BILL ANALYSIS �
AB 1514
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Date of Hearing: April 23, 2012
ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
Steven Bradford, Chair
AB 1514 (Lowenthal) - As Amended: April 10, 2012
SUBJECT : Public works: excavations: violations
SUMMARY : This bill increases civil penalties for violations of
excavation laws and authorizes the Public Utilities Commission
(PUC) to prescribe rules for public utilities that are
conducting subsurface operations and provide information to the
State Attorney General or local district attorney on matters
involving excavation violations. Specifically, this bill :
1)Implements a recommendation from the Independent Review Panel
Report on the San Bruno Explosion to give the PUC authority to
address violations of excavation by establishing damage
prevention rules.
2)Increases the maximum amounts for civil penalties that may be
assessed for negligent or knowing and willful violations of
excavation laws.
3)Authorizes the PUC to provide information to the Attorney
General and the district attorney regarding violations of
excavation rules.
4)Requires the PUC to provide a summary of any damage reported
to the commission pursuant to subdivision (c) and of any
investigation in an annual report submitted to the Governor
and Legislature.
EXISTING LAW
1)Generally requires any person planning to conduct an
excavation to contact a regional notification center prior to
excavation, and, if practical, to delineate the areas to be
excavated.
2)Authorizes the Attorney General, a district attorney, or the
state or a local agency that issued a permit to excavate to
bring an action for the enforcement of a civil penalty against
an operator or excavator who negligently or knowingly and
willfully violates these and related provisions.
FISCAL EFFECT : Unknown
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COMMENTS :
1)According to the author, "When a backhoe hits an underground
power line or gas main what ensues can range from a simple
delay to a deadly occurrence. Despite the terrible risks
involved California lacks both data collection and liability
assessment. Perhaps the most alarming example in recent years
was the digging accident that that claimed 5 lives on November
9, 2004 in Walnut Creek. These are not mishaps. They are
full-blown emergencies. And they happen all too often.
Worse, even when such an accident results from the failure to
check with One-Call Centers, the state has a pretty poor track
record when it comes to investigating or prosecuting such
breaches. What we need is an improved process for
investigating and responding to incidents of underground
infrastructure damage.
2)Current law limits penalties for negligent excavation
violations to not exceed ten thousand dollars ($10,000) and
violations that are knowing and willful violations are limited
to no more than $50,000. This level of penalty may not be
providing a sufficient financial deterrent to potential
violators. This bill will establish a higher penalty, in the
event there is a second violation, in the amounts of $100,000
and $250,000, respectively.
3)Excavation violations can be reported to the Attorney General
or the local District Attorney for enforcement by any
individual, company, local government, utility, etc. This bill
will allow the PUC to also report excavation violations to the
enforcement agencies for prosecution. The PUC requested
reimbursement for its investigations in the event of a
successful prosecution. The PUC may already fine regulated
utilities for violations and it is not clear why this
additional sum of funds is necessary.
4)The current universe of excavation violations is not well
known. It is not clear how many times there are excavation
violation events, how extensive these events are with respect
to safety, and who is typically causing these events. Events
can be caused by many parties - utilities, private
contractors, homeowners, municipal governments, and state
government. This bill will authorize the PUC to collect and
compile this data and report it to the Legislature on an
annual basis.
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5)Committee amendments. The author may wish to clarify the bill
to ensure that the scope of the PUC's regulatory authority is
not expanded without changing the PUC's statute on
confidentiality, remove the reimbursement of the PUC's
investigations, remove the addition of local agencies to the
scope of the bill, and make other technical changes.
On Page 3, beginning at line 3, revise as follows:
4216.6. (a) (1) Except as provided in paragraph (2), and in
addition to all other penalties, any operator, or excavator,
or local agency that negligently violates any requirement of
this article is subject to a civil penalty in an amount not to
exceed ten thousand dollars ($10,000) for the first violation,
and not more than one hundred thousand dollars ($100,000) for
each subsequent violation.
(2) In addition to all other penalties, any operator , or
excavator, or local agency that knowingly and willfully
violates any requirement of this article is subject to a civil
penalty in an amount not to exceed fifty thousand dollars
($50,000) for the first violation, and not more than two
hundred fifty thousand dollars ($250,000) for each subsequent
knowing and willful violation.
On Page 3, beginning at line 23, revise as follows:
(C) Multiple separate violations as specified in this
paragraph arising from a single excavation performed shall
each only be subject to the maximum civil penalty for a first
violation if the operator, or excavator, or local agency has
not previously been subject to a civil penalty pursuant to
this section .
On Page 4, beginning at line 15 revise as follows:
(b) (1) Upon receipt of an investigation report prepared by
the Public Utilities Commission or an operator pursuant to
subdivision (d) of Section 565 of the Public Utilities Code,
an action may be brought by the Attorney General or the
district attorney in the name of the people of the State of
California for the enforcement of the civil penalty pursuant
to this section. Alternatively, the Public Utilities
Commission or an operator may provide an investigation report
to the local or state agency that issued the permit to
excavate and the local or state agency may take action to
assess a civil penalty pursuant to this section. If penalties
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are collected as a result of a civil suit brought by the
Attorney General, a district attorney, or a state or local
agency that issued a permit to excavate for collection of
those civil penalties, the penalties imposed shall be paid to
the prosecuting agency. If more than one agency is involved in
enforcement, the penalties imposed shall be apportioned among
them in a manner that will fairly offset the relative costs
incurred by the state or local agencies, or both, in
collecting these fees. The Public Utilities Commission shall
be entitled to an apportionment of the penalties for the cost
of completing its investigation report.
(2) Nothing in this section shall be construed to provide
additional jurisdiction to the Public Utilities Commission.
On Page 4, beginning at line 37 and ending on Page 6, line 12,
revise as follows:
565. (a) For purposes of this section, "excavation,"
"excavator," "emergency," "high-priority subsurface
installation," "local agency," "operator," "state agency," and
"subsurface installation" have the same meanings as defined in
Section 4216 of the Government Code.
(b) The commission may adopt rules requiring public utilities
that are operators to comply with the requirements of Article
2 (commencing with Section 4216) of Chapter 3.1 of Division 5
of Title 1 of the Government Code, including rules for
responding to an emergency.
(c) (1) The commission shall adopt rules requiring public
utilities who are subsurface operators to report damage that
occurs to utility-owned subsurface installations and
high-priority subsurface installations as a result of an
excavation. The commission may adopt different rules for
utility facilities that are and are not high-priority
subsurface installations and different rules depending upon
whether the damage does or does not result in an emergency.
(2) The commission shall adopt procedures for obtaining from
public utilities who are subsurface operators reports of
violations of Article 2 (commencing with Section 4216) of
Chapter 3.1 of Division 5 of Title 1 of the Government Code
that the commission determines should be investigated as an
enforcement action pursuant to Section 4216.6 of the
Government Code, including procedures regarding which
violations are required to be immediately reported. The
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procedures shall require reporting of all pertinent
information necessary for the commission to thoroughly
investigate the complaint and prepare a complete investigation
report pursuant to subdivision (d).
(d) (1) Upon receipt of a report of violation pursuant to
paragraph (2) of subdivision (c), the commission shall
investigate the violation and prepare an investigation report
documenting any violation determined by the commission to
warrant possible enforcement pursuant to Section 4216.6 of the
Government Code. An investigation report shall include, but
not be limited to, all of the following:
(A) The facts and evidence establishing the violation.
(B) A list of witnesses to the violation and contact
information for the witnesses.
(C) All contacts with or responses from the regional
notification center.
(D) Any excavation plans associated with the violations.
(2) The report shall be admissible as a public record in any
action brought pursuant to Section 4216.6 of the Government
Code or pursuant to Chapter 4 (commencing with Section 7951)
of Division 4.
(e) Notwithstanding Subject to Section 583, the commission may
provide the Attorney General, the district attorney for the
county in which the damage occurred, the local or state agency
that issued the permit to excavate, or the United States
Department of Transportation's Pipeline and Hazardous
Materials Safety Administration a copy of an investigation
report completed pursuant to subdivision (d) to take
enforcement action pursuant to subdivision (b) of Section
4216.6 of the Government Code.
(f) The commission shall include a summary of any damage
reported to the commission pursuant to subdivision (c) and of
any investigation undertaken pursuant to subdivision (d) in
the report submitted to the Governor and Legislature pursuant
to paragraph (4) of subdivision (a) of Section 321.6.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Public Utilities Commission (CPUC) (Sponsor)
Coalition of California Utility Employees (CCUE)
Pacific Gas and Electric Company (PG&E)
San Diego Gas & Electric Company (SGD&E) (if amended)
Sempra Energy utilities (SEu) (if amended)
Southern California Edison (SCE)
Southern California Gas Company (if amended)
Opposition
CalCom (unless amended)
California Cable and Telecommunications Association (CCTA)
(unless amended)
California Chapter of the American Fence Association
California Fence Contractors' Association
California Landscape Contractors Association (CLCA)
CTIA (unless amended)
Engineering Contractors' Association
Flasher Barricade Association
Frontier Communications (unless amended)
Los Angeles County Board of Supervisors (unless amended)
Marin Builders Association
United Contractors
Verizon (unless amended)
Analysis Prepared by : Susan Kateley / U. & C. / (916)
319-2083