BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 661 (Hill) - Protection of subsurface installations
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|Version: January 4, 2016 |Policy Vote: B., P. & E.D. 8 - |
| | 0, JUD. 5 - 1 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: January 19, 2016 |Consultant: Mark McKenzie |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 661 would modify "call before you dig" laws
governing excavations near subsurface installations. Among
other things, this bill would enhance the existing enforcement
powers of specified state entities, revise liability provisions
that apply to the pre-excavation notification and subsurface
installation marking requirements for operators and excavators,
and establish the California Underground Facilities Safe
Excavation Advisory Committee to enforce laws relating to the
protection of underground infrastructure, as specified.
SB 661 (Hill) Page 1 of
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Fiscal
Impact:
Penalty revenue diversion : Unknown diversion of penalty
revenues, in the millions annually, from the General Fund to
the Safe Energy Infrastructure and Excavation Fund (Safe
Fund), created by this bill. In recent years, the California
Public Utilities Commission (CPUC) reports it has imposed
penalties related to its enforcement programs of $16.8 million
in 2011-12, $8.4 million in 2013-14, and $11.9 million to date
in 2014-15, which are currently deposited into the General
Fund. This bill would instead require penalty revenues to be
deposited into the Safe Fund for specified activities, and any
amounts not utilized for purposes of the activities required
by the bill would then be deposited into the General Fund.
Underground Facilities Safe Excavation Advisory Committee
(Advisory Committee) : Estimated initial costs of approximately
$2.4 million, with ongoing costs of approximately $2.1 million
for the following activities: make necessary IT upgrades,
establish and staff the activities of the Advisory Committee,
hold 5-6 board and stakeholder meetings annually, establish
standards and conduct enforcement activities, conduct audits
and investigations of incidents and near misses, provide for
administrative adjudication hearings, and conduct public
education and outreach activities. The Advisory Committee
would be established within the Contractor's State Licensing
Board (CSLB), but the costs for staff and activities would be
funded through the Safe Fund, established by this bill.
CSLB : Estimated costs of approximately $190,000 initially, and
$175,000 annually ongoing for staff time to administer
disciplinary actions of the Advisory Committee. Additional
enforcement costs, estimated at $750,000 annually in
reimbursements, for cases referred to the Attorney General for
discipline. (Contractor's License Fund)
Fire Marshal : Minor and absorbable costs for enforcement
related to hazardous liquid pipeline operators' locating and
marking facilities. (General Fund)
California Public Utilities Commission (CPUC) : Minor costs for
enforcement related to natural gas and underground electric
infrastructure operators' locating and marking facilities, and
to provide a one-time report to the Legislature related to
excavation damage to CPUC-regulated pipelines. (Public
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Utilities Reimbursement Account)
Building Standards Commission (BSC): One-time costs in the
range of $110,000 to $190,000 for BSC staff to develop and
adopt non-residential building standards for the installation
of tracer wire or tape for nonpressurized sewers that connect
a structure to the public right-of-way. The Department of
Housing and Community Development (HCD) indicates costs to
develop the residential building standards would be minor.
(Building Standards Administration Special Revolving Fund)
Background: Existing law requires every person or entity that owns,
operates, or maintains a subsurface installation (an operator),
except Caltrans, to join and share in the costs of a non-profit
regional notification center (one-call center). Except in an
emergency, anyone planning to dig in an area with underground
installations (an excavator) must notify a one-call center at
least two days, but not more than 14 days, prior to digging, and
the excavator must mark the area to be excavated with white
paint, as specified. The one-call center then notifies all
members who have subsurface installations in the area of the
proposed excavation. Existing law requires an operator of
subsurface installations to locate and field mark the
approximate location and number of underground facilities that
may be affected by the excavation within two days of receiving a
notification from a one-call center. Excavators are required to
use hand tools within two feet of either side of an operator's
marked line indicating the location of a subsurface installation
to determine the exact location of that facility before using
any power-operated or power-driven excavating or boring
equipment. Excavators are required to notify the one-call
center if any operators fail to comply with these requirements.
Existing law subjects any operator or excavator who negligently
violates these provisions to a civil penalty of up to $10,000,
while an owner or excavator who willfully violates these laws is
subject to a civil penalty of up to $50,000. The Attorney
General, a district attorney, or a state or local agency who
issues an excavation permit may bring an action before the
courts for violations. If a subsurface installation is damaged
by an excavator as a result of failing to comply with
responsibilities under the one-call laws, the excavator is
liable to the operator for resulting damages, costs, and
expenses. If the operator of a subsurface installation failed
to comply with the one-call center requirements, the operator
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forfeits any claim for damages to underground facilities arising
from the excavation. If an operator has failed to comply with
his or her responsibilities under the one-call laws, the
operator is liable to the excavator who complied with the laws
for damages, costs, and expenses resulting from the operator's
failure to comply.
Proposed Law:
SB 661 would establish the "Safe Dig Act of 2016" and make
numerous changes to laws related to safe excavating practices
near underground facilities, including the following:
Require an excavator to delineate the area of excavation prior
to notifying a one-call center, and authorize an operator to
withhold locating and marking subsurface facilities until the
digging area has been delineated by an excavator.
Add to, and clarify statutory definitions pertaining to the
one-call laws.
Prohibit an excavator from digging until receiving a positive
response from all operators of known subsurface installations
within the delineated boundaries of a proposed area of
excavation, except in an emergency situation.
Require an operator to provide information on the location of
active and inactive subsurface installations, mark abandoned
facilities with an "A" inside a circle, and advise the
excavator if it operates no subsurface installations in the
area.
Require an operator or local agency that has subsurface
installations embedded in pavement to contact the excavator
before excavation to plan for protection of those
installations.
Require an operator to amend, update, maintain and preserve
all plans and records of its subsurface installations, and to
keep records of abandoned facilities beginning on January 1,
2017.
Authorize the Registrar of Contractors of the CSLB, the CPUC,
and the Office of the State Fire Marshal to conduct
enforcement of facilities that fall under their specified
jurisdictions, and require these entities to act to accept,
amend, or reject recommendations of the Advisory Committee
regarding enforcement.
Specify an operator that has failed to become a member of,
participate in, or share in the costs of, a regional
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notification center forfeits a claim for damages to subsurface
installation arising from an excavation caused by an excavator
who has complied with the bill's requirements, as specified.
Provide that an operator who has failed to comply with the
requirements of this bill without a reasonable basis, as
determined by the courts, including requirements to field mark
facility locations, shall be liable to the excavator who has
complied with the above provisions for damages, as specified.
Specify that an excavator in compliance with one-call laws
that damages underground facilities due to an inaccurate field
mark by an operator is not liable for damages, costs, or
expenses arising from damage cause to a subsurface
installation.
Require a residential property owner doing work on his or her
property to comply with the one-call laws, unless there is no
easement or right-of-way for subsurface installations and the
owner only uses hand tools for excavation.
Create the California Underground Facilities Safe Excavation
Advisory Committee, with specified membership, within the
CSLB, subject to the Legislature appropriating funds from the
Safe Fund for purposes of the bill and providing authority for
CSLB to hire sufficient staff.
Require the Advisory Committee to coordinate education and
outreach activities that encourage safe excavation practices,
develop specified standards, and investigate possible
violations of the state's excavation and subsurface
installation laws.
Authorize the Advisory Committee to receive funding from the
Safe Fund, federal or state grants, fees charged to members of
one-call centers, fines and penalties assessed in enforcement
actions, or any other source.
Require the Advisory Committee submit an annual report to the
Legislature and Governor on its activities and any
recommendations, beginning February 1, 2018.
Require the Advisory Committee, by December 31, 2018, to
consult with the Department of Food and Agriculture, convene a
stakeholder process, and make recommendations for long term
treatment of agricultural activities, relative to the
requirements for locating and field marking subsurface
installations when excavating.
Require the Building Standards Commission and HCD to develop
and adopt building standards requiring all new residential and
nonresidential nonpressurized building sewers that connect a
structure to the public right-of-way or applicable utility
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easement to include the installation of tracer tape or wire,
as specified. HCD and BSC would be authorized to use funds
from the Building Standards Administration Special Revolving
Fund for these purposes, upon appropriation by the
Legislature.
Establish the Safe Energy Infrastructure and Excavation Fund
(Safe Fund) in the State Treasury. Revenues in the Safe Fund
would be available, upon appropriation by the Legislature, for
administrative expenses of the Advisory Committee, with up to
$500,000 set aside for public education and outreach programs,
and up to $150,000 set aside for the CPUC to further a
specified workforce development program.
Require gas corporations to collect data on damage to
underground commission-regulated pipeline facilities that
occurred in specified circumstances, and any other information
the CPUC requires, and to annually report excavation damage
data and analyses to the CPUC until January 1, 2020.
Require the CPUC to report an analysis of excavation damages
to CPUC-regulated pipeline facilities to the Legislature by
February 1, 2019.
Require any moneys collected by the CPUC as a result of
citations issued in relation to safety enforcement programs
applicable to gas and electrical corporations be deposited
into the Safe Fund.
Related
Legislation: AB 811 (Lowenthal), Chap 250/2013, requires
regional notification centers to annually report on subsurface
installation damages that are voluntarily reported by excavators
and operators.
SB 119 (Hill), which was vetoed last year, is substantively
identical to this bill. The Governor's veto message included
the following:
I understand that the telecommunications and cable
companies 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
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activities near subsurface installations.
This is a matter of public safety, and I look forward to
working closely with the author to achieve our mutual goal.
Staff
Comments: SB 661 requires all fines and penalties from
specified CPUC enforcement actions be deposited into the Safe
Fund for specified purposes of the Advisory Committee. Under
current law, those revenues are deposited into the General Fund.
Staff notes that the amounts of these fines and penalties are
likely to substantially exceed the needs of the Advisory
Committee for its administrative costs, enforcement actions, and
education and outreach programs. The bill does specify that any
funds that exceed the amount necessary to fund the specified
activities in the bill would be deposited into the General Fund.
Bill history: Staff notes that SB 661 was recently amended to
remove the contents of the bill that was held on this
Committee's Suspense File last May, and instead insert
provisions that were previously in SB 119, which was vetoed by
the Governor last year. The previous version of SB 661 would
have transferred the assessment of airline personal property
from local assessors to the Board of Equalization.
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