
            violation may be penalized as an additional offense.   
            According to Resolution ALJ-274, before issuing a citation,  
            staff will generally consult with the Director or Deputy  
            Director of CPSD.  The Respondent may either pay the penalty  
            or submit a Notice of Appeal. The procedures for issuing  








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            citations and for submitting a Notice of Appeal are set forth  
            Resolution ALJ-274.  Specific to Resolution ALJ-274, local  
            authorities are to be notified.

            Resolution W-4799 allows citations to be issued only after  
            written notice of non-compliance or violation has been given  
            to the water or sewer utility and the water or sewer utility  
            has failed to correct the non-compliance or violation in a  
            timely manner. A water or sewer utility that has been issued a  
            citation may accept the fine imposed or contest it through a  
            process of appeal. The procedures for appealing a citation are  
            set forth in Resolution W-4799.

            Resolution UEB-001 authorizes staff to provide written notice  
            that a citation will be used and at least 15 calendar days for  
            the telecommunications provider to respond (plus an additional  
            15 calendar days upon request). 

           3)Citations Issued.  

            According to the PUC, in 2008 the PUC was issuing  
            approximately 6 citations per year for Resource Adequacy  
            Violations.

            In 2009 the PUC adopted a citation program for RPS compliance  
            because several Load Serving Entities had failed to provide  
            complete or requested documentation.

            According to the PUC website, PUC staff last issued $1,000  
            citations for slamming ("slamming" refers to switching a  
            consumer's telephone service from one carrier to another  
            without obtaining the consumer's consent) in 2010.

            In February 2011, CPSD issued a report on numerous safety  
            violations found at several locations within the San Francisco  
            Metropolitan Transit Authority.  No citation was issued. The  
            PUC opened an Order Instituting Investigation (OII) and  
            reached a settlement in March 2012 which required the Transit  
            Authority to take corrective actions. No fine was assessed for  
            the violations.

            In December 2011, PG&E self-reported that it has failed to  
            perform gas pipeline leak surveys required every 5 years  
            within one of PG&E's regional divisions. According to CPSD no  
            injury or damage occurred and PG&E initiated corrective  








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            actions. CPSD cited PG&E $16.8 million for failure to conduct  
            pipeline leak surveys. PG&E appealed the method used by CPSD  
            staff to count the number of violations. The PUC upheld the  
            fine in March 2012.

            In November 2012, CPSD issued $20,000 citations to Uber,  
            Sidecar, and Lyft, for violating safety rules applicable to  
            transportation carriers. In November the PUC opened in  
            investigation into ridesharing services. In early 2013 the PUC  
            entered into operating agreements with several of ridesharing  
            service companies.

            In March 2013, PUC staff cited Live Oak Springs in the amount  
            of $67,500 for selling trucked water to Straub Construction.

            In April 2013, the PUC announced citations given to numerous  
            moving, limousine, shuttle, and bus companies.

           4)No Citation Authority for Electric System Safety?  The author  
            points out that the PUC has not yet adopted a citation program  
            for safety of the electricity system. The author provided the  
            following information on electric system safety:

                 A newspaper article highlighting the large number of  
               underground electric fires in the Bay area, over 78 since  
               2005. 
                 CPUC reports on 61 fatalities on the three electric  
               investor-owned utility facilities and 180 injuries since  
               2007, out of a total of 717 reported incidents.  
                 The PUC has opened very few enforcement proceedings and  
               levied very few fines for electric safety.  From 1999 to  
               October, 2010, the CPUC levied fines for electric safety  
               violations on five separate occasions.

            CPUC Rulemaking 08-11-005 (R. 08-11-005) is revising rules for  
            General Orders (GOs) 95, 128, and 165, which concern overhead  
            electric line construction, construction of underground  
            electric supply and communication systems, and inspection  
            cycles for electric distribution facilities, respectively.   
            The rulemaking was opened in the wake of the series of the  
            2007 and 2008 wildfires in southern California that were  
            caused by electrical facilities. A PUC decision in January 12,  
            2012 adopted revised rules to reduce fire hazards, but did not  
            address the enforcement of violations to those rules, except  
            to modify some of the time periods a utility is allowed before  








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            correcting a non-conformance it discovers in surveys. Neither  
            the OIR nor the scoping memo for the current phase of the  
            proceeding mentions any proposed change in the enforcement of  
            these GOs.

           1)Standard Procedures, Transparency, Staff Authority.
             
            The PUC has adopted procedures for citations that, while  
            similar, provide different processes and procedures for  
            issuing a citation and ensuring corrective action. The PUC's  
            procedures are markedly different from the CEC's procedures in  
            that the CEC's procedures are specified in statute while the  
            PUC's procedures are specified in various resolutions.

            The author may wish to clarify the bill to ensure that the PUC  
            implements a comprehensive safety enforcement program which  
            includes citations and penalties, establishes a process of  
            notification similar to the CEC's notification process,  
            authorizes staff to issue citations, and specifies that the  
            PUC must act on enforcement actions within a reasonable period  
            of time.



            1702.5.  (a) The commission,  in an existing or new proceeding  ,  
            shall develop and implement procedures for issuance of  
            citations by commission staff, under the direction of the  
            Executive Director,  a  safety enforcement program applicable  to  
            gas corporations and electrical corporations, which includes  
            procedures for issuance of citations by commission or staff,  
            under the direction of the Executive Director.   for correction  
            and punishment of safety violations  .  The safety enforcement  
            program shall be designed to improve gas and electric system  
            safety through the enforcement of any applicable or order or  
            rule of the commission related to safety and use a variety of  
            enforcement mechanisms, including the issuance of corrective  
            actions, orders, and citations by designated commission staff.
              (1) When issuing citations and assessing penalties, the  
            commission or staff shall take into account, voluntary removal  
            or resolution efforts undertaken, any prior history of  
            violations, the gravity of the violation or violations, and  
            the degree of culpability.  


             (2) These procedures shall include, but are not limited to,  








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            providing notice of a violation and a reasonable period not to  
            exceed 30 calendar days for the respondent to correct the  
            violation, to allow one or more hearings within 60 days of  
            issuing a citation at the request of the respondent.
              (3) The commission shall adopt an administrative limit on the  
            amount of any monetary penalty that may be set by commission  
            staff.
             (b) The commission shall develop and implement an appeals  
            process to govern the issuance and appeal of citations  or  
            resolution of corrective action orders  issued by the  
            commission  staff  .
             (c) The commission shall, within a reasonable time set by the  
            commission, conclude a safety enforcement action by  
            determining a finding of violation, by corrective action  
            order, citation, determination of no violation, or other  
            action. The Commission may always institute a formal  
            proceeding regarding alleged violations irrespective of any  
            enforcement action undertaken at the staff level.  

             (d) The commission shall implement the safety enforcement  
            program for gas safety by July 1, 2014 and the safety  
            enforcement program for electric safety no later than January  
            1, 2015.
           
           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Division of Ratepayer Advocates (DRA)
          The Utility Reform Network (TURN)
           
            Opposition 
           
          None on File

           Analysis Prepared by  :    Susan Kateley / U. & C. / (916)  
          319-2083