Amended in Senate April 20, 2015

Amended in Senate April 6, 2015

Senate Bill No. 119

Introduced by Senator Hill

January 14, 2015

An act to add Section 7110.7 to the Business and Professions Code, to amend Sections 4216, 4216.1, 4216.2, 4216.3, 4216.4, 4216.5, 4216.6, 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, and to amend Section 1702.5 of, and to add Section 320.5 to, the Public Utilities Code, relating to excavations.

LEGISLATIVE COUNSEL’S DIGEST

SB 119, as amended, 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 pipeline, conduit, duct, wire, or other begin delete structure, except nonpressurized sewer lines, storm drains, or other drain lines. end delete begin insert structure. end insert 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 begin delete instead define end delete begin insert expand the definition of end insert a subsurface begin delete installation as end delete begin insert installation, to include end insert an underground begin insert structure end insert or submerged duct, pipeline, or begin delete structure end delete begin insert structure, except as specified end insert . 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, before the legal start date and time of the excavation, to locate and field mark, within the area delineated for excavation, its subsurface installations. 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 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.

begin delete

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.

end delete

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.

begin insert

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.

end insert

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 create the Safe Energy Infrastructure and Excavation Fund in the State Treasury and would provide that moneys deposited into the fund are to be used to cover the administrative expenses of the authority, upon appropriation by the Legislature. The bill would authorize the commission to use excess moneys in the fund for specified purposes relating to the safety of underground utilities, upon appropriation by the Legislature.

Existing law requires the Public Utilities Commission to develop and implement a safety enforcement program that is applicable to gas corporations and electrical corporations and that includes procedures for monitoring, data tracking and analysis, and investigations, as well as issuance of citations by commission staff, under the direction of the executive director of the commission, for correction and punishment of safety violations. That law requires the commission to develop and implement an appeals process to govern issuance and appeal of citations, or resolution of corrective action orders. That law requires the commission to implement the safety enforcement program for gas safety by July 1, 2014, and for electrical safety by January 1, 2015.

This bill would require that moneys collected as a result of the issuance of citations to gas corporations and electrical corporations pursuant to the above-described law be deposited in the Safe Energy Infrastructure and Excavation Fund.

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) Electronic positive response is a means to communicate the
status of responses to an excavator’s notice of excavation via the
one-call center and provides the safety benefit that an excavator
has an easy means to know whether or not all of the utilities within
the excavation area have marked their underground facilities.

(d) 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.

(e) Continuing an excavation after an excavation “ticket” has
expired does not promote safety, and excavators should renew
their ticket with the one-call center before expiration. Continuing
excavation when markings are no longer visible does not promote
safety, and excavators should stop work until the subsurface
installations are remarked.

(f) 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.

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

(h) Construction sites often have many parties conducting
different, ongoing work, and so the inherent safety risks associated
with that work can be increased by a failure of these parties to
effectively communicate. Excavators, operators of subsurface
facilities, and locators have a responsibility to communicate with
other parties before entering these worksites, which may require
advance schedule coordination, and also have a responsibility to
observe the safety requirements set for those worksites.

(i) Abandoned subsurface installations can be mistaken for
active subsurface installations that are marked, and thus present a
safety risk to excavators and the public. Safety will be improved
if subsurface facility operators identify these subsurface
installations when their existence is known.

(j) 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.

(k) Failure by an operator of subsurface facilities to mark the
facilities within the required two-working-day period is a serious
breach of duty.

(l) While a utility operator has two working days after an
excavator‘s call to the one-call center to mark its underground
facilities, failure of that utility to do so does not relieve the
excavator of the safety responsibility to wait until the utility
operator has marked before commencing excavation.

(m) 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.

(n) 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.

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

(p) 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.

begin delete

(q) 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.

end delete begin delete

(r)

end delete

begin insert (q) end insert  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.

begin delete

(s)

end delete

begin insert (r) end insert  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.

begin delete

(t)

end delete

begin insert (s) end insert  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.

begin delete

(u)

end delete

begin insert (t) end insert  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.

begin delete

(v)

end delete

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

begin delete

(w)

end delete

begin insert (v) end insert  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.

begin delete

(x)

end delete

begin insert (w) end insert  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.

begin delete

(y)

end delete

begin insert (x) end insert  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.

begin delete

(z)

end delete

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

begin delete

(aa)

end delete

begin insert (z) end insert  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 field 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:

(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.

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

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

(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.

(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.

(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.

(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.

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

(h) 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 performs any excavation.

(i) “Hand tool” means a piece of equipment used for excavating
that uses human power and is not powered by any motor, engine,
hydraulic, or pneumatic device.

(j) “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.

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

(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.

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

(l) “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.

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

(n) (1) “Locate and field mark” means to indicate the existence
of any owned or maintained subsurface installations by using the
guidelines in Appendix B of the “Guidelines for Operator’s Facility
Field 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.

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

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

(p) “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.

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

(r) “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.

(s) “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 locators training
guidelines and practices published in Best Practices Version 11.0
by the Common Ground Alliance.

(t) “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.

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

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

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

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

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

(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.

(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.

(y) “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 holidays and state
holidays, as defined in Section 19853 of the Government Code.

SEC. 4.  

Section 4216.1 of the Government Code is amended
to read:

4216.1.  

Every operator of a subsurface installation 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, 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:

4216.2.  

(a) 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 may, at the operator’s discretion, choose not to locate
and field mark until the area to be excavated has been delineated.

(b) 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.

(c) 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, 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.

(d) Except in an emergency, every excavator covered by Section
4216.8 planning to conduct an excavation on private property that
does not require an excavation permit 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. 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.

(e) 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.

(f) The regional notification center shall provide a ticket 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. 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.

(g) A record of all notifications by an excavator or operator 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.

(h) Unless an emergency exists, 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.

(i) 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.

(j) 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.

(k) 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.

SEC. 6.  

Section 4216.3 of the Government Code is amended
to read:

4216.3.  

(a) (1) (A)  Unless the excavator and operator
mutually agree to a later start date and time, or otherwise agree to
the sequence and timeframe in which the operator will locate and
field mark, an operator shall do one of the following before the
legal excavation start date and time:

(i) Locate and field mark within the area delineated for
excavation and, where multiple subsurface installations of the same
type are known to exist together, mark the number of subsurface
installations.

(ii) To the extent and degree of accuracy that the information
is available, provide information to an excavator where the
operator’s active or inactive subsurface installations are located.

(iii) Advise the excavator it operates no subsurface installations
in the area delineated for excavation.

begin delete

(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 delete begin delete

(C)

end delete

begin insert (B) end insert  An operator shall mark newly installed subsurface
installations in areas with continuing excavation activity.

begin delete

(D)

end delete

begin insert (C) end insert  An operator shall indicate with an “A” inside a circle the
presence of any abandoned subsurface installations within the
delineated area. There shall be no liability associated with marking
abandoned subsurface installations. The markings are to make an
excavator aware that there are abandoned subsurface installations
within that delineated work area.

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

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

(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 subsurface installations shall be kept
beginning on January 1, 2016.

(b) 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.

(c) 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.

(d) The excavator shall notify the appropriate regional
notification center of the failure of an operator to identify
subsurface installations pursuant to subparagraph begin delete (A), (B), or (C) end delete
begin insert (A) or (B) end insert of paragraph (1) of subdivision (a), or subdivision (b).
The notification shall include the ticket 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 (h) of Section
4216.2.

(e) 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 operator 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.

(f) 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.

SEC. 7.  

Section 4216.4 of the Government Code is amended
to read:

4216.4.  

(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.

(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.

(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.

(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. 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. The regional notification center
shall provide the excavator with the contact telephone 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
immediately, the excavator shall call 911 emergency services.

(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.

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 that own or operate subsurface installations.
A local agency that 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 that issued the permit
to excavate, for the enforcement of the civil penalty pursuant to
this 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. 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) The requirements of this article may also be enforced as
follows:

(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.

(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.

(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.

(d) 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.

(e) For purposes of subdivision (d), 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 Best
Practices Version 11.0 by the Common Ground Alliance.

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 before 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.

(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.

(c) If an operator of a subsurface installation has failed to
comply with the provisions of Section 4216.3, including, but not
limited to, the requirement to field mark the appropriate location
of subsurface installations within two working days of notification,
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,
including liquidated damages, liability, losses, 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.

(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.

(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.

(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.

(g) 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 either of the following
persons:

(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 hand tools for excavation.

(b) 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) A permit to excavate issued by any local agency,
as defined in Section 4216, or any state agency, shall not be valid
unless the applicant has been provided an initial ticket 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 adjudication provisions of the Administrative
Procedure 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 1140), and Chapter 5 (commencing with Section
11500), 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.

SEC. 25.  

Section 320.5 is added to the Public Utilities Code,
to read:

320.5.  

(a) The Safe Energy Infrastructure and Excavation Fund
is hereby established in the State Treasury. Moneys deposited into
the fund shall be used to cover the administrative expenses of the
California Underground Facilities Safe Excavation Authority, upon
appropriation by the Legislature.

(b) Any excess moneys in the fund that are not necessary for
the administrative expenses of the California Underground
Facilities Safe Excavation Authority may, upon appropriation by
the Legislature, be apportioned by the commission for the following
purposes:

(1) The California Underground Facilities Safe Excavation
Authority, for the purpose of the education and training of persons
who violate Article 2 (commencing with Section 4216) of Chapter
3.1 of Division 5 of Title 1 of the Government Code.

(2) Regional notification centers, as defined in Section 4216 of
the Government Code, to cover the cost of public education and
outreach programs designed to promote excavation safety around
underground facilities.

(3) The commission, to further a workforce development
program, which shall be consistent with its equal employment
opportunity program, that recruits and trains safety staff to perform
the highest quality gas and electric utility inspections, audits,
accident investigations, and data tracking and analysis. The
commission may only apportion moneys for this purpose upon
commission approval of the workforce development program at a
meeting of the commission.

SEC. 26.  

Section 1702.5 of the Public Utilities Code is
amended to read:

1702.5.  

(a) The commission shall, in an existing or new
proceeding, develop and implement a safety enforcement program
applicable to gas corporations and electrical corporations that
includes procedures for monitoring, data tracking and analysis,
and investigations, as well as issuance of citations by commission
staff, under the direction of the executive director. The enforcement
program shall be designed to improve gas and electrical system
safety through the enforcement of applicable law, or order or rule
of the commission related to safety using a variety of enforcement
mechanisms, including the issuance of corrective actions, orders,
and citations by designated commission staff, and recommendations
for action made to the commission by designated commission staff.

(1) When considering the issuance of citations and assessment
of penalties, the commission staff shall take into account voluntary
reporting of potential violations, voluntary removal or resolution
efforts undertaken, the prior history of violations, the gravity of
the violation, and the degree of culpability.

(2) The procedures shall include, but are not limited to,
providing notice of violation within a reasonable period of time
after the discovery of the violation.

(3) The commission shall adopt an administrative limit on the
amount of monetary penalty that may be set by commission staff.

(b) The commission shall develop and implement an appeals
process to govern the issuance and appeal of citations or resolution
of corrective action orders issued by the commission staff. The
appeals process shall provide the respondent a reasonable period
of time, upon receiving a citation, to file a notice of appeal, shall
afford an opportunity for a hearing, and shall require the hearing
officer to expeditiously provide a draft disposition.

(c) The commission shall, within a reasonable time set by the
commission, conclude a safety enforcement action with a finding
of violation, a corrective action order, a citation, a determination
of no violation, approval of the corrective actions undertaken by
the gas corporation or electrical corporation, or other action. The
commission may institute a formal proceeding regarding the alleged
violation, potentially resulting in additional enforcement action,
regardless of any enforcement action taken at the commission staff
level.

(d) The commission shall implement the safety enforcement
program for gas safety by July 1, 2014, and implement the safety
enforcement program for electrical safety no later than January 1,
2015.

(e) This section does not apply to an exempt wholesale
generator, a qualifying small power producer, or qualifying
cogenerator, as defined in Section 796 of Title 16 of the United
States Code and the regulations enacted pursuant thereto. Nothing
in this section affects the commission’s authority pursuant to
Section 761.3.

(f) Moneys collected as a result of the issuance of citations
pursuant to this section shall be deposited in the Safe Energy
Infrastructure and Excavation Fund.