BILL NUMBER: SB 661 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 15, 2016
AMENDED IN ASSEMBLY JUNE 28, 2016
AMENDED IN SENATE JANUARY 4, 2016
AMENDED IN SENATE APRIL 13, 2015
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, 4216.8, and 4216.9 of, and
to add Sections 4216.12, 4216.13, 4216.14, 4216.15, 4216.16,
4216.17, 4216.18, 4216.19, 4216.20, 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 Marshall. Marshal. The
bill would require the board to coordinate education and outreach
activities, develop standards, and investigate violations
of, 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 bill would authorize the
board, to the extent that resources allow, commencing on
bill, commencing January 1, 2018, to use
compliance audits in furthering the purposes of these provisions.
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. The bill would require the advisory
committee board to conduct
convene 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
for 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.
The contact information for operators notified shall
be available to the excavator.
(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. As part of the meeting, the
excavator shall discuss with the operator the method and tools that
will be used during the excavation. 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)
(e) 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.
(g)
(f) 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)
(g) 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)
(h) 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)
(i) 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) Every Commencing January 1,
2018, 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.
available to the excavator.
(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 (h)
(f) 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) (1) 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. 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.
(2) An excavator shall call 911 emergency services upon
discovering or causing damage to either of the following:
(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.
(B) A high priority subsurface installation of any kind.
(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 subdivision subdivisions
(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 (y)
(m) 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 Marshall.
Marshal.
(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) 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 The
board shall annually convene a meeting 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.
for the following purposes:
(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.
(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.
(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).
(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.
(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
(c) Upon appropriation by the
Legislature, the board shall grant the use of the moneys in the
Safe 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, such as including, but
not limited to, 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, such as including, but not
limited to , 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 best practices Best Practices
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.
(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:
(1) The type of violation and its gravity.
(2) The degree of culpability.
(3) The operator's or excavator's history of violations.
(4) The operator's or excavator's history of work conducted
without violations.
(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.
(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.
(c)
(b) 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 advisory committee board
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.
(d)
(c) 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.
(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.
(c)
(d) 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.
(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.
(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.
(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:
(1) The type of violation and its gravity.
(2) The degree of culpability.
(3) The operator's or excavator's history of violations.
(4) The operator's or excavator's history of work conducted
without violations.
(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.
(e)
(g) This section shall become operative on January 1,
2018.
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.
SEC. 20. SEC. 19. 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 120 days 6 months 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.
SEC. 21. SEC. 20. 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.
SEC. 22. SEC. 21. 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.
SEC. 23. SEC. 22. 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.