BILL ANALYSIS Ó
SB 119
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
119 (Hill) - As Amended July 1, 2015
SENATE VOTE: 24-11
SUBJECT: PROTECTION OF SUBSURFACE INSTALLATIONS
KEY ISSUE: SHOULD A NEW ADVISORY COMMITTEE BE CREATED WITHIN
THE CONTRACTORS STATE LICENSE BOARD TO INVESTIGATE VIOLATIONS OF
THE STATE'S "CALL 8-1-1 BEFORE YOU DIG" LAWS AND TO RECOMMEND
VIOLATIONS FOR CIVIL ADMINISTRATIVE ENFORCEMENT?
SYNOPSIS
As proposed to be amended, this bill seeks to modify the state's
"call 8-1-1 before you dig" laws that regulate excavation
activities near underground pipelines, electric lines, conduit,
duct, wire, or other structures (collectively known as
subsurface installations). The National Transportation Safety
Board (NTSB) and the Pipeline and Hazardous Materials Safety
Administration (PHMSA) have identified call- 8-1-1
before-you-dig (One-Call) laws as a means of improving
excavation safety, especially if the One-Call requirements are
actively being enforced. Current law requires an excavator
(anyone who digs below the surface of land, streets, roads or
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any place where underground utilities might exist) to call 8-1-1
to notify a regional call center of a plan to excavate. With
that one call the center notifies all owners of underground
utility installations in the planned area (operators) of the
necessity to locate and field mark their subsurface
installations. The operator must locate and field mark their
subsurface installations a minimum of two working days prior to
the commencement of the planned excavation activities. If
either an excavator or an operator fails to abide by the law,
today only the Attorney General, a district attorney, or the
local permitting agency has enforcement authority to civilly
enforce the violation.
This bill establishes the California Underground Facilities Safe
Excavation Advisory Committee, composed of excavation industry
stakeholders, to coordinate education and outreach efforts,
develop standards for best practices, and, most importantly,
investigate violations pertaining to the One-Call laws. The
bill expands the enforcement authority in the One-Call laws to
the Public Utilities Commission, the Office of the State Fire
Marshal, and the Registrar of Contractors. This bill limits the
liability of excavators who comply with One-Call laws and
increases liability for operators who fail to comply. The bill
narrows the exemption for a real property owner, among others,
who excavates on his or her real property. Currently, a
homeowner who plans to excavate on his or her real property is
not required to call a regional One-Call center if the work to
be performed does not require a permit. This bill modifies that
exemption to apply only if the work being performed is limited
to the use of hand tools. The bill is supported by various
contractor organizations, which include among others, the United
Contractors, Western Line Constructors, and the Associated
General Contractors. The bill is opposed by the California
Association of Winegrape Growers and has several organizations
that either support or oppose the bill based on amendments. The
issues that have generated opposition are the agricultural
landowner and landscaping exemptions and the requirement that
operators must notify agricultural landowners of the locations
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of subsurface installations on their land, even if the
landowners have not notified the One-Call center of plans to
excavate. The author is continuing to work with stakeholders to
address the issues that are continually being raised. This bill
has been amended seven times, and as recently as the drafting of
this analysis, the author has informed the Committee of
additional amendments that are being negotiated with
stakeholders which will continue past this Committee's hearing
on this bill.
SUMMARY: Makes changes to existing laws governing excavations
near subsurface installations. Specifically, this bill:
1)Establishes the California Underground Facilities Safe
Excavation Advisory Committee (the Advisory Committee), within
the Contractor's State Licensing Board (CSLB), to investigate
violations of the state's excavation and subsurface
installation laws and to coordinate education and outreach
needs and develop standards.
2)Creates a Safe Energy Infrastructure and Excavation Fund to
cover administrative costs of the new Advisory Committee, an
education program, and a workforce training program, to be
funded by monies collected from violations levied on gas and
electric companies for safety violations, grants, fees charged
to regional notification center members, filing fees from
complaint hearings and any other source.
3)Requires an excavator to delineate the area to be excavated
before notifying the regional One-Call center. If the area
has not been delineated, allows an operator not to locate and
field mark until the area has been delineated.
4)Authorizes the CSLB, the Public Utilities Commission (CPUC),
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and the Office of the State Fire Marshal to act to accept,
amend, or reject the recommendations of the Advisory Committee
to enforce specific provisions related to operators and
excavators whose activities or business falls within the
agency's statutorily defined enforcement jurisdiction of the
One-Call law.
5)Provides that in an action for reimbursement or
indemnification for a claim arising from damage to a
subsurface installation in which a court finds that the
excavator complied with the requirements of the One-Call law,
the excavator may be awarded reasonable attorney's fees and
expenses.
6)Requires, if the operator of a high-priority subsurface
installation finds that the depth of the subsurface
installation subject to agricultural activities is
insufficient to safely perform those activities, the operator
must send notification of the potential hazard to the
landowner by registered mail. Within specified days of that
notification, the operator must go to the site at a time
mutually agreed upon by both parties, and identify the
location and depth of the high-priority subsurface
installation with permanent markers.
7)Requires each gas company to collect data to inform its
outreach activities, including: (1) Damages to underground
CPUC-regulated pipeline facilities that occur during the
performance of landscaping activities from the day of
enactment of this bill until January 1, 2020; (2) All claims
filed by a gas company against an excavator for damage to a
CPUC-regulated pipeline facility; and (3) Any other
information that the CPUC may require.
8)Requires real property owners to call a regional call center
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when excavating on their property and using any tools other
than hand tools, regardless of whether the work being
performed requires a permit. Provides that a person complying
with the notification provisions is not relieved of his or her
duty to perform any excavation with reasonable care to prevent
damage to subsurface installations. Makes numerous findings
and declarations regarding the efficiency of regional
notification centers, including among others, more effective
methods of coordination and communication to increase safety,
timely responses to request for field markings, and better
coordination with the Department of Transportation.
9)Revises definitions of terms used regarding excavation and
subsurface installation.
EXISTING LAW:
1)Authorizes the CSLB, under the direction of the Registrar of
Contractors and within the Department of Consumer Affairs, to
license and regulate contractors pursuant to the Contractors'
State License Law. (Business and Professions Code Section
7000 et seq.)
2)Requires all operators of subsurface infrastructure (such as
gas, oil, and water pipes, electrical and telecommunications
conduits, etc., except the California Department of
Transportation) to participate in and fund regional
notification (One-Call) centers. (Government Code Section
4216.1. All subsequent citations refer to the Government
Code, unless otherwise indicated.)
3)Establishes the Regional Notification Center System (referred
to as the One-Call law) and requires a person planning to
perform any excavation, with limited exceptions, to notify the
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regional One-Call center in order to have operators notified
of their requirement to locate their underground installations
and mark them before excavation commences. (Section 4216.2.)
4)Requires operators of subsurface installations upon receiving
notification from a One-Call center, to mark their underground
installations within two working days of receiving a
notification from a One-Call center to do so. (Section
4216.3.)
5)Exempts homeowners and other private property owners from
being required to comply with the provisions of the One-Call
before starting an excavation on their own property, if the
work to be performed does not require a permit to be issued by
a state or local agency. (Section 4216.8.)
6)Requires excavators to use hand tools within the approximate
location of a marked subsurface installation to determine
where that installation is before using any power excavating
equipment. (Section 4216.4.)
7)Subjects any person who violates the provisions of the
One-Call law to a fine of up to $10,000 and allows the
Attorney General, a district attorney, or a state or local
agency who issued the permit for the work being performed to
bring a civil action for that violation. (Section 4216.6.)
8)Provides that operators and excavators are liable for damages
caused from violations of the One-Call law, and that operators
who fail to comply with the One-Call law requirements cannot
claim damages from an excavator who has complied with the law.
(Section 4216.7.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 1989, AB 73 (Elder, Chapter 928, Statutes of 1989)
established California's Call-8-1-1 Before-You-Dig (One-Call)
law, which requires operators of subsurface installations
(underground utilities) to participate in the regional One-Call
centers' mandatory calling program. The law requires excavators
and operators to call a local One-Call center before commencing
any excavation where there might be subsurface installation
facilities. Regional call centers are nonprofit associations or
other organizations of operators (persons or organizations that
own, operate or maintain subsurface installations). The
regional call center notifies operators of an impending
excavation, and any operator who has a subsurface installation
that could be affected by the noticed excavation is required to
provide a field mark within two working days, at the relevant
location to identify where the subsurface installation is
located. The purpose of the One-Call law is to have a single
location (there are currently two regional call centers in the
state) receive excavation notifications and coordinate the
notification of all operators who could potentially have
subsurface installation facilities in the vicinity of the
intended location. The One-Call law requires the use of safe
excavation practices and has statutory penalties for
noncompliance.
As additional safety practices in the area of subsurface
installation excavations evolved, the Legislature has taken
repeated steps to help ensure safety and avert potential
disasters. SB 1359 (Torlakson, Chapter 651, Statutes of 2006),
requires onsite meetings between operators and excavators when
an excavation is to take place near a high-priority subsurface
installation, such as high-pressure gas lines and high-voltage
electric lines. AB 811 (Lowenthal, Chapter 250, Statutes of
2013) requires One-Call centers to annually report on subsurface
installation damages that are voluntarily reported by excavators
and operators.
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Federal and Nationwide Safety Excavation Practices. The
National Transportation Safety Board (NTSB) and Pipeline and
Hazardous Materials Safety Administration (PHMSA) have
identified call-before-you-dig laws as a means of improving
excavation safety, especially if the One-Call center
requirements are actively being enforced. In its 1997 Safety
Study on excavation damage, the NTSB found that administratively
enforcing a state's One-Call law was more effective and less
costly than relying on a more punitive form of enforcement, such
as civil and criminal actions brought by the Attorney General or
a district attorney, because administrative enforcement
generates an awareness of good damage prevention practices, and
encourages safety compliance rather than punishment. (National
Transportation Safety Board Safety Study, Protecting Public
Safety Through Excavation Damage Prevention (1997) p. 22-24.)
Need for the Bill. According to the author:
On Friday, April 17, a front loader in Fresno came into
contact with a 12-inch high pressure natural gas
transmission pipe, causing an explosion that injured
fourteen people. One person died as a result, and eight
weeks after the blast, one remain[ed] hospitalized.
Accidents such as this are the result of unsafe practices
that people undertake all the time. Roughly 7,000 of
California's natural gas pipelines are hit every year, and
it is estimated that roughly half of them occur because the
excavator failed to use the free 8-1-1 service so that
pipes can be located and marked before digging. The safety
hazard associated with digging into natural gas pipelines
has hung over the Legislature for a long time-at least
since 2004, when five laborers were killed in Walnut Creek
when a petroleum pipeline exploded after it was struck with
a backhoe.
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Excavation activities accounted for more than 25 percent of
pipeline-related fatalities in the U.S. between 2002 and 2011.
Nationwide data provided by the Common Ground Alliance suggest
that excavation in California is more dangerous than in other
states, largely due to a failure of some excavators and
operators to call before excavating. (Common Ground Alliance,
DIRT Report for 2013.)
In a PHMSA rulemaking to determine criteria by which it is to
evaluate state enforcement of damage prevention laws, Sempra (a
gas company located in Southern California) reported 7,574
"dig-ins" (excavations that reach a subsurface installation
facility) in California in 2013. This equates to 21 excavations
per day, and the report stated that in roughly half of the
dig-ins that occurred to their facilities, the excavator has
failed to call 8-1-1 to get the subsurface installations field
marked. The bill's various stakeholders may disagree on the
cause or fault of excavation accidents and the resulting
damages, but everyone agrees that there is a need to reduce
injuries and fatalities caused by the excavation of subsurface
installations.
Strengthening Enforcement Efforts. Current law requires
excavators to notify a One-Call center to have operators locate
and field mark subsurface installations before excavating.
(Section 4216.2.) It also requires operators of subsurface
installations to mark their underground installations within two
working days of receiving a notification from a One-Call center
to do so. (Section 4216.3.) However, when either an excavator
or an operator fails to abide by the law, enforcement of the
violations is limited to the Attorney General, a district
attorney, or a local permitting agency has the authority to
enforce the law. (Section 4216.6.) According to the author,
the existing enforcement practice has resulted in the One-Call
law only being enforced when something terrible happens, so
unsafe behavior is not prevented before injuries and fatalities
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occur.
This bill adds a boost to enforcement of the One-Call law by
establishing the Advisory Committee to coordinate education and
outreach efforts, develop standards for best practices, and
investigate violations of the One-Call law. The Advisory
Committee will be composed of nine individuals, appointed by the
Governor, the Assembly, the Senate and the CSLB, with specified
expertise. Allowing the Advisory Committee to investigate and
recommend enforcement of violations of the One-Call law through
an administrative process provides a level of administrative
enforcement that the 1997 NTSB Safety Study found to be
effective.
This new Advisory Committee will have authority to make
enforcement recommendations based upon the complaints it
receives against utilities and contractors. It will make its
recommendations to three administrative agencies that will
enforce, as appropriate, One-Call violations in their
jurisdictions: the CPUC, the Office of the State Fire Marshal,
and the Registrar of the Contractors' State License Board.
These agencies already have independent enforcement jurisdiction
of gas pipeline and electric operators (the CPUC), hazardous
liquid operators (the Office of the State Fire Marshal), and
contractors (the CSLB). The agencies will be required to
accept, amend, or reject the recommendations of the new Advisory
Committee in regard to One-Call violations. Each agency will be
allowed to issue citations to violators, levy civil penalties,
and conduct investigations of violations forwarded by the new
Advisory Committee as follows: (1) the Registrar of the
Contractors' State License Board will enforce the provisions of
this bill on contractors, as defined in Article 2 of Chapter 9
of Division 3 of the Business and Professions Code; (2) the
Public Utilities Commission will enforce the provisions of this
bill on gas corporations, as defined in Section 222 of the
Public Utilities Code, and electrical corporations, as defined
in Section 218 of the Public Utilities Code; and (3) the Office
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of the State Fire Marshal will enforce the provisions of this
bill on operators of hazardous liquid pipeline facilities, as
defined in Section 60101 of Chapter 601 of Subtitle VIII of
Title 49 of the United States Code. This bill also establishes
a fund through the State Treasurer's office, the Safe Energy
Infrastructure and Excavation Fund to cover the administrative
cost of the new Advisory Committee. The Attorney General and
district attorneys will also maintain their existing enforcement
authority for One-Call violations.
Liability and Reimbursement Issues. Under existing law
operators and excavators are liable for damages caused by their
violations of the One-Call law. An operator who fails to become
a member of, participate in, or share in the costs of a regional
One-Call center forfeits any claim for damages to his or her
subsurface installation arising from an excavation against an
excavator who has complied, to the extent that the damages were
proximately caused by the operator's failure to comply. Also,
an operator who has failed to abide by the One-Call requirements
will be liable to the excavator who has complied, for damages
resulting from the operator's failure to comply, if the damages
were proximately caused by the operator's failure to comply.
(Section 4216.7.) This bill strengthens existing law by
providing that in an action for reimbursement or indemnification
for a claim arising from damage to a subsurface installation, if
a court finds that the excavator complied with the requirements
of the One-Call law, the court may awarded reasonable
attorney's fees and expenses to the excavator.
Changes to the Residential Homeowner Exemption. Today,
homeowners and other private property owners are not required to
call the regional One-Call center to have locations of
underground installations marked before starting an excavation
on their own property, if the work to be performed does not
require a permit issued by a state or local agency. (Section
4216.8.) This bill modifies the homeowner exemption to apply
only to work performed using hand tools. This bill does not
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require a real property owner to wait 14 calendar days before
beginning an excavation to notify the regional One-Call center,
as is the case with excavators and operators. (Section 4216.2.)
This bill allows a real property owner to contact the One-Call
center at any time to learn of the location of subsurface
installations on his or her property and to arrange for an
operator to locate and provide field markings of subsurface
installations on the property. However, contacting the One-Call
center does not relieve the property owner of responsibility to
perform the excavation with reasonable care to prevent damage to
subsurface installations.
Agricultural and Landscaping Exemptions. This bill grants,
until January 1, 2020, an exemption to routine agricultural
operations that operate at a depth of less than 16 inches from
notification requirements. These exemptions pose major issues
which have been raised by some of the stakeholders, namely the
Western States Petroleum Association and the California
Association of Winegrape Growers.
In stating their "oppose unless amended" position, the Western
States Petroleum Association believes that the agricultural
exemption places a greater burden of liability on the operator
than the landowner by requiring:
[T]hat an operator of a high priority subsurface
installation to notify a landowner if they feel that a
subsurface installation is at a depth that would not allow
for safe operation under the proposed agricultural
exemption in [Section 4216(A)(2)(g)]. It is impossible to
know where, when and what type of excavation will occur at
all times along an easement, however this provision would
require the subsurface installation owner or operator to
know what is going to happen.
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There are many instances when soil and fields change or land
subsides, including but not limited to, the occurrence of
earthquakes, flooding, mass fires and grading changes. It is
not reasonable to expect that a high priority operator, who
maintains hundreds of acres of subsurface installations, will
automatically know if and when such changes affect their
subsurface installations. It would seem more prudent to place
an affirmative obligation on the agricultural landowner to make
an initial notification to a One-Call center before he or she
plans to excavate. This notification would require an operator
to come onto the land to locate and mark the subsurface
installations. Once marked, only then should the landowner be
granted the agricultural landowner exemption. That exemption
should apply to that particular landowner until an event occurs
on the property that causes the land to shift or change in a
manner that gives cause for additional notification to the
One-Call center. This practice would still allow an operator to
be liable for resulting damage if the subsurface installation
markings are incorrect or if the operator fails to mark the
installations after notification. However, it would at least
provide notice to the landowner of the location of existing
subsurface installations, and provide the operator with notice
that a pending excavation could possibly affect their subsurface
installations.
The California Association of Winegrape Growers oppose this bill
based on the agricultural landowner exemption but see the
challenges of the exemption provisions from a different
perspective - only allowing for a 16 inch exemption. The
Association states:
This bill attempts to define and manage all excavations
over and around subsurface installations. The resulting 29
pages involve at least 26 code section changes or
additions. In addition, this bill would create the
California Underground Facilities Safe Excavation Authority
and add a special fund for new revenues. Multi-layered and
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multi-jurisdictional reporting, compliance, appeals, and
liability processes merit a more thorough examination.
A few examples that involve digging deeper than the
designated 16 inches: planting a grapevine, removing a
dead grapevine, installing a grape stake, repairing any
number of items on an irrigation line, removing rocks,
installing posts for owls used for rodent control,
installing end posts for trellises, removing end posts,
disking, plowing, chiseling, fertilizing with subsurface
shanks, building and maintaining fences, & managing furrow
irrigation and runoff ditches
ARGUMENTS IN SUPPORT: In support of SB 119, the Sempra Energy
Utilities writes:
In 2013, there 7,574 dig-in incidents in California: 3,173
of those incidents were in Sempra Utilities territory
along. And while most do not result in injury to
individuals, each incident has the potential to cause
significant harm to our employees, the public and
third-party excavators. In order to mitigate against
potential safety hazards, California has in place a
notification system to alert operators to pending
excavation points, known as "811." The One-Call
notification system, "811," is designed to ensure that
prior to any excavation; each excavator must serve notice
of intent to excavate to the One-Call Center serving the
area in which the proposed excavation will occur.
Operators of underground facilities that could be affected
by the excavation activity (primarily utilities) can
arrange for the timely identification and marking of
underground facilities that are in the vicinity of the
intended activity. This is an important safety measure
that has been implemented across the country.
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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 we have legislation that
enhances safety around excavation sites, ensures proper
attribution of liability, and fair and consistent
enforcement.
ARGUMENTS IN OPPOSITION: The Los Angeles County Board of
Supervisors, who opposes this bill unless it is amended, writes:
The Los Angeles County Department of Public Works reports
that SB 119 would provide very little benefit to the public
and minimal, if any, improvement in worksite safety to
excavators. The Department's Road Maintenance Division
(RMD) reports that SB 119 would be impractical for routine
dirt road and shoulder grading activities. The requirement
to mark every utility would require RMD to physically dig a
trench, by hand (or vacuum, if approved), 4-inches deep, a
minimum of 4-feet wide, for the entire length of each road
project. This would require digging by hand for miles for
every utility indicated to be excavated that is located in
the shoulder area of a road. Further, the requirement
would impose a serious burden on agencies that perform
surface grading or smoothing of dirt shoulders or roads in
the course of routine maintenance.
Prior Legislation. AB 1514 (Lowenthal) of 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. That bill died in Assembly Appropriations.
REGISTERED SUPPORT / OPPOSITION:
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Support
Associated General Contractors
AT&T (support if amended)
California Legislative Conference of the Plumbing, Heating, and
Piping Industry
DigAlert (support if amended)
National Electrical Contractors Assn
Sacramento Municipal Utility District (support if amended)
San Diego Gas and Electric Company (support if amended)
Southern California Contractors Association
Southern California Gas Association (support if amended)
United Contractors
Western Line Constructors
Opposition
California Association of Winegrape Growers
LA County Board of Supervisors (oppose unless amended)
Western State Petroleum Association (oppose unless amended)
Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334
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