BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 661|
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UNFINISHED BUSINESS
Bill No: SB 661
Author: Hill (D)
Amended: 8/19/16
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
SENATE FLOOR: 35-3, 1/26/16
AYES: Allen, Anderson, Beall, Berryhill, Block, Cannella, De
León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock,
Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno,
Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Nielsen, Pan,
Pavley, Roth, Runner, Stone, Vidak, Wieckowski
NOES: Moorlach, Morrell, Nguyen
NO VOTE RECORDED: Bates, Wolk
ASSEMBLY FLOOR: Not available
SUBJECT: Protection of subsurface installations
SB 661
Page 2
SOURCE: Author
DIGEST: This bill enacts the Dig Safe Act of 2016 to modify
laws governing excavations near subsurface installations.
Assembly Amendments add the definition of "area of continual
excavation", return the definition of excavation to current law,
create a California Underground Facilities Safe Excavation
Advisory Board (Board) under the Office of the State Fire
Marshall (OSFM), extend the term of the Board members from two
to four years, sunset the Board until January 1, 2019, and make
other technical and minor changes.
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
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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
revocation. (BPC § 7099, 16 CCR § 884)
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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) 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
liable for damages and other specified costs and expenses.
4) Establishes the Board within the 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 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:
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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, telecommunication companies,
and water corporations.
c) OSFM enforces violations by operators of hazardous
liquid pipeline facilities.
d) Local governments may enforce against local agencies
under their jurisdictions.
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
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corporation, when the telephone corporation is acting as
contractor.
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.
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, OSFM, 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
rarely been used, except for a recent CPUC investigation into
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Pacific, Gas and Electric Company recordkeeping practices on its
distribution system, which explores excavation issues.
Prior Legislation. Last year, the Governor vetoed SB 119 (Hill,
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 CSLB, 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."
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 installation
that is not a high priority.
According to the agricultural groups, this bill, as written,
mandates 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
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subsurface installations.
While the agricultural groups would prefer to have this
particular language in this bill clarified, they have agreed to
pursue this through the stakeholder group process rather than
amending this bill at this time.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee analysis on
August 3, 2016, this bill will create unknown diversion of
penalty revenues, in the millions annually, from the General
Fund to the Safe Energy Infrastructure and Excavation Fund,
increased first year and ongoing costs to support the Board with
potential minor offsets from fee revenue generated from regional
notification centers, and increased costs to support first year
and ongoing costs to process Advisory Committee recommendations
for disciplinary actions.
SUPPORT: (Verified8/31/16)
American Subcontractors Association
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
OPPOSITION: (Verified8/31/16)
None received
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ARGUMENTS IN SUPPORT: AT&T writes in support that "SB 661 is a
compromise: Interested parties, including communications
companies, contractors, labor, public and private facilities
owners, and others, have worked together to create a system that
will increase public safety, reduce instances of damage and
increase collaboration between excavators and owners of
underground facilities."
Prepared by:Mark Mendoza / B., P. & E.D. / (916) 651-4104
8/31/16 22:02:18
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