Legislature(1997 - 1998)

03/30/1998 03:40 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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             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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