Amended in Assembly August 15, 2016

Amended in Assembly June 28, 2016

Amended in Senate January 4, 2016

Amended in Senate April 13, 2015

Senate Bill No. 661

Introduced by Senator Hill

February 27, 2015

An act to amend Sections 4216, 4216.1, 4216.2, 4216.3, 4216.4, 4216.5, 4216.6, 4216.7, begin delete 4216.8, end delete and 4216.9 of, and to add Sections 4216.12, 4216.13, 4216.14, 4216.15, 4216.16, 4216.17, 4216.18, 4216.19, begin delete 4216.20, end delete 4216.21, 4216.22, 4216.23, and 4216.24 to, the Government Code, relating to excavations.

LEGISLATIVE COUNSEL’S DIGEST

SB 661, as amended, Hill. Protection of subsurface installations.

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. 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, the Dig Safe Act of 2016, would define “working day” for purposes of determining excavation start date and time in the context of these provisions.

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 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 gas corporations, electrical corporations, water corporations, and operators of hazardous liquid pipeline facilities, as specified. The bill would also authorize a local governing board to enforce these provisions on local agencies under its jurisdiction.

This bill would create the California Underground Facilities Safe Excavation Board under, and assisted by the staff of, the Office of the State Fire begin delete Marshall. end delete begin insert Marshal. end insert The bill would require the board to coordinate education and outreach activities, develop standards, begin delete and investigate violations of, end delete and enforce, as specified, the provisions described above. The bill would also authorize the board to prescribe rules and regulations as may be necessary or proper to carry out the purposes of these provisions and to exercise the power and duties conferred upon it.

The board would be composed of 9 members who would serve 4-year terms, and 2 nonvoting ex officio members who may be invited by the appointed members of the board. The begin delete bill would authorize the board, to the extent that resources allow, commencing on end delete begin insert bill, commencing end insert January 1, 2018, begin delete to use compliance audits in furthering the purposes of these provisions. end delete begin insert would require the board to investigate possible violations of the provisions described above, and would authorize the board to transmit the investigation results and any recommended penalty to the state or local agency with jurisdiction over the activity or business undertaken in the commission of the violation, as specified. end insert The bill would require the begin delete advisory committee end delete begin insert board end insert to begin delete conduct end delete begin insert convene end insert an annual meeting and, on or before February 1, 2018, 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, upon appropriation by the Legislature, to cover the operational expenses of the board and begin insert for end insert educational and outreach purposes, except as specified.

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.  

This act shall be known, and may be cited, as the
Dig Safe Act of 2016.

SEC. 2.  

Section 4216 of the Government Code is amended to
read:

4216.  

As used in this article the following definitions apply:

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

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

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

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

(e) “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.

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

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

(h) “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.

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

(j) “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.

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

(l) “Subsurface installation” means any underground pipeline,
conduit, duct, wire, or other structure, except nonpressurized
sewerlines, nonpressurized storm drains, or other nonpressurized
drain lines.

(m) “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, or as otherwise posted on
the Internet Web site of the regional notification center.

SEC. 3.  

Section 4216.1 of the Government Code is amended
to read:

4216.1.  

Every operator of a subsurface installation, except the
Department of Transportation, 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. 4.  

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. However, an excavator
and an operator may mutually agree to a different notice and start
date. begin insert end insert begin insert The contact information for operators notified shall be
available to the excavator. end insert

(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. begin insert end insert begin insert As part of the meeting, the
excavator shall discuss with the operator the method and tools
that will be used during the excavation. end insert 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.

begin delete

(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)

end delete

begin insert (e) end insert  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 renew the ticket either by accessing the
center’s Internet Web site or by calling “811” by the end of the
28th day.

begin delete

(g)

end delete

begin insert (f) end insert  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.

begin delete

(h)

end delete

begin insert (g) end insert  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.

begin delete

(i)

end delete

begin insert (h) end insert  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.

begin delete

(j)

end delete

begin insert (i) end insert  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.

SEC. 5.  

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 newly installed subsurface
installations in areas with continuing excavation activity.

(C) An operator shall indicate with an “A” inside a circle the
presence of any abandoned subsurface installations, if known,
within the delineated area. 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.
Commencing January 1, 2017, records on abandoned subsurface
installations, to the extent that those records exist, shall be retained.

(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 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. 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)  begin delete Every end delete begin insert Commencing January 1, 2018, every end insert 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

begin delete available. end delete begin insert available to the excavator. end insert

(d) The excavator shall notify the appropriate regional
notification center of the failure of an operator to identify
subsurface installations pursuant to subparagraph (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 begin delete (h) end delete begin insert (f) end insert 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.

SEC. 6.  

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 tolerance zone of a subsurface installation,
the excavator shall determine the exact location of the subsurface
installations in conflict with the excavation using hand tools before
using any power-driven excavation or boring equipment within
the tolerance zone of the subsurface installations. In all cases the
excavator shall use reasonable care to prevent damaging subsurface
installations.

(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.

(3) An excavator shall presume all subsurface installations to
be active, and shall use the same care around subsurface
installations that may be inactive as the excavator would use around
active subsurface installations.

(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)  begin insert (1) end insert begin insert   end insert 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. begin delete If high priority subsurface
installations are damaged and the operator cannot be contacted
immediately, the excavator shall call 911 emergency services. end delete begin insert If
the operator is unknown and the damage or discovery of damage
occurs outside the working hours of the regional notification
center, the excavator may follow the instructions provided by the
regional notification center through its Internet web site or the
telephone line recorded message. end insert

begin insert

(2) An excavator shall call 911 emergency services upon
discovering or causing damage to either of the following:

end insert begin insert

(A) A natural gas or hazardous liquid pipeline subsurface
installation in which the damage results in the escape of any
flammable, toxic, or corrosive gas or liquid.

end insert begin insert

(B) A high priority subsurface installation of any kind.

end insert

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

SEC. 7.  

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,
except as otherwise provided in Section 4216.1. 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. 8.  

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 in a civil action brought in the name of the people of
the State of California. 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
following a recommendation of the California Underground
Facilities Safe Excavation Board by the following agencies, that
shall act to accept, amend, or reject the recommendations of the
board as follows:

(1) The Registrar of Contractors of the Contractors’ State
License Board shall enforce the provisions of this article on
contractors, as defined in Article 2 (commencing with Section
7025) of Chapter 9 of Division 3 of the Business and Professions
Code.

(2) The Public Utilities Commission shall enforce the provisions
of this article on gas corporations, as defined in Section 222 of the
Public Utilities Code, and electrical corporations, as defined in
Section 218 of the Public Utilities Code, and water corporations,
as defined in Section 241 of the Public Utilities Code.

(3) The Office of the State Fire Marshal shall enforce the
provisions of this article on operators of hazardous liquid pipeline
facilities, as defined in Section 60101 of Chapter 601 of Subtitle
VIII of Title 49 of the United States Code.

(d) A local governing board may enforce the provisions of this
article on local agencies under the governing board’s jurisdiction.

(e) The California Underground Facilities Safe Excavation
Board shall enforce the provisions of this article on persons other
than those listed in begin delete subdivision end delete begin insert subdivisions end insert (c) and (d).

(f) Moneys collected as a result of penalties imposed pursuant
to subdivisions (c) and (e) shall be deposited into the Safe Energy
Infrastructure and Excavation Fund.

(g) 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.

(h) For purposes of subdivision (g), the following terms have
the following meanings:

(1) “Incident 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 the
most recent version of the Best Practices guide of the Common
Ground Alliance.

SEC. 9.  

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 subdivision (b) of Section 4216.3, 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 complied with this article to the extent damages
were proximately caused by the operator’s failure to comply with
this article.

(c) If an operator of a subsurface installation without a
reasonable basis, as determined by a court of competent
jurisdiction, 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, as defined by subdivision begin delete (y) end delete begin insert (m) end insert of
Section 4216 and subdivision (b) of Section 4216.2, has failed to
comply with subdivision (c) of Section 4216.2, or has failed to
comply with subdivision (b) of Section 4216.4, the operator shall
be liable for damages to the excavator who has complied with
Section 4216.2, subdivisions (b) and (d) of Section 4216.3, and
Section 4216.4, including liquidated damages, liability, losses,
costs, and expenses, actually incurred by the excavator, 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.

This section is not intended to create any presumption or to affect
the burden of proof in any action for personal injuries or property
damage, other than damage to the subsurface installation, nor is
this section intended to affect, create, or eliminate any remedy for
personal injury or property damage, other than damage to the
subsurface installation.

(e) 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.

(f) 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. 10.  

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. 11.  

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

4216.12.  

(a) The California Underground Facilities Safe
Excavation Board is hereby created under, and shall be assisted
by the staff of, the Office of the State Fire begin delete Marshall. end delete begin insert Marshal. end insert

(b) The board shall perform the following tasks:

(1) Coordinate education and outreach activities that encourage
safe excavation practices, as described in Section 4216.17.

(2) Develop standards, as described in Section 4216.18.

(3) Investigate possible violations of this article, as described
in Section 4216.19.

(4) Enforce this article to the extent authorized by subdivision
(e) of Section 4216.6.

(c) Notwithstanding any other law, on and after January 1, 2019,
the board shall be subject to review by the appropriate policy
committees of the Legislature.

SEC. 12.  

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

4216.13.  

(a) The board 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 the
operation of subsurface installations. Of those three members, one
shall have knowledge and expertise in the operation of the
subsurface installations of a municipal utility. At least one of the
three members shall have knowledge and experience in the
operation of high priority subsurface installations.

(2) Three members shall have knowledge and experience in
contract excavation for employers who are not operators of
subsurface installations. Of the three members, one member shall
be a general engineering contractor, one member shall be a general
building contractor, and one member shall be a specialty contractor.
For the purposes of this section, the terms “general engineering
contractor,” “general building contractor,” and “specialty
contractor” shall have the meanings given in Article 4
(commencing with Section 7055) of Chapter 9 of Division 3 of
the Business and Professions Code.

(3) One member shall have knowledge and expertise in
subsurface installation location and marking, and shall not be under
the direct employment of an operator.

(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.

(e) The board may invite two directors of operations of regional
notification centers to be nonvoting ex officio members of the
board.

SEC. 13.  

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

4216.14.  

(a) The term of a member of the board is four years.
Of the first members of the board, four members, determined by
lot, shall serve for two years 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 appointing power shall fill any
vacancy in the membership of the board within 60 days after the
vacancy occurs.

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

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

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

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

SEC. 14.  

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

4216.15.  

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

SEC. 15.  

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

4216.16.  

The board 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. Revenues derived from the imposition of this fee
shall be deposited in the Safe Energy Infrastructure and Excavation
Fund.

(c) Any other source.

SEC. 16.  

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

4216.17.  

(a)  begin delete In order to understand the needs for education
and outreach, including those groups with the highest awareness
and education needs, such as homeowners, and to facilitate
discussion on how to coordinate those efforts, the end delete begin insert The end insert board shall
annually convene a meeting begin delete with state and local government
agencies, California operators, regional notification centers, and
trade associations that fund outreach and education programs that
encourage safe excavation practices. end delete begin insert for the following purposes: end insert

begin insert

(1) To understand the existing needs for education and outreach,
including to those groups with the highest awareness and education
needs, including, but not limited to, homeowners.

end insert begin insert

(2) To facilitate discussion on how to coordinate existing
education and outreach efforts with state and local government
agencies, California operators, regional notification centers, and
trade associations that fund outreach and education programs
that encourage safe excavation practices.

end insert begin insert

(3) To determine the areas in which additional education and
outreach efforts may be targeted through use, upon appropriation
by the Legislature, of the moneys in the Safe Energy Infrastructure
and Excavation Fund pursuant to subdivision (c).

end insert begin insert

(b) In addition to state and local government agencies,
California operators, regional notification centers, and trade
associations that fund outreach and education programs that
encourage safe excavation practices, the meeting pursuant to
subdivision (a) shall include representatives of groups that may
be the target of those outreach and education efforts.

end insert begin delete

(b) The board shall use the annual meeting described in
subdivision (a) to determine the areas in which additional education
and outreach efforts should be targeted. Upon appropriation

end delete

begin insert (c) end insert begin insert   end insert begin insert Upon appropriation end insert by the Legislature, the board shall grant
the use of the moneys in the begin insert Safe end insert Energy Infrastructure and
Excavation Fund to fund public education and outreach programs
designed to promote excavation safety around subsurface
installations and targeted towards specific excavator groups, giving
priority to those with the highest awareness and education needs,
begin delete such as end delete begin insert including, but not limited to, end insert homeowners.

SEC. 17.  

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

4216.18.  

The board shall develop a standard or set of standards
relevant to safety practices in excavating around subsurface
installations and procedures and guidance in encouraging those
practices. When possible, standards should be informed by publicly
available data, begin delete such as end delete begin insert including, but not limited to end insert begin insert , end insert that collected
by state and federal agencies and by the regional notification
centers pursuant to subdivision (g) of Section 4216.6, and the board
should refrain from using data about facility events not provided
either to a state or federal agency or as statewide information, as
defined in paragraph (2) of subdivision (h) of Section 4216.6. The
standard or set of standards are not intended to replace other
relevant standards, including the begin delete best practices end delete begin insert Best Practices end insert of
the Common Ground Alliance, but are to inform areas currently
without established standards. The standard or set of standards
shall address all of the following:

(a) Evidence necessary for excavators and operators to
demonstrate compliance with Sections 4216.2, 4216.3, and 4216.4.

begin delete

(b) Guidance for recommended sanctions against excavators
and operators for violations of the article designed to improve
safety. Sanctions may include notification and information letters,
direction to attend relevant education, and financial penalties. The
guidance shall state the circumstances under which the
investigation and a recommendation for sanction shall be
transmitted to a state or local agency, which may include the
Attorney General or a district attorney, for enforcement pursuant
to subdivision (b) of Section 4216.20 and may allow for a decision
not to transmit if the investigation was initiated by a complaint,
the parties have settled the matter, and the advisory committee has
determined that further enforcement is not necessary as a deterrent
to maintain the integrity of subsurface installations and to protect
the safety of excavators and the public. Recommendations for
sanctions shall be graduated and shall consider all of the following:

end delete begin delete

(1) The type of violation and its gravity.

end delete begin delete

(2) The degree of culpability.

end delete begin delete

(3) The operator’s or excavator’s history of violations.

end delete begin delete

(4) The operator’s or excavator’s history of work conducted
without violations.

end delete begin delete

(5) The efforts taken by the violator to prevent violation, and,
once the violation occurred, the efforts taken to mitigate the safety
consequences of the violation.

end delete begin delete

(6) That homeowners have high awareness and education needs,
and for this reason, financial penalties shall not be recommended
except in cases in which a person’s violations have been willful,
repeated, and flagrant.

end delete begin delete

(c)

end delete

begin insert (b) end insert  What constitutes reasonable care, as required by paragraph
(1) of subdivision (a) of Section 4216.4, in using hand tools around
subsurface installations within the tolerance zone, considering the
need to balance worker safety in trenches with the protection of
subsurface installations. As part of determining reasonable care,
the begin delete advisory committee end delete begin insert board end insert shall consider the appropriate
additional excavating depth an excavator should make if either of
the following occur:

(1) The subsurface installation is delineated within the tolerance
zone but it is not in conflict with the excavation.

(2) The location of a subsurface installation is determined, but
additional subsurface installations may exist immediately below
the located subsurface installation.

begin delete

(d)

end delete

begin insert (c) end insert  What constitutes reasonable care, as required by paragraph
(1) of subdivision (a) of Section 4216.4, in grading activities on
road shoulders and dirt roads which may include standards for
potholing.

SEC. 18.  

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

4216.19.  

(a) The board shall investigate possible violations
of this article.

(b) The board may investigate reports of incident events, as
defined in paragraph (1) of subdivision (h) of Section 4216.6 and
complaints from affected parties and members of the public.

begin insert

(c) In furthering the purposes of this article, to the extent that
resources allow, the board may authorize staff allocated to it by
the Office of the State Fire Marshal to use compliance audits,
including field audits, and investigations of incidents.

end insert begin delete

(c)

end delete

begin insert (d) end insert  In determining whether to pursue an investigation, the board
shall consider whether the parties have settled the matter and
whether further enforcement is necessary as a deterrent to maintain
the integrity of subsurface installations and to protect the safety
of excavators and the public.

begin delete

(d) In furthering the purposes of this article, to the extent that
resources allow, the board may authorize staff allocated to it by
the Office of the State Fire Marshall to use compliance audits,
including field audits, and investigations of incidents and near
misses.

end delete begin insert

(e) If the board, upon the completion of an investigation, finds
a probable violation of the article, the board may transmit the
investigation results and any recommended penalty to the state or
local agency with jurisdiction over the activity or business
undertaken in commission of the violation, pursuant to subdivision
(c) of Section 4216.6, and may take action pursuant to subdivision
(e) of Section 4216.6.

end insert begin insert

(f) Sanctions shall be graduated and may include notification
and information letters, direction to attend relevant education,
and financial penalties. When considering the issuance of citations
and assessment of penalties, the board shall consider all of the
following:

end insert begin insert

(1) The type of violation and its gravity.

end insert begin insert

(2) The degree of culpability.

end insert begin insert

(3) The operator’s or excavator’s history of violations.

end insert begin insert

(4) The operator’s or excavator’s history of work conducted
without violations.

end insert begin insert

(5) The efforts taken by the violator to prevent violation and,
once the violation occurred, the efforts taken to mitigate the safety
consequences of the violation.

end insert begin delete

(e)

end delete

begin insert (g) end insert  This section shall become operative on January 1, 2018.

begin delete

SEC. 19.  

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

4216.20.  

(a) Upon the completion of an investigation of a
possible violation of this article, the board shall inform the
following parties of the result of the investigation, including any
findings of probable violation:

(1) The party or parties whose activities were the subject of the
investigation.

(2) The complainant, if the investigation was initiated because
of a complaint.

(3) Any excavator or operator whose activities or subsurface
installations were involved in the incident investigated.

(b) If the board, upon the completion of an investigation, finds
a probable violation of the article, the board may transmit the
investigation results and any recommended penalty to the state or
local agency with jurisdiction over the activity or business
undertaken in commission of the violation, pursuant to subdivision
(c) of Section 4216.6, and may take action pursuant to subdivision
(e) of Section 4216.6.

end delete

begin delete SEC. 20. end delete

begin insert SEC. 19. end insert   

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

4216.21.  

(a) For an investigation that the board undertakes as
a result of a complaint of a violation of Section 4216.2, 4216.3,
or 4216.4, the complainant shall not file an action in court for
damages based on those violations until the investigation is
complete, or for begin delete 120 days end delete begin insert 6 months end insert after the investigation begins,
whichever comes first, during which time, applicable statutes of
limitation shall be tolled.

(b) If a complainant files an action in court against a person for
damages based upon violations of Section 4216.2, 4216.3, or
4216.4, after the completion of a board investigation in which the
person was found not to have violated the article, the complainant
shall also notify the board when the action is filed.

(c) This section only applies to a claim for damages to a
subsurface installation.

begin delete SEC. 21. end delete

begin insert SEC. 20. end insert   

Section 4216.22 is added to the Government Code,
to read:

4216.22.  

Consistent with all laws of this state, the board may
prescribe rules and regulations as may be necessary or proper to
carry out the purposes and intent of this act and to exercise the
powers and duties conferred upon it by this act.

begin delete SEC. 22. end delete

begin insert SEC. 21. end insert   

Section 4216.23 is added to the Government Code,
to read:

4216.23.  

(a) Notwithstanding Section 10231.5, the board shall
report to the Governor and the Legislature on or before February
1, 2018, and each year thereafter, on the activities of the board and
any recommendations of the board.

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

begin delete SEC. 23. end delete

begin insert SEC. 22. end insert   

Section 4216.24 is added to the Government Code,
to read:

4216.24.  

The Safe Energy Infrastructure and Excavation Fund
is hereby established in the State Treasury. Moneys deposited into
the fund shall be used, upon appropriation by the Legislature, to
cover the operational expenses of the board and for the purposes
specified in subdivision (b) of Section 4216.17, except as follows:

(a) Revenues derived from penalties imposed pursuant to Section
4216.6 shall not be used for operational expenses.

(b) Revenues derived from the fee imposed pursuant to Section
4216.16 shall not be used for the purposes specified in subdivision
(b) of Section 4216.17.