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 --