BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 661| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 661 Page 3 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) SB 661 Page 4 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: SB 661 Page 5 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 SB 661 Page 6 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 SB 661 Page 7 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 SB 661 Page 8 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 SB 661 Page 9 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 **** END ****