BILL ANALYSIS Ó
SB 661
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Date of Hearing: August 29, 2016
ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
Mike Gatto, Chair
SB
661 (Hill) - As Amended August 19, 2016
SENATE VOTE: 35-3
SUBJECT: Protection of subsurface installations
SUMMARY: Enacts the Dig Safe Act of 2016 to modify laws
governing excavations near subsurface installations. Among
other things, this bill:
1)Requires a person planning to conduct an excavation to contact
the appropriate regional notification center prior to
commencing the excavation regardless of whether it will be
conducted in an area that is known, or reasonably should be
known, to contain subsurface installations.
2)Requires an excavator to delineate the area to be excavated
before notifying the regional notification center. Specifies
the amount of time required for notification prior to an
excavation.
3)Prohibits an excavator who damages a subsurface installation
due to an inaccurate field mark by an operator from being
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liable for damages and other specified costs and expenses.
4)Establishes the California Underground Facilities Safe
Excavation Advisory Board (the Board), within the Office of
the State Fire Marshall (OSFM), to investigate violations of
the state's excavation and subsurface installation laws,
coordinate education and outreach, and develop standards. The
Board may obtain funding for its operational expenses from:
a) A federal or state grant.
b) A fee charged to members of the regional notification
centers.
c) Any other source.
5)Authorizes the Contractor's State Licensing Board (CSLB), the
California Public Utilities Commission (CPUC), the OSFM, and
local governments to accept, amend, or reject the
recommendations of the Board to enforce specific provisions
related to operators and excavators whose activities or
business fall within the agency's statutorily defined
enforcement jurisdiction as follows:
a) The Registrar of Contractors of the CSLB enforces
violations by licensed contractors.
b) The CPUC enforces violations by investor-owned electric
and gas operators, and water corporations.
c)OFSM enforces violations by operators of hazardous liquid
pipeline facilities.
d)Local governments may enforce against local agencies under
their jurisdictions.
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6)Creates a Safe Energy Infrastructure and Excavation Fund and
requires penalties to be deposited in the fund, for
appropriation by the Legislature, for operational expenses and
education and outreach, as specified.
7)Defines terms used in the article in statute.
8)Establishes an "area of continual excavation" ticket of one
year in length for areas in which excavation is the business
of the property, including agriculture and flood control
facilities.
9)Directs the Board to determine through regulation how to
address "area of continual excavation" ticket renewal in areas
in which no subsurface installations are present.
10)Prohibits the regional notification centers from charging an
excavator to provide a ticket.
11)Provides that, during a meeting between an excavator and an
operator before digging near a high priority subsurface
installation, the information that the operator shall provide
to the excavator to verify the installation's location shall
be discussed.
12)States that the CPUC existing authority over a public utility
is not affected.
13)States the CSLB is the enforcement entity for a telephone
corporation, when the telephone corporation is acting as
contractor.
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14)Provides that one Governor appointee of the Board shall have
an agricultural background, and that the locator position is a
Senate appointee.
15)Provides that excavation using pneumatic hand tools for the
purpose of locating a gas facility does not require three day
notification if in the vicinity of a school or hospital.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)Unknown diversion of penalty revenues, in the millions
annually, from the General Fund (GF) to the Safe Energy
Infrastructure and Excavation Fund, created by this bill.
2)Increased first-year costs of $5.8 million (23 personnel year)
and ongoing costs of $3.6 million for OSFM/California
Department of Forestry and Fire Protection to support the
Board with potential minor offsets from fee revenue generated
from regional notification centers (GF/Special Fund).
3)Increased CSLB first year costs of $190,000 and ongoing annual
costs of $175,000 to process Advisory Committee
recommendations for disciplinary actions. CSLB notes there
will also be increased Attorney General (AG) costs to
prosecute the most egregious actions. Using the current
referral rate to the AG of 3% (approximately 150 cases) and
$5,000 per case, estimated annual ongoing costs are $750,000.
4)Minor, absorbable CPUC costs.
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COMMENTS:
1)Background: According to the author, 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.
Both the National Transportation Safety Board and the federal
pipeline safety regulator, Pipeline and Hazardous Materials
Safety Administration (PHMSA), have identified
call-before-you-dig laws as a means of improving excavation
safety. PHMSA, in adopting regulations requiring distribution
pipeline companies to develop comprehensive risk-based
pipeline safety programs, explored best practices in
excavation enforcement. In 2005, its working group found the
states that have had the most success house enforcement in a
centralized agency responsible for pipeline safety.
California relies on the AG and district attorneys to enforce
the one-call law, though regulatory authorities such as the
CPUC, OFSM, 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.
However, according to the author, existing authorities have
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rarely been used, except for a recent CPUC investigation into
Pacific, Gas and Electric Company's recordkeeping practices on
its distribution system, which explores excavation issues.
2)Prior Legislation: Last year, the Governor vetoed SB 119
(Hill) of 2015 that would have created the California
Underground Facilities Safe Excavation Advisory Committee,
within CSLB, to enforce existing and new provisions related to
safe excavation. 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
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.
3)Continual Excavation: This bill includes a definition of
"continual excavation" to mean a location where excavation is
part of the normal business activities of that location,
including, but not limited to, agricultural operations and
flood control facilities. Agricultural groups expressed
concern that the current language requiring an onsite meeting
with the owners of subsurface installations is too broad and
should be amended to limit the scope of the on-site meeting to
excavation that is planned within 10 feet of a high priority
subsurface installation and within five feet of a subsurface
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installation that is not a high priority.
According to agricultural groups, this bill, as written, would
mandate procedures to be followed prior to commencing
excavation regardless of whether it will be conducted in an
area that is known, or reasonably should be known, to contain
subsurface installations. They further state that "Since there
are still open issues because we simply ran out of time in the
negotiations with the Governor's office and other
stakeholders, we have been directed by our members to get on
record our opposition unless the amendments that have been
agreed to with the utilities can be adopted this year."
It is unclear if other stakeholders agree to the amendments
proposed by the agricultural groups.
While the agricultural groups would prefer to have this
particular language in the bill clarified, they have agreed to
pursue this through the stakeholder group process rather than
amending this bill at this time.
REGISTERED SUPPORT / OPPOSITION:
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Support
Associated General Contractors of California
AT&T
California Labor Federation
California Legislative Conference of the Plumbing, Heating and
Piping Industry
California State Council of Laborers
Construction Employers Association
National Electrical Contractors Association
Pacific, Gas and Electric Company
United Contractors
Western Line Constructors Chapter
Opposition
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Agricultural Council of California (unless amended)
California Association of Winegrape Growers (unless amended)
California Citrus Mutual (unless amended)
California Fresh Fruit Association (unless amended)
California Fresh Fruit Association (unless amended)
Farm Bureau Federation (unless amended)
Western Agricultural Processers Association (unless amended)
Western Growers (unless amended)
Analysis Prepared by:Sue Kateley / U. & C. / (916)
319-2083