Amended in Assembly April 9, 2013

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 tobegin delete add Section 7058.3 to the Business and Professions Code, and toend delete amendbegin delete Sections 4216, 4216.2, and 4216.6end deletebegin insert Section 4216.6end insert 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.

begin deleteThis bill would provide that these requirements may also be enforced 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 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. end deleteThe 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.

begin delete

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.

end delete
begin delete

This bill would prohibit a contractor from engaging in any excavation activity, as defined, unless the qualifier for the license participates in an approved excavation 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 delete
begin delete

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 delete

Vote: majority. Appropriation: no. Fiscal committee: begin deleteyes end deletebegin insertnoend insert. State-mandated local program: no.

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 4216.6 of the end insertbegin insertGovernment Codeend insertbegin insert is
2amended to read:end insert

P3    1

4216.6.  

(a) (1) Any operator or excavator who negligently
2violates this article is subject to a civil penalty in an amount not
3to exceed ten thousand dollars ($10,000).

4(2) Any operator or excavator who knowingly and willfully
5violates any of the provisions of this article is subject to a civil
6penalty in an amount not to exceed fifty thousand dollars ($50,000).

7(3) Except as otherwise specifically provided in this article, this
8section is not intended to affect any civil remedies otherwise
9provided by law for personal injury or for property damage,
10including any damage to subsurface installations, nor is this section
11intended to create any new civil remedies for those injuries or that
12damage.

13(4) This article shall not be construed to limit any other provision
14of law granting governmental immunity to state or local agencies
15or to impose any liability or duty of care not otherwise imposed
16by law upon any state or local agency.

17(b) An action may be brought by the Attorney General, the
18district attorney, or the local or state agency which issued the
19permit to excavate, for the enforcement of the civil penalty pursuant
20to this section. If penalties are collected as a result of a civil suit
21brought by a state or local agency for collection of those civil
22penalties, the penalties imposed shall be paid to the general fund
23of the agency. If more than one agency is involved in enforcement,
24the penalties imposed shall be apportioned among them by the
25court in a manner that will fairly offset the relative costs incurred
26by the state or local agencies, or both, in collecting these fees.

begin insert

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

end insert
begin delete
31

SECTION 1.  

The Legislature finds and declares all of the
32following:

33(a) Public health and safety are benefitted by safe excavation
34practices that protect underground operator infrastructure.

35(b) The law provides various rules and requirements in order
36to ensure that excavations that may impact underground operator
37infrastructure be done in the safest and most efficient manner
38possible.

39(c) Violations of excavation rules and requirements may range
40from minor violations with no damage to violations that result in
P4    1serious damage, including major property damage, service outages,
2and serious bodily injury or death.

3(d) Violators may range from homeowners or small contractors
4to major contractors, operators, and municipalities.

5(e) Construction, maintenance, and repair of public
6infrastructure, private and public buildings, and residences are an
7important part of the economy and the well being of Californians.

8(f) Enforcement of excavation rules and requirements should
9achieve the public safety goal of safe excavation practices, while
10not unduly burdening the operators and excavators involved in the
11construction, maintenance, and repair of public infrastructure,
12private and public buildings, and residences with unnecessary costs
13and time delays.

14(g) The enforcement options contained in Section 4 of this act
15are intended to achieve both goals by providing the flexibility
16needed to apply the enforcement method that will best achieve
17safe excavation practices in a given case, and in the most
18cost-efficient and timely manner possible.

19

SEC. 2.  

Section 7058.3 is added to the Business and Professions
20Code
, to read:

21

7058.3.  

(a) A contractor shall not engage in any excavation,
22as defined in subdivision (c) of Section 4216 of the Government
23Code, unless the qualifier for the license participates in an approved
24excavation training program.

25(b) An employee of a contractor shall not excavate unless at
26least one of the following conditions has been met:

27(1) The employee is an apprentice or contracting party or has
28graduated from a registered apprenticeship program, approved by
29the California Apprenticeship Council or a federal Office of
30Apprenticeship program, or a state apprenticeship program
31authorized by the federal Office of Apprenticeship.

32(2) The employee has successfully completed an excavation
33training program.

34(3) The employee is engaging in hand-digging, as defined in
35subdivision (f) of Section 4216 of the Government Code, and there
36is a competent person, as defined in subdivision (a) of Section
371504 of Title 8 of the California Code of Regulations, onsite who
38has successfully completed an excavation training program.

39(c) A contractor who has not participated in an excavation
40training program may bid on, or contract for, the excavation if the
P5    1work is performed by a contractor who has participated in an
2excavation training program pursuant to this section.

3(d) The employer of persons performing excavations shall
4maintain records demonstrating that those persons have complied
5with the training requirements in this section. The employer shall
6produce these records upon the request of a state or local agency
7in that agency’s investigation of damage to a subsurface installation
8involving the employer or his or her employees.

9

SEC. 3.  

Section 4216 of the Government Code is amended to
10read:

11

4216.  

As used in this article the following definitions apply:

12(a) “Approximate location of subsurface installations” means
13a strip of land not more than 24 inches on either side of the exterior
14surface of the subsurface installation. “Approximate location” does
15not mean depth.

16(b) “Education program” means a training program in
17accordance with the requirements of Section 1509 of Title 8 of the
18California Code of Regulations, that meets the minimum training
19guidelines and practices of the current Common Ground Alliance
20Best Practices.

21(c) “Excavation” means an operation in which earth, rock, or
22other material in the ground is moved, removed, or otherwise
23displaced by means of tools, equipment, or explosives in any of
24the following ways: grading, trenching, digging, ditching, drilling,
25augering, tunneling, scraping, cable or pipe plowing and driving,
26or any other way.

27(d) Except as provided in Section 4216.8, “excavator” means
28any person, firm, contractor or subcontractor, owner, operator,
29utility, association, corporation, partnership, business trust, public
30agency, or other entity that, with its, or his or her, own employees
31or equipment performs any excavation.

32(e) “Emergency” means a sudden, unexpected occurrence,
33involving a clear and imminent danger, demanding immediate
34action to prevent or mitigate loss of, or damage to, life, health,
35property, or essential public services. “Unexpected occurrence”
36includes, but is not limited to, fires, floods, earthquakes or other
37soil or geologic movements, riots, accidents, damage to a
38subsurface installation requiring immediate repair, or sabotage.

P6    1(f) “Hand digging” means an operation using nonmechanized,
2nonpower-driven, nonair-driven, and nonwater-driven equipment
3in the movement of earth, rock, or other material in the ground.

4(g) “High priority subsurface installation” means high-pressure
5natural gas pipelines with normal operating pressures greater than
6415kPA gauge (60psig), petroleum pipelines, pressurized sewage
7pipelines, high-voltage electric supply lines, conductors, or cables
8that have a potential to ground of greater than or equal to 60kv, or
9hazardous materials pipelines that are potentially hazardous to
10workers or the public if damaged.

11(h) “Inquiry identification number” means the number that is
12provided by a regional notification center to every person who
13contacts the center pursuant to Section 4216.2. The inquiry
14identification number shall remain valid for not more than 28
15calendar days from the date of issuance, and after that date shall
16require regional notification center revalidation.

17(i) “Local agency” means a city, county, city and county, school
18district, or special district.

19(j) “Operator” means any person, corporation, partnership,
20business trust, public agency, or other entity that owns, operates,
21or maintains a subsurface installation. For purposes of Section
224216.1, an “operator” does not include an owner of real property
23where subsurface facilities are exclusively located if they are used
24exclusively to furnish services on that property and the subsurface
25facilities are under the operation and control of that owner.

26(k) “Qualified person” means a person who completes a training
27program in accordance with the requirements of Section 1509 of
28Title 8 of the California Code of Regulations, Injury and Illness
29Prevention Program, that meets the minimum training guidelines
30and practices of Common Ground Alliance current Best Practices.

31(l) “Regional notification center” means a nonprofit association
32or other organization of operators of subsurface installations that
33provides advance warning of excavations or other work close to
34existing subsurface installations, for the purpose of protecting
35those installations from damage, removal, relocation, or repair.

36(m) “State agency” means every state agency, department,
37division, bureau, board, or commission.

38(n) “Subsurface installation” means any underground pipeline,
39conduit, duct, wire, or other structure, except nonpressurized
P7    1sewerlines, nonpressurized storm drains, or other nonpressurized
2drain lines.

3

SEC. 4.  

Section 4216.2 of the Government Code is amended
4to read:

5

4216.2.  

(a) (1) Except in an emergency, any person planning
6to conduct any excavation shall contact the appropriate regional
7notification center, at least two working days, but not more than
814 calendar days, prior to commencing that excavation, if the
9excavation will be conducted in an area that is known, or
10reasonably should be known, to contain subsurface installations
11other than the underground facilities owned or operated by the
12excavator and, if practical, the excavator shall delineate with white
13paint or other suitable markings the area to be excavated.

14(2) When the excavation is proposed within 10 feet of a high
15priority subsurface installation, the operator of the high priority
16subsurface installation shall notify the excavator of the existence
17of the high priority subsurface installation prior to the legal
18excavation start date and time, as such date and time are authorized
19pursuant to paragraph (1). The excavator and operator or its
20representative shall conduct an onsite meeting at a
21mutually-agreed-on time to determine actions or activities required
22to verify the location of the high priority subsurface installations
23prior to start time.

24(b) Except in an emergency, every excavator covered by Section
254216.8 planning to conduct an excavation on private property may
26contact the appropriate regional notification center if the private
27property is known, or reasonably should be known, to contain a
28subsurface installation other than the underground facility owned
29or operated by the excavator and, if practical, the excavator shall
30delineate with white paint or other suitable markings the area to
31be excavated.

32(c) The regional notification center shall provide an inquiry
33identification number to the person who contacts the center
34pursuant to this section and shall notify any member, if known,
35who has a subsurface installation in the area of the proposed
36excavation. An inquiry identification number may be validated for
37more than 28 days when mutually agreed between the excavator
38and any member operator so notified that has a subsurface
39installation in the area of the proposed excavation; and, it may be
P8    1revalidated by notification to the regional notification center by
2the excavator prior to the time of its expiration.

3(d) A record of all notifications by excavators and operators to
4the regional notification center shall be maintained for a period of
5not less than three years. The record shall be available for
6inspection by the excavator and any member, or their
7representative, during normal working hours and according to
8guidelines for inspection as may be established by the regional
9notification centers.

10(e) Notwithstanding Section 7058.3 of the Business and
11Professions Code, a person may perform an excavation when
12immediately necessary to protect life and public property from
13imminent danger, or to restore, repair, or maintain public utilities,
14or to prevent utility services from being destroyed, damaged, or
15interrupted by a natural disaster, serious accident, or other case of
16emergency.

17(f) As used in this section, the delineation is practical when any
18of the following conditions exist:

19(1) When delineating a prospective excavation site with white
20paint could not be misleading to those persons using affected streets
21and highways.

22(2) When the delineation could not be misinterpreted as a traffic
23or pedestrian control.

24(3) Where an excavator can determine the exact location of an
25excavation prior to the time an area has been field marked pursuant
26to Section 4216.3.

27(4) Where delineation could not be construed as duplicative.

28(g) Where an excavator makes a determination that it is not
29practical to delineate the area to be excavated, the excavator shall
30contact the regional notification center to advise the operators that
31the excavator shall identify the area to be excavated in another
32manner sufficient to enable the operator to determine the area of
33the excavation to be field marked pursuant to Section 4216.3.

34

SEC. 5.  

Section 4216.6 of the Government Code is amended
35to read:

36

4216.6.  

(a) (1) Any operator or excavator that negligently
37violates a requirement of this article is subject to a civil penalty in
38an amount not to exceed ten thousand dollars ($10,000).

P9    1(2) Any operator or excavator that knowingly and willfully
2violates a requirement of this article is subject to a civil penalty in
3an amount not to exceed fifty thousand dollars ($50,000).

4(3) Except as otherwise provided in this article, this section does
5not affect any civil remedies otherwise provided by law for
6personal injury or for property damage, including any damage to
7 subsurface installations, nor does this section create any new civil
8remedies for those injuries or that damage.

9(4) This article does not limit any other law granting
10governmental immunity to state or local agencies or to impose any
11liability or duty of care not otherwise imposed by law upon a state
12or local agency.

13(b) An action may be brought by the Attorney General, the
14district attorney, or the local or state agency that issued the permit
15to excavate, for the enforcement of the civil penalty pursuant to
16this section. If penalties are collected as a result of a civil suit
17brought by a state or local agency for collection of those civil
18penalties, the penalties imposed shall be paid to the general fund
19of the agency. If more than one agency is involved in enforcement,
20the penalties imposed shall be apportioned among them by the
21court in a manner that will fairly offset the relative costs incurred
22by the agencies in collecting these fees.

23(c) The requirements of this article may also be enforced by an
24action for civil damages brought in a court of competent
25jurisdiction by the person or entity that has sustained damages due
26to a violation of the requirements of this article.

27(d) In addition to any other penalty or enforcement mechanism
28provided by this article, an operator or excavator that violates any
29requirement of this article may be required to attend an education
30program. The following entities, that have responsibility for the
31safety of operator facilities, may require operators and excavators
32to attend an education program:

33(1) The Contractors’ State License Board.

34(2) The Public Utilities Commission.

35(3) The State Fire Marshal.

36(4) The Division of Occupational Safety and Health in the
37Department of Industrial Relations.

38(5) A court of competent jurisdiction.

39(e) Statewide information provided by operators and excavators
40regarding violations of the requirements of this article and damages
P10   1resulting from those violations shall be posted on the Internet Web
2site of the regional notification centers.

end delete


O

    97