BILL NUMBER: AB 811 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2013
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,
4216.2, and 4216.6 Section 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 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.
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
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.
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
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4216.6 of the
Government Code is amended to read:
4216.6. (a) (1) Any operator or excavator who negligently
violates this article is subject to a civil penalty in an amount not
to exceed ten thousand dollars ($10,000).
(2) Any operator or excavator who knowingly and willfully violates
any of the provisions of this article is subject to a civil penalty
in an amount not to exceed fifty thousand dollars ($50,000).
(3) Except as otherwise specifically provided in this article,
this section is not intended to affect any civil remedies otherwise
provided by law for personal injury or for property damage, including
any damage to subsurface installations, nor is this section intended
to create any new civil remedies for those injuries or that damage.
(4) This article shall not be construed to limit any other
provision of law granting governmental immunity to state or local
agencies or to impose any liability or duty of care not otherwise
imposed by law upon any state or local agency.
(b) An action may be brought by the Attorney General, the district
attorney, or the local or state agency which 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
state or local agencies, or both, in collecting these fees.
(c) 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
sites of the regional notification centers.
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, as
defined in subdivision (c) of Section 4216 of the Government Code,
unless the qualifier for the license participates in an approved
excavation training program.
(b) An employee of a contractor shall not excavate unless at least
one of the 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.
(c) A contractor who 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 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.
(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.
(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.
(i) "Local agency" means a city, county, city and county, school
district, or special district.
(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.
(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.
(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.
(m) "State agency" means every state agency, department, division,
bureau, board, or commission.
(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). 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.
(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.
(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. 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 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 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, 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.