SENATE COMMITTEE ON TRANSPORTATION

Senator Jim Beall, Chair

2019 - 2020 Regular

Bill No: Hearing Date: 7/9/2019

Author:	Bigelow
Version:	6/27/2019 Amended
Urgency:	No	Fiscal:	Yes
Consultant:	Amy Gilson

SUBJECT:

DIGEST: This bill requires the use of two types of devices, automatic flagger assistance devices (AFADs) and truck mounted attenuators (TMA), for all road construction and maintenance work meeting certain specifications.

ANALYSIS:

Existing law:

Authorizes Caltrans to erect, on any highway, traffic control signals or official traffic control devices restricting the use of specified lanes or portions of the highway. (VEH §21352)
Authorizes Caltrans or its duly authorized representatives, to, while engaged in the construction of a state highway, restrict the movement of traffic at or near the construction project whenever such work interferes with or endangers the safe movement of traffic through the work. (VEH §21370)
Requires Caltrans to, after consulting with local agencies and holding public hearings, adopt rules and regulations prescribing uniform standards and specifications for all official traffic control devices in the California Manual on Uniform traffic Control Devices (CA MUTCD). (VEH §21400)

This bill:

Findings and Declaration

Makes uncodified legislative findings and declarations that it is a high priority to ensure a safe working environment for the people who construct and maintain California’s transportation infrastructure and that the use of AFADs and TMAs will greatly reduce preventable injuries and deaths of these workers.

AFADs

Defines and AFAD as a trailer-mounted official traffic control signal, as specified in the manual on Uniform Traffic Control Devices.
Requires an AFAD to be used at both ends of the single lane of traffic any time the traffic on a two-way street or highway is routed to become a single lane though which two-way traffic alternatives and the allowable speed limit is 40 miles per hour or more except:
1. When a peace officer is performing traffic control at the scene of an accident.
2. When Emergency roadwork is being conducted for two hours of less to clear an impediment to driving on a street or highway, such as a fallen tree.
Requires that the cost of an AFAD be included as a separate line item in any bid for work that would require its use in compliance.

TMAs

Defines a “TMA” as an impact attenuator that reduces damage resulting form a motor vehicle collisions by absorbing kinetic energy and is attached to a truck tractor, semi-trailer, trailer, or special construction equipment, as specified in the Manual on Uniform Traffic Control Devices.
Requires a TMA to be used any time work is conducted on the State Highway System along the highway shoulder or near a closed highway lane. (See SHC §230)
Requires the TMA to be placed a minimum of 100 fee from a work zone.
Provides that the TMA shall be designed to do all of the following:
1. Protect workers in a work zone from an impacting motor vehicle.
2. Reduce impact severity for occupants of the impacting vehicle.
3. Reduce impact severity for occupants of a support motor vehicle.
4. Reduce or eliminate damage to a support motor vehicle.
Requires the Department of Transportation (Caltrans) to develop regulations for the placement of multiple truck-mounted attenuators to ensure maximum safety near work zones.
Requires the cost of a TMA to be included as a separate line item in any bid for work that would require its use in compliance with this article.

Violations

Specifies that a violation of the bill’s provisions is not a crime (otherwise, by default, a violation of the Vehicle Code would be an infraction).

COMMENTS:

Author’s statement. “AB 759 would ensure road worker safety through the mandated use of Automated Flagger Assistance Devices for single-lane road closures, and Truck Mounted Attenuators for highway project lane closures. These important pieces of technology create a safety barrier to block a vehicle’s entry to work zones, and the flagger devices shield workers from harm and include bright 12” red LED lights that are visible in all conditions. It is operated electronically from a safe location, significantly decreasing the terrifying work zone dangers that come from risky drivers.”
The road can be a dangerous place to work. Over 300,000 miles are driven every year on California’s network of highways and local streets and roads, consisting of almost 400,000 lane-miles of pavement and over 25,000 bridges.^[1],^[2] The workers who construct and maintain these roads face numerous hazards. The leading cause of workplace fatalities at road construction sites is being struck by vehicles and equipment. From 2007-2016, there were 45 work zone worker fatalities in California, of which 15 were Caltrans workers.^[3] In 2017, the National Work Zone Safety Information Clearinghouse reports that there were 46 work zone fatal crashes resulting in the deaths of two workers in California, slightly below the 2017 national average.

This bill deals, in part, with the specific dangers workers face when serving as flaggers, controlling traffic through a work zone using flags, signs or gestures. Caltrans workers have sustained 45 injuries during flagging operations from 2009 through June 2019. Five of those involved a Caltrans worker being struck by or avoiding an errant vehicle, with one of those five a fatality. Additionally, they have recorded 10 close call/near misses involving flagging since 2011. The figures do not include any injuries or deaths to flaggers not employed by Caltrans.
With funding now available from SB 1, California will see increased road work in the coming years. Maintaining existing driving infrastructure is one of the key transportation issues facing the state and local governments. SB 1 (Beall, Chapter 5, Statutes of 2017), the Road Repair and Accountability Act of 2017, provides the first significant, stable, and ongoing increase in state transportation funding in more than two decades. Each year, $1.8 billion will be invested in maintenance and rehabilitation of the State Highway System and $1.5 billion to repairing local streets and roads. Over all, the state has set the goal of repairing or replacing 17,000 miles of pavement; 7,700 signals, signs, and sensors; and 500 bridges. It is crucial for California to ensure safe working conditions for the workers putting in the labor to achieve these goals.

Road work safety standards are set by Caltrans and local authorities. Under current law, standards, guidance, and specifications dealing with safety during road construction and maintenance are contained in documents and specifications maintained by Caltrans and, to some extent, local authorities. These include the California Uniform Traffic Control Devices (CA MUTCD) Manual, which contains statewide standards and specifications for traffic control devices (for example, signs and lane stripes as well as AFADs and TMAs); standard specifications, which contain requirements for contractors; and the construction and maintenance manuals, which provide guidance to Caltrans staff on how to manage the construction or maintenance phase of projects.

Together, these extensive documents should be rigorous enough to require a high degree of safety and quality, specific enough to adequately address a wide variety of situations, and flexible enough for engineers to apply experience and judgment to the unique circumstances of their projects. The Committee is not aware of any similar requirements on the road construction and maintenance in statute. However, the sponsors of the bill, Pacific Highway Rentals and the California State Council of Laborers, argue that this existing structure has not done enough to protect workers doing road construction and maintenance.

This bill focuses on two related road work scenarios where the author and sponsors of the bill argue legislation is necessary to protect workers. As solutions, it would mandate use of particular technologies. This mandate would apply across all road construction and maintenance work in the state, whether performed by Caltrans or local authorities.
1. Moving human flaggers away from traffic. This bill aims to decrease risk to workers directing (flagging) the two-directional traffic that must alternate through a single available lane when one lane of a two-lane road is closed for construction or maintenance by instead mandating the use of remote controlled flaggers. The CA MUTCD contains standards, specifications, and guidance for human flaggers, including training qualifications, high-visibility safety apparel and hand-signaling devices. It also sets standards and guidance for the use of automatic flagger assistance devices (AFADs), which are designed to be remotely operated by flaggers who is position outside the lane of traffic. The CA MUTCD authorizes, but does not mandate, the use of AFADs. Should a state or local agency elect to use AFADs, guidance in the CA MUTCD states that they should adopt a policy, based on engineering judgement, governing AFAD applications and that “the policy should also consider more detailed and/or more restrictive requirements for AFAD use, such as the following:… Volume criteria, Fail safe procedures, and Additional signing and pavement markings.” The bill does not account for the possibility that use of AFADs may not be feasible at some work zones, where there is no shoulder or where it would block pedestrian or bicycle facilities, for example. The AFAD mandate contained in this bill would only apply to roads with a normal speed limit above 40 miles per hour (during this type of road work, the traffic might be slowed down to 25 mile per hour before reaching the work zone), would exempt the scene of an accident where a peace officer is performing traffic control, and exempt emergency road work being conducted for two hours or less to clear an obstruction, such as a fallen tree, from the road. It would also require AFADs to be included as a separate line item in any relevant bid for work, which the sponsors argue is necessary to ensure contractors do not have to swallow the cost of the using device.
2. Setting a barrier between workers and traffic. This bill aims to improve safety in work zones on a highway shoulder or near a closed highway lane by requiring truck mounted attenuators (TMAs) be used to create a physical barrier between workers and traffic. TMAs are designed to safely absorb the impact from errant vehicles while blocking them from entering the work zone. Currently, Caltrans specifications require contractors to use TMAs for setting and removing stationary lane closures on freeways and expressways. TMAs are also required for all moving lane closures used for construction activities, such as, pavement striping. This bill will greatly expand TMA use by requiring them for any work along a highway shoulder or near a closed highway lane. Furthermore, it appears to require multiple TMAs (Caltrans “shall develop regulations for the placement of multiple TMAs to ensure maximum safety near work zone”) and to require them regardless of the speed limit on the highway (e.g. including on highways with speed limits below 40 miles per hour passing through an urban center). Where a road is completely closed to traffic for road work, this bill would still require a TMA be present if work is being done in the shoulder. As with AFADs, this bill would also require these TMAs to be included as a separate line item in any relevant bid for work. Where one lane of a two-lane state highway is closed, it would appear to require use of both AFADs and TMAs.
Caltrans is developing or has released a number of relevant safety measures. Regarding AFADs, Caltrans has piloted and troubleshot a number of designs and is preparing to issue new AFAD specifications that would authorize a Caltrans district to require use of AFADs and, otherwise, would require the cost of AFADs be covered by Caltrans if a contractor requests them. Caltrans is developing and implementing safety enhancements related to the use of physical barriers to protect workers including piloting the use of empty “buffer lanes” between moving traffic lanes and work zones in certain conditions; specifying the use of TMAs under certain conditions and when it is not possible to set up a buffer lane; and expanding use of various types of barriers, such as concrete barriers.
Committee concerns.
1. What is the best way forward? This bill is a recent gut and amend. The Committee has not heard any stakeholders dispute that safety in the scenarios dealt with in the bill can and should be improved, nor that technologies such as AFADs and TMAs may be useful in this pursuit. The sponsors point to experience and common sense to support their approach. However, given the short timeline, the Committee also has not been provided with objective information demonstrating the problem, that the bill contains the right solution, or making the case that this is the place where intervention is most needed. Given the significant investment this bill would require, investment that could not be made in other safety initiatives, it is reasonable to ask how we know this is the best way forward.
2. A blanket requirement and not technology neutral. Caltrans manuals and specifications are extensive technical documents designed for providing for the many situations that must be anticipated during road construction and maintenance as well as for professional discretion. The sponsors argue that too much discretion leads to important safety measures left on the cutting room floor. However, this bill may have the unintended consequence of mandating use of AFADs and TMAs in situations where their use is infeasible (e.g. no space for the device), unneeded (e.g. use of TMAs on highways with speed limit below 40 miles per hour), or not the right solution (e.g. where a more permanent barrier or closing the entire road could be a better option than a TMA). Furthermore, rather than setting a technology-neutral safety standard, this bill selects winners by presupposing that AFADs and TMAs are the best technologies in all cases and eliminates the possibility of using new technologies without statutory change.
3. What would it actually take to implement these provisions? The mandates in this bill apply to all road construction and maintenance work in the state, whether performed by Caltrans or local authorities. There may not be enough AFADs and TMAs in the state to cover all the projects for which they would be required when this bill would go into effect January 1, 2020. Project already begun or for which contracts have already been signed would need to identify available AFADs and TMAs before proceeding. Without the required AFADs and TMAs work would stop. Caltrans currently has around 850 contracts and anticipates that most of the contracts would be impacted by the proposed TMA requirement.
Committee amendments. In order to address committee concerns, the author and committee may wish to amend the bill to remove its contents and instead (1) direct Caltrans to, by a given date, update appropriate guidance to require the use of traffic control devices to physically isolate workers or the work zone from traffic, whether through distance or positive barriers, in a manner that ensures cost of using these devices is included in contracts, (2) require Caltrans to submit a report to the Legislature with findings and recommendations on the use of these traffic control devices, (3) sunset the bill’s provisions.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

POSITIONS: (Communicated to the committee before noon on Wednesday,

July 3, 2019.)

SUPPORT:

None received.

OPPOSITION:

None received.

-- END --

U.S. Department of Transportation Federal Highway Administration, Highway Statistics 2017, 2017 ↑
California Legislative Analyst’s Office, California’s Transportation System, June 2018 ↑
Caltrans, Worker Fatality Statistics, Retrieved April 26, 2019 https://web.archive.org/web/20190426185015/http://www.dot.ca.gov/paffairs/workersmemorial/worker-fatality-statistics.html ↑

AB 759: Traffic safety: work zones: positive protection measures.

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