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.