BILL NUMBER: AB 811	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 2, 2013

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 Sections  4216   4216, 4216.2,
 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 by  the Contractors' State License Board or by
 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 to  , or
instead of,  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 license
 had passed   participates in  an approved
excavation  certification examination. The bill would
require the board to develop a written examination, as specified.
  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.  
   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.

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


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Public health and safety are benefitted by safe excavation
practices that protect underground operator infrastructure.
   (b) The law provides various rules and requirements in order to
ensure that excavations that may impact underground operator
infrastructure be done in the safest and most efficient manner
possible.
   (c) Violations of excavation rules and requirements may range from
minor violations with no damage to violations that result in serious
damage, including major property damage, service outages, and
serious bodily injury or death.
   (d) Violators may range from homeowners or small contractors to
major contractors, operators, and municipalities.
   (e) Construction, maintenance, and repair of public
infrastructure, private and public buildings, and residences are an
important part of the economy and the well being of Californians.
   (f) Enforcement of excavation rules and requirements should
achieve the public safety goal of safe excavation practices, while
not unduly burdening the operators and excavators involved in the
construction, maintenance, and repair of public infrastructure,
private and public buildings, and residences with unnecessary costs
and time delays.
   (g) The enforcement options contained in Section 4 of this act are
intended to achieve both goals by providing the flexibility needed
to apply the enforcement method that will best achieve safe
excavation practices in a given case, and in the most cost-efficient
and timely manner possible.
  SEC. 2.  Section 7058.3 is added to the Business and Professions
Code, to read:
   7058.3.  (a) A contractor shall not engage in any excavation
 activity  , as defined in subdivision (c) of
Section 4216 of the Government Code, unless the qualifier for the
license  passes   participates in  an
approved excavation  certification examination. 
 training program.  
   (b) The Contractors' State License Board shall develop a written
examination for the certification of contractors engaged in
excavation activities, in consultation with the Division of
Occupational Safety and Health in the Department of Industrial
Relations, the Northern and Southern California One Call Centers, and
the California Common Ground Alliance.  
   (c) A contractor or an 
    (b)     An  employee of  the
  a  contractor shall not excavate unless 
the contractor or   at least one of  the 
employee doing the excavation has passed the excavation certification
examination.   following conditions has been met: 

   (1) The employee is an apprentice or contracting party or has
graduated from a registered apprenticeship program, approved by the
California Apprenticeship Council or a federal Office of
Apprenticeship program, or a state apprenticeship program authorized
by the federal Office of Apprenticeship.  
   (2) The employee has successfully completed an excavation training
program.  
   (3) The employee is engaging in hand-digging, as defined in
subdivision (f) of Section 4216 of the Government Code, and there is
a competent person, as defined in subdivision (a) of Section 1504 of
Title 8 of the California Code of Regulations, onsite who has
successfully completed an excavation training program.  

   (d) 
    (c)  A contractor who  is not certified
  has not participated in an excavation training program
 may bid on, or contract for, the excavation if the work is
performed by a contractor who  is certified  
has participated in an excavation training program  pursuant to
this section. 
   (d) The employer of persons performing excavations shall maintain
records demonstrating that those persons have complied with the
training requirements in this section. The employer shall produce
these records upon the request of a state or local agency in that
agency's investigation of damage to a subsurface installation
involving the employer or his or her employees. 
  SEC. 3.  Section 4216 of the Government Code is amended to read:
   4216.  As used in this article the following definitions apply:
   (a) "Approximate location of subsurface installations" means a
strip of land not more than 24 inches on either side of the exterior
surface of the subsurface installation. "Approximate location" does
not mean depth.
   (b) "Education program" means a training program in accordance
with the requirements of Section 1509 of Title 8 of the California
Code of Regulations, that meets the minimum training guidelines and
practices of the current Common Ground Alliance Best Practices.
   (c) "Excavation" means an operation in which earth, rock, or other
material in the ground is moved, removed, or otherwise displaced by
means of tools, equipment, or explosives in any of the following
ways: grading, trenching, digging, ditching, drilling, augering,
tunneling, scraping, cable or pipe plowing and driving, or any other
way.
   (d) Except as provided in Section 4216.8, "excavator" means any
person, firm, contractor or subcontractor, owner, operator, utility,
association, corporation, partnership, business trust, public agency,
or other entity that, with its, or his or her, own employees or
equipment performs any excavation.
   (e) "Emergency" means a sudden, unexpected occurrence, involving a
clear and imminent danger, demanding immediate action to prevent or
mitigate loss of, or damage to, life, health, property, or essential
public services. "Unexpected occurrence" includes, but is not limited
to, fires, floods, earthquakes or other soil or geologic movements,
riots, accidents, damage to a subsurface installation requiring
immediate repair, or sabotage. 
   (f) "Hand digging" means an operation using nonmechanized,
nonpower-driven, nonair-driven, and nonwater-driven equipment in the
movement of earth, rock, or other material in the ground.

   (f) 
    (g)  "High priority subsurface installation" means
high-pressure natural gas pipelines with normal operating pressures
greater than 415kPA gauge (60psig), petroleum pipelines, pressurized
sewage pipelines, high-voltage electric supply lines, conductors, or
cables that have a potential to ground of greater than or equal to
60kv, or hazardous materials pipelines that are potentially hazardous
to workers or the public if damaged. 
   (g) 
    (h)  "Inquiry identification number" means the number
that is provided by a regional notification center to every person
who contacts the center pursuant to Section 4216.2. The inquiry
identification number shall remain valid for not more than 28
calendar days from the date of issuance, and after that date shall
require regional notification center revalidation. 
   (h) 
    (i)  "Local agency" means a city, county, city and
county, school district, or special district. 
   (i) 
    (j)  "Operator" means any person, corporation,
partnership, business trust, public agency, or other entity that
owns, operates, or maintains a subsurface installation. For purposes
of Section 4216.1, an "operator" does not include an owner of real
property where subsurface facilities are exclusively located if they
are used exclusively to furnish services on that property and the
subsurface facilities are under the operation and control of that
owner. 
   (j) 
    (k)  "Qualified person" means a person who completes a
training program in accordance with the requirements of Section 1509
of Title 8 of the California Code of Regulations, Injury and Illness
Prevention Program, that meets the minimum training guidelines and
practices of Common Ground Alliance current Best Practices. 
   (k)
    (l)  "Regional notification center" means a nonprofit
association or other organization of operators of subsurface
installations that provides advance warning of excavations or other
work close to existing subsurface installations, for the purpose of
protecting those installations from damage, removal, relocation, or
repair. 
   (l) 
    (m)  "State agency" means every state agency,
department, division, bureau, board, or commission. 
   (m) 
    (n)  "Subsurface installation" means any underground
pipeline, conduit, duct, wire, or other structure, except
nonpressurized sewerlines, nonpressurized storm drains, or other
nonpressurized drain lines.
   SEC. 4.    Section 4216.2 of the  
Government Code   is amended to read: 
   4216.2.  (a) (1) Except in an emergency, any person planning to
conduct any excavation shall contact the appropriate regional
notification center, at least two working days, but not more than 14
calendar days, prior to commencing that excavation, if the excavation
will be conducted in an area that is known, or reasonably should be
known, to contain subsurface installations other than the underground
facilities owned or operated by the excavator and, if practical, the
excavator shall delineate with white paint or other suitable
markings the area to be excavated.
   (2) When the excavation is proposed within 10 feet of a high
priority subsurface installation, the operator of the high priority
subsurface installation shall notify the excavator of the existence
of the high priority subsurface installation prior to the legal
excavation start date and time, as such date and time are authorized
pursuant to paragraph (1)  of subdivision (a) of Section
4216.2  . The excavator and operator or its representative
shall conduct an onsite meeting at a mutually-agreed-on time to
determine actions or activities required to verify the location of
the high priority subsurface installations prior to start time.
   (b) Except in an emergency, every excavator covered by Section
4216.8 planning to conduct an excavation on private property may
contact the appropriate regional notification center if the private
property is known, or reasonably should be known, to contain a
subsurface installation other than the underground facility owned or
operated by the excavator and, if practical, the excavator shall
delineate with white paint or other suitable markings the area to be
excavated.
   (c) The regional notification center shall provide an inquiry
identification number to the person who contacts the center pursuant
to this section and shall notify any member, if known, who has a
subsurface installation in the area of the proposed excavation. An
inquiry identification number may be validated for more than 28 days
when mutually agreed between the excavator and any member operator so
notified that has a subsurface installation in the area of the
proposed excavation; and, it may be revalidated by notification to
the regional notification center by the excavator prior to the time
of its expiration.
   (d) A record of all notifications by excavators and operators to
the regional notification center shall be maintained for a period of
not less than three years. The record shall be available for
inspection by the excavator and any member, or their representative,
during normal working hours and according to guidelines for
inspection as may be established by the regional notification
centers. 
   (e) Notwithstanding Section 7058.3 of the Business and Professions
Code, a person may perform an excavation 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. 

   (e) 
    (f)  As used in this section, the delineation is
practical when any of the following conditions exist:
   (1) When delineating a prospective excavation site with white
paint could not be misleading to those persons using affected streets
and highways.
   (2) When the delineation could not be misinterpreted as a traffic
or pedestrian control.
   (3) Where an excavator can determine the exact location of an
excavation prior to the time an area has been field marked pursuant
to Section 4216.3.
   (4) Where delineation could not be construed as duplicative.

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

   SEC. 4.   SEC. 5.   Section 4216.6 of
the Government Code is amended to read:
   4216.6.  (a) (1) Any operator or excavator that negligently
violates a requirement of this article is subject to a civil penalty
in an amount not to exceed ten thousand dollars ($10,000).
   (2) Any operator or excavator that knowingly and willfully
violates a requirement of this article is subject to a civil penalty
in an amount not to exceed fifty thousand dollars ($50,000).
   (3) Except as otherwise provided in this article, this section
does not affect any civil remedies otherwise provided by law for
personal injury or for property damage, including any damage to
subsurface installations, nor does this section create any new civil
remedies for those injuries or that damage.
   (4) This article does not limit any other law granting
governmental immunity to state or local agencies or to impose any
liability or duty of care not otherwise imposed by law upon a state
or local agency.
   (b) An action may be brought by the Attorney General, the district
attorney, or the local or state agency that issued the permit to
excavate, for the enforcement of the civil penalty pursuant to this
section. If penalties are collected as a result of a civil suit
brought by a state or local agency for collection of those civil
penalties, the penalties imposed shall be paid to the general fund of
the agency. If more than one agency is involved in enforcement, the
penalties imposed shall be apportioned among them by the court in a
manner that will fairly offset the relative costs incurred by the
agencies in collecting these fees.
   (c) The requirements of this article may also be enforced by
 either of the following:  
   (1) The Contractors' State License Board as provided in Section
7058.3 of the Business and Professions Code. 
    (2)     An 
 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 the requirements of this article.
   (d) In addition to  , or instead of,  any other
penalty or enforcement mechanism provided by this article, an
operator or excavator that violates any requirement of this article
may be required to attend an education program. The following
entities,  which   that  have
responsibility for the safety of operator facilities, may require
operators and excavators to attend an education program:
   (1) The Contractors' State License Board.
   (2) The Public Utilities Commission.
   (3) The State Fire Marshal.
   (4) The Division of Occupational Safety and Health in the
Department of Industrial Relations.
   (5) A court of competent jurisdiction.
   (e) Statewide information provided by operators and excavators
regarding violations of the requirements of this article and damages
resulting from those violations shall be posted on the Internet Web
site of the regional notification centers.