BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Isadore Hall, III
Chair
2015 - 2016 Regular
Bill No: SB 119 Hearing Date: 4/14/2015
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|Author: |Hill |
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|Version: |4/6/2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Arthur Terzakis |
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SUBJECT: Protection of subsurface installations
DIGEST: This bill: (a) requires the Contractors' State
License Board (CSLB) to adopt a program to enforce violations of
provisions relating to excavation; (b) creates the California
Underground Facilities Safe Excavation Authority (Authority) to
enforce laws relating to the protection of underground
infrastructures by hearing stakeholder complaints; (c) deletes
and modifies existing exemptions relative to participation in
regional notification centers, or "one-call" centers; (d) adds
liability provisions for excavators and utility operators; (e)
requires the Occupational Safety and Health Standards Board to
revise its excavation regulations and practices; (f) updates
technical requirements of the "call before you dig" process; (g)
creates the Safe Energy Infrastructure and Excavation Fund
(Fund) in the State Treasury to cover the administrative
expenses of the Authority; and, (h) establishes a funding
mechanism for the Fund.
ANALYSIS:
Existing law:
1) Grants the CSLB, within the Department of Consumer Affairs
(DCA), all functions and duties relative to the
administration of the Contractors' State License Law.
2) Authorizes the issuance of licenses to applicants for
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contractors' licenses by written examination under rules and
regulations adopted by the CSLB.
3) Requires every operator of a subsurface installation, except
the Department of Transportation (Caltrans), to become a
member of, participate in, and share the costs of, a regional
notification ("one-call") center.
4) Exempts owners of non-pressurized sewer lines and storm
drains from needing to become members of the one-call
centers.
5) Requires, except in an emergency, any person who plans to
conduct any excavation to contact the appropriate regional
notification center, as specified, prior to commencing that
excavation if the excavation will be conducted in an area
that is known, or reasonably should be known, to contain
subsurface installations other than the underground
facilities owned or operated by the excavator and, if
practicable, the excavator must delineate with white paint or
other suitable markings the area to be excavated. The law
exempts homeowners and certain other persons and private
entities from this requirement for excavations on their own
property.
6) Requires any operator of a subsurface installation who
receives timely notification of any proposed excavation work
to locate and mark the subsurface installation within two
working days of receiving that notification, excluding
weekends or holidays, or before the start of the excavation
work, whichever is later, or at a later time mutually
agreeable to the operator and excavator.
7) Requires excavators to use hand tools within two feet on
each side of a marked line indicating a subsurface
installation to determine where that installation is located
before using any power excavating equipment.
8) Defines "subsurface installation" to mean any underground
pipeline, conduit, duct, wire, or other structure, except
nonpressurized sewer lines, nonpressurized storm drains, or
other nonpressurized drain lines.
9) Provides that any operator or excavator who violates
excavation requirements shall be subject to the following:
SB 119 (Hill) Page 3 of ?
a) A civil penalty not to exceed $10,000 for negligent
violations.
b) A civil penalty not to exceed $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.
1) Provides that operators and excavators are liable for
damages caused from violations of the regional notification
system (one-call centers), and that operators who fail to
participate in the one-call centers cannot claim damages from
an excavator who has complied with the law.
2) Authorizes the CSLB to issue a citation for a violation of
the Contractors' State License Law in lieu of license denial,
suspension, or revocation.
3) Requires the 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.
4) Authorizes the Department of Industrial Relations Division
of Occupational Safety and Health Standards (CalOSHA) to
adopt occupational safety and health standards.
This bill:
1) Contains legislative findings and declarations relative to
discussions that have taken place since enactment, in 1989,
of state law governing subsurface excavations and the
regional notification center system that have led to
widespread agreement among various stakeholders that many of
the existing provisions of law need to be clarified.
2) Requires the CSLB to adopt a program to enforce violations
of provisions relating to excavation. Also, for a violation
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of provisions related to performing an excavation by a
contractor, authorizes CSLB to: (a) require a contractor to
undergo excavation training, (b) levy a fine, and (c) suspend
a contractor's license.
3) Defines the following words and terms for purposes of state
law governing subsurface excavations: abandoned subsurface
installation, delineate, electronic positive response,
emergency, unexpected occurrence, hand tool, inactive
subsurface installation, legal excavation start date and
time, locate and field mark, near miss, pavement, positive
response, ticket, tolerance zone, working day. Also,
modifies and clarifies existing terminology, as specified.
4) Requires an excavator to delineate the area of proposed
excavation in white paint before requesting subsurface
facilities be marked.
5) Requires an excavator to clean up any field markings that
will last for longer than 45 days.
6) Requires that operators mark abandoned subsurface facilities
where the locations of those facilities are known.
7) Requires that operators retain records of the locations of
their facilities.
8) Clarifies that the failure of operators to mark their
facilities within two working days is a violation of the
one-call law.
9) States that operators who mismark their facilities are not
entitled to damage awards.
10)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.
11)Removes the exemption under current law whereby Caltrans is
not required to be a member of one-call centers.
12)Removes the exemption under current law whereby operators of
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non-pressurized sewer lines and storm drains are not required
to be members of one-call centers.
13)Removes the exemption under current law whereby private
property owners are not required to call one-call centers
before beginning an excavation.
14)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.
15)Authorizes the Public Utilities Commission (PUC) and the
Office of the State Fire Marshal to enforce the requirement
to locate and field mark subsurface installations and lines
against operators of natural gas and electric underground
infrastructure and hazardous liquid pipelines, unless these
operators are municipal utilities.
16)Requires CalOSHA, on or before January 1, 2017, to revise
its regulations in order to clarify best practices to be used
by excavators when excavating near subsurface installations.
17)Creates a 9-member California Underground Facilities Safe
Excavation Authority (Authority) to enforce the one-call law
through field audits, incident investigations, and
administrative hearings, and to promote safe excavation
practices. Provides that the Governor shall appoint 7
members and one each shall be appointed by the Senate
Committee on Rules and the Speaker of the Assembly. The term
of each member shall be 2 years.
18)Requires the Authority to meet at least quarterly and hold
meetings in Sacramento and Los Angeles and in other locations
as necessary.
19)Grants the Authority the power to do any of the following:
(a) apply for and accept grants, contributions, and
appropriations and award grants consistent with the program;
(b) contract for professional services if the work cannot be
performed by its employees or by any other state agency; (c)
sue and be sued; (d) request and utilize the advice and
services of all federal, state, local, and regional agencies;
and, (e) conduct public education and outreach programs.
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20)Permits the Authority to obtain funding for its operational
expenses from: (a) federal/state grants; (b) a fee charged to
members of regional notification centers; (c) assessed fines;
(d) a filing or administrative fee charged to hear a
complaint; or, (e) any other source.
21)Also, provides that, after providing opportunity for a
hearing, pursuant to the Administrative Procedures Act, the
Authority may assess civil penalties upon making a finding of
violation. A person aggrieved by a decision of the Authority
may, within 30 days, after receiving the decision, request
judicial review of the decision in superior court.
22)Requires the Authority, on or before January 1, 2017, and
each year thereafter, to report to the Governor and the
Legislature on its activities and recommendations.
23)Creates the Safe Energy Infrastructure and Excavation Fund
(Fund) in the State Treasury to cover the administrative
expenses of the Authority. Also, provides that any excess
moneys in the Fund that are not necessary for the Authority
may be allocated to support education via one-call centers,
and fund workforce development at the Public Utilities
Commission (PUC), as specified.
24)Also, provides that moneys collected as a result of the
issuance of citations to PUC regulated gas and electrical
corporations shall be deposited in the Fund.
25)Makes other technical and conforming changes.
Background
To protect people who live and work near buried pipes and
cables, and to save the costs associated with damage to
underground infrastructure, state law outlines a sequential
system to aid excavators in locating subsurface installations.
Entities that own, operate, or maintain subsurface installations
must join a non-profit Regional Notification Center (RNC) to
provide advance warning of underground installations close to
proposed excavation projects. Except in an emergency, anyone
planning to dig in an area with underground installations must
notify the appropriate RNC at least two days before breaking
ground and, if practical, must mark the area to be excavated in
white paint. The potentially affected underground installation
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operators must locate and field mark the approximate location of
their installations. Excavators must then determine the exact
location of the subsurface installations by using hand tools,
with limited exceptions, to excavate within the field markings.
Purpose of SB 119: According to the author's office, 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 is intended to update
California's excavation safety laws and create a centralized
authority to enforce those laws.
The author's office points out that SB 119 is part of a process
that began with an informational hearing of the Senate
Subcommittee on Gas and Electric Infrastructure Safety in June
of 2013 and has continued with meetings of interested parties in
2014 and 2015. The author's office emphasizes that "SB 119
represents a combination of proposals from utilities,
excavators, and California's Regional Common Ground Alliance -
the legislation will continue to be discussed and refined in the
coming months."
Brief history: 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 standards.
Specifically, SB 1359 (Torlakson) of 2006 required onsite
meetings between excavators and operators when an excavation was
to take place near the most dangerous lines, such as
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high-pressure gas and petroleum lines and high-voltage electric
lines. The bill also required the notification to an operator in
the case of 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 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
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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.
Staff Comments: The author and his staff have held numerous
stakeholder meetings to address various concerns however, at
this point in time, consensus has not been reached. Through
letters submitted to the Committee, certain stakeholder groups
have expressed a commitment to seek reform of current excavation
requirements that also include enhancements to the enforcement
program. Those stakeholders support moving SB 119 through the
legislative process in order to keep all interested parties
actively involved and committed to finding a solution. Certain
other stakeholders representing the agricultural sector and
landscape contractors have submitted letters to the committee
that express a desire to continue working with the author and
his staff however they maintain an "oppose unless amended"
position. Those entities are listed in the "opposition" column,
on page 9 of this analysis. The following stakeholders
"support" position is conditioned on further amendments:
AT&T
Associated General Contractors of California
California Legislative Conference of the Plumbing, Heating and
Piping Industry California-Nevada Conference of Operating
Engineers
California State Council of Laborers
Laborers' International Union of North America
National Electrical Contractors Association
Pacific Gas & Electric Company
San Diego Gas and Electric Company
Southern California Contractors Association
Southern California Gas Company
United Contractors
Western Line Constructors Chapter, Inc.
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.
AB 1514 (Lowenthal) 2011-12 Session. Would have increased the
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maximum fine for a violation of the "one-call" law from $10,000
to $100,000 and would have placed the PUC in charge of
investigating excavation damages and referring the
investigations to the Attorney General or a district attorney
for action. (Died Assembly Committee on Appropriations -
Suspense File)
SB 1359 (Torlakson), Chapter 651, Statutes of 2006. Among other
things, required onsite meetings between excavators and
operators when an excavation was to take place near dangerous
lines, such as high-pressure gas and petroleum lines and
high-voltage electric lines.
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 of safe excavation practices, and
penalties for noncompliance.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
SUPPORT:
Underground Service Alert of Southern California
OPPOSITION:
Agricultural Council of California
California Citrus Mutual
California Cotton Ginners and Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Landscape Contractors Association
Western Agricultural Processors Association
Western Growers
TRIPLE REFERRAL: Senate Judiciary Committee