BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 661| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 661 Author: Hill (D) Amended: 1/4/16 Vote: 21 PRIOR VOTE NOT RELEVANT SENATE BUS, PROF. & ECON. DEV. COMMITTEE: 8-0, 1/11/16 AYES: Hill, Bates, Berryhill, Block, Galgiani, Hernandez, Jackson, Wieckowski NO VOTE RECORDED: Mendoza SENATE JUDICIARY COMMITTEE: 5-1, 1/12/16 AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski NOES: Moorlach NO VOTE RECORDED: Anderson SENATE APPROPRIATIONS COMMITTEE: 6-1, 1/21/16 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza NOES: Nielsen SUBJECT: Protection of subsurface installations SOURCE: Author DIGEST: This bill modifies "call before you dig" laws governing excavations near subsurface installations. Among other things, this bill enhances the existing enforcement powers of specified state entities, revises liability provisions that apply to the pre-excavation notification and subsurface installation marking requirements for operators and excavators, and establishes the California Underground Facilities Safe Excavation Advisory SB 661 Page 2 Committee to enforce laws relating to the protection of underground infrastructure, as specified. ANALYSIS: 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 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: SB 661 Page 3 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, 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 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 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 SB 661 Page 4 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 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 SB 661 Page 5 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. 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 this bill 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. SB 661 Page 6 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. 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 requires 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. SB 661 Page 7 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. Background Excavation Safety: A Reoccurring 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 SB 661 Page 8 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. 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 five per day. Between 2011 and 2013, CSLB received 13 complaints from operators. However, in 2014, they received 100 complaints. 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. SB 661 Page 9 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 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." FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee, this bill will result in: 1) unknown penalty revenues, in the millions annually, from the General Fund to the Safe Energy Infrastructure and Excavation Fund, 2) initial costs of approximately $2.4 million, with ongoing costs of approximately $2.1 million to fund the Advisory Committee, 3) costs of approximately $190,000 initially, and $175,000 annually ongoing for CSLB staff time to administer disciplinary actions of the Advisory Committee, and 4) one-time costs in the range of $110,000 to $190,000 for the Building Standards Commission staff to develop and adopt non-residential building standards for the installation of tracer wire or tape for nonpressurized sewers. Also, the Senate Appropriations Committee mentions minor and absorbable costs for the Fire Marshal and PUC. SUPPORT: (Verified1/22/16) Associated General Contractors AT&T California Council of Laborers California Labor Federation California Landscape Contractors Association California Legislative Conference on the Plumbing, Heating, and Piping Industry National Electrical Contractors Association SB 661 Page 10 Southern California Contractors Association Underground Service Alert of Southern California United Contractors Western Line Constructors Chapter, Inc. OPPOSITION: (Verified1/22/16) None received ARGUMENTS IN SUPPORT: Proponents of this bill underscore that "in order for an excavation safety program to work properly, contractors and facility owners must be active participants and equally accountable for safe excavation practices around underground facilities. Contractors must notify the One Call Centers of their intent to excavate, when required, and the facility operators must mark their facilities correctly and in a timely manner. Therefore, we feel that the following provisions, taken together and not separately, are vital to promoting safe excavation in California." Prepared by:Mark Mendoza / B., P. & E.D. / (916) 651-1868 1/25/16 16:16:49 **** END ****