BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1049


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          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  








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            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)









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          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)










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          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:  








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          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.










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            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  








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            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:












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          Support


          None on file.




          Opposition


          California Cable and Telecommunications Association


          California Railroad Industry




          Analysis Prepared by:Sue Kateley / U. & C. / (916)  
          319-2083