Legislature(1997 - 1998)
05/01/1998 03:32 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 330(RES) - LOCATING UNDERGROUND FACILITIES Number 0744 CHAIRMAN ROKEBERG announced the committee's next order of business was CSSB 330(RES), "An Act relating to locations of underground facilities and excavations in the area of underground facilities." Number 0755 ANNETTE KREITZER, Legislative Assistant to Senator Loren Leman, came forward to present SB 330. She stated SB 330 was requested by the Alaska Telephone Association (ATA) and had been through approximately 20 iterations attempting to make sure it was very fair and balanced. Ms. Kreitzer noted they spent a lot of time trying to make sure the expectations for excavators and utility owners were very balanced in the bill. She stated SB 330 provided an understanding of the standards and responsibilities for locating and excavating underground facilities for utilities and contractors, amending AS 42.30 to set out responsibilities for excavators, construction project owners and underground facility owners when a "locate" was requested. She said the bill provided for a penalty if an excavator intentionally damaged a located underground facility. Ms. Kreitzer noted there was no current statewide locate standard. She said there were some national standards related to issues of locating (indisc.) encumbering underground utilities, but nothing as comprehensive on the statewide level as SB 330. She stated there were others present to testify from Alaska Rural Electric Cooperative (ARECA) and another organization she could not recall. Number 0830 REPRESENTATIVE COWDERY asked if there was any definition of "excavator" in the bill. CHAIRMAN ROKEBERG referred Representative Cowdery to page 5. The definition on page 5, line 31, read, "(4) "excavator" means a person conducts excavation in the state;". REPRESENTATIVE COWDERY confirmed it could be a private person doing this. MS. KREITZER answered in the affirmative. Number 0859 REPRESENTATIVE RYAN noted the question might not be relevant, but said years ago he had been on an assembly and the railroad told them they had to maintain the railroad's crossing in the assembly's municipality. He asked, "Is there anything here where an entity can put off on another person?" Number 0872 MS. KREITZER replied in the negative, indicating that if an excavator requested a locate SB 330 laid out that the utility had a certain number of days to respond, spoke about emergency locates and talked about what happened if an excavator intentionally did damage. She noted there was already a definition in law for "intentionally". Ms. Kreitzer said SB 330 laid out things like that, it was to simplify the current process, and in all the iterations she noted there had been a conscious effort not to create a burden for one party or the other in terms of maintaining lines or anything else. Number 0905 CHAIRMAN ROKEBERG asked about the cap in terms of the penalty clause on page 4, (line 25) "nor more than $1,000 for each offense ...". He questioned, "(Indisc.) civil penalty from whom?" Section 42.30.440 of CSSB 330(RES)read: Sec. 42.30.440. Penalties; injunctive relief. (a) A person who violates a provision of AS 42.30.400 - 42.30.490 is subject to a civil penalty of not less than $50 nor more than $1,000 for each offense if the violation results in or significantly contributes to damage to an underground facility. (b) If the court finds that an excavator is violating or threatening to violate a provision of AS 42.30.400 - 42.30.490 and the violation may result in damage to an underground facility, the court may grant injunctive relief to the underground facility operator. MS. KREITZER indicated she believed the chairman was referring to a violation of a provision of Sections 42.30.400 to 490 by an excavator. She indicated that if the excavator did not do what the excavator was supposed to do then a court could assess a penalty of not less than $50 nor more than $1,000 for each offense if it resulted in or significantly contributed to damage to that underground facility. Number 0949 CHAIRMAN ROKEBERG noted the amount was only $1,000 and asked if the actual damages were provided for. MS. KREITZER responded she believed actual damages were provided for, but did not think it was in that section. CHAIRMAN ROKEBERG indicated Mr. Youle [Executive Director, ARECA] might know the answers to those technical questions. ERIC YOULE, Executive Director, Alaska Rural Electric Cooperative Association, indicated he did not know the answer that question. Number 0979 REPRESENTATIVE RYAN said he was wondering about that as well, noting language on page 4, lines 20 and 22, from subsection (b), ".... The operator of an underground facility that was damaged during excavation shall arrange for repair or relocation of the facility as soon as practical." He asked where the liability was for the person who did the damage, questioning if the requirement that the person "make it whole" was in there. Number 0995 MS. KREITZER indicated she believed it was in the language above that, reading from the beginning of subsection (b) "(b) An excavator who, in the course of excavation, contacts or damages an underground facility shall notify the operator. If the damage causes an emergency, the excavator shall also alert local public safety agencies and take reasonable steps to ensure public safety." Section 42.30.430, subsection (b), of CSSB 330(RES) read: (b) An excavator who, in the course of excavation, contacts or damages an underground facility shall notify the operator. If the damaged causes an emergency, the excavator shall also alert appropriate local public safety agencies and take reasonable steps to ensure public safety. A damaged underground facility may not be reburied until it is repaired or relocated to the satisfaction of the operator. The operator of an underground facility that was damaged during excavation shall arrange for repair or relocation of the facility as soon as practical. Number 1009 REPRESENTATIVE RYAN said his question had been, "Are they financially responsible for the repair?" MS. KREITZER answered in the affirmative. Number 1015 CHAIRMAN ROKEBERG asked where it said that. MS. KREITZER stated her understanding was that injunctive relief also spoke to the damages. Number 1030 CHAIRMAN ROKEBERG commented that injunctive relief was in the court of equity and did not necessarily provide damages. REPRESENTATIVE RYAN commented, "Liability ..." SHIRLEY ARMSTRONG, Legislative Assistant to Chairman Rokeberg, commented that Mr. Rowe might still be on teleconference in Anchorage to answer technical questions. Number 1069 JIM ROWE, Executive Director, Alaska Telephone Association, testified via teleconference from Anchorage. Mr. Rowe stated the ATA was a trade association comprised of 22 local exchange carriers in Alaska. He said he thought the question asked of Ms. Kreitzer was under civil liability; a person, an entity, is responsible for damages. Mr. Rowe stated it was not particularly written out in this legislation and he noted he was not just speaking of underground or locate damages. Number 1113 CHAIRMAN ROKEBERG asked why it was not in the legislation. MR. ROWE replied it was law elsewhere. CHAIRMAN ROKEBERG asked if he could tell the committee where that would be. Chairman Rokeberg confirmed the legislation did not have a referral to the House Judiciary Standing Committee and had not had a referral to the Senate Judiciary Standing Committee. Number 1134 REPRESENTATIVE RYAN said there were more than just the physical repair damages and he commented, for example, on the damage to a business from loss of telephone service. He said he assumed a business would have a cause of action against the person or persons responsible for the discontinuation of service and said he would be comfortable if that was addressed somewhere otherwise in law, commenting, "But I would think that you might want to give that consideration." Number 1160 MS. KREITZER stated they had given that consideration. She noted a previous bill version had spoken of treble damages and that section had been deleted in the House Resources Standing Committee. She indicated the bill sections dealing with liability had also been deleted because the treble damages deletion left the bill lopsided in terms of what the liability was for the excavator, leaving it to current law and other statutes that deal with civil liability. She commented that if people got into this situation they needed to go to court anyway, and she stated, "A statute is not going to address every situation where a contractor has a problem with a - a telephone company or with a cable company. We would rather they resolve that in court. We just want to lay out some standards so that people understand that when you call for a locate, this is what you can expect to happen. When something occurs, where you hit a gas line or whatever, you're gonna go to court anyway and figure out who owes what and somebody's gonna assert that they didn't do it intentionally and someone's gonna assert that you should of known better, and so we didn't try to address all the liability questions, we left ... those types of things to current law." Number 1232 CHAIRMAN ROKEBERG stated he wasn't an expert but this looked like tort reform for excavators, noting it looked like a civil penalty cap of $1,000 per incident with injunctive relief for a "cease and desist." Number 1252 MR. ROWE indicated the penalty in Section 42.30.440(a) being discussed was only a fine to someone for not having done something correctly in the process which caused significant damage. He stated the liability was very much there. He noted, "The Alaska Telephone Association initiated or - or exhibited concerns of this over two years ago, and went through many iterations, and we appreciate very the help we've had in Senator Leman's office and the legislature overall in working through some of this." Mr. Rowe said the association has recognized that three quarters of the time the utility, who he commented he seemed to represent, was actually the excavator. He said the telephone company would be excavating by the electric company's or the gas company's underground facility and he indicated the impression this bill was adversarial in nature was incorrect. Mr. Rowe stated, "We're putting out standards for ourself, and quite honestly, by putting out the standards, the time frames, the distances from facilities, and being specific about it, we're expecting we're going to be more efficient in complying with good business practice. People being able to estimate how long it will take to get a job done, what kind of response time they can look at, and probably avoiding litigation." He noted the treble damages Ms. Kreitzer had referred to which were removed from the bill would have only applied to intentional damages, commenting, "Where there have been practices, a contractor, be it utility, private contractor, whatever, recognizing with the expense of equipment, it's easier just to go down along a right-of-way and tear up what's there and pay for the damage, than it is to go around it." Mr. Rowe said, however, from a utility's view point they were very concerned their customers were not sustaining an outage. He stated, "We want to encourage that and we think we have in this bill, to protect not only the dollars returned of electricity being on and the meters spinning, but very importantly that our customers don't experience an outage." He said they have addressed the emergency response, they want to respond in any emergency condition, and even more importantly, avoid those emergency conditions, keeping the utility to the public. He noted that is what they have tried to address in the legislation and emphasized the fine in Section 42.30.440 was for wrong-doing; it was not compensation for the damage done. Mr. Rowe indicated the compensation for damage was in liability. Number 1400 REPRESENTATIVE RYAN said Alaska was unique because a lot of utilities were owned by public and quasi-public corporations "as such." He asked if this applied to government as well as the private sector. MS. KREITZER answered in the affirmative. Number 1425 REPRESENTATIVE COWDERY asked if he was correct in saying there was some regulation of utilities being in the proper place and proper depth, indicating he was referring to the bill. He indicated in his excavating experience he has gone to a vacant lot to put something like a foundation in and unexpectedly hit a gas line, noticing out of the corner of his eye a house on a separate lot next door had a meter. Representative Cowdery noted a lot of this had happened in the early days and he indicated he was wondering if there were any depth requirements in the legislation and about the location of underground facilities with respect to easements. He directed his questions to Mr. Rowe. Number 1485 MS. KREITZER commented Mr. Rowe would speak to this in more detail, but she believed Representative Cowdery was referring to Section 42.30.410, page 2, beginning on line 24, which went into the field marks for an underground facility. She asked if this was what Representative Cowdery was speaking to. Section 42.30.410, subsection (c), beginning on line 24, read: (c) The field marks for an underground facility buried 10 feet deep or less must be located within 24 horizontal inches of the outside dimensions of the facility. For a facility buried deeper than 10 feet, the operator shall locate the field marks within 30 horizontal inches of the outside dimensions of the facility. The operator shall use stakes, paint, or other clearly identifiable material to show the field location of the underground facility. The marker used to designate the approximate location of an underground facility must follow the current color code standard used by the American Public Works Association. Number 1513 REPRESENTATIVE COWDERY answered in the affirmative, indicating he also wanted to know where it was located. MS. KREITZER commented she would let Mr. Rowe speak more to that section of the bill. Number 1525 MR. ROWE said they have talked about horizontal requirements for the locate and have intentionally not spoken about depth. He stated if the locate was done incorrectly and damage occurred at no fault of the excavator because of this, then the responsibility certainly was on the locate service. He noted the depth had been intentionally left out because different underground facilities have been buried at different depths in Alaska. He added, "Plus, we seem to at least (indisc.) the law road right-of-ways, that - that depth certainly changes as graders go along and - and snow plows go along and change the depth, and especially in rural areas I know that's quite a concern. Sometimes things are higher than anticipated. Hopefully if you're going down with a backhoe they're deeper than you anticipated so that's not going to cause any problem." He reiterated that only the horizontal measurements were addressed in the bill. Number 1595 REPRESENTATIVE COWDERY indicated his question, however, had to do with excavating on virgin ground, giving the example of someone owning a vacant lot for years that had never been built on, putting a foundation on it and hitting something that's (indisc.). Representative Cowdery noted there had been no need for a locate because it was virgin ground and the work was not going off the property; he said that happened frequently to some excavators, especially in Anchorage in the earlier days. Number 1623 MR. ROWE replied, "Mr. Chairman, I think we need to look for a locate and I think that's why we ask for locates and this does ..." REPRESENTATIVE COWDERY interjected, "You mean every excavating job regardless of where it's at should have a locate?" MR. ROWE replied he did not think every job needed to, but if they hit any underground utility it was probably not virgin ground. He stated, "And (indisc.) around Anchorage, if we see power lines or ... have reason to suspect there's a gas line there, if you call a locate service and say, 'We're going to be digging,' and they say, 'There's nothing there,' you're covered." Number 1656 CHAIRMAN ROKEBERG commented Mr. Youle had to catch a flight. Number 1665 ERIC YOULE, Executive Director, Alaska Rural Electric Cooperative Association, came forward to testify. He stated he was there basically in favor of SB 330. He commented he would have to say ATA had done a very good job of coordinating the bill with all interested parties, and in particular with the electric utility industry. Mr. Youle said ATA came to ARECA over 1 1/2 years ago with draft legislation and let ARECA distribute it among its members. He said they examined it and proposed a number of changes which were considered and adopted where appropriate. Mr. Youle noted he thought ATA took that attitude as a general rule with most entities which would be affected by the bill, and he stated ARECA's members were satisfied with the bill at that time. Number 1716 CHAIRMAN ROKEBERG asked Ms. Colter (ph) if she wanted to testify. MS. COLTER (ph) replied, "Concur. My staff looked at it too, and ..." [NOTE: WITNESS DID NOT SIGN WITNESS REGISTER AND WAS NOT OTHERWISE IDENTIFIED] CHAIRMAN ROKEBERG interjected that there was one other thing, addressing his comments to Ms. Kreitzer. The chairman said it seemed to him there were a number of utilities and "other folks" conspicuous by their absence from the bill file, particularly even from the Anchorage area. He gave the example of ENSTAR Natural Gas Company (ENSTAR) and indicated the bill file contained letters to these entities from Mr. Rowe requesting support, but not corresponding letters of support from the entities. Number 1765 MS. KREITZER indicated she felt this was not a high priority for those entities. She stated, "Within the Municipality of Anchorage, for instance, they have (indisc.) call locate center. We did speak with [the] municipality of Unalaska, which doesn't have a one-call locate and they were satisfied with the bill after ... the amendments in the Resources Committee." Ms. Kreitzer said they did make the attempts, indicating the entities knew about the bill and had had opportunity to comment. Number 1816 REPRESENTATIVE RYAN said he could see the wisdom of not going to depth, noting in a great area of the state things sink and rise in the ground, and it would be difficult in those places to determine the actual depth. Number 1836 MR. ROWE said he spoke with Ms. Crisafulli of ENSTAR in November of 1997. Mr. Rowe's November 24, 1997, letter to Kimberly Crisafulli of ENSTAR, taken from the bill packet, read: Thank you for your help with the number of locates earlier today. I look forward to receiving your year end compilation when it is available. Enclosed is a draft of the proposed locate legislation we expect to have introduced in January. It has been shared with utilities and contractors and I encourage widespread distribution. Over the past year I have made a number of changes in response to suggestions. I welcome your input. Number 1875 CHAIRMAN ROKEBERG asked Mr. Rowe, "If you could provide the Labor and Commerce Committee and the Rules chairman for submission to the floor package, a letter confirming the ability of a damaged owner or other -- (indisc.) to have a -- they'd have a standing for a cause of action in the court that (indisc.) excluded bill, that there's other remedies at law to be able to do that, we'd appreciate that so we could move this bill along ...." MR. ROWE said he would do that. Number 1940 CHAIRMAN ROKEBERG called a brief at ease at 5:01 p.m. The committee came back to order at approximately 5:02 p.m. Number 1952 REPRESENTATIVE COWDERY made a motion to move CSSB 330(RES) with individual recommendations and the attached zero fiscal note. There being no objections, CSSB 330(RES) moved out of the House Labor and Commerce Standing Committee.
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