BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            SB 661          Hearing Date:   January 11,  
          2016  
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          |Author:   |Hill                                                  |
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          |Version:  |January 4, 2016                                       |
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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:  Establishes the California Underground Facilities Safe  
          Excavation Advisory Committee within the Contractor's State  
          Licensing Board; modifies existing exemptions to participate in  
          one-call centers; adds liability provisions for excavators and  
          utility operators; updates technical requirements of the "call  
          before you dig" process; creates the Safe Energy Infrastructure  
          and Excavation Fund (Fund); 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.  The CSLB is under the direction of the  
             registrar of contractors. (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  







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             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)

           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  








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             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)


          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, to coordinate education and  
             outreach, and develop standards.


          2)Creates a Safe Energy Infrastructure and Excavation Fund to  
            cover administrative costs of the Advisory Committee, an  
            education program, and a workforce training program.  The  
            administrative costs and programs will be funded by fines  
            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)Authorizes the CSLB, the Public Utilities Commission (PUC),  
            and the Office of the State Fire Marshal 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.


          4)Requires an excavator to delineate the area to be excavated  
            before notifying the regional notification center, as  
            specified.  


          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  








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            excavator complied with the requirements of the 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:  


             a)   Damages to underground PUC-regulated pipeline facilities  
               that occur during the performance of landscaping activities  
               from the day of enactment of this bill until January 1,  
               2020,


             b)   All claims filed by a gas company against an excavator  
               for damage to a PUC-regulated pipeline facility,


             c)   Any other information that the PUC may require.


          1)Requires real property owners, as specified, to call a  
            regional call center 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.  
             










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          2)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 (CalTrans).


           3) Revises definitions of terms used regarding excavation and  
             subsurface installation. 


           4) Titles the measure the "Dig Safe Act of 2016."


           5) Adds an exemption to the definition of excavation for  
             removal of sediment in a flood control facility operated by a  
             city, county, or flood control district.


           6) Sunsets all exemptions to the definition of excavation on  
             January 1, 2020.


           7) Clarifies that an excavator and operator may mutually agree  
             to a different notice and start date for an excavation.


           8) Provides that liquidated damages, liability, losses, costs,  
             and expenses may be awarded to an excavator for an operator's  
             non-compliance only if the operator did not have a reasonable  
             basis for the non-compliance.


           9) Clarifies that a homeowner, when using the 8-1-1 service,  
             may use the 8-1-1 service at any time in advance of an  
             excavation, but should do so at least two working days before  
             beginning the excavation.


           10)Clarifies that the PUC may not use training funds to fulfill  
             existing requirements or fund ongoing operations.










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           11)Adds sewer lateral language for residential and  
             non-residential buildings into the Health and Safety Code  
             that requires indication of the location of the sewers. 


           12)Rewrites CalTrans-related findings and declarations and  
             states that CalTrans actively communicate with excavators  
             where infrastructure is located. 


           13)Strikes redundant sentences regarding remarking and  
             redelineation.


           14)States that hand tools need to be used around facilities in  
             conflict with the excavation within the tolerance zone  
             (similar to current law), and require the Advisory Committee  
             to clarify best practices for extra hand digging beyond the  
             depth of excavation and beyond the identification of the  
             facility, as specified.


           15)States that, in developing standards for using tracer wire  
             in sewer laterals and other drain lines, a lateral is  
             something that flows either into the public right-of-way or  
             into a utility easement.


           16)Includes the two one-call centers - one from the north and  
             one from the south - instead of just one as nonvoting ex  
             officio members of the Advisory Committee.


           17)Exempts gas utility notification of schools and hospitals  
             three days before excavation when that excavation is being  
             performed to locate and mark a line within two working days.


          FISCAL  
          EFFECT:  Unknown.  This bill is keyed fiscal by Legislative  
          Counsel. 

          COMMENTS:
          








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          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  
             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 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.  









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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 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. 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.  On July 25, 2015, PHMSA finalized the  
             pipeline safety regulations and established review criteria  
             for State excavation damage prevention law enforcement  
             programs as a prerequisite for PHMSA to conduct an  
             enforcement proceeding against an excavator in the absence of  
             an adequate enforcement program in the State where a pipeline  
             damage prevention violation occurs. This final rule amends  
             the pipeline safety regulations to establish the following:  
             (1) criteria and procedures for determining the adequacy of  
             State pipeline excavation damage prevention law enforcement  
             programs; (2) an administrative process for making State  
             adequacy determinations; (3) the Federal requirements PHMSA  
             will enforce in States with inadequate excavation damage  
             prevention law enforcement programs; and (4) the adjudication  
             process for administrative enforcement proceedings against  








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             excavators where Federal authority is exercised. The  
             development of the review criteria and the subsequent  
             determination of the adequacy of State excavation damage  
             prevention law enforcement programs are intended to encourage  
             States to develop effective excavation damage prevention law  
             enforcement programs to protect the public from the risk of  
             pipeline ruptures caused by excavation damage and allow for  
             Federal administrative enforcement action in States with  
             inadequate enforcement programs.

          3. Excavation Safety: A Reccurring 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  
               businesses.  Excavation was faulty for numerous reasons.









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              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.

                  On November 13, 2015  , an agricultural contractor hit one  
               of PG&E's two main transmission lines that run from the  
               Arizona border into its Bakersfield service territory. The  
               operator of the heavy machinery was killed, and two people  
               nearby suffered serious burns.

            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  








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             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  
             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.  SB 119  (Hill) of 2015 was an  
             identical bill to the current version of this bill.  (  Status  :  
              This bill was vetoed by Governor Brown).
           
             AB 811  (Lowenthal, Chapter 250, Statutes of 2013) required  
             the regional notification centers (or "one-call" centers) to  
             annually report on subsurface facility damages that are  
             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 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  








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             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, safe excavation practices, and  
             penalties for noncompliance.

           
          NOTE  :  Double-referral to Senate Committee on Judiciary.
          

          SUPPORT AND OPPOSITION:
           
          Support:  None on file as of January 6, 2016.

           Opposition:  None on file as of January 6, 2016.


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