BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Hill, Chair
2015 - 2016 Regular
Bill No: SB 119
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|Author: |Hill |
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|Version: |April 6, 2015 |Hearing |April 6, 2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Mark Mendoza |
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Subject: Protection of subsurface installations.
SUMMARY: Requires the Contractors State License Board to adopt a
program to enforce violations of provisions relating to
excavation; creates a stakeholder authority to enforce
"one-call" laws; removes and modifies existing exemptions to
participate in one-call centers; adds liability provisions for
excavators and utility operators; requires the Division of
Occupational Safety and Health to revise its excavation
regulations and practices; updates technical requirements of the
"call before you dig" process; creates a Safe Energy
Infrastructure and Excavation Fund (Fund); and develops a
funding mechanism for the Fund.
Existing law:
1) Licenses and regulates more than 300,000 contractors under
the Contractors State License Law (Contractors Law) by the
Contractors State License Board (CSLB) within the Department
of Consumer Affairs (DCA). The CSLB is under the direction
of the registrar of contractors (Registrar). (Business and
Professions Code (BPC) § 7000 et seq.)
2) Requires all owners of subsurface infrastructure (such as
gas, oil, and water pipes, electrical and telecommunications
conduits, etc.-except Caltrans) to participate in and fund
regional notification ("one-call") centers. (Government Code
(GC) § 4216.1)
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3) Exempts owners of non-pressurized sewer lines and storm
drains from needing to become members of the one-call
centers. (GC § 4216)
4) Requires persons performing excavations to call one-call
centers to have the locations of underground facilities
marked before starting an excavation (GC § 4216.2), but
exempts homeowners and other private property owners from
this requirement for excacavations on their own property.
(GC § 4216.8)
5) Requires owners of subsurface installations to mark their
underground facilities within two working days of receiving a
notification. (GC § 4216.3)
6) Requires excavators to use hand tools within two feet on
each side of a marked line indicating a subsurface facility
to determine where that facility is before using any power
excavating equipment. (GC § 4216.4)
7) Provides that an excavator or operator who violates
excavation requirements to be subject to the following:
a) A civil penalty up to $10,000 for negligent violations.
b) A civil penalty up to $50,000 for knowing and willful
violations.
c) Additional civil remedies provided for in law for
personal injury and property damages.
d) Any actions brought forth by the Attorney General (AG),
district attorney, or local or state agency that issued the
excavation permit, to enforce the civil penalties listed
above. (GC § 4216.6)
1) States that operators and excavators are liable for damages
caused from violations of the one-call law, and that
operators who fail to participate in the one-call centers
cannot claim damages from an excavator who has complied with
the law.
(GC § 4216.7)
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2) Authorizes CSLB to issue a citation for a violation of
Contractors Law in lieu of license denial, suspension, or
revocation. (BPC § 7099, 16 CCR § 884)
3) Requires CSLB to initiate a disciplinary action against a
licensee within 30 days of receipt of a certified copy of the
Labor Commissioner's finding of a willful or deliberate
violation of the Labor Code by a licensee. (BPC § 7110.5).
4) Authorizes the Department of Industrial Relations Division
of Occupational Safety and Health (CalOSHA) to adopt
occupational safety and health standards.
(Labor Code § 142.3)
This bill:
1) Requires an excavator to delineate the area of proposed
excavation in white paint before requesting subsurface
facilities be marked.
2) Requires CSLB to adopt a program to enforce violations of
provisions relating to excavation.
3) For a violation of provisions related to performing an
excavation by a contractor, authorizes CSLB to require a
contractor to undergo excavation training, authorizes CSLB to
levy a fine, and authorizes CSLB to suspend a contractor's
license.
4) Requires an excavator to clean up any field markings that
will last for longer than
45 days.
5) Requires that operators mark abandoned subsurface facilities
where the locations of those facilities are known.
6) Requires that operators retain records of the locations of
their facilities.
7) Clarifies that the failure of operators to mark their
facilities within two working days is a violation of the
one-call law.
8) States that operators who mismark their facilities are not
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entitled to damage awards.
9) Requires communication on the part of facility owners with
excavators regarding how to protect facilities that are
embedded within pavement, and states that an excavator shall
not be liable for damages to facilities embedded within
pavement.
10)Removes the exemption under current law whereby Caltrans is
not required to be a member of one-call centers.
11)Removes the exemption under current law whereby operators of
non-pressurized sewer lines and storm drains are not required
to be members of one-call centers.
12)Removes the exemption under current law whereby private
property owners are not required to call one-call centers
before beginning an excavation.
13)Removes the exemption under current law whereby homeowners
are not required to call one-call centers before beginning an
excavation that involves mechanized equipment or when a
utility easement exists on the property.
14)Requires CalOSHA to amend its regulations to clarify best
practices to be used by excavators when excavating near
subsurface installations.
15)Creates a new Authority, composed of excavation
stakeholders, to enforce the one-call law through field
audits, incident investigations, and administrative hearings,
and to promote safe excavation practices.
16)Authorizes the Office of the State Fire Marshall, the Public
Utilities Commission (PUC), and CSLB to enforce the one-call
law on the entities within their existing jurisdictions.
17)Creates a Safe Energy Infrastructure and Excavation Fund
(Fund) to fund the Safe Excavation Authority, support
education via one-call centers, and fund workforce
development at the PUC.
18)Establishes a funding mechanism to fund the Fund through the
PUC's existing citation program that enforces safety in
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PUC-regulated gas and electric utilities.
19)Makes other technical and conforming changes.
FISCAL
EFFECT: Unknown. This bill is keyed "fiscal" by Legislative
Counsel.
COMMENTS:
1. Purpose. The Author is the Sponsor of this bill. According
to the Author, nationwide data suggests that excavation in
California is more dangerous than in other states, largely
due to a failure by some excavations and owners of
underground facilities to follow the state's excavation
safety laws. Excavation activities accounted for more than
25 percent of pipeline-related fatalities in the U.S. between
2002 and 2011. This bill would update California's
excavation safety laws and would create a centralized
authority to enforce them.
2. Background. Following the attention to gas safety in the
wake of the natural gas pipeline explosion in San Bruno
(which was not caused by excavation), the Public Utilities
Commission (PUC), Pacific Gas and Electric Co (PG&E), and
others attempted to reboot reform efforts to improve
excavation safety. In 2005, a construction crew digging a
trench to install a new water pipeline for East Bay Municipal
Utility District (EBMUD) in Walnut Creek struck a
high-pressure petroleum pipeline operated by Kinder Morgan,
killing 5 workers. A backhoe struck the pipe, releasing
gasoline that was ignited by nearby welders. The petroleum
line had been installed along the street but had been bent to
avoid a tree that had since been removed. Kinder Morgan had
not identified the bend, leading the contractor to believe
that the pipe was not in the path of the backhoe.
In response to this incident, the Legislature required
additional communication and operator qualification
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standards. SB 1359 (Torlakson) required onsite meetings
between excavators and operators when an excavation was to
take place near the most dangerous lines, such as
high-pressure gas and petroleum lines and high-voltage
electric lines. The bill also required the notification to an
operator in the case of a damage or the discovery of a prior
damage, specified the qualifications for locating underground
infrastructure, and added liability provisions. However, the
legislation did not address other means of improving
excavation safety that had been previously identified by the
National Transportation Safety Board (NTSB) and the federal
pipeline safety regulator (Pipeline and Hazardous Materials
Safety Administration - PHMSA); particularly enforcement of
the one-call law.
In its 1997 Safety Study on excavation damage, NTSB found
that administratively enforcing a state's one-call law was
more effective than relying on an Attorney General or
district attorney to do so, and that small penalties were
effective enforcement, if for no other reason that large,
punitive penalties were rarely levied.
In 2005, PHMSA, in adopting regulations requiring
distribution pipeline companies to develop comprehensive
risk-based pipeline safety programs, explored best practices
in excavation enforcement. Similarly, PHMSA's report,
Integrity Management for Gas Distribution Pipelines, found
that the states that have had the most success in preventing
damage to underground infrastructure have a strong,
centralized enforcement agency.
California still relies on the Attorney General and district
attorneys to enforce the one-call law, though regulatory
authorities such as the PUC, the Office of the State Fire
Marshall and CSLB have broad jurisdiction over gas pipeline
and electric operators, hazardous liquid operators, and
contractors, respectively, and thus have the ability to
enforce safe operations on those entities within their
jurisdictions.
As required by the federal Pipeline Inspection, Protection,
Enforcement, and Safety Act of 2006 (PIPES Act), PHMSA has
opened a rulemaking (PHMSA-2009-0192) to determine criteria
by which it is to evaluate state enforcement of damage
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prevention laws. The PIPES Act limited PHMSA's authority to
conduct administrative civil enforcement proceedings against
excavators who damage pipelines in states with inadequate
damage prevention enforcement programs. Specifically, the
Act states that PHMSA cannot use this new enforcement
authority until PHMSA issues a rulemaking that defines the
procedures for determining the adequacy of state excavation
damage enforcement programs. PHMSA published an Advance
Notice of Proposed Rulemaking - or ANPRM - on this subject on
October 29, 2009. In the notice of proposed rulemaking,
PHMSA sought comment on a number of proposed criteria.
3. Excavation Safety: A Reoccuring Issue. It is difficult to
determine the scope of the problem from a collection of
tragic anecdotes, but California has recently had a number of
near-miss incidents, the following of which are a sampling
that have attracted media attention:
On November 6, 2011 , PG&E was conducting a water pressure
test on the gas pipeline that had exploded a year earlier,
south of the San Bruno explosion site in nearby Woodside.
The pipe ruptured, causing a mudslide that shut down I-280
for four hours. A dent was found at the point of rupture,
caused by an unknown, unreported excavation accident.
On June 28, 2012 , power pole work in San Joaquin County
caused the severing of an underground fiber optic cable,
resulting in a 911 outage as well as internet, land line,
and cellular service disruption in Amador County. Full
system function wasn't restored for more than 24 hours.
On August 2, 2012 , an excavator clipped a gas line with a
backhoe at the same intersection which had erupted in the
September 2010 explosion in San Bruno, prompting
evacuations. The contractor had failed to use proper
excavation techniques.
On March 12, 2013 , a Berkeley homeowner hired a day laborer
to do sewer work, who hit the gas line with a pick,
igniting the gas and burning the front of a home and a van
parked outside. No call was made to have gas lines marked.
On March 15, 2013 , a subcontractor punctured a steel pipe in
Fresno, causing the evacuation of over 300 homes and
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businesses. Excavation was faulty for numerous reasons.
On April 24, 2013 , a pavement recycling vehicle hit a 3-inch
natural gas line in Bakersfield, causing an explosion that
engulfed the vehicle in flames. No one was injured. The
excavator appeared to follow applicable laws and protocols,
but the gas line was much closer to the road surface than
expected. The pipeline operator maintains that
hand-digging was required to locate the pipe depth.
On October 24, 2014 , a farmer who was ripping a field
southwest of Bakersfield struck one of PG&E's backbone
transmission lines causing the fire department to create an
eight-square-mile "exclusion zone" that temporarily closed
schools and required sheltering-in-place.
PG&E has also reported that its underground facilities were
struck 1,878 times in 2014, or just over 5 per day.
Between 2011 and 2013, CSLB received 13 complaints from
operators. However, in 2014, they received 100 complaints.
1. Regional Notification Centers. Current law requires an
individual or entity wishing to perform an excavation and
dig, drill, or bore below the ground to inform the regional
notification center of a planned excavation to ensure that
owners of underground facilities in the area can mark their
facilities and prevent excavators from damaging their
property. Regional notification centers in California
include the Underground Service Alert - Northern California,
and the Underground Service Alert - Southern California.
CSLB describes a regional notification center as "an
association of owners and operators of subsurface
installations (water, gas, electric, telephone, sewer, oil
lines, etc.). Damage to underground structures may result in
the disruption of essential services and pose a threat to
workers, the public, and environmental safety. The purpose
of the center is to provide a single telephone number that
excavators can use to give the center's members advance
notification of their intent to excavate. The operators of
the underground installations are then responsible for
providing information about the locations of the facility, or
marking or staking the approximate location of their
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facility, or advising the excavator of clearance. The
operators are only responsible for any facility they own."
2. Penalties for Notification Violations. Excavators and
operators who negligently or willfully violate notification
and marking procedures may be fined or subject to additional
civil damages. Existing law limits penalties for negligent
excavation to no more than $10,000, and violations that are
knowing and willful to no more than $50,000. This measure
does not make changes to these amounts.
3. Prior Related Legislation. AB 811 (Lowenthal, Chapter 250,
Statutes of 2013) required the regional notification centers
(or "one-call" centers) to annually report on subsurface
facility damages voluntarily reported to those centers from
excavators and utilities. An earlier version would have set
education requirements as a condition of obtaining a license
from CSLB, but that requirement was stripped from the bill in
the Assembly.
AB 1514 (Lowenthal, 2012) would have increased the maximum
fine for a violation of the "one-call" law from $10,000 to
$100,000 and would have placed the CPUC in charge of
investigating excavation damages and referring the
investigations to the Attorney General or a district attorney
for action. ( Status : This bill was held under submission in
the Assembly Committee on Appropriations).
SB 1359 (Torlakson, Chapter 651, Statutes of 2006) required
onsite meetings between excavators and operators when an
excavation was to take place near a the most dangerous lines,
such as high-pressure gas and petroleum lines and
high-voltage electric lines. The bill also required the
notification to an operator in the case of a damage or the
discovery of a prior damage, specified the qualifications for
locating underground infrastructure, and added liability
provisions.
AB 73 (Elder, Chapter 928, Statutes of 1989) created
California's one-call law, requiring facility owners to
participate in the one-call notification centers, mandatory
calling before excavation, use safe excavation practices, and
penalties for noncompliance.
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4. Arguments in Support. According to the Sempra Energy
Utilities , while SB 119 continues to be a work in progress,
the Sempra Utilities look forward to continuing to work with
the Author and stakeholders to ensure legislation that
enhances safety around excavation sites, ensures proper
attribution of liability, and fair and consistent
enforcement. For these reasons, the Sempra Utilities have a
support if amended position on SB 119, and respectfully
request an Aye vote.
5. Arguments in Opposition. According to the California
Landscape Contractors Association , SB 119's overly broad
definition of "excavation" would result in a requirement to
call a regional notification center via 811 prior to everyday
landscape maintenance activities.
NOTE : Triple-referral to Senate Governmental Organization Committee
and Senate Judiciary Committee.
SUPPORT AND OPPOSITION:
Support:
The Sempra Energy Utilities (Support If Amended)
Opposition:
California Landscape Contractors Association (Oppose Unless
Amended)
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