BILL NUMBER: SB 119 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 20, 2015
AMENDED IN SENATE APRIL 6, 2015
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 structure, except nonpressurized sewer
lines, storm drains, or other drain lines. structure.
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 expand the definition of a subsurface
installation as installation, to include
an underground structure or submerged duct,
pipeline, or structure structure, except as
specified . 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.
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.
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 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.
(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.
(r)
(q) 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.
(s)
(r) 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.
(t)
(s) 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.
(u)
(t) 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.
(v)
(u) Other states have experienced a dramatic
improvement in safety after implementing centralized administrative
enforcement of one-call laws.
(w)
(v) 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.
(x)
(w) 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.
(y)
(x) 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.
(z)
(y) To preserve due process, the superior court should
be available to an aggrieved party as a forum in which to challenge a
board decision.
(aa)
(z) 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 structure.
structure, except nonpressurized sewerlines,
nonpressurized storm drains, or other nonpressurized drain lines.
(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.
(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.
(C)
(B) An operator shall mark newly installed subsurface
installations in areas with continuing excavation activity.
(D)
(C) 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 (A), (B),
or (C) (A) or (B) 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.