BILL ANALYSIS Ó
SB 1049
Page 1
Date of Hearing: June 29, 2016
ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
Mike Gatto, Chair
SB
1049 (Hill) - As Amended June 15, 2016
SENATE VOTE: 39-0
SUBJECT: Public Utilities Commission: close call reporting
program
SUMMARY: Requires the California Public Utilities Commission
(CPUC) to establish procedures and processes to implement a
"close call reporting program" for purposes of facilitating the
identification of accident precursors by persons familiar with
public utility operations and of collecting, analyzing, and
disseminating unbiased safety information. Specifically, this
bill:
1)Requires the CPUC to establish procedures and processes to
implement a confidential, nonpunitive, and independent close
call reporting program for purposes of facilitating the
identification of accident precursors by persons familiar with
public utility operations, including, but not limited to,
public utility employees and contractors, and of collecting,
analyzing, and disseminating unbiased safety information.
2)Allows any person, including, but not limited to, a public
SB 1049
Page 2
utility employee, or contractor, or a member of the public, to
voluntarily submit a confidential close call report, that both
involves a public utility and relates to public, employee, or
contractor safety.
3)Prohibits the CPUC from using through this program, or
information derived therefrom, except for information
concerning an accident or criminal offense, in an enforcement
action and allow the CPUC to establish additional exceptions
to this subdivision.
4)Allows the CPUC to contract with a third party to administer
the program.
5)Specifies that a public utility employee or the employee of a
contractor performing work for a public utility shall not be
subject to demotion, discharge, or any other form of
retaliation or discrimination for participating in the close
call reporting program established pursuant to this section.
EXISTING LAW:
1)CPUC has regulatory authority over public utilities and
authorizes the CPUC to fix rates, establish rules, examine
records, issue subpoenas, administer oaths, take testimony,
punish for contempt, and prescribe a uniform system of
accounts for all public utilities subject to its jurisdiction.
(California Constitution, Article XII, Sections 3 and 6)
2)Authorizes the CPUC to, at any time, inspect the accounts,
books, papers, or records kept by the public utility. (Public
Utilities Code Section 314)
SB 1049
Page 3
3)Requires the CPUC to investigate the cause of all accidents
occurring within this state upon the property of any public
utilities or directly or indirectly arising from or connected
with its maintenance or operation, resulting in loss of life
or injury to person or property and requiring, in the
judgement of the CPUC, investigation by it, and may make such
order or recommendation with respect thereto as in its
judgement seems just and reasonable. (Public Utilities Code
Section 315)
4)Establishes that neither the order or recommendation of the
CPUC nor any accident report filed with the CPUC shall be
admitted as evidence in any action for damages based on or
arising out of such loss of life, or injury to person or
property. (Public Utilities Code Section 315)
5)Requires every public utility to file with the CPUC, under
such rules as the CPUC prescribes, a report of each accident
so occurring of such kinds or classes as the CPUC from time to
time designates. (Public Utilities Code Section 315)
6)Requires every electrical corporation to cooperate fully with
the CPUC in an investigation into any major accident or any
reportable incident concerning overhead electric supply
facilities. (Public Utilities Code Section 316)
7)Requires every electrical corporation to provide the CPUC,
upon its request, immediate access to specified documents,
including any and all documents under the electrical
corporation's control that are related to the incident and are
not subject to attorney-client privilege or attorney work
product doctrine. (Public Utilities Code Section 316)
SB 1049
Page 4
8)Requires every public utility to furnish and maintain such
adequate, efficient, just and reasonable service,
instrumentalities, equipment, and facilities, as are necessary
to promote the safety, health, comfort, and convenience of its
patrons, employees, and the public. (Public Utilities Code
Section 451)
9)Requires that every public utility shall deliver to the CPUC,
when required by the CPUC, copies of any or all maps,
profiles, contracts, agreements, franchises, reports, books,
accounts, papers, and records in its possessions or in any way
relating to its property or affecting its business, and also a
complete inventory of all its property in such form as the
CPUC may direct. (Public Utilities Code Section 582)
10)Establishes that the attorney-client privilege is waived when
the holder of the privilege, without coercion, discloses a
significant part of the privileged communication or consents
to such disclosure. (Evidence Code Section 912(a))
11)Establishes that a client has a privilege to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer, if the
privilege is claimed by: a) the holder of the privilege; b) a
person who is authorized to claim the privilege by the holder
of the privilege; or c) the person who as the lawyer at the
time of the confidential communication, but such person may
not claim the privilege if there is no holder of the privilege
in existence or if he is otherwise instructed by a person
authorized to permit disclosure. (Evidence Code Section 954)
FISCAL EFFECT: Unknown.
COMMENTS:
SB 1049
Page 5
1)Author's Statement: "Recent utility disasters such as the
Aliso Canyon gas leak, the Butte Fire, and the San Bruno
explosion have demonstrated the need to better incorporate
employee observations into utility safety initiatives. In
order to empower utility employee reporting of near misses and
foster a culture of communication between utility employees
and management, the CPUC needs to implement a confidential
close call reporting system, such as the successful program
created by the Federal Aviation Administration forty years
ago, that protects the confidentiality of reporting employees
and disseminates safety lessons industry-wide."
2)Background: This bill requires the CPUC to implement a
non-punitive close call reporting program that may be
administered by a third party and that protects utility and
contract employees from punishment by the CPUC or retaliation
by their employers.
According to the author, James Reason in Managing the Risks of
Organizational Accidents (1997), confidentiality is a
necessary element to encourage employees to report safety
problems. Anonymity, however, impedes the ability for an
investigator to ask important follow up questions. The
solution used by the Federal Aviation Administration (FAA) and
copied by the Federal Railroad Administration (FRA) and
elsewhere is to use a third party to administer the reporting
program. The reports to the third party would not be
confidential, but after follow-up by third party analysts the
reports would be de-identified before evaluation (in the FAA
program) or forwarding to a peer review team of labor,
management, and regulatory staff (FRA program). Both the FAA
and FRA use the National Aeronautics and Space Administration
(NASA) to administer their programs.
SB 1049
Page 6
The CPUC works in close cooperation with the FRA on railway
matters and receives grants from the FRA to perform rail
inspections. The Rail Transit Safety Branch of the CPUC's
Safety and Enforcement Division ("SED") is responsible for the
CPUC's rail transit safety oversight program, which includes
oversight of 15 fixed guideway public transportation systems
in California. According to the CPUC, Federal law establishes
a close relationship between states and the Federal Railroad
Administration (FRA) and affirms the commitment both entities
share toward ensuring rail safety.
3)Suggested amendment: The author may wish to consider limiting
the applicability of this measure to electric and gas
utilities and striking the provision that allows the CPUC to
establishing additional exemptions to this subdivision because
it provides the CPUC with the means to establish unlimited
exceptions, which would undermine the purpose of the programs
to encourage reporting of safety problems.
SECTION 1. Section 326 is added to the Public Utilities Code,
to read:
326. (a) The commission shall establish procedures and
processes to implement a confidential, nonpunitive, and
independent close call reporting program for purposes of
facilitating the identification of accident precursors by
persons familiar with public utility gas and electric utility
operations, including, but not limited to, public utility
employees and contractors, and of collecting, analyzing, and
disseminating unbiased safety information. Through the
program, any person, including, but not limited to, a public
utility employee or contractor or a member of the public, may
voluntarily submit a confidential close call report that both
involves a public utility and relates to public, employee, or
contractor safety.
(b) The commission shall not use a report pursuant to
subdivision (a) or information derived therefrom, except for
information concerning an accident or criminal offense, in an
SB 1049
Page 7
enforcement action. The commission may establish additional
exceptions to this subdivision.
(c) The commission may contract with a third party to
administer the program.
(d) A public utility employee or the employee of a contractor
performing work for a public utility shall not be subject to
demotion, discharge, or any other form of retaliation or
discrimination for participating in the close call reporting
program established pursuant to this section.
4)Support and Opposition: The California Railroad Industry
opposes unless amended, because this bill in its current form
will be duplicative of the Federal Railroad Administration's
Confidential Close Call Reporting System, and, therefore,
unnecessary for railroad operations.
The California Cable and Telecommunications Association (CCTA)
and its members oppose this bill because of the vague language
used in the proposed statute, what issue the statute is
supposedly addressing, as well as the manner in which the CPUC
could potentially use the information derived from this
program.
5)Prior Legislation:
AB 2584 (Bradford), Chapter 262, Statutes of 2012: Requires
every electrical corporation to cooperate fully with CPUC
investigations of overhead electric supply facilities
regardless of pending litigation or other investigations.
REGISTERED SUPPORT / OPPOSITION:
SB 1049
Page 8
Support
None on file.
Opposition
California Cable and Telecommunications Association
California Railroad Industry
Analysis Prepared by:Sue Kateley / U. & C. / (916)
319-2083