BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 119|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: SB 119
Author: Hill (D)
Amended: 6/1/15
Vote: 21
SENATE BUS, PROF. & ECON. DEV. COMMITTEE: 8-0, 4/6/15
AYES: Hill, Bates, Berryhill, Block, Galgiani, Jackson,
Mendoza, Wieckowski
NO VOTE RECORDED: Hernandez
SENATE GOVERNMENTAL ORG. COMMITTEE: 9-2, 4/14/15
AYES: Hall, Berryhill, Block, Galgiani, Hernandez, Hill,
Hueso, Lara, McGuire
NOES: Gaines, Vidak
SENATE JUDICIARY COMMITTEE: 5-1, 4/28/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SUBJECT: Protection of subsurface installations
SOURCE: Author
DIGEST: This bill modifies call before you dig laws governing
excavations near subsurface installations. Among other things,
this bill enhances the existing enforcement powers of specified
state entities, revises liability provisions that apply to the
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pre-excavation notification and subsurface installation marking
requirements for operators and excavators, and establishes the
California Underground Facilities Safe Excavation Authority to
enforce laws relating to the protection of underground
infrastructure, as specified.
ANALYSIS:
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. 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 the Department of Transportation) to
participate in and fund regional notification ("one-call")
centers. (Government Code (GC) § 4216.1)
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 excavations 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)
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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)
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 excavation
prior to notifying a one-call center, and authorizes 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
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marked in white or pink, if marking in white may be
misleading or could be misinterpreted, as specified.
2) Provides 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.
3) Provides that landscape maintenance activity that is
performed with hand tools at a depth of no more than 12
inches do not count as "excavation" for purposes of the
one-call laws until 2020, as specified.
4) Makes 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.
5) Adds to and clarifies statutory definitions pertaining to
the one-call laws.
6) Prohibits 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.
7) Requires an excavator to eliminate or camouflage any
temporary markings that remain for 45 days or more.
8) Requires 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.
9) Requires 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.
10)Requires 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.
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11)Requires 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 will require contractors to undergo a
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.
12)Authorizes the California Public Utilities Commission (CPUC)
to enforce specified provisions against operators of natural
gas and electric underground infrastructure, and authorizes
the Fire Marshal to enforce those provisions against
operators of hazardous liquid pipelines, unless the
facilities are owned by municipal utilities.
13)Specifies 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 fee.
14)Requires 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.
15)Requires 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.
16)Requires CalOSHA 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.
17)Creates 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.
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18)Requires the Authority to meet at least every three months,
as specified, and authorizes 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.
19)Authorizes 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.
20)Authorizes the Authority, upon making a finding of
violation, to assess an unspecified civil penalty, reach a
settlement in lieu of a civil penalty and require remedial
education relevant to the violation.
21)Requires the Authority to submit an annual report to the
Legislature and Governor on its activities and any
recommendations, beginning January 1, 2017.
22)Establishes the Safe Energy Infrastructure and Excavation
Fund (Safe Fund) in the State Treasury. 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.
23)Requires any remaining funds to be deposited into the
General Fund, after funding the Authority's administrative
costs, and specified education, outreach, and workforce
development.
24)Specifies funds for training are to supplement any existing
state and federal requirements.
25)Requires 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.
26)Requires the CPUC to report an analysis of excavation
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damages to CPUC-regulated pipeline facilities to the
Legislature by February 1, 2019.
27)Requires 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.
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 CPUC, 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 in Walnut Creek struck a high-pressure petroleum
pipeline operated by Kinder Morgan, killing five 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.
SB 1359 (Torlakson, Chapter 651, Statutes of 2006) 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 damage or the discovery of a prior
damage, specified the qualifications for locating underground
infrastructure, and added liability provisions. However, the
bill 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.
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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 AG 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 AG and district attorneys to
enforce the one-call law, though regulatory authorities such as
the CPUC, 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 PIPES 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 on this
subject on October 29, 2009. In the notice of proposed
rulemaking, PHMSA sought comment on a number of proposed
criteria.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
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According to the Senate Appropriations Committee:
Penalty revenue diversion: Unknown diversion of penalty
revenues, likely in the range of $1.5 million annually, from
the General Fund to the 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 instead requires 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.
The Authority: Unknown administrative costs for the following
activities: establish and staff the nine-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 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)
CalOSHA: 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
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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 AG 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)
CPUC: Minor and absorbable costs for enforcement related to
natural gas and underground electric infrastructure operators'
locating and marking facilities. (Public Utilities
Reimbursement Account)
SUPPORT: (Verified6/1/15)
AT&T
Pacific Gas and Electric Company
San Diego Gas and Electric Company
Southern California Gas Company
OPPOSITION: (Verified6/1/15)
Associated General Contractors of California
Association of California Water Agencies
California Association of Realtors
California State Council of Laborers
California-Nevada Conference of Operating Engineers
DigAlert
Los Angeles County Board of Supervisors
National Electric Contractors Association
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Southern California Contractors Association
United Contractors
Western Line Constructors
ARGUMENTS IN SUPPORT: According to the Sempra Energy Utilities
(San Diego Gas and Electric Company and Southern California Gas
Company), "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."
ARGUMENTS IN OPPOSITION:According to the Associated General
Contractors of CA, "to create a new and additional enforcement
agency, and to layer this new authority and its processes on top
of the multiple enforcement options that already exist against
contractors only adds complexity and costs."
Prepared by:Mark Mendoza / B., P. & E.D. / (916) 651-1868
6/1/15 15:56:50
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