Senate Bill No. 119

Introduced by Senator Hill

January 14, 2015

An act to add Section 7110.7 to the Business and Professions Code, and to amend Sections 4216, 4216.1, 4216.2, 4216.3, 4216.4, 4216.5, 4616.6, 4216.7, 4216.8, and 4216.9 of, and to add Sections 4216.10, 4216.11, 4216.12, 4216.13, 4216.14, 4216.15, 4216.16, 4216.17, 4216.18, 4216.19, 4216.20, and 4216.21 to, the Government Code, relating to excavations.

LEGISLATIVE COUNSEL’S DIGEST

SB 119, as introduced, Hill. Protection of subsurface installations.

Existing law vests the Contractors’ State License Board with all functions and duties relating to the administration of The Contractors’ State License Law. Existing law authorizes the issuance of licenses to applicants for contractors’ licenses by written examination under rules and regulations adopted by the board.

This bill would require the board to adopt a program to enforce violations of provisions relating to excavation. The bill would authorize the board to require a contractor to undergo training, levy a fine, and suspend a contractor’s license for a violation.

Existing law requires every operator of a subsurface installation, except the Department of Transportation, to become a member of, participate in, and share in the costs of, a regional notification center. Existing law requires any person who plans to conduct any excavation to contact the appropriate regional notification center before commencing that excavation, as specified. Existing law defines a subsurface installation as any underground any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, storm drains, or other drain lines. Existing law requires an operator of a subsurface installation, who receives notification of proposed excavation work, within 2 working days of that notification, excluding weekends and holidays, to mark the approximate location and number of subsurface installations that may be affected by the excavation or to advise that no subsurface installations operated by him or her would be affected. Existing law requires an operator of a subsurface installation that has failed to comply with these provisions to be liable to the excavator for damages, costs, and expenses.

This bill would declare the need to clarify and revise these provisions. The bill would define and redefine various terms relating to a regional notification center. The bill would instead define a subsurface installation as an underground or submerged duct, pipeline, or structure. This bill would also delete the exception for the Department of Transportation.

The bill would require an excavator planning to conduct an excavation to delineate the area to be excavated before notifying the appropriate regional notification center of the planned excavation, as provided. The bill would require an operator to maintain and preserve all plans and records for any subsurface installation owned by that operator as that information becomes known, as specified.

This bill would prohibit an excavator that damages a subsurface installation due to an inaccurate field mark, as defined, by an operator from being liable for damages, replacement costs, or other expenses arising from damage to the subsurface installation, provided that the excavator complied with the provisions described above. The bill would also require, in any action for reimbursement or indemnification for a claim arising from damage to a subsurface installation in which the court or arbitrator finds that the excavator complied with those provisions, the excavator to be awarded reasonable attorneys’ fees and expenses.

The bill would delete the existing exemptions pertaining to an owner of real property and would instead exempt an owner of residential real property who only uses nonmechanized hand tools for excavation work not requiring a permit on his or her residential real property that has no easement or right of way.

Existing law authorizes the Occupational Safety and Health Standards Board to adopt and to publish occupational safety and health standards.

This bill would require the board, on or before January 1, 2017, to revise these provisions to clarify best practices to be used by excavators when excavating near subsurface installations. The bill would also require the board to convene an advisory committee hearing to seek input from operators, regional notification centers, labor, and excavators on best practices to be used for excavating in urban areas, the appropriate frequency of potholing, and other best practices developed by various industry associations.

This bill would create the California Underground Facilities Safe Excavation Authority. The bill would require the authority to enforce laws relating to the protection of underground infrastructure by hearing complaints and assessing civil penalties for violations of these provisions.

The bill would also authorize the Public Utilities Commission and the Office of the State Fire Marshal to enforce the requirement to locate and field mark subsurface installations and lines against operators of natural gas and electric underground infrastructure and hazardous liquid pipelines, unless these operators are municipal utilities.

The authority would be composed of 9 members who would serve 2-year terms. The bill would authorize the authority to use compliance audits and investigations in enforcing these provisions and furthering its purposes. The bill would require the authority, on or before January 1, 2017, and each year thereafter, to report to the Governor and the Legislature on its activities and any recommendations.

The bill would make other conforming changes.

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 the following:

(a) Discussions that have taken place since Article 2
(commencing with Section 4216) of Chapter 3.1 of Division 5 of
Title 1 of the Government Code was added by Chapter 928 of the
Statutes of 1989 have led to widespread agreement that many of
the provisions of the article should be clarified.

(b) Regional notification centers, or “one-call” centers, have
developed means of electronic communication that improve the
efficiency of the “one-call” process, and statutory barriers to using
new methods of notification should be eliminated.

(c) The delineation by an excavator of the area to be excavated
in advance of the field location and marking by subsurface facility
operators of their facilities aids the excavator in understanding
where underground facilities were marked, and thus improves
safety. This practice was recommended by the National
Transportation Safety Board in its 1997 study “Protecting Public
Safety through Excavation Damage Prevention” and is a best
practice of the Common Ground Alliance.

(d) Continuing an excavation after an excavation “ticket” has
expired does not promote safety, and excavators should apply for
a new ticket before the expiration of an old one. Continuing
excavation when markings are no longer visible does not promote
safety, and excavators should stop work until the lines are
remarked.

(e) The benefits of eliminating old field marks once an
excavation project is complete are more than just aesthetic;
eliminating old field marks helps prevent confusion for the next
excavator to dig in that area.

(f) Increased communication between subsurface installation
operators and excavators before breaking ground has safety
benefits.

(g) Abandoned lines that are not marked can be mistaken for
active lines that are marked, and thus present a safety risk to
excavators and the public. Safety will be improved if subsurface
facility operators identify these lines when their existence is known.

(h) The ability of an operator of subsurface facilities to locate
and mark affected facilities can be seriously impaired by a lack of
high-quality records of those facilities, and thus operators should
keep records of their facilities for as long as they are in the ground,
whether or not they are in use.

(i) Failure by an operator of subsurface facilities to mark the
facilities within the required 48 hour period is a serious breach of
duty.

(j) Mismarks by an operator place excavators and the public at
great safety risk, and so operators who mismark their facilities are
entitled to no award for any damages to those facilities.

(k) Facilities that are embedded in pavement require more
extensive communication to prevent them from being damaged.
Excavators should not be liable for damage to traffic loops.

(l) Exemptions that allow a class of persons to excavate without
calling 811 shall be made not based on convenience, but rather
permitted only if alternatives procedures allow the excavation to
take place without compromising safety.

(m) The exemption that permits the Department of
Transportation not to submit its maps to the regional notification
center and not to mark its underground facilities within 48 hours
does not have a basis in safety.

(n) The exemption that permits operators of nonpressurized
sewer lines and nonpressurized storm drains not to submit their
maps to the regional notification center and not to mark their
underground facilities within 48 hours does not have a basis in
safety, as gas or electric lines could be installed through those lines
and drains and thus create a safety hazard to those who clean those
sewers and drains and the public.

(o) The exemption that permits private property owners to dig
on their property without calling a regional notification center to
have the area marked for underground facilities does not have a
basis in safety.

(p) The exemption that permits homeowners to conduct
excavation on their property with heavy machinery or when there
is a utility easement on his or her property does not have a basis
in safety.

(q) Behaviors that are suspected to be unsafe, but upon which
there is not widespread agreement as to the level of risk and,
therefore, are unregulated, must be monitored to better assess the
risk.

(r) Clarification is needed for excavators to understand best
excavation practices, and this could be accomplished through
clarification of the regulations on excavation by the Occupational
Safety and Health Standards Board.

(s) Other states have experienced a dramatic improvement in
safety after implementing centralized administrative enforcement
of one-call laws.

(t) California should have a board, composed of excavation
stakeholders, subject to oversight by the Legislature and the
Department of Finance, to enforce the state’s safe excavation laws
through field audits, incident investigations, and administrative
hearings, and to promote safe excavation practices. Due to the size
of the state, and in order to reduce costs, the board should meet in
northern and southern California.

(u) The board should not be funded through the General Fund,
but should be funded by the community that will most directly
benefit from the enforcement of the state’s safe excavation laws,
including the participants in the state’s regional notification centers,
and the board should also be funded by the fines it levies, instead
of having those fines go to the General Fund.

(v) After a hearing before the board pursuant to the
Administrative Procedures Act, a person found to be in violation
of the state’s safe excavation laws could meet a variety of sanctions
including a fine not exceeding a specified amount and the
requirement to undergo relevant education.

(w) To preserve due process, the superior court should be
available to an aggrieved party as a forum in which to challenge
a board decision.

(x) Most persons who would be subject to the board’s oversight
are also subject to the oversight of other enforcement agencies,
and those agencies should also take steps to reduce the safety risks
posed by violations of the state’s safe excavation laws.

SEC. 2.  

Section 7110.7 is added to the Business and Professions
Code, to read:

7110.7.  

(a) The Contractors’, State License Board shall adopt
a program to enforce violations of paragraph (1) of subdivision
(a) of Section 4216.2 of the Government Code.

(b) The Contractors’ State License Board shall require
contractors to undergo training relating to compliance with
paragraph (1) of subdivision (a) of Section 4216.2 of the
Government Code, as determined by the board, for an initial
violation.

(c) If the contractor does not attend training within two months
of being notified of the requirement to do so, or fails to provide a
reasonable explanation for his or her delay in scheduling that
training in writing, the board shall, in addition, levy a fine.

(d) A subsequent violation within one calendar year of the first
violation, failure to attend training, or failure to pay fines ultimately
may result in suspension of the contractor’s license.

(e) The board shall determine a graduated scale of fines
considering the following factors:

(1) Whether the regional notification center received a timely
request for locate and mark.

(2) The gravity of the violation.

(3) The good faith of the contractor.

(4) The contractor’s history of previous violations.

SEC. 3.  

Section 4216 of the Government Code is amended to
read:

4216.  

As used in this article the following definitions apply:

begin delete

(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.

end delete begin insert

(a) “Abandoned subsurface installation” means a subsurface
installation that is no longer in service and is physically
disconnected from any active or inactive subsurface installation.

end insert begin insert

(b) “Active subsurface installation” means a subsurface
installation currently in use or currently carrying service.

end insert begin insert

(c) “Authority” means the California Underground Facilities
Safe Excavation Authority.

end insert begin insert

(d) “Delineate” means to mark in white paint the location or
path of the proposed excavation using the guidelines in Appendix
B of the Guidelines for Excavation Delineation published in Best
Practices Version 11.0 by the Common Ground Alliance. If there
is a conflict between the marking practices in those guidelines and
other provisions of this article, this article shall control.

end insert begin insert

(e) “Electronic positive response” means an electronic response
from an operator to the regional notification center providing the
status of an operator’s statutorily required response to a ticket.

end insert begin insert

(f) (1) “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.

end insert begin insert

(2) “Unexpected occurrence” includes, but is not limited to, a
fire, flood, earthquake or other soil or geologic movement, riot,
accident, damage to a subsurface installation requiring immediate
repair, or sabotage.

end insert begin delete

(b)

end delete

begin insert (g) end insert  “Excavation” means begin insert penetration of the plane between the
air and the existing surface of the ground or pavement by end insert any
operation in which earth, rock, or other material begin delete in the ground end delete 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, begin insert gouging, crushing, jack
hammering, saw cutting, end insert or any other way.

begin delete

(c)

end delete

begin insert (h) end insert  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 begin delete that, with their, or his or her, own employees
or equipment end delete begin insert that end insert performs any excavation.

begin delete

(d) “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.

end delete begin delete

(e)

end delete

begin insert (i) end insert  “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.

begin delete

(f) “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.

end delete begin insert

(j) “Inactive subsurface installation” means both of the
following:

end insert begin insert

(1) The portion of an underground subsurface installation that
is not in use but is still connected to the subsurface installation,
or to any other subsurface installation, that is in use or still carries
service.

end insert begin insert

(2) A new underground subsurface installation that has not
been connected to any portion of an existing subsurface
installation.

end insert begin insert

(k) “Legal excavation start date and time” means at least two
working days, not including the date of notification, or up to 14
calendar days from the date of notification, if so specified by the
excavator.

end insert begin delete

(g)

end delete

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

begin insert

(m) (1) “Locate and field mark” means to indicate the existence
of a subsurface installation by using the guidelines in Appendix B
of the “Guidelines for Excavation Delineation” published in Best
Practices Version 11.0 by the Common Ground Alliance and in
conformance with the uniform color code of the American Public
Works Association. If there is a conflict between the marking
practices in the guidelines and this article, this article shall control.

end insert begin insert

(2) “Locate and field mark” does not require an indication of
the depth of cover.

end insert begin insert

(n) “Near miss” means an event in which damage did not occur,
but a clear potential for damage was identified.

end insert begin delete

(h)

end delete

begin insert (o) end insert  “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.

begin insert

(p) “Pavement” means a manmade surface material that cannot
be removed with a conventional hand tool.

end insert begin insert

(q) “Positive response” means the response from an operator
directly to the excavator providing the status of an operator’s
statutorily required response to a ticket.

end insert begin delete

(i)

end delete

begin insert (r) end insert  “Qualified person” means a person who completes a training
program in accordance with the requirements of Title 8, California
Code of Regulations, Section 1509, Injury Prevention Program,
that meets the minimum training guidelines and practices begin delete of
Common Ground Alliance current Best Practices. end delete begin insert published in
Best Practices Version 11.0 by the Common Ground Alliance. end insert

begin delete

(j)

end delete

begin insert (s) end insert  “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.

begin delete

(k)

end delete

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

begin delete

(l)

end delete

begin insert (u) end insert  “Subsurface installation” means any underground begin delete pipeline,
conduit, duct, wire, or other structure, except nonpressurized
sewerlines, nonpressurized storm drains, or other nonpressurized
drain lines. end delete begin insert or submerged duct, pipeline, or structure, including,
but not limited to, a conduit, duct, line, pipe, wire, or other
structure. end insert

begin insert

(v) “Ticket” means an excavation location request issued a
number by the regional notification center.

end insert begin insert

(w) “Tolerance zone” means 24 inches on either side of the
field marking placed by the operator as follows:

end insert begin insert

(1) A single marking, assumed to be the centerline of the
subsurface installation, 24 inches from either side of that marking.

end insert begin insert

(2) A single marking with the size of installation specified as
24 inches plus one-half the specified size on either side from the
single marking.

end insert begin insert

(3) Multiple markings that graphically show the width of the
installation 24 inches from the marking that graphically show the
outside surface of the subsurface installation on a horizontal plane.

end insert begin insert

(x) “Working day” for the purposes of determining excavation
start date and time means a weekday Monday through Friday,
from 7:00 a.m. to 5:00 p.m., except for federal and state holidays.

end insert

SEC. 4.  

Section 4216.1 of the Government Code is amended
to read:

4216.1.  

Every operator of a subsurface begin delete installation, except the
Department of Transportation, end delete begin insert installation end insert shall become a member
of, participate in, and share in the costs of, a regional notification
center. Operators of subsurface installations who are members of,
participate in, and share in, the costs of a regional notification
center, including, but not limited to, begin delete the South Shore Utility
Coordinating Council, end delete the Underground Service Alert--Northern
California or the Underground Service Alert--Southern California
are in compliance with this section and Section 4216.9.

SEC. 5.  

Section 4216.2 of the Government Code is amended
to read:

begin delete

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.

end delete

begin insert

begin insert 4216.2. end insert   

end insert begin insert

(a) (1) Before notifying the appropriate regional
notification center, an excavator planning to conduct an excavation
shall delineate the area to be excavated. If the area is not
delineated, an operator shall not locate and field mark.

end insert begin insert

(2) Except in an emergency, an excavator planning to conduct
an excavation shall notify the appropriate regional notification
center of the excavator’s intent to excavate at least two working
days, and not more than 14 calendar days, before beginning that
excavation. The date of the notification shall not count as part of
the two-working-day notice. If an excavator gives less notice than
the legal excavation start date and time and the excavation is not
an emergency, the regional notification center will take the
information and provide a ticket, but an operator has until the
legal excavation start date and time to respond.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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, begin delete 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. end delete begin insert and set up an onsite
meeting at a mutually agreed upon time to determine actions or
activities required to verify the location and prevent damage to
the high-priority subsurface installation. The excavator shall not
begin excavating until after the completion of the onsite meeting. end insert

(b) Except in an emergency, every excavator covered by Section
4216.8 planning to conduct an excavation on private property begin insert that
does not require an excavation permit end insert 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
begin delete excavator and, if practical, the excavator shall delineate with white
paint or other suitable markings the area to be excavated. end delete begin insert excavator. end insert
begin insert Before notifying the appropriate regional notification center, an
excavator shall delineate the area to be excavated. Any temporary
marking placed at the planned excavation location shall be clearly
seen, functional, and considerate to surface aesthetics and the
local community. An excavator shall check if any local ordinances
apply to the placement of temporary markings. end insert

begin insert

(c) If an excavator gives less than the legal excavation start
date and time and it is not an emergency, the regional notification
center shall take the information and provide a ticket but an
operator shall have until the legal excavation start date and time
to respond.

end insert begin delete

(c)

end delete

begin insert (d) end insert  The regional notification center shall provide begin delete an inquiry
identification number end delete begin insert a ticket end insert 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. begin delete 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. end delete begin insert A ticket shall be
valid for 28 days from the date of issuance. If work continues
beyond 28 days, the excavator shall update the ticket either by
accessing the center’s Internet Web site or by calling “811” by
the end of the 28th day. end insert

begin delete

(d)

end delete

begin insert (e) end insert  A record of all notifications by begin delete excavators and operators end delete begin insert an
excavator or operator end insert 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.

begin delete

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

end delete begin delete

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

end delete begin delete

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

end delete begin delete

(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.

end delete begin delete

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

end delete begin delete

(f) 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.

end delete begin insert

(f) An excavator shall not begin excavation until the excavator
receives a positive response from all known subsurface installations
within the delineated boundaries of the proposed area of
excavation.

end insert begin insert

(g) If a site requires special access, an excavator shall request
an operator to contact the excavator regarding that special access
or give special instructions on the location request.

end insert begin insert

(h) If a ticket obtained by an excavator expires but work is
ongoing, the excavator shall call into the regional notification
center and get a new ticket and wait a minimum of two working
days, not including the date of call in, before restarting excavation.
All excavation shall cease during the waiting period.

end insert begin insert

(i) When the excavation is complete, the excavator shall
eliminate or camouflage any temporary markings that remain for
45 days or more, unless a local ordinance indicates otherwise.

end insert

SEC. 6.  

Section 4216.3 of the Government Code is amended
to read:

begin delete

4216.3.  

(a) (1) Any operator of a subsurface installation who
receives timely notification of any proposed excavation work in
accordance with Section 4216.2 shall, within two working days
of that notification, excluding weekends and holidays, or before
the start of the excavation work, whichever is later, or at a later
time mutually agreeable to the operator and the excavator, locate
and field mark the approximate location and, if known, the number
of subsurface installations that may be affected by the excavation
to the extent and degree of accuracy that the information is
available either in the records of the operator or as determined
through the use of standard locating techniques other than
excavating, otherwise advise the person who contacted the center
of the location of the operator’s subsurface installations that may
be affected by the excavation, or advise the person that the operator
does not operate any subsurface installations that would be affected
by the proposed excavation.

end delete

begin insert

begin insert 4216.3. end insert   

end insert begin insert

(a) (1) (A) An operator shall locate and field mark,
if known, the number of subsurface installations that may be
affected by an excavation, to the extent and degree of accuracy
that the information is available, provide information to an
excavator where the operator’s active or inactive lines are located,
and advise the excavator that there is no conflict before the legal
excavation start date and time. The excavator and operator may
mutually agree to a later start date and time or the sequence and
timeframe in which the operator will mark.

end insert begin insert

(B) An operator shall mark both main and service lines in
response to a locate request up to the meter. If there is no meter,
the lines shall be marked to the property line or behind the curb
or sidewalk, whichever is furthest from the main line.

end insert begin insert

(C) An operator shall mark newly installed subsurface
installations in areas with continuing excavation activity.

end insert begin insert

(D) If known, an operator shall mark with an “A” inside a circle
any abandoned lines. There shall be no liability associated with
marking abandoned lines. The markings are to make an excavator
aware that there are abandoned subsurface installations within
that delineated work area.

end insert

(2) Only a qualified person shall perform subsurface installation
locating activities.

(3) A qualified person performing subsurface installation
locating activities on behalf of begin delete a subsurface installation end delete begin insert an end insert operator
shall use a minimum of a single-frequency utility locating device
and shall have access to alternative sources for verification, if
necessary.

begin delete

(4) Operators of high priority subsurface installations shall
maintain and preserve all plans and records for its subsurface
installations.

end delete begin delete

(b) Every operator of a subsurface installation who field marks
the location of a subsurface installation shall make a reasonable
effort to make field markings in conformance with the uniform
color code of the American Public Works Association.

end delete begin delete

(c) If, at any time during an excavation for which there is a valid
inquiry identification number, an operator’s field markings are no
longer reasonably visible, the excavator shall contact the
appropriate regional notification center. The regional notification
center shall contact any member, if known, who has a subsurface
installation in the area of the excavation. Upon receiving timely
notification or renotification pursuant to this subdivision, the
operator shall re-locate and re-mark, within two working days,
those subsurface installations that may be affected by the
excavation to the extent necessary, in conformance with this
section.

end delete begin insert

(4) An operator shall amend, update, maintain, and preserve
all plans and records for its subsurface installations as that
information becomes known. If there is a change in ownership of
a subsurface installation, the records shall be turned over to the
new operator who will assume full responsibility of the subsurface
installation. Records on abandoned lines shall be kept beginning
on January 1, 2016.

end insert begin insert

(b) Every operator who has lines in the area of a proposed
excavation shall locate and field mark the location of a subsurface
installation.

end insert begin insert

(c) If the field marks are no longer reasonably visible, an
excavator shall renotify the regional notification center with a
request for remarks that can be for all or a portion of the
excavation. Excavation shall cease in the area to be remarked. If
the area to be remarked is not the full extent of the original
excavation, the excavator shall delineate the portion to be
remarked. If the delineation markings are no longer reasonably
visible, the excavator shall redelineate the area to be remarked.
If remarks are requested, the operator shall have two working
days, not including the date of request, to remark the subsurface
installation. Excavation shall cease in the area where the remarks
are requested. If the area to be remarked is not the full extent of
the original excavation, the excavator shall delineate the portion
to be remarked and provide a description of the area requested to
be remarked on the ticket. The excavator shall provide a
description for the area to be remarked that falls within the area
of the original location request.

end insert begin insert

(d) Every operator may supply an electronic positive response
through the regional notification center before the legal excavation
start date and time. The regional notification center shall make
those responses available.

end insert begin delete

(d)

end delete

begin insert (e) end insert  The excavator shall notify the appropriate regional
notification center of the failure of an operator to comply with this
section. The notification shall include the begin delete inquiry identification
number end delete begin insert ticket end insert issued by the regional notification center. A record
of all notifications received pursuant to this subdivision shall be
maintained by the regional notification center for a period of not
less than three years. The record shall be available for inspection
pursuant to subdivision begin delete (d) end delete begin insert (e) end insert of Section 4216.2.

begin insert

(f) If an operator or local agency knows that it has a subsurface
installation embedded or partially embedded in the pavement that
is not visible from the surface, the owner or local agency shall
contact the excavator before pavement removal to communicate
and determine a plan of action to protect that subsurface
installation and excavator.

end insert begin insert

(g) An excavator shall not be responsible for a traffic signal
detector loop, even if the excavator is notified that it is embedded
in the pavement, unless there is a local ordinance or permit
requirement to the contrary.

end insert

SEC. 7.  

Section 4216.4 of the Government Code is amended
to read:

begin delete

4216.4.  

(a) When the excavation is within the approximate
location of subsurface installation, the excavator shall determine
the exact location of subsurface installations in conflict with the
excavation by excavating with hand tools within the area of the
approximate location of subsurface installations as provided by
the operators in accordance with Section 4216.3 before using any
power-operated or power-driven excavating or boring equipment
within the approximate location of the subsurface installation,
except that power-operated or power-driven excavating or boring
equipment may be used for the removal of any existing pavement
if there are no subsurface installations contained in the pavement.
If documented notice of the intent to use vacuum excavation
devices, or power-operated or power-driven excavating or boring
equipment, has been provided to the subsurface installation
operator or operators and it is mutually agreeable with the operator
or operators and the excavator, the excavator may utilize vacuum
excavation devices, or power-operated or power-driven excavating
or boring equipment within the approximate location of a
subsurface installation and to any depth.

end delete

begin insert

begin insert 4216.4. end insert   

end insert begin insert

(a) (1) Except as provided in paragraph (2), if an
excavation is within the approximate location of a subsurface
installation, the excavator shall expose with hand tools to the depth
of the excavation within the tolerance zone, including any
applicable clearance requirements, for the full length of the project.

end insert begin insert

(2) (A) An excavator may use a vacuum excavation device to
expose subsurface installations within the tolerance zone if the
operator has marked the subsurface installation, the excavator
has contacted any operator whose subsurface installations may
be in conflict with the excavation, and the operator has agreed to
the use of a vacuum excavation device. An excavator shall inform
the regional notification center of his or her intent to use a vacuum
excavation device when obtaining a ticket.

end insert begin insert

(B) An excavator may use power-operated or boring equipment
for the removal of any existing pavement only if there is no known
subsurface installation contained in the pavement.

end insert

(b) If the exact location of the subsurface installation cannot be
determined by hand excavating in accordance with subdivision
(a), the excavator shall request the operator to provide additional
information to the excavator, to the extent that information is
available to the operator, to enable the excavator to determine the
exact location of the installation. begin insert If the excavator has questions
about the markings that an operator has placed, the excavator
may contact the notification center to send a request to have the
operator contact the excavator directly. end insert The regional notification
center shall provide the excavator with the contact phone number
of the subsurface installation operator.

(c) An excavator discovering or causing damage to a subsurface
installation, including all breaks, leaks, nicks, dents, gouges,
grooves, or other damage to subsurface installation lines, conduits,
coatings, or cathodic protection, shall immediately notify the
subsurface installation operator. The excavator may contact the
regional notification center to obtain the contact information of
the subsurface installation operator. If high priority subsurface
installations are damaged and the operator cannot be contacted
begin insert immediately end insert , the excavator shall call 911 emergency services.

begin insert

(d) Each excavator, operator, or locator shall communicate
with each other and respect the appropriate safety requirements
and ongoing activities of the other parties, if known, at an
excavation site.

end insert

SEC. 8.  

Section 4216.5 of the Government Code is amended
to read:

4216.5.  

The requirements of this article apply to state agencies
and to local agencies begin delete which end delete begin insert that end insert own or operate subsurface
begin delete installations, except as otherwise provided in Section 4216.1. end delete
begin insert installations. end insert A local agency begin delete which end delete begin insert that end insert is required to provide the
services described in Section 4216.3 may charge a fee in an amount
sufficient to cover the cost of providing that service.

SEC. 9.  

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 begin delete which end delete begin insert that end insert issued the
permit to excavate, for the enforcement of the civil penalty pursuant
to this begin delete section. end delete begin insert section either in a civil action brought in the name
of the people of the State of California or in an administrative
hearing before the authority pursuant to Section 4216.19. end insert 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.

begin insert

(c) The requirements of this article may also be enforced as
follows:

end insert begin insert

(1) The Contractors’ State License Board shall enforce
paragraph (1) of subdivision (a) of Section 4216.2 as specified in
Section 7110.7 of the Business and Professions Code.

end insert begin insert

(2) The Public Utilities Commission may enforce subdivisions
(a) and (b) of Section 4216.3 against operators of natural gas and
electric underground infrastructure, unless those operators are
municipal utilities.

end insert begin insert

(3) The Office of the State Fire Marshal may enforce
subdivisions (a) and (b) of Section 4216.3 against operators of
hazardous liquid pipelines, unless those operators are municipal
utilities.

end insert

(c) Statewide information provided by operators and excavators
regarding facility events shall be compiled and made available in
an annual report by regional notification centers and posted on the
Internet Web sites of the regional notification centers.

(d) For purposes of subdivision (c), the following terms have
the following meanings:

(1) “Facility event” means the occurrence of excavator
downtime, damages, near misses, and violations.

(2) “Statewide information” means information submitted by
operators and excavators using the California Regional Common
Ground Alliance’s Virtual Private Damage Information Reporting
Tool. Supplied data shall comply with the Damage Information
Reporting Tool’s minimum essential information as listed in begin delete the
Common Ground Alliance’s most recent Best Practices Handbook. end delete
begin insert Best Practices Version 11.0 by the Common Ground Alliance. end insert

SEC. 10.  

Section 4216.7 of the Government Code is amended
to read:

4216.7.  

(a) If a subsurface installation is damaged by an
excavator as a result of failing to comply with Section 4216.2 or
4216.4, or as a result of failing to comply with the operator’s
requests to protect the subsurface installation as specified by the
operator begin delete prior to end delete begin insert before end insert the start of excavation, the excavator shall
be liable to the operator of the subsurface installation for resulting
damages, costs, and expenses to the extent the damages, costs, and
expenses were proximately caused by the excavator’s failure to
comply.

begin delete

(b) If the operator of a subsurface installation has failed to
comply with the regional notification center system requirements
of Section 4216.1, that operator shall forfeit his or her claim for
damages to his or her subsurface installation, arising from the
excavation, against an excavator who has complied with the
requirements of Section 4216.2 to the extent damages were
proximately caused by the operator’s failure to comply.

end delete begin insert

(b) If an operator has failed to become a member of, participate
in, or share in the costs of, a regional notification center, that
operator shall forfeit his or her claim for damages to his or her
subsurface installation arising from an excavation against an
excavator who has called at least two working days in advance to
the extent damages were proximately caused by the operator’s
failure to be a member.

end insert

(c) If an operator of a subsurface installation has failed to
comply with the provisions of Section 4216.3, begin insert including, but not
limited to, the requirement to field mark the appropriate location
of subsurface installations within two working days of notification, end insert
has failed to comply with paragraph (2) of subdivision (a) of
Section 4216.2, or has failed to comply with subdivision (b) of
Section 4216.4, the operator shall be liable to the excavator who
has complied with Sections 4216.2 and 4216.4 for damages,
begin insert including liquidated damages, liability, losses, end insert costs, and expenses
resulting from the operator’s failure to comply with these specified
requirements to the extent the damages, costs, and expenses were
proximately caused by the operator’s failure to comply.

begin insert

(d) An excavator who damages a subsurface installation due to
an inaccurate field mark by an operator, or by a third party under
contract to perform field marking for the operator, shall not be
liable for damages, replacement costs, or other expenses arising
from damages to the subsurface installation if the excavator
complied with Sections 4216.2 and 4216.4.

end insert begin insert

(e) In any actions for reimbursement or indemnification for a
claim arising from damage to a subsurface installation in which
the court or arbitrator finds that the excavator complied with the
requirements for Sections 4216.2 and 4216.4, the excavator shall
be awarded reasonable attorney’s fees and expenses.

end insert begin insert

(f) For the purposes of this section, “inaccurate field mark”
means a mark, or set of markings, made pursuant to Section
4216.3, that did not correctly indicate the approximate location
of a subsurface installation affected by an excavation and includes
the actual physical location of a subsurface installation affected
by an excavation that should have been marked pursuant to Section
4216.3 but was not.

end insert begin delete

(d)

end delete

begin insert (g) end insert  Nothing in this section shall be construed to do any of the
following:

(1) Affect claims including, but not limited to, third-party claims
brought against the excavator or operator by other parties for
damages arising from the excavation.

(2) Exempt the excavator or operator from his or her duty to
mitigate any damages as required by common or other applicable
law.

(3) Exempt the excavator or operator from liability to each other
or third parties based on equitable indemnity or comparative or
contributory negligence.

SEC. 11.  

Section 4216.8 of the Government Code is amended
to read:

4216.8.  

This article does not apply to begin delete any end delete begin insert either end insert of the
following persons:

begin delete

(a) An owner of real property who contracts for an excavation
project on the property, not requiring a permit issued by a state or
local agency, with a contractor or subcontractor licensed pursuant
to Article 5 (commencing with Section 7065) of Chapter 9 of
Division 3 of the Business and Professions Code.

end delete begin delete

(b) An owner of residential real property, not engaged as a
contractor or subcontractor licensed pursuant to Article 5
(commencing with Section 7065) of Chapter 9 of Division 3 of
the Business and Professions Code, who as part of improving his
or her principal residence or appurtenances thereto is performing
or having performed excavation work not requiring a permit issued
by a state or local agency.

end delete begin insert

(a) An owner of residential real property doing work not
requiring a permit issued by a state or local agency on his or her
residential real property that has no easement or right of way who
only uses nonmechanized hand tools for excavation.

end insert begin delete

(c)

end delete

begin insert (b) end insert  Any person or private entity that leases or rents power
operated or power-driven excavating or boring equipment,
regardless of whether an equipment operator is provided for that
piece of equipment or not, to a contractor or subcontractor licensed
pursuant to Article 5 (commencing with Section 7065) of Chapter
9 of Division 3 of the Business and Professions Code, if the signed
rental agreement between the person or private entity and the
contractor or subcontractor contains the following provision:

“It is the sole responsibility of the lessee or renter to follow
the requirements of the regional notification center law
pursuant to Article 2 (commencing with Section 4216) of
Chapter 3.1 of Division 5 of Title 1 of the Government Code.
By signing this contract, the lessee or renter accepts all
liabilities and responsibilities contained in the regional
notification center law.”

SEC. 12.  

Section 4216.9 of the Government Code is amended
to read:

4216.9.  

(a)  begin delete No end delete begin insert A end insert permit to excavate issued by any local
agency, as defined in Section 4216, or any state agency, shall begin insert not end insert
be valid unless the applicant has been provided an initial begin delete inquiry
identification number end delete begin insert ticket end insert by a regional notification center
pursuant to Section 4216.2. For purposes of this section, “state
agency” means every state agency, department, division, bureau,
board, or commission, including the Department of Transportation.

(b) This article does not exempt any person or corporation from
Sections 7951, 7952, and 7953 of the Public Utilities Code.

SEC. 13.  

Section 4216.10 is added to the Government Code,
to read:

4216.10.  

(a) On or before January 1, 2017, the Occupational
Safety and Health Standards Board shall revise subdivision (b) of
Section 1541 of Title 8 of the California Code of Regulations to
clarify best practices to be used by excavators when excavating
near subsurface installations.

(b) The board shall convene an advisory committee hearing to
seek input from operators, regional notification centers, labor, and
excavators on best practices to be used by excavators when
excavating in urban areas where there is a high density of
subsurface installations, the appropriate frequency of potholing,
and other best practices developed by various industry associations,
including the Common Ground Alliance.

SEC. 14.  

Section 4216.11 is added to the Government Code,
to read:

4216.11.  

(a) The California Underground Facilities Safe
Excavation Authority is hereby created.

(b) The authority shall enforce this article and further its
purposes, and thus has the same powers as are conferred upon
heads of departments of the state by Article 1 (commencing with
Section 11150) of Chapter 2 of Part 1 of Division 3 of Title 2 in
the Government Code. Notwithstanding Section 11152, the
authority shall not adopt rules or regulations.

(c) The authority may hold hearings and conduct any
investigations necessary to carry out its powers and duties
prescribed by this article and, for those purposes, has the same
powers as are conferred upon heads of departments of the state by
Article 2 (commencing with Section 11180) of Chapter 2 of Part
1 of Division 3 of Title 2.

SEC. 15.  

Section 4216.12 is added to the Government Code,
to read:

4216.12.  

(a) The authority shall be composed of nine members,
of which seven shall be appointed by the Governor, one shall be
appointed by the Speaker of the Assembly, and one shall be
appointed by the Senate Committee on Rules.

(b) The seven members appointed by the Governor shall be
appointed, as follows:

(1) Three members shall have knowledge and expertise in
managing underground. Of those three members, one shall have
knowledge and expertise in managing the underground institutions
of a municipal utility.

(2) Two members shall have knowledge and expertise in contract
excavation.

(3) One member shall have knowledge and expertise in
subsurface installation location and marking.

(4) One member shall have knowledge and expertise in operating
a regional notification center.

(c) The member appointed by the Speaker of the Assembly shall
have knowledge and expertise in representing in safety matters
the workers employed by contract excavators.

(d) The member appointed by the Senate Committee on Rules
shall have knowledge and expertise in managing the underground
installations on one’s own property, and may be drawn from
agricultural, commercial, or residential, or other, property sectors.

SEC. 16.  

Section 4216.13 is added to the Government Code,
to read:

4216.13.  

(a) The term of a member of the authority is two
years. Of the first members of the authority, four members,
determined by lot, shall serve for one year so that the terms of the
members shall be staggered.

(b) A member shall not be appointed for more than two
consecutive full terms.

(c) To the extent possible, the Governor shall fill any vacancy
in the membership of the authority within 60 days after the vacancy
occurs.

(d) Upon the recommendation of the authority, the Governor
may remove a member appointed by the Governor for
incompetence or misconduct.

SEC. 17.  

Section 4216.14 is added to the Government Code,
to read:

4216.14.  

(a) The authority shall select a chairperson from
among its members at the first meeting of each calendar year or
when a vacancy in the chair exists.

(b) Subject to subdivision (c), the manner in which the
chairperson is selected and the chairperson’s term of office shall
be determined by the authority.

(c) A member of the authority shall not serve more than two
consecutive years as the chairperson of the authority.

SEC. 18.  

Section 4216.15 is added to the Government Code,
to read:

4216.15.  

The authority shall meet at least once every three
months. The authority shall hold meetings in Sacramento and Los
Angeles, and in other locations in the state it deems necessary.

SEC. 19.  

Section 4216.16 is added to the Government Code,
to read:

4216.16.  

(a) In addition to other powers specified in this article,
the authority may do any of the following:

(1) Apply for and accepts grants, contributions, and
appropriations, and award grants consistent with the goals and
objectives of a program or activity the authority is authorized to
implement or administer.

(2) Contract for professional services if the work or services
cannot be satisfactorily performed by its employees or by any other
state agency.

(3) Sue and be sued.

(4) Request and utilize the advice and services of all federal,
state, local, and regional agencies.

(5) Conduct public education and outreach programs consistent
with this article, promote the development of safety procedures
for excavation and demolition projects constructed in the area of
underground facilities, or make grants to local governments or
private entities to do so.

(b) Notwithstanding Section 11152, the authority shall not adopt
rules or regulations.

SEC. 20.  

Section 4216.17 is added to the Government Code,
to read:

4216.17.  

The authority may obtain funding for its operational
expenses from:

(a) A federal or state grant.

(b) A fee charged to members of the regional notification centers
not to exceed the reasonable regulatory cost incident to enforcement
of this article.

(c) A fine assessed pursuant to Section 4216.19.

(d) A filing or administrative fee to hear a complaint pursuant
to Section 4216.19.

(e) Any other source.

SEC. 21.  

Section 4216.18 is added to the Government Code,
to read:

4216.18.  

In the enforcement of this article, and furtherance of
its purposes, the authority may authorize staff to use compliance
audits, including field audits, and investigations of incidents and
near-misses.

SEC. 22.  

Section 4216.19 is added to the Government Code,
to read:

4216.19.  

(a) After providing opportunity for hearing pursuant
to the Administrative Procedures Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of Title 2), the
authority, upon making a finding of violation, may:

(1) Assess a civil penalty of no more than ____ dollars ($____).

(2) Reach a settlement in lieu of assessing a civil penalty.

(3) Require remedial education relevant to the violation.

(b) The authority may do both of the following:

(1) Use the services of a third party to collect civil penalties.

(2) If the authority determines that an individual cannot afford
to pay a penalty imposed pursuant to this section, the authority
may exempt the individual from payment of the penalty in whole
or in part.

SEC. 23.  

Section 4216.20 is added to the Government Code,
to read:

4216.20.  

(a) A person aggrieved by a decision of the authority
may, within 30 days after receiving the decision, request judicial
review of the decision in superior court.

(b) In accordance with the judicial review and appeals process
under the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2), the court
shall hear and determine all matters connected with the decision
of the authority for which judicial review is requested.

(c) (1) Except as provided in paragraph (2), the cost of the
judicial review, including the cost of preparing a record and
transcript, shall be paid by the party filing the request for judicial
review.

(2) If the party filing the request for judicial review prevails,
the court may require that the cost of the judicial review, including
the cost of preparing a record and transcript, be paid by the
authority, unless the authority waives the award of attorney’s fees.

SEC. 24.  

Section 4216.21 is added to the Government Code,
to read:

4216.21.  

(a) Notwithstanding Section 10231.5, the authority
shall report to the Governor and the Legislature on or before
January 1, 2017, and each year thereafter, on the activities of the
authority and any recommendations of the authority.

(b) A report to be submitted pursuant to subdivision (a) shall
be submitted in compliance with Section 9795.