BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 661 (Hill)
Version: January 4, 2016
Hearing Date: January 12, 2016
Fiscal: Yes
Urgency: No
TH
SUBJECT
Protection of Subsurface Installations
DESCRIPTION
This bill would establish the "Dig Safe Act of 2016" and make
several changes to existing laws governing subsurface
excavations, including prohibiting an excavator that damages a
subsurface installation due to an inaccurate field mark by an
operator from being liable for damages, replacement costs, or
other expenses arising from damage to the subsurface
installation, provided the excavator complied with all
pre-excavation notification requirements and procedures. This
bill would also, among other things, direct specified state
agencies to enforce violations of the bill's provisions related
to excavation, and would create the California Underground
Facilities Safe Excavation Advisory Committee, which would
investigate alleged violations of specified laws relating to the
protection of underground infrastructure and develop standards
relevant to safety practices in excavating around subsurface
installations.
BACKGROUND
In 1986, a Southern California excavating crew assumed that no
subsurface infrastructure existed at their construction site.
They were wrong, and during excavation, a gas main was struck
and exploded, killing a 23-year old crewmember. That incident,
and several others like it across the country, were the impetus
for California's 1989 "Call Before You Dig" law (Gov. Code Sec.
4216 et seq.), which requires most individuals to contact a
Regional Notification Center prior to commencing planned
excavations, and requires any utility or other operator with
subsurface installations in the vicinity of a planned excavation
to go to the site and clearly identify and mark all underground
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infrastructure. Despite being a part of California law for
almost 30 years, excavators and operators of subsurface
installations regularly damage these installations, either by
failing to follow the required notification procedures or by
failing to adequately mark underground infrastructure prior to
excavation. The Pacific Gas and Electric Company ("PG&E"), an
operator of subsurface installations throughout central and
northern California, reports that in 2014 it experienced 1,910
third-party "dig-in" incidents resulting in an estimated $8
million in damage. Sempra Utilities, another operator of
subsurface installations, reports that it had 3,173 dig-in
incidents in 2013, and that roughly 50 percent of the incidents
could be attributed to excavators that failed to follow
California's required excavation notification laws.
During a dig-in incident this past April in Fresno, an excavator
punctured a 10-inch natural gas pipeline while operating heavy
equipment at a road construction site, killing one person,
injuring 12 others, and temporarily closing down Highway 99.
(See King, Baker, Williams, PG&E Gas Pipeline Explodes Near
Fresno; At Least 11 Hurt
San Francisco Chronicle (Apr. 18, 2015)
[as of Jan. 5, 2016]; Exponent
Failure Analysis Assoc., PG&E Line 118B Fresno In-Service
Rupture Analysis (July 2015)
[as of Jan. 5,
2016].) More recently, in Bakersfield during November of last
year, one person died and three others were injured when an
individual thought to be a farmer struck a natural gas
transmission line with a piece of heavy equipment. It is
unclear at this point whether the parties involved had complied
with California's "Call Before You Dig" Law prior to the
incident. (Mayer, Burch, Burger, Cox, One Dead and Three
Injured in PG&E Natural Gas Line Explosion Southwest of
Bakersfield, Bakersfield Californian (Nov. 13, 2015)
[as of Jan. 5, 2016].)
This bill is substantially similar to SB 119 (Hill, 2015), which
passed out of this Committee on a vote of 5-1. After the bill
passed out of this Committee, SB 119 was amended to redirect
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certain enforcement and oversight functions to specified state
agencies and the California Underground Facilities Safe
Excavation Advisory Committee, limited certain exceptions
pertaining to excavations undertaken by owners of residential
real property, and made other technical changes. SB 119 was
subsequently vetoed by Governor Brown because he believed the
Public Utilities Commission should be the enforcing and
regulating entity responsible for excavation activities near
subsurface installations.
This bill would modify California's existing subsurface
excavation laws by clarifying the actions both excavators and
operators must perform before an excavation is begun. Among
other things, the bill would clarify circumstances in which
excavators must call a Regional Notification Center before
undertaking routine excavations, such as those normally
performed during agricultural operations, and would modify
liability and immunity provisions that apply to operators and
excavators who follow the mandated pre-excavation notification
and marking requirements. This bill would also enhance the
enforcement powers of certain state agencies to bring
proceedings against operators and excavators who fail to follow
subsurface excavation laws, and would create the California
Underground Facilities Safe Excavation Advisory Committee.
This bill was approved by the Senate Business, Professions, and
Economic Development Committee on January 11, 2016.
CHANGES TO EXISTING LAW
1.Existing law vests the Contractors' State License Board with
all functions and duties relating to the administration of the
Contractors' State License Law. (Bus. & Prof. Code Sec. 7000
et seq.)
This bill would create the California Underground Facilities
Safe Excavation Advisory Committee, to be assisted by the
staff of the Contractors' State License Board in the
Department of Consumer Affairs, subject to appropriation of
funds.
This bill would direct the California Underground Facilities
Safe Excavation Advisory Committee to:
coordinate education and outreach activities that
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encourage safe excavation practices;
develop standards relevant to safety practices in
excavating around subsurface installations; and
investigate possible violations of specified laws
relating to the protection of underground infrastructure.
This bill would, in addition to other enforcement measures,
authorize the California Underground Facilities Safe
Excavation Advisory Committee to issue non-binding
recommendations to other state or local agencies pertaining to
the enforcement of laws relating to the protection of
underground infrastructure, including recommended sanctions
against excavators and operators who violate these laws.
1.Existing law, the "Call Before You Dig" law, requires every
operator of a subsurface installation, except the Department
of Transportation, to become a member of, participate in, and
share in the costs of, a regional notification center. (Gov.
Code Sec. 4216.1.)
Existing law states that except in an emergency, any person
planning to conduct any excavation shall contact the
appropriate regional notification center at least two working
days, but not more than 14 calendar days, prior to commencing
that excavation, if the excavation will be conducted in an
area that is known, or reasonably should be known, to contain
subsurface installations other than the underground facilities
owned or operated by the excavator. (Gov. Code Sec.
4216.2(a).)
Existing law provides that where an excavation is proposed
within 10 feet of a high priority subsurface installation, the
operator of the high priority subsurface installation shall
notify the excavator of the existence of the high priority
subsurface installation prior to the excavation start date and
time, and the excavator and operator or its representative
shall conduct an onsite meeting at a mutually-agreed-on time
to determine actions or activities required to verify the
location of the high priority subsurface installation prior to
start time. (Gov. Code Sec. 4216.2(a).)
Existing law provides that any operator of a subsurface
installation who receives timely notification of any proposed
excavation work shall, within two working days of that
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notification, excluding weekends and holidays, or before the
start of the excavation work, or at a later time mutually
agreeable to the operator and the excavator, locate and field
mark the approximate location and, if known, the number of
subsurface installations that may be affected by the
excavation. (Gov. Code Sec. 4216.3(a).)
Existing law states that if a subsurface installation is
damaged by an excavator as a result of failing to comply with
the above requirements, or as a result of failing to comply
with the operator's requests to protect the subsurface
installation as specified by the operator prior to the start
of excavation, the excavator shall be liable to the operator
of the subsurface installation for resulting damages, costs,
and expenses to the extent the damages, costs, and expenses
were proximately caused by the excavator's failure to comply.
(Gov. Code Sec. 4216.7(a).)
Existing law states that if the operator of a subsurface
installation has failed to comply with the regional
notification center system requirements, that operator shall
forfeit his or her claim for damages to the subsurface
installation arising from the excavation against an excavator
who has complied with the above requirements to the extent
damages were proximately caused by the operator's failure to
comply. (Gov. Code Sec. 4216.7(b).)
Existing law states that if an operator of a subsurface
installation fails to comply with the above provisions, the
operator shall be liable to the excavator who has complied
with these provisions for damages, costs, and expenses
resulting from the operator's failure to comply to the extent
the damages, costs, and expenses were proximately caused by
the operator's failure to comply. (Gov. Code Sec. 4216.7(c).)
Existing law exempts an owner of real property who contracts
for an excavation project on the property with a licensed
contractor or subcontractor, or an owner of residential real
property, not engaged as a licensed contractor or
subcontractor, who as part of improving his or her principal
residence or appurtenances thereto is performing or having
performed excavation work, from the "Call Before You Dig" law
if the excavation work does not require a permit from a state
or local agency. (Gov. Code Sec. 4216.8.)
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This bill would establish the "Dig Safe Act of 2016" and,
except as specified, require a person planning to conduct an
excavation to contact the appropriate regional notification
center prior to commencing that excavation regardless of
whether the excavation will be conducted in an area that is
known, or reasonably should be known, to contain subsurface
installations.
This bill , until January 1, 2020, would exempt excavations
performed as a landscape or operator maintenance activity, as
specified, or routine operations, as specified, in a flood
control area.
This bill would provide that before notifying the appropriate
regional notification center, an excavator planning to conduct
an excavation shall delineate the area to be excavated. If
the area is not delineated, an operator may, at the operator's
discretion, choose not to locate and field mark until the area
to be excavated has been delineated.
This bill would specify that, except in an emergency, an
excavator shall not begin excavation until the excavator
receives a response from all operators of known subsurface
installations within the delineated boundaries of the proposed
area of excavation.
This bill would require an operator to indicate with an "A"
inside a circle the presence of any abandoned subsurface
installations within the delineated area. This bill would
state that there shall be no liability associated with marking
abandoned subsurface installations.
This bill would require operators of subsurface installations
to retain records on abandoned subsurface installations, as
specified.
This bill would state that if an operator or local agency
knows that it has a subsurface installation embedded or
partially embedded in the pavement that is not visible from
the surface, the operator or local agency shall contact the
excavator before pavement removal to communicate and determine
a plan of action to protect both the subsurface installation
and the excavator.
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This bill would provide that if an operator has failed to
become a member of, participate in, or share in the costs of,
a regional notification center, that operator shall forfeit
his or her claim for damages to his or her subsurface
installation arising from an excavation against an excavator
who has complied with the requirements of this bill to the
extent the damages were proximately caused by the operator's
failure to be a member of, participate in, or share in the
costs of, a regional notification center.
This bill would provide that if an operator of a subsurface
installation has failed to comply with the requirements of
this bill without a reasonable basis, as determined by a court
of competent jurisdiction, including, but not limited to, the
requirement to field mark the appropriate location of
subsurface installations within two working days of
notification, the operator shall be liable to the excavator
who has complied with the above provisions for damages,
including liquidated damages, liability, losses, costs, and
expenses actually incurred by the excavator resulting from the
operator's failure to comply with these specified requirements
to the extent the damages, costs, and expenses were
proximately caused by the operator's failure to comply.
This bill would provide that an excavator who damages a
subsurface installation due to an inaccurate field mark by an
operator, or by a third party under contract to perform field
marking for the operator, shall not be liable for damages,
replacement costs, or other expenses arising from damages to
the subsurface installation if the excavator complied with the
requirements of this bill.
This bill would specify that the above provision is not
intended to create any presumption or to affect the burden of
proof in any action for personal injuries or property damage,
other than damage to the subsurface installation, nor is it
intended to affect, create, or eliminate any remedy for
personal injury or property damage, other than damage to the
subsurface installation.
This bill would strike the existing exemption for an owner of
real property who contracts for an excavation project on the
property with a licensed contractor or subcontractor, and
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limit the existing exemption for an owner of residential real
property, not engaged as a licensed contractor or
subcontractor, who as part of improving his or her principal
residence or appurtenances thereto is performing or having
performed excavation work using hand tools only.
This bill would authorize the Registrar of Contractors of the
Contractors' State License Board, the Public Utilities
Commission, and the Office of the State Fire Marshal to
enforce certain provisions of the laws pertaining to
subsurface infrastructure.
This bill would make other conforming and clarifying changes.
This bill would make various legislative findings and
declarations related to excavation and subsurface
installations.
COMMENT
1.Stated need for the bill
The author writes:
California has the ignominy of having the country's two most
recent pipeline fatalities. On April 17, 2015, 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 the
operator of the front loader was hospitalized for 53 days. On
November 13, the operator of a bulldozer preparing a field for
orchard planting south of Bakersfield struck one of Pacific
Gas and Electric's backbone transmission natural gas
pipelines, killing himself and seriously burning two people
nearby. Accidents such as these 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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The strategy that SB 661 takes to finally tackle this problem
is to:
Improve enforcement;
Clarify the law; and
Develop a venue for discussions to improve excavation
safety.
SB 661 proposes to emulate other states' successes in reducing
excavation damage by creating a central enforcement board,
composed of excavation stakeholders, to enforce California's
one-call laws.
1.Changes to Existing Liabilities and Immunities
Existing law, California's "Call Before You Dig" law, renders
excavators and operators of subsurface installations liable for
damages proximately caused by a failure to comply with the law's
provisions, such as failing to contact a regional notification
center or failing to properly identify and mark subsurface
installations prior to the commencement of certain excavation
activities. This bill would modify that liability structure by
clarifying the liability for, or immunity from, damages
resulting from non-compliance.
Immunities from liability are generally disfavored as a matter
of public policy. By their nature, they prevent an injured
party from seeking recovery for damages caused by the wrongful
acts of another. They also dis-incentivize careful behavior by
parties who, because of their immunity, cannot be held liable
for their wrongful acts. California law, to the contrary, has
generally provided recourse for those injured by the acts of
another. Civil Code Section 3281, for example, provides that
"every person who suffers detriment from the unlawful act or
omission of another, may recover from the person in fault a
compensation therefor in money, which is called damages." This
and other sections that provide recourse and compensation for
wrongful injuries help to ensure that all people adhere to a
certain standard of care in their conduct.
However, in limited situations, the Legislature has approved
measured immunity from liability to promote other policy goals
beneficial to the public. These limited immunities often
incentivize actors to behave according to a set standard in
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order to obtain its benefits. Existing law pertaining to
excavation near subsurface infrastructure contains such
immunities. The law provides that if an operator of a
subsurface installation fails to comply with such things as
pre-excavation marking requirements, that operator forfeits his
or her claim for damages to the subsurface installation arising
from the excavation, provided the excavator both complied with
the law's requirements and the damages were caused by the
operator's failure to comply. (See Gov. Code Sec. 4216.7(b).)
The Legislature also uses exposure to civil liability - the
inverse of immunity - as a mechanism for promoting public policy
goals. The subsurface excavation law contains provisions of
this type as well. One such provision renders an operator
liable in certain circumstances to an excavator for damages,
costs, and expenses resulting from the operator's failure to
comply with the law to the extent the damages, costs, and
expenses were proximately caused by the operator's failure to
comply. (See Gov. Code Sec. 4216.7(c).) Another provides that
if a subsurface installation is damaged by an excavator as a
result of failing to comply with the law's requirements, such as
notifying a regional notification center before excavating, the
excavator is liable to the operator for resulting damages,
costs, and expenses to the extent those damages, costs, and
expenses were caused by the excavator's failure to comply with
the law. (See Gov. Code Sec. 4216.7(a).) This set of liability
and limited immunity provisions incentivize excavators and
operators of subsurface infrastructure to comply with the
subsurface excavation law's pre-excavation notification and
marking requirements.
This bill would modify the existing liability structure of the
subsurface excavation law in several ways. First, it would
require an operator to become a member of, participate in, or
share in the costs of, a regional notification center, in order
to avoid forfeiting damage claims against excavators who comply
with the law. This bill would also create a new immunity for
excavators who damage subsurface installations due to an
inaccurate field mark by an operator, and would specifically
authorize excavators to receive damages including liquidated
damages, liability, and losses when operators fail to comply
with the law's pre-excavation marking requirements. These
changes, while expanding certain liabilities, do not
fundamentally alter the subsurface excavation law's existing
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liability structure.
2.Impact to Third Parties
The "Call Before You Dig" law limits the scope of its immunity
and liability provisions by imposing certain equitable
constraints on those provisions and by explicitly requiring
parties to mitigate their damages. Specifically, existing law
provides that these liability and immunity provisions do not:
affect claims including, but not limited to, third-party
claims brought against the excavator or operator by other
parties for damages arising from the excavation;
exempt the excavator or operator from his or her duty to
mitigate any damages as required by common or other applicable
law; or
exempt the excavator or operator from liability to each other
or third parties based on equitable indemnity or comparative
or contributory negligence. (Gov. Code Sec. 4216.7(d).)
To ensure that the proposed changes to the immunity provisions
of the subsurface excavation law related to liability for
improperly marked underground infrastructure do not
unintentionally impact the rights of third parties injured as a
result of noncompliance with the law, this bill explicitly
states that it "[does not] create any presumption or . . .
affect the burden of proof in any action for personal injuries
or property damage, other than damage to the subsurface
installation, [or] affect, create, or eliminate any remedy for
personal injury or property damage, other than damage to the
subsurface installation." By so doing, this bill ensures that
third parties injured by the negligent acts of an operator or
excavator remain free to pursue recourse for their injuries.
1.Governor Brown's Veto of SB 119
This bill is substantially similar to the enrolled version of SB
119 (Hill, 2015). In vetoing SB 119, Governor Brown stated:
This bill would create the California Underground Facilities
Safe Excavation Advisory Committee, within the Contractors'
State Licensing Board, in order to enforce existing and new
provisions related to safe excavation.
I understand that the telecommunications and cable companies
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have resisted providing explicit enforcement authority to the
Public Utilities Commission over excavation safety. However,
it is the Public Utilities Commission, and not the
Contractors' State Licensing Board, that has the technical
expertise and funds and should be given full authority to
enforce and regulate excavation activities near subsurface
installations.
The author states that the Governor's veto of SB 119 was not
based upon a rejection of the bill's underlying policy of
fostering safer excavations near underground infrastructure, and
that he is working with the Governor's office to determine which
state agencies should enforce California's "Call Before You Dig"
law.
Support : Associated General Contractors of California;
California Legislative Conference of the Plumbing, Heating and
Piping Industry; California Landscape Contractors Association;
California State Council of Laborers; National Electric
Contractors Association; Southern California Contractors
Association; Underground Service Alert of Southern California;
United Contractors; Western Line Constructors Chapter, Inc.
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 119 (Hill, 2015) See Background, Comment 4.
AB 811 (Lowenthal, Ch. 250, Stats. 2013) required regional
notification centers to post on their Internet Web sites
information provided by operators and excavators relating to
violations of specified state laws governing subsurface
excavations.
AB 1514 (Lowenthal, 2012) would have increased civil penalties
for violations of excavations laws and authorized the Public
Utilities Commission to provide a copy of an investigation
report to prosecutors following an excavation-related violation.
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AB 1514 died in the Assembly Appropriations Committee.
SB 1359 (Torlakson, Ch. 651, Stats. 2006) requires an onsite
meeting to determine the location of high priority subsurface
installations prior to the start of an excavation, specifies who
can determine the location of a high priority subsurface
installation, and assigns liability for damages resulting from
an excavator's and operator's failure to comply with its legal
obligations.
AB 1264 (Benoit, Ch. 77, Stats. 2004) exempted providers of
leased or rented excavation equipment and their employees from
specified state laws governing subsurface excavations if the
equipment is rented to a licensed contractor and the rental
agreement includes a provision stating that the contractor who
receives the equipment accepts certain liabilities. AB 1264
also extended the validity of an inquiry identification number
from 14 days to 28 days, affording contractors more time to
complete excavations and reducing the number of calls to the
regional notification centers.
AB 73 (Elder, Ch. 928, Stats. 1989), among other things,
clarified requirements in state law governing subsurface
excavations regarding identifying an area to be excavated. AB
73 specified that excavators are liable for any damages
resulting from their failure to comply with notification
requirements, and precluded, to a specified extent, damage
claims by those owners or operators who themselves fail to
comply with notification requirements. AB 73 also provided that
an operator or excavator who negligently violates the subsurface
excavation law would be subject to civil penalties not to exceed
$10,000, and that an operator or excavator who knowingly and
willfully violates the provisions would be subject to civil
penalties not to exceed $50,000, as specified. AB 73 required
that if more than one agency is involved in enforcement, the
penalties and fines collected shall be apportioned between them
by the court in a manner that will fairly offset the relative
costs or losses incurred by the public agencies.
Prior Vote : Senate Business, Professions, and Economic
Development Committee (Ayes 8, Noes 0)
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