Legislature(1997 - 1998)
03/30/1998 03:40 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 330 - LOCATING UNDERGROUND FACILITIES
CHAIRMAN HALFORD announced SB 330 to be up for consideration.
MS. ANNETTE KREITZER, Aide to Senator Leman, sponsor, explained
currently there are no statewide standards for locating underground
facilities, so SB 330 was introduced at the request of the Alaska
Telephone Association to provide an understanding of the standards
and responsibilities for locating and excavating underground
facilities throughout the State. It amends AS 42.30, but doesn't
tie this to the Public Utilities Commission. Mr. Bob Loher,
Executive Director, said they have reviewed the legislation and
think it's a good idea, but they don't deal with contractors.
CHAIRMAN HALFORD said the bill doesn't really look at the small
contractor and somehow they end up with an unfair result. One of
the places it looked like that to him was on page 3 where an
excavator discovers an underground facility that was not field
marked or was inaccurately field marked and has to stop working
even though he still has to pay for the rent of his machine.
Another area of concern is the excavator being liable for treble
damages for intentional or "knowing" damage. He didn't know what
the "knowingly" standard meant.
TAPE 98-23, SIDE B
Number 580
MS. KREITZER responded that treble damages is proposed amendment
three. She had spoken with the Alaska Telephone Association who
had no problem with deleting "knowingly" from intentionally
damaging a facility. They would also want to delete the definition
of "knowingly" on page 6.
Also, amendment two should read, "An excavator shall not be liable
for inadvertent damage caused to an inaccurately field marked
underground facility." She thought that might address his concern.
She had talked to Mr. Row of ATA about how to recover down time and
how much is the nature of doing business. She didn't know how much
they could prevent in a bill like this.
CHAIRMAN HALFORD said for example the operator/owner of the
underground facility is required to make a locate marking once,
but, if in the process of a project, they lose the locate markings
and have to do it again, the excavator is responsible for paying
for the second time around. If something is improperly marked and
that stops the project and causes a great deal of delay for the
excavator, there should be some standard at which point the
operator's mismarking causes them to share in that cost.
Number 472
MR. JIM ROWE, Director, Alaska Telephone Association (ATA), said
Alaska has no state utility locate standards and its efficiency,
uninterrupted service, and public safety will benefit by having
standards. In 1996, the ATA discussed uncertainties about
responding to a request for a locate from an excavator and their
expectations for response from the excavator. Comments were
received from ORICA, the National Utility Locating Contractors
Association, Locate Call Center of Alaska, NL&P, Anchorage Area
Utility Association, Enstar, Alaska Building Contractors,
Associated General Contractors of Alaska, and the Anchorage
Homebuilders Association. He said they have no problem with
deleting "knowlingly." The treble damages is only to address very
intentional damage. The other aspect is Section (h), page 3, and
the small contractors might view this as being unbalanced and that
is not their intention. They are trying to be up front about this
and are receptive to anything that's palatable.
Number 453
SENATOR SHARP said he had terrible problems with treble damages
being very severe. He didn't know how many contractors were out
there who are sizeable enough to understand this, let alone get
involved in treble damages if they don't.
CHAIRMAN HALFORD said he was glad that the Homebuilders were
involved because they employ a lot of the little dirt work guys.
SENATOR SHARP asked what happens if at night, a customer calls an
excavator and says he has water flowing all over his backyard, does
the excavator say he can't come until tomorrow. He couldn't see
how an excavator could perform an emergency service for a homeowner
on a city lot.
MR. ROWE said that was only for intentional damages.
SENATOR SHARP said he didn't really understand the difference
between knowingly and intentionally.
SENATOR GREEN said knowingly is a lesser level.
SENATOR SHARP said if you are excavating on a city block, you
probably know that there are utilities all over the place. He
thought the little guy was going to really get hung out to dry on
this bill.
CHAIRMAN HALFORD said he still has those concerns, too.
MR. RANDY NELSON, Alaska Telephone Association, said he also
represents GTE Alaska, his employer and supported SB 330. He has
been both an excavator and a utility owner. The emphasis in the
bill from his point of view is that they move employees from one
location to another and will have uniform and well defined areas of
responsibility from all the utilities. He thought the intent of
the treble damages was to resolve the concern about an excavator
cutting through small laterals, because it would be cheaper to
repair them than to hold up construction. It's not to penalize
anyone in an emergency situation. The intent when the operator
finds an unmarked utility is to stop and find out what it is. They
do not want them to stop and wait for hours and hours for a locate.
As a utility, they would just want it identified as quickly as
possible.
Number 410
CHAIRMAN HALFORD asked if the questions in the letter from Chugach
Electric were addressed in Labor and Commerce.
MS. KREITZER answered no. The first question in the letter was
charges for locate services and she explained that they are trying
to keep this bill simple and away from the Public Utilities
Commission who approves all fees. However, there is nothing in the
bill that prohibits a facility or utility from charging for a
locate. The second item, the definition of repair, if the
Committee wants to adopt one, they should look at what accepted
industry standards are. There is some debate about whether a
splice in a cable is actually a weakening of the cable or not and
should it have to be replaced for 150 ft. for a small ding. They
chose not to put that in the bill.
They tried to keep the definition of operator that is currently in
law. The definition here (number 3) means a person who owns,
manages, or controls, which is not the definition that is in AS
42.05.990. It is a much longer definition, so she didn't see any
benefit to using it. Regarding the exposure of energized cables
(number 4), there are currently specific provisions in the National
Electric Safety Code and the Federal regulations that require
exposed, high-voltage facilities be monitored and handled by
qualified personnel.
SENATOR LEMAN asked if these comments were shared with anyone from
the Alaska Telephone Association or other people who have
participated in this bill.
MS. KREITZER answered she didn't know if anyone had seen them.
SENATOR LEMAN asked Mr. Rowe if he had seen the letter from Chugach
Electric.
MR. ROWE answered that he saw the original draft about a week ago.
He explained they tried not to make this bill specific to any
particular utility; it's not a telephone bill, although they are
the industry that got it going. He is comfortable with Ms.
KREITZER's comments.
CHAIRMAN HALFORD said the letter has an interesting approach to
liability instead of the treble damages section. It could be
modified to take their last paragraph and instead of the treble
damages section, to say if an underground facility or an excavator
is damaged by failure to fulfill an obligation under this law, the
party failing to perform the obligation is liable to the other
party for damages resulting from the failure to perform. He didn't
want to set something up where he expects people to go back and
forth to court on, but if everyone knows what the court would be
deciding if they did end up there, they usually perform to that
standard. This could be a way to make sure they have the kind of
balance they need. He didn't know how to deal with the question of
down time, locate costs, values, etc. The term "industry
standards" sounds good to him as far as values and repairs. There
is potentially another side of it from the excavator's point of
view. There could be another side of it from Senator Sharp's
homeowner's point of view.
MR. ROWE said during the many discussions with the Engineering
Planning Committee one of the comments that impressed him was when
a locate is requested, it's a customer service and we're there to
serve our customers. The excavators are also customers. It's not
an adversarial position. Their real job is to keep the utility
service working on a safe and dependable basis for the customers.
He wanted any changes that would be made to go along with that
goal.
SENATOR TAYLOR asked if it was correct that in Anchorage, if you're
putting in a subdivision building or a couple of lots and want
utilities put in, you can only have them put in by a contractor
that is on an approved list with the utility company, and the only
contractors on that approved list are union contractors.
CHAIRMAN HALFORD said he wasn't bound by that in Chugiak/Eagle
River.
SENATOR TAYLOR said he got this information from a developer in
Anchorage.
SENATOR SHARP commented that approved list might the one that is
certified by the State as authorized to install.
SENATOR TAYLOR said his understanding was that you are limited to
two or three contractors and whatever they set for the price. You
couldn't get hooked up otherwise.
CHAIRMAN HALFORD said the utility was very rapid in their response
when he dug up his own utilities. He is concerned with adding
liability and then having what is an emergency in the eye of the
constituent, a job in the eye of the excavator and a problem in the
eye of the utility.
SENATOR TAYLOR said he was concerned that it becomes an opportunity
in the eye of someone else.
CHAIRMAN HALFORD said the Committee would work on trying to come up
with something that deals with these issues. He asked Senator
Sharp and Senator Leman to work with him on it.
SENATOR TAYLOR said he had a question about responsibility of
construction project owners and wanted to delete "the project owner
knows" on page 3, line 30 and delete "does not" on the next page,
because the owner should know what's in their land.
SENATOR LEMAN said that wasn't necessarily true, though.
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