BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 119 (Hill) - Protection of subsurface installations
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|Version: May 12, 2015 |Policy Vote: B., P. & E.D. 8 - |
| | 0, G.O. 9 - 2, JUD. 5 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: May 28, 2015 |Consultant: Mark McKenzie |
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SUSPENSE FILE. AS AMENDED.
Bill
Summary: SB 119 would modify "call before you dig" laws
governing excavations near subsurface installations. Among
other things, this bill would enhance the existing enforcement
powers of specified state entities, revise liability provisions
that apply to the pre-excavation notification and subsurface
installation marking requirements for operators and excavators,
and establish the California Underground Facilities Safe
Excavation Authority to enforce laws relating to the protection
of underground infrastructure, as specified.
Fiscal Impact (as approved on May 28, 2015):
Penalty revenue diversion : Unknown diversion of penalty
revenues, likely in the range of $1.5 million annually, from
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the General Fund to the Safe Energy Infrastructure and
Excavation Fund (Safe Fund), created by this bill. In recent
years, the CPUC reports it has imposed penalties related to
its enforcement programs of $16.8 million in 2011-12, $8.4
million in 2013-14, and $11.9 million to date in 2014-15,
which are currently deposited into the General Fund. This
bill would instead require penalty revenues to be deposited
into the Safe Fund for administrative costs of the Authority
and up to $500,000 for specified purposes. The remainder
would be transferred to the General Fund.
Underground Facilities Safe Excavation Authority (Authority) :
Unknown administrative costs for the following activities:
establish and staff the 9-member Authority, hold quarterly
public meetings, establish and conduct enforcement activities,
conduct audits and investigations of incidents and near
misses, provide for administrative adjudication hearings, and
conduct public education and outreach activities Staff
estimates the Authority could require 5-7 PY of permanent
staff, and incur total administrative costs in the range of
$700,000 to $1 million annually. (Safe Fund)
Occupational Safety and Health Standards Board (Cal/OSHA) :
One-time costs ranging from $100,000 to $200,000 to convene an
advisory committee hearing and adopt regulations defining best
practices used by excavators when digging near subsurface
installations. (Occupational Safety and Health Fund)
CSLB : Estimated ongoing costs of approximately $91,000
annually for staff time to administer and enforce training
requirements for excavation violators. Additional enforcement
costs, estimated at $240,000 annually in reimbursements, for
cases referred to the Attorney General for discipline.
(Contractors License Fund)
Fire Marshal : Minor and absorbable costs for enforcement
related to hazardous liquid pipeline operators' locating and
marking facilities. (General Fund)
California Public Utilities Commission (CPUC) : Minor and
absorbable costs for enforcement related to natural gas and
underground electric infrastructure operators' locating and
marking facilities. (Public Utilities Reimbursement Account)
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Background: Existing law requires every person or entity that owns,
operates, or maintains a subsurface installation (an operator),
except Caltrans, to join and share in the costs of a non-profit
regional notification center (one-call center). Except in an
emergency, anyone planning to dig in an area with underground
installations (an excavator) must notify a one-call center at
least two days, but not more than 14 days, prior to digging, and
the excavator must mark the area to be excavated with white
paint, as specified. The one-call center then notifies all
members who have subsurface installations in the area of the
proposed excavation. Existing law requires an operator of
subsurface installations to locate and field mark the
approximate location and number of underground facilities that
may be affected by the excavation within two days of receiving a
notification from a one-call center. Excavators are required to
use hand tools within two feet of either side of an operator's
marked line indicating the location of a subsurface installation
to determine the exact location of that facility before using
any power-operated or power-driven excavating or boring
equipment. Excavators are required to notify the one-call
center if any operators fail to comply with these requirements.
Existing law subjects any operator or excavator who negligently
violates these provisions to a civil penalty of up to $10,000,
while an owner or excavator who willfully violates these laws is
subject to a civil penalty of up to $50,000. The Attorney
General, a district attorney, or a state or local agency who
issues an excavation permit may bring an action before the
courts for violations. If a subsurface installation is damaged
by an excavator as a result of failing to comply with
responsibilities under the one-call laws, the excavator is
liable to the operator for resulting damages, costs, and
expenses. If the operator of a subsurface installation failed
to comply with the one-call center requirements, the operator
forfeits any claim for damages to underground facilities arising
from the excavation. If an operator has failed to comply with
his or her responsibilities under the one-call laws, the
operator is liable to the excavator who complied with the laws
for damages, costs, and expenses resulting from the operator's
failure to comply.
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Proposed Law:
SB 119 would make the following changes to laws related to
safe excavating practices near underground facilities:
Delete an exception to the one-call center requirements for
Caltrans, thereby requiring Caltrans to become a member of,
participate in, and share in the costs of, a regional
notification center.
Require an excavator to delineate the area of excavation prior
to notifying a one-call center, and authorize an operator to
withhold locating and marking subsurface facilities until the
digging area has been delineated by an excavator. The path or
location of a proposed excavation is marked in white or pink,
if marking in white may be misleading or could be
misinterpreted, as specified.
Provide that agricultural excavations of less than 16 inches
and certain landscape maintenance activities performed with
hand tools do not count as "excavation" for purposes of the
one-call laws until 2020, as specified.
Add to, and clarify statutory definitions pertaining to the
one-call laws.
Prohibit an excavator from digging until receiving a positive
response from all operators that they have responded to a
one-call center ticket, and until after completion of an
on-site meeting in the case of a high-priority subsurface
installation, except in an emergency situation.
Require an excavator to eliminate or camouflage any temporary
markings that remain for 45 days or more.
Require an operator to provide information on the location of
active and inactive subsurface installations, mark abandoned
facilities with an "A" inside a circle, and advise the
excavator if it operates no subsurface installations in the
area.
Require an operator or local agency that has subsurface
installations embedded in pavement to contact the excavator
before excavation to plan for protection of those
installations.
Require an operator to amend, update, maintain and preserve
all plans and records of its subsurface installations, and to
keep records of abandoned facilities beginning on January 1,
2016.
Require CSLB to adopt a program to enforce contractor
violations for failure of excavators to delineate the area of
excavation prior to notifying a one-call center. For a first
violation, CSLB would require contractors to undergo a
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training program conducted by a one-call center relating to
compliance. A subsequent violation within one year, or
failure to attend training or pay fines, may result in license
suspension.
Authorize CPUC to enforce specified provisions against
operators of natural gas and electric underground
infrastructure, and authorize the Fire Marshal to enforce
those provisions against operators of hazardous liquid
pipelines, unless the facilities are owned by municipal
utilities.
Specify that an excavator in compliance with one-call laws
that damages underground facilities due to an inaccurate field
mark by an operator is not liable for damages, costs, or
expenses, and the excavator may be awarded attorney's fees.
Require a residential property owner doing work on his or her
property to comply with the one-call laws, unless there is no
easement or right-of-way for subsurface installations and the
owner only uses hand tools for excavation.
Require the owner of a high-priority subsurface installation
to make specified notifications to a landowner if agricultural
activities cannot be safely performed due to the depth of
those facilities, and to mark the location and depth of those
facilities.
Require Cal/OSHA to revise regulations to clarify best
practices used by excavators, and to convene an advisory
committee hearing to seek input from affected parties on best
practices when excavating in urban areas with a high density
of installations.
Create the California Underground Facilities Safe Excavation
Authority (Authority), with specified membership, to enforce
the one-call laws, hold hearings, contract for professional
services, and conduct any necessary investigations.
Require the authority to meet at least every three months, as
specified, and authorize the Authority to: apply for grants,
contributions, and appropriations; award grants; and conduct
public education and outreach programs to promote safe
excavation and demolition in the area of subsurface
installations, as specified.
Authorize the Authority to receive funding from federal or
state grants, fees charged to members of one-call centers,
fines and penalties assessed by the Authority in enforcement
actions, or any other source.
Authorize the Authority, upon making a finding of violation,
to assess an unspecified civil penalty, reach a settlement in
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lieu of a civil penalty, require remedial education relevant
to the violation.
Require the Authority to submit an annual report to the
Legislature and Governor on its activities and any
recommendations, beginning January 1, 2017.
Establish the Safe Energy Infrastructure and Excavation Fund
(Safe Fund) in the State Treasury. Revenues in the Safe Fund
would be available, upon appropriation by the Legislature, for
administrative expenses of the Authority, for education and
training by the Authority, to one-call centers for public
education and outreach programs, and to CPUC to further a
specified workforce development program.
Require gas corporations to collect data on damages that
occurred during performance of landscaping activities, as
specified, and any other information the CPUC requires, and to
annually report excavation damage data and analyses to the
CPUC.
Require the CPUC to report an analysis of excavation damages
to CPUC-regulated pipeline facilities to the Legislature by
February 1, 2019.
Require any moneys collected by the CPUC as a result of
citations issued in relation to safety enforcement programs
applicable to gas and electrical corporations be deposited
into the Safe Fund.
Related
Legislation: AB 811 (Lowenthal), Chap 250/2013, requires
regional notification centers to annually report on subsurface
installation damages that are voluntarily reported by excavators
and operators.
Staff
Comments: The bill does not specify compensation for the nine
members of the Authority. The fiscal impacts noted are based
upon estimated permanent staffing needs of the Authority, and
assumes that appointed members of the Authority will not be paid
a salary and will only be reimbursed for actual and necessary
expenses.
SB 119 requires all fines and penalties from specified CPUC
enforcement actions be deposited into the Safe Fund for
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specified purposes of the Authority. Under current law, those
revenues are deposited into the General Fund. Staff notes that
the amounts of these fines and penalties are likely to
substantially exceed the needs of the Authority for its
administrative costs and education and outreach programs.
Author amendments (as adopted on May 28, 2015): Author's
amendments would do the following:
Reinstate the Caltrans exemption from participation in
one-call centers.
Make permanent the agricultural exemption.
Make excavators liable for failure to request re-marking
of facilities when those marks are no longer visible, and
for failure to re-delineate the area to be re-marked.
Limit Safe Fund expenditures on public education and
outreach, and workforce development purposes to $500,000
per year, and limit expenditures on workforce development
to $150,000 from that amount.
Require any remaining funds to be deposited into the
General Fund, after funding the Authority's administrative
costs and specified education, outreach, and workforce
development.
Specify funds for training are to supplement any
existing state and federal requirements.
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