Amended in Assembly April 2, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 811


Introduced by Assembly Member Lowenthal

(Principal coauthor: Senator Hill)

February 21, 2013


An act to add Section 7058.3 to the Business and Professions Code, and to amend Sectionsbegin delete 4216end deletebegin insert 4216, 4216.2,end insert and 4216.6 of the Government Code, relating to excavations.

LEGISLATIVE COUNSEL’S DIGEST

AB 811, as amended, Lowenthal. Excavations: regional notification center system: contractor certification.

Existing law generally requires any person planning to conduct an excavation to contact a regional notification center prior to excavation, and, if practical, to delineate the areas to be excavated. Existing law authorizes the Attorney General, a district attorney, or the state or a local agency that issued a permit to excavate to bring an action for the enforcement of a civil penalty against an operator or excavator who negligently or knowingly and willfully violates the requirements of these and related provisions.

This bill would provide that these requirements may also be enforced bybegin delete the Contractors’ State License Board or byend delete an action for civil damages brought in a court of competent jurisdiction by the person or entity that has sustained damages due to a violation of these requirements. The bill would provide that an operator or excavator that violates any of these requirements may be required to attend an education program, in addition tobegin delete, or instead of,end delete any other applicable penalty or enforcement mechanism. The bill would authorize specified entities, which have responsibility for the safety of operator facilities, to require operators and excavators to attend an education program. The bill would require the regional notification centers to post on their Internet Web sites statewide information provided by operators and excavators regarding violations of these requirements and damages resulting from those violations.

The Contractors’ State License Law provides for licensing and regulation of contractors by the Contractors’ State License Board. Existing law requires contractors to obtain special certifications in order to perform asbestos-related work or to engage in hazardous substance removal or remedial action, as specified.

This bill would prohibit a contractor from engaging in any excavation activity, as defined, unless the qualifier for the licensebegin delete had passedend deletebegin insert participates inend insert an approved excavationbegin delete certification examination. The bill would require the board to develop a written examination, as specified.end deletebegin insert training program. The bill would prohibit an employee of a contractor from excavating unless at least one of specified conditions is met. The bill would permit a contractor who has not participated in an excavation training program to bid on, or contract for, the excavation if the work is performed by a contractor who has participated in an excavation training program. The bill would require the employer of persons performing excavations to maintain records demonstrating that those persons have complied with the specified training requirements and to produce these records upon the request of a state or local agency investigating damage to a subsurface installation involving the employer or his or her employees.end insert

begin insert

This bill would create an exception to these requirements by permitting a person to perform an excavation service when immediately necessary to protect life and public property from imminent danger, or to restore, repair, or maintain public utilities, or to prevent utility services from being destroyed, damaged, or interrupted by a natural disaster, serious accident, or other case of emergency.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

P3    1(a) Public health and safety are benefitted by safe excavation
2practices that protect underground operator infrastructure.

3(b) The law provides various rules and requirements in order
4to ensure that excavations that may impact underground operator
5infrastructure be done in the safest and most efficient manner
6possible.

7(c) Violations of excavation rules and requirements may range
8from minor violations with no damage to violations that result in
9serious damage, including major property damage, service outages,
10and serious bodily injury or death.

11(d) Violators may range from homeowners or small contractors
12to major contractors, operators, and municipalities.

13(e) Construction, maintenance, and repair of public
14infrastructure, private and public buildings, and residences are an
15important part of the economy and the well being of Californians.

16(f) Enforcement of excavation rules and requirements should
17achieve the public safety goal of safe excavation practices, while
18not unduly burdening the operators and excavators involved in the
19construction, maintenance, and repair of public infrastructure,
20private and public buildings, and residences with unnecessary costs
21and time delays.

22(g) The enforcement options contained in Section 4 of this act
23are intended to achieve both goals by providing the flexibility
24needed to apply the enforcement method that will best achieve
25safe excavation practices in a given case, and in the most
26cost-efficient and timely manner possible.

27

SEC. 2.  

Section 7058.3 is added to the Business and Professions
28Code
, to read:

29

7058.3.  

(a) A contractor shall not engage in any excavation
30begin delete activityend delete, as defined in subdivision (c) of Section 4216 of the
31Government Code, unless the qualifier for the licensebegin delete passesend delete
32begin insert participates inend insert an approved excavationbegin delete certification examination.end delete
33begin insert training program.end insert

begin delete

34(b) The Contractors’ State License Board shall develop a written
35examination for the certification of contractors engaged in
36excavation activities, in consultation with the Division of
37Occupational Safety and Health in the Department of Industrial
38Relations, the Northern and Southern California One Call Centers,
39and the California Common Ground Alliance.

end delete
begin delete

40(c) A contractor or an

end delete

P4    1begin insert(b)end insertbegin insertend insertbegin insertAnend insert employee ofbegin delete theend deletebegin insert aend insert contractor shall not excavate unless
2begin delete the contractor orend deletebegin insert at least one ofend insert the begin delete employee doing the excavation
3has passed the excavation certification examination.end delete
begin insert following
4conditions has been met:end insert

begin insert

5(1) The employee is an apprentice or contracting party or has
6graduated from a registered apprenticeship program, approved
7by the California Apprenticeship Council or a federal Office of
8Apprenticeship program, or a state apprenticeship program
9authorized by the federal Office of Apprenticeship.

end insert
begin insert

10(2) The employee has successfully completed an excavation
11training program.

end insert
begin insert

12(3) The employee is engaging in hand-digging, as defined in
13subdivision (f) of Section 4216 of the Government Code, and there
14is a competent person, as defined in subdivision (a) of Section
151504 of Title 8 of the California Code of Regulations, onsite who
16has successfully completed an excavation training program.

end insert
begin delete

17(d)

end delete

18begin insert(c)end insert A contractor whobegin delete is not certifiedend deletebegin insert has not participated in an
19excavation training programend insert
may bid on, or contract for, the
20excavation if the work is performed by a contractor whobegin delete is certifiedend delete
21begin insert has participated in an excavation training programend insert pursuant to
22this section.

begin insert

23(d) The employer of persons performing excavations shall
24maintain records demonstrating that those persons have complied
25with the training requirements in this section. The employer shall
26produce these records upon the request of a state or local agency
27in that agency’s investigation of damage to a subsurface
28installation involving the employer or his or her employees.

end insert
29

SEC. 3.  

Section 4216 of the Government Code is amended to
30read:

31

4216.  

As used in this article the following definitions apply:

32(a) “Approximate location of subsurface installations” means
33a strip of land not more than 24 inches on either side of the exterior
34surface of the subsurface installation. “Approximate location” does
35not mean depth.

36(b) “Education program” means a training program in
37accordance with the requirements of Section 1509 of Title 8 of the
38California Code of Regulations, that meets the minimum training
39guidelines and practices of the current Common Ground Alliance
40Best Practices.

P5    1(c) “Excavation” means an operation in which earth, rock, or
2other material in the ground is moved, removed, or otherwise
3displaced by means of tools, equipment, or explosives in any of
4the following ways: grading, trenching, digging, ditching, drilling,
5augering, tunneling, scraping, cable or pipe plowing and driving,
6or any other way.

7(d) Except as provided in Section 4216.8, “excavator” means
8any person, firm, contractor or subcontractor, owner, operator,
9utility, association, corporation, partnership, business trust, public
10agency, or other entity that, with its, or his or her, own employees
11or equipment performs any excavation.

12(e) “Emergency” means a sudden, unexpected occurrence,
13involving a clear and imminent danger, demanding immediate
14action to prevent or mitigate loss of, or damage to, life, health,
15property, or essential public services. “Unexpected occurrence”
16includes, but is not limited to, fires, floods, earthquakes or other
17soil or geologic movements, riots, accidents, damage to a
18subsurface installation requiring immediate repair, or sabotage.

begin insert

19(f) “Hand digging” means an operation using nonmechanized,
20nonpower-driven, nonair-driven, and nonwater-driven equipment
21in the movement of earth, rock, or other material in the ground.

end insert
begin delete

22(f)

end delete

23begin insert(g)end insert “High priority subsurface installation” means high-pressure
24natural gas pipelines with normal operating pressures greater than
25415kPA gauge (60psig), petroleum pipelines, pressurized sewage
26pipelines, high-voltage electric supply lines, conductors, or cables
27that have a potential to ground of greater than or equal to 60kv, or
28hazardous materials pipelines that are potentially hazardous to
29workers or the public if damaged.

begin delete

30(g)

end delete

31begin insert(h)end insert “Inquiry identification number” means the number that is
32provided by a regional notification center to every person who
33contacts the center pursuant to Section 4216.2. The inquiry
34identification number shall remain valid for not more than 28
35calendar days from the date of issuance, and after that date shall
36require regional notification center revalidation.

begin delete

37(h)

end delete

38begin insert(i)end insert “Local agency” means a city, county, city and county, school
39district, or special district.

begin delete

40(i)

end delete

P6    1begin insert(j)end insert “Operator” means any person, corporation, partnership,
2business trust, public agency, or other entity that owns, operates,
3or maintains a subsurface installation. For purposes of Section
44216.1, an “operator” does not include an owner of real property
5where subsurface facilities are exclusively located if they are used
6exclusively to furnish services on that property and the subsurface
7facilities are under the operation and control of that owner.

begin delete

8(j)

end delete

9begin insert(k)end insert “Qualified person” means a person who completes a training
10program in accordance with the requirements of Section 1509 of
11Title 8 of the California Code of Regulations, Injury and Illness
12Prevention Program, that meets the minimum training guidelines
13and practices of Common Ground Alliance current Best Practices.

begin delete

14(k)

end delete

15begin insert(l)end insert “Regional notification center” means a nonprofit association
16or other organization of operators of subsurface installations that
17provides advance warning of excavations or other work close to
18existing subsurface installations, for the purpose of protecting
19those installations from damage, removal, relocation, or repair.

begin delete

20(l)

end delete

21begin insert(m)end insert “State agency” means every state agency, department,
22division, bureau, board, or commission.

begin delete

23(m)

end delete

24begin insert(n)end insert “Subsurface installation” means any underground pipeline,
25conduit, duct, wire, or other structure, except nonpressurized
26sewerlines, nonpressurized storm drains, or other nonpressurized
27drain lines.

28begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 4216.2 of the end insertbegin insertGovernment Codeend insertbegin insert is amended
29to read:end insert

30

4216.2.  

(a) (1) Except in an emergency, any person planning
31to conduct any excavation shall contact the appropriate regional
32notification center, at least two working days, but not more than
3314 calendar days, prior to commencing that excavation, if the
34excavation will be conducted in an area that is known, or
35reasonably should be known, to contain subsurface installations
36other than the underground facilities owned or operated by the
37excavator and, if practical, the excavator shall delineate with white
38paint or other suitable markings the area to be excavated.

39(2) When the excavation is proposed within 10 feet of a high
40priority subsurface installation, the operator of the high priority
P7    1subsurface installation shall notify the excavator of the existence
2of the high priority subsurface installation prior to the legal
3excavation start date and time, as such date and time are authorized
4pursuant to paragraph (1)begin delete of subdivision (a) of Section 4216.2end delete.
5The excavator and operator or its representative shall conduct an
6onsite meeting at a mutually-agreed-on time to determine actions
7or activities required to verify the location of the high priority
8subsurface installations prior to start time.

9(b) Except in an emergency, every excavator covered by Section
104216.8 planning to conduct an excavation on private property may
11contact the appropriate regional notification center if the private
12property is known, or reasonably should be known, to contain a
13subsurface installation other than the underground facility owned
14or operated by the excavator and, if practical, the excavator shall
15delineate with white paint or other suitable markings the area to
16be excavated.

17(c) The regional notification center shall provide an inquiry
18identification number to the person who contacts the center
19pursuant to this section and shall notify any member, if known,
20who has a subsurface installation in the area of the proposed
21excavation. An inquiry identification number may be validated for
22more than 28 days when mutually agreed between the excavator
23and any member operator so notified that has a subsurface
24installation in the area of the proposed excavation; and, it may be
25revalidated by notification to the regional notification center by
26the excavator prior to the time of its expiration.

27(d) A record of all notifications by excavators and operators to
28the regional notification center shall be maintained for a period of
29not less than three years. The record shall be available for
30inspection by the excavator and any member, or their
31representative, during normal working hours and according to
32guidelines for inspection as may be established by the regional
33notification centers.

begin insert

34(e) Notwithstanding Section 7058.3 of the Business and
35Professions Code, a person may perform an excavation when
36immediately necessary to protect life and public property from
37imminent danger, or to restore, repair, or maintain public utilities,
38or to prevent utility services from being destroyed, damaged, or
39interrupted by a natural disaster, serious accident, or other case
40of emergency.

end insert
begin delete

P8    1(e)

end delete

2begin insert(f)end insert As used in this section, the delineation is practical when any
3of the following conditions exist:

4(1) When delineating a prospective excavation site with white
5paint could not be misleading to those persons using affected streets
6and highways.

7(2) When the delineation could not be misinterpreted as a traffic
8or pedestrian control.

9(3) Where an excavator can determine the exact location of an
10excavation prior to the time an area has been field marked pursuant
11to Section 4216.3.

12(4) Where delineation could not be construed as duplicative.

begin delete

13(f)

end delete

14begin insert(g)end insert Where an excavator makes a determination that it is not
15practical to delineate the area to be excavated, the excavator shall
16contact the regional notification center to advise the operators that
17the excavator shall identify the area to be excavated in another
18manner sufficient to enable the operator to determine the area of
19the excavation to be field marked pursuant to Section 4216.3.

20

begin deleteSEC. 4.end delete
21begin insertSEC. 5.end insert  

Section 4216.6 of the Government Code is amended
22to read:

23

4216.6.  

(a) (1) Any operator or excavator that negligently
24violates a requirement of this article is subject to a civil penalty in
25an amount not to exceed ten thousand dollars ($10,000).

26(2) Any operator or excavator that knowingly and willfully
27violates a requirement of this article is subject to a civil penalty in
28an amount not to exceed fifty thousand dollars ($50,000).

29(3) Except as otherwise provided in this article, this section does
30not affect any civil remedies otherwise provided by law for
31personal injury or for property damage, including any damage to
32 subsurface installations, nor does this section create any new civil
33remedies for those injuries or that damage.

34(4) This article does not limit any other law granting
35governmental immunity to state or local agencies or to impose any
36liability or duty of care not otherwise imposed by law upon a state
37or local agency.

38(b) An action may be brought by the Attorney General, the
39district attorney, or the local or state agency that issued the permit
40to excavate, for the enforcement of the civil penalty pursuant to
P9    1this section. If penalties are collected as a result of a civil suit
2brought by a state or local agency for collection of those civil
3penalties, the penalties imposed shall be paid to the general fund
4of the agency. If more than one agency is involved in enforcement,
5the penalties imposed shall be apportioned among them by the
6court in a manner that will fairly offset the relative costs incurred
7by the agencies in collecting these fees.

8(c) The requirements of this article may also be enforced by begin delete9 either of the following:end delete

begin delete

10(1) The Contractors’ State License Board as provided in Section
117058.3 of the Business and Professions Code.

end delete

12begin delete(2)end deletebegin deleteend deletebegin deleteAnend deletebegin insert anend insert action for civil damages brought in a court of
13competent jurisdiction by the person or entity that has sustained
14damages due to a violation of the requirements of this article.

15(d) In addition tobegin delete, or instead of,end delete any other penalty or enforcement
16mechanism provided by this article, an operator or excavator that
17violates any requirement of this article may be required to attend
18an education program. The following entities,begin delete whichend deletebegin insert thatend insert have
19responsibility for the safety of operator facilities, may require
20operators and excavators to attend an education program:

21(1) The Contractors’ State License Board.

22(2) The Public Utilities Commission.

23(3) The State Fire Marshal.

24(4) The Division of Occupational Safety and Health in the
25Department of Industrial Relations.

26(5) A court of competent jurisdiction.

27(e) Statewide information provided by operators and excavators
28regarding violations of the requirements of this article and damages
29resulting from those violations shall be posted on the Internet Web
30site of the regional notification centers.



O

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