FOR: Water Subcommittee Meeting [July 24, 2024]
TO: Honorable Water Subcommittee Members
APPROVAL: Tanya Williams, Assistant City Manager
FROM: Toyasha Sebbag, Assistant to the City Manager
...Title
Office of Energy Infrastructure Safety Underground Safety Board: Notice of Probable Violation. (ACTION)
...Body
BACKGROUND
The Office of Energy Infrastructure Safety Underground Safety Board (Underground Safety Board) was created by the Dig Safe Act of 2016 to investigate accidents, develop excavation safety standards, and coordinate education and outreach programs.
The Underground Safety Board is made up of nine members appointed by the Governor and Legislature. Members are charged with overseeing the safety of excavations around buried utilities by 1. Coordinating the state’s education and outreach efforts; 2. Investigating accidents to determine their causes; 3. Setting standards for safe excavation; and 4. Ensuring the state’s safe excavation laws are followed.
The Underground Safety Board exercises no direct regulatory authority, it cannot issue penalties. Instead, its enforcement philosophy is to make recommendations to the local agency assigned with regulatory enforcement of laws. Per § 4216.6(d), a local agency, in our case the City of Rialto City Council is the enforcement agency to review possible violations and may issue penalties.
ANALYSIS/DISCUSSION
In May 2024, staff was notified in a letter from the Underground Safety Board of a probable violation stemming from an event that occurred on July 10, 2023. The probable violation claims that the City of Rialto, Rialto Water Services (RWS) as operated by Veolia of North America (Veolia) violated Government Code § 4216.3(c)(1)(A): Failure to provide an electronic positive response before the legal start date and time [to a DigAlert request].
Staff met with Veolia who stated that staff direction and policy was that they were not authorized to go onto private property, not even to mark underground utilities. To ensure that this possible violation does not occur in the future, staff worked with DigAlert to identify that all future tickets located on private property would be marked by Veolia.
The Underground Safety Board conducted a public meeting on July 8, 2024, at 1 p.m. in Sacramento, California to determine whether a violation occurred by the City and whether the penalty proposed in the Notice, which is completing a 4-hour free online education course on DigAlert Notifications is appropriate.
Following the July 8 Underground Safety Board meeting, the City Council will receive a letter with the Board’s findings and recommended corrective action(s).
The City Council may take action to:
1. Approve the Underground Safety Board’s recommendation.
2. Approve an alternative action in line with Government Code § 4216 et seq.
Pursuant to Government Code § 4216.6, violation of Government Code § 4216 et seq. by an operator or excavator may be subject to a maximum penalty of $10,000 for negligent violation, or $50,000 for knowing and willful violation. Knowing and willful violation of Article 2 that results in damage to a gas or hazardous liquid pipeline subsurface installation and that results in the escape of any flammable, toxic, or corrosive gas or liquid may be subject to a maximum penalty of $100,000.
3. Take no action.
Staff is seeking feedback from the Water Subcommittee on how best to respond to the Notice of Probable Violation before the Notice comes before the City Council for action.
A copy of the notice is included as Attachment 1.
ENVIRONMENTAL IMPACT
This request is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY
Approval of the proposed action also complies with the following City of Rialto Guiding Principles, General Plan Goals and Policies:
Our City government will lead by example, and will operate in an open, transparent, and responsive manner that meets the needs of the citizens and is a good place to do business.
LEGAL REVIEW
The City Attorney’s Office has reviewed the staff report.
FINANCIAL IMPACT
Operating Budget Impact
Operating budget costs are indeterminable and contingent on feedback from the Water Subcommittee discussion.
Capital Improvement Budget Impact
There will not be any impact on the Capital Improvement Budget from the proposed action.
Licensing
Payment of a Business License tax is not required for the proposed action.
RECOMMENDATION
Office of Energy Infrastructure Safety Underground Safety Board: Notice of Probable Violation. (ACTION)