BILL ANALYSIS Ó SB 291 Page 1 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) SB 291 Page 2 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 SB 291 Page 3 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 SB 291 Page 4 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 SB 291 Page 5 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 SB 291 Page 6 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 implementprocedures 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, SB 291 Page 7 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