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 ----------------------------------------------------------------- |Author: |Hill | |----------+------------------------------------------------------| |Version: |January 4, 2016 | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Mark Mendoza | |: | | ----------------------------------------------------------------- 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 SB 661 (Hill) Page 2 of ? 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 SB 661 (Hill) Page 3 of ? 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 SB 661 (Hill) Page 4 of ? 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. SB 661 (Hill) Page 5 of ? 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. SB 661 (Hill) Page 6 of ? 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: SB 661 (Hill) Page 7 of ? 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. SB 661 (Hill) Page 8 of ? 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 SB 661 (Hill) Page 9 of ? 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. SB 661 (Hill) Page 10 of ? 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 SB 661 (Hill) Page 11 of ? 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 SB 661 (Hill) Page 12 of ? 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. -- END --