Amended in Assembly August 19, 2016

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 BillNo. 661


Introduced by Senator Hill

February 27, 2015


An act to amend Sections 4216, 4216.1, 4216.2, 4216.3, 4216.4,begin delete 4216.5,end delete 4216.6, 4216.7, and 4216.9 of, and to add Sectionsbegin insert 4216.10,end insert 4216.12, 4216.13, 4216.14, 4216.15, 4216.16, 4216.17, 4216.18, 4216.19, 4216.21, 4216.22, 4216.23, and 4216.24 to, the Government Code,begin insert and to amend Section 955.5 of the Public Utilities Code,end insert 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 definebegin insert terms for its purposes, including, among others, definingend insert “working day” for purposes of determining excavation start date andbegin delete time in the context of these provisions.end deletebegin insert time.end insert

begin delete

The

end delete

begin insertThisend insert 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.begin insert The bill would, commencing November 1, 2017, establish, starting on November 1, 2017, a process for a excavator to request and obtain a continual excavation ticket for an area of continual excavation that is required to be valid for one year from the date of issuance and eligible for renewal.end insert

begin insert

This bill would amend the Natural Gas Pipeline Safety Act of 2011 to exclude from its provisions specific kinds of marking and locating of subsurface installations performed in compliance with this act.

end insert

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.

begin delete

The

end delete

begin insertThisend insert 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 Marshal. The bill would require the board to coordinate education and outreach activities, develop standards, 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, commencingbegin delete Januaryend deletebegin insert Julyend insert 1, 2018, 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 board to 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:

P3    1

SECTION 1.  

This act shall be known, and may be cited, as the
2Dig Safe Act of 2016.

3

SEC. 2.  

Section 4216 of the Government Code is amended to
4read:

5

4216.  

As used in thisbegin delete articleend deletebegin insert article,end insert the following definitions
6apply:

begin delete

7(a) “Approximate location of subsurface installations” means
8a strip of land not more than 24 inches on either side of the exterior
9surface of the subsurface installation. “Approximate location” does
10not mean depth.

end delete
begin insert

P4    1
(a) “Active subsurface installation” means a subsurface
2installation currently in use or currently carrying service.

end insert
begin insert

3
(b) “Board” means the California Underground Facilities Safe
4Excavation Board.

end insert
begin insert

5
(c) “Area of continual excavation” means a location where
6excavation is part of the normal business activities of that location,
7including, but not limited to, agricultural operations and flood
8control facilities.

end insert
begin insert

9
(d) “Delineate” means to mark in white the location or path of
10the proposed excavation using the guidelines in Appendix B of the
11“Guidelines for Excavation Delineation” published in the most
12recent version of the Best Practices guide of the Common Ground
13Alliance. If there is a conflict between the marking practices in
14those guidelines and other provisions of this article, this article
15shall control. “Delineation” also includes physical identification
16of the area to be excavated using pink marking, if an excavator
17makes a determination that standard delineation may be misleading
18to those persons using affected streets and highways, or be
19misinterpreted as a traffic or pedestrian control, and the excavator
20has contacted the regional notification center to advise the
21operators that the excavator will physically identify the area to be
22excavated using pink markings.

end insert
begin insert

23
(e) “Electronic positive response” means an electronic response
24from an operator to the regional notification center providing the
25status of an operator’s statutorily required response to a ticket.

end insert
begin insert

26
(f) (1) “Emergency” means a sudden, unexpected occurrence,
27involving a clear and imminent danger, demanding immediate
28action to prevent or mitigate loss of, or damage to, life, health,
29property, or essential public services.

end insert
begin insert

30
(2) “Unexpected occurrence” includes, but is not limited to, a
31fire, flood, earthquake or other soil or geologic movement, riot,
32accident, damage to a subsurface installation requiring immediate
33repair, or sabotage.

end insert
begin delete

34(b)

end delete

35begin insert(g)end insert “Excavation” means any operation in which earth, rock, or
36other material in the ground is moved, removed, or otherwise
37displaced by means of tools, equipment, or explosives in any of
38the following ways: grading, trenching, digging, ditching, drilling,
39augering, tunneling, scraping, cable or pipe plowing and driving,
40or any other way.

begin delete

P5    1(c)

end delete

2begin insert(h)end insert Except as provided in Section 4216.8, “excavator” means
3any person, firm, contractor or subcontractor, owner, operator,
4utility, association, corporation, partnership, business trust, public
5agency, or other entity that, with their, or his or her, own employees
6or equipment performs any excavation.

begin delete

7(d) “Emergency” means a sudden, unexpected occurrence,
8involving a clear and imminent danger, demanding immediate
9action to prevent or mitigate loss of, or damage to, life, health,
10property, or essential public services. “Unexpected occurrence”
11includes, but is not limited to, fires, floods, earthquakes or other
12soil or geologic movements, riots, accidents, damage to a
13subsurface installation requiring immediate repair, or sabotage.

end delete
begin insert

14
(i) “Hand tool” means a piece of equipment used for excavating
15that uses human power and is not powered by any motor, engine,
16hydraulic, or pneumatic device.

end insert
begin delete

17(e)

end delete

18begin insert(j)end insert “High priority subsurface installation” means high-pressure
19natural gas pipelines with normal operating pressures greater than
20415kPA gauge (60psig), petroleum pipelines, pressurized sewage
21pipelines, high-voltage electric supply lines, conductors, or cables
22that have a potential to ground of greater than or equal to 60kv, or
23hazardous materials pipelines that are potentially hazardous to
24workers or the public if damaged.

begin delete

25(f) “Inquiry identification number” means the number that is
26provided by a regional notification center to every person who
27contacts the center pursuant to Section 4216.2. The inquiry
28identification number shall remain valid for not more than 28
29calendar days from the date of issuance, and after that date shall
30require regional notification center revalidation.

end delete
begin insert

31
(k) “Inactive subsurface installation” means either of the
32following:

end insert
begin insert

33
(1) The portion of an underground subsurface installation that
34is not active but is still connected to the subsurface installation,
35or to any other subsurface installation, that is active or still carries
36service.

end insert
begin insert

37
(2) A new underground subsurface installation that has not
38been connected to any portion of an existing subsurface
39installation.

end insert
begin insert

P6    1
(l) “Legal excavation start date and time” means two working
2days, not including the date of notification, unless the excavator
3specifies a later date and time, which shall not be more than 14
4calendar days from the date of notification. For excavation in an
5area of continual excavation, “legal excavation start date and
6time” means two working days, not including the date of
7notification, unless the excavator specifies a later date and time,
8which shall not be more than six months from the date of
9notification.

end insert
begin delete

10(g)

end delete

11begin insert(m)end insert “Local agency” means a city, county, city and county, school
12district, or special district.

begin insert

13
(n) (1)“Locate and field mark” means to indicate the existence
14of any owned or maintained subsurface installations by using the
15guidelines in Appendix B of the “Guidelines for Operator Facility
16Field Delineation” published in the most recent version of the Best
17Practices guide of the Common Ground Alliance and in
18conformance with the uniform color code of the American Public
19Works Association. If there is a conflict between the marking
20practices in the guidelines and this article, this article shall control.

end insert
begin insert

21
(2) “Locate and field mark” does not require an indication of
22the depth.

end insert
begin delete

23(h)

end delete

24begin insert(o)end insert “Operator” means any person, corporation, partnership,
25business trust, public agency, or other entity that owns, operates,
26or maintains a subsurface installation. For purposes of Section
274216.1, an “operator” does not include an owner of real property
28where subsurfacebegin delete facilitiesend deletebegin insert installationsend insert are exclusively located if
29they are used exclusively to furnish services on that property and
30the subsurface facilities are under the operation and control of that
31owner.

begin delete

32(i)

end delete

33begin insert(p)end insert “Qualified person” means a person who completes a training
34program in accordance with the requirements ofbegin delete Title 8,end deletebegin insert Section
351509 of Title 8 of theend insert
California Code ofbegin delete Regulations, Section
361509,end delete
begin insert Regulationsend insert Injurybegin insert and Illnessend insert Prevention Program, that
37meets the minimumbegin insert locatorsend insert training guidelines and practicesbegin delete of
38Common Ground Alliance current Best Practices.end delete
begin insert published in the
39most recent version of the Best Practices guide of the Common
40Ground Alliance.end insert

begin delete

P7    1(j)

end delete

2begin insert(q)end insert “Regional notification center” means a nonprofit association
3or other organization of operators of subsurface installations that
4provides advance warning of excavations or other work close to
5existing subsurface installations, for the purpose of protecting
6those installations from damage, removal, relocation, or repair.

begin delete

7(k)

end delete

8begin insert(r)end insert “State agency” means every state agency, department,
9division, bureau, board, or commission.

begin delete

10(l)

end delete

11begin insert(s)end insert “Subsurface installation” means any underground pipeline,
12conduit, duct, wire, or other structure, except nonpressurized
13sewerlines, nonpressurized storm drains, or other nonpressurized
14drain lines.

begin insert

15
(t) “Ticket” means an excavation location request issued a
16number by the regional notification center.

end insert
begin insert

17
(u) “Tolerance zone” means 24 inches on each side of the field
18marking placed by the operator in one of the following ways:

end insert
begin insert

19
(1) Twenty-four inches from each side of a single marking,
20assumed to be the centerline of the subsurface installation.

end insert
begin insert

21
(2) Twenty-four inches plus one-half the specified size on each
22side of a single marking with the size of installation specified.

end insert
begin insert

23
(3) Twenty-four inches from each outside marking that
24graphically shows the width of the outside surface of the subsurface
25installation on a horizontal plane.

end insert
begin delete

26(m)

end delete

27begin insert(v)end insert “Working day” for the purposes of determining excavation
28start date and time means a weekday Monday through Friday, from
297:00 a.m. to 5:00 p.m., except for federal holidays and state
30holidays, as defined in Section 19853, or as otherwise posted on
31the Internet Web site of the regional notification center.

32

SEC. 3.  

Section 4216.1 of the Government Code is amended
33to read:

34

4216.1.  

Every operator of a subsurface installation, except the
35Department of Transportation, shall become a member of,
36participate in, and share in the costs of, a regional notification
37center. Operators of subsurface installations who are members of,
38participate in, and share in, the costs of a regional notification
39center, including, but not limited to, the Underground Service
40Alert--Northern California or the Underground Service
P8    1Alert--Southern California are in compliance with this section
2and Section 4216.9.begin insert A regional notification center shall not charge
3a fee to a person for notifying the regional notification center to
4obtain a ticket or to renew a ticket.end insert

5

SEC. 4.  

Section 4216.2 of the Government Code is amended
6to read:

7

4216.2.  

(a) Before notifying the appropriate regional
8notification center, an excavator planning to conduct an excavation
9shall delineate the area to be excavated. If the area is not delineated,
10an operator may, at the operator’s discretion, choose not to locate
11and field mark until the area to be excavated has been delineated.

12(b) Except in an emergency, an excavator planning to conduct
13an excavation shall notify the appropriate regional notification
14center of the excavator’s intent to excavate at least two working
15days, and not more than 14 calendar days, before beginning that
16excavation. The date of the notification shall not count as part of
17the two-working-day notice. If an excavator gives less notice than
18the legal excavation start date and time and the excavation is not
19an emergency, the regional notification center will take the
20information and provide a ticket, but an operator has until the legal
21excavation start date and time to respond. However, an excavator
22and an operator may mutually agree to a different notice and start
23date. The contact information for operators notified shall be
24available to the excavator.

25(c) When the excavation is proposed within 10 feet of a high
26priority subsurface installation, the operator of the high priority
27subsurface installation shall notify the excavator of the existence
28of the high priority subsurface installationbegin delete prior to the legal
29excavation start date and time, andend delete
begin insert toend insert set up an onsite meeting
30begin insert prior to the legal excavation start date and time orend insert at a mutually
31agreed upon time to determine actions or activities required to
32verify the location and prevent damage to the high priority
33subsurface installation. As part of the meeting, the excavator shall
34discuss with the operator the method and tools that will be used
35during thebegin delete excavation.end deletebegin insert excavation and the information the operator
36will provide to assist in verifying the location of the subsurface
37installation.end insert
The excavator shall not begin excavating until after
38the completion of the onsite meeting.

39(d) Except in an emergency, every excavator covered by Section
404216.8 planning to conduct an excavation on private property that
P9    1does not require an excavation permit may contact the appropriate
2regional notification center if the private property is known, or
3reasonably should be known, to contain a subsurface installation
4other than the underground facility owned or operated by the
5excavator. Before notifying the appropriate regional notification
6center, an excavator shall delineate the area to be excavated. Any
7temporary marking placed at the planned excavation location shall
8be clearly seen, functional, and considerate to surface aesthetics
9and the local community. An excavator shall check if any local
10ordinances apply to the placement of temporary markings.

11(e) The regional notification center shall provide a ticket to the
12person who contacts the center pursuant to this section and shall
13notify any member, if known, who has a subsurface installation
14in the area of the proposed excavation. A ticket shall be valid for
1528 days from the date of issuance. If work continues beyond 28
16days, the excavator shall renew the ticket either by accessing the
17center’s Internet Web site or by calling “811” by the end of the
1828th day.

19(f) A record of all notifications by an excavator or operator to
20the regional notification center shall be maintained for a period of
21not less than three years. The record shall be available for
22inspection by the excavator and any member, or their
23representative, during normal working hours and according to
24guidelines for inspection as may be established by the regional
25notification centers.

26(g) Unless an emergency exists, an excavator shall not begin
27excavation until the excavator receives abegin delete positiveend delete response from
28all knownbegin insert operators ofend insert subsurface installations within the
29delineated boundaries of the proposed area ofbegin delete excavation.end delete
30
begin insert excavation pursuant to subdivision (a) of Section 4216.3 and until
31the completion of any onsite meeting, if required by subdivision
32(c).end insert

33(h) If a site requires special access, an excavator shall request
34an operator to contact the excavator regarding that special access
35or give special instructions on the location request.

36(i) If a ticket obtained by an excavator expires but work is
37ongoing, the excavator shall call into the regional notification
38center and get a new ticket and wait a minimum of two working
39days, not including the date of call in, before restarting excavation.
40All excavation shall cease during the waiting period.

P10   1

SEC. 5.  

Section 4216.3 of the Government Code is amended
2to read:

3

4216.3.  

(a) (1) (A) Unless the excavator and operator
4mutually agree to a later start date and time, or otherwise agree to
5the sequence and timeframe in which the operator will locate and
6field mark, an operator shall do one of the following before the
7legal excavation start date and time:

8(i) Locate and field mark within the area delineated for
9excavation and, where multiple subsurface installations of the same
10type are known to exist together, mark the number of subsurface
11installations.

12(ii) To the extent and degree of accuracy that the information
13is available, provide information to an excavator where the
14operator’s active or inactive subsurface installations are located.

15(iii) Advise the excavator it operates no subsurface installations
16in the area delineated for excavation.

17(B) An operator shall mark newly installed subsurface
18installations in areas with continuing excavation activity.

19(C) An operator shall indicate with an “A” inside a circle the
20presence of any abandoned subsurface installations, if known,
21within the delineated area. The markings are to make an excavator
22aware that there are abandoned subsurface installations within that
23delineated work area.

24(2) Only a qualified person shall perform subsurface installation
25locating activities.

26(3) A qualified person performing subsurface installation
27locating activities on behalf of an operator shall use a minimum
28of a single-frequency utility locating device and shall have access
29to alternative sources for verification, if necessary.

30(4) An operator shall amend, update, maintain, and preserve all
31plans and records for its subsurface installations as that information
32becomes known. If there is a change in ownership of a subsurface
33installation, the records shall be turned over to the new operator.
34Commencing January 1, 2017, records on abandoned subsurface
35installations, to the extent that those records exist, shall be retained.

36(b) If the field marks are no longer reasonably visible, an
37excavator shall renotify the regional notification center with a
38request for remarks that can be for all or a portion of the
39excavation. Excavation shall cease in the area to be remarked. If
40the delineation markings are no longer reasonably visible, the
P11   1excavator shall redelineate the area to be remarked. If remarks are
2requested, the operator shall have two working days, not including
3the date of request, to remark the subsurface installation. If the
4area to be remarked is not the full extent of the original excavation,
5the excavator shall delineate the portion to be remarked and provide
6a description of the area requested to be remarked on the ticket.
7The excavator shall provide a description for the area to be
8remarked that falls within the area of the original location request.

9(c) Commencing January 1, 2018, every operator may supply
10an electronic positive response through the regional notification
11center before the legal excavation start date and time. The regional
12notification center shall make those responses available to the
13excavator.

14(d) The excavator shall notify the appropriate regional
15notification center of the failure of an operator to identify
16subsurface installations pursuant to subparagraph (A) or (B) of
17paragraph (1) of subdivision (a), or subdivision (b). The notification
18shall include the ticket issued by the regional notification center.
19A record of all notifications received pursuant to this subdivision
20shall be maintained by the regional notification center for a period
21of not less than three years. The record shall be available for
22inspection pursuant to subdivision (f) of Section 4216.2.

23(e) If an operator or local agency knows that it has a subsurface
24installation embedded or partially embedded in the pavement that
25is not visible from the surface, the operator or local agency shall
26contact the excavator before pavement removal to communicate
27and determine a plan of action to protect that subsurface installation
28and excavator.

29

SEC. 6.  

Section 4216.4 of the Government Code is amended
30to read:

31

4216.4.  

(a) (1) Except as provided in paragraph (2), if an
32excavation is within the tolerance zone of a subsurface installation,
33the excavator shall determine the exact location of the subsurface
34installations in conflict with the excavation using hand tools before
35using any power-driven excavation or boring equipment within
36the tolerance zone of the subsurface installations. In all cases the
37excavator shall use reasonable care to prevent damaging subsurface
38installations.

39(2) (A) An excavator may use a vacuum excavation device to
40expose subsurface installations within the tolerance zone if the
P12   1operator has marked the subsurface installation, the excavator has
2contacted any operator whose subsurface installations may be in
3conflict with the excavation, and the operator has agreed to the
4use of a vacuum excavation device. An excavator shall inform the
5regional notification center of his or her intent to use a vacuum
6excavation device when obtaining a ticket.

7(B) An excavator may use power-operated or boring equipment
8for the removal of any existing pavement only if there is no known
9subsurface installation contained in the pavement.

10(3) An excavator shall presume all subsurface installations to
11be active, and shall use the same care around subsurface
12installations that may be inactive as the excavator would use around
13active subsurface installations.

14(b) If the exact location of the subsurface installation cannot be
15determined by hand excavating in accordance with subdivision
16(a), the excavator shall request the operator to provide additional
17information to the excavator, to the extent that information is
18available to the operator, to enable the excavator to determine the
19exact location of the installation. If the excavator has questions
20about the markings that an operator has placed, the excavator may
21contact the notification center to send a request to have the operator
22contact the excavator directly. The regional notification center
23shall provide the excavator with the contact telephone number of
24the subsurface installation operator.

25(c) (1) An excavator discovering or causing damage to a
26subsurface installation, including all breaks, leaks, nicks, dents,
27gouges, grooves, or other damage to subsurface installation lines,
28conduits, coatings, or cathodic protection, shall immediately notify
29the subsurface installation operator. The excavator may contact
30the regional notification center to obtain the contact information
31of the subsurface installation operator. If the operator is unknown
32and the damage or discovery of damage occurs outside the working
33hours of the regional notification center, the excavator may follow
34the instructions provided by the regional notification center through
35its Internet web site or the telephone line recorded message.

36(2) An excavator shall call 911 emergency services upon
37discovering or causing damage to either of the following:

38(A) A natural gas or hazardous liquid pipeline subsurface
39installation in which the damage results in the escape of any
40flammable, toxic, or corrosive gas or liquid.

P13   1(B) A high priority subsurface installation of any kind.

2(d) Each excavator, operator, or locator shall communicate with
3each other and respect the appropriate safety requirements and
4ongoing activities of the other parties, if known, at an excavation
5site.

begin delete6

SEC. 7.  

Section 4216.5 of the Government Code is amended
7to read:

8

4216.5.  

The requirements of this article apply to state agencies
9and to local agencies that own or operate subsurface installations,
10except as otherwise provided in Section 4216.1. A local agency
11that is required to provide the services described in Section 4216.3
12may charge a fee in an amount sufficient to cover the cost of
13providing that service.

end delete
14

begin deleteSEC. 8.end delete
15
begin insertSEC. 7.end insert  

Section 4216.6 of the Government Code is amended
16to read:

17

4216.6.  

(a) (1) Any operator or excavator who negligently
18violates this article is subject to a civil penalty in an amount not
19to exceed ten thousand dollars ($10,000).

20(2) Any operator or excavator who knowingly and willfully
21violates any of the provisions of this article is subject to a civil
22penalty in an amount not to exceed fifty thousand dollars ($50,000).

23(3) Except as otherwise specifically provided in this article, this
24section is not intended to affect any civil remedies otherwise
25provided by law for personal injury or for property damage,
26including any damage to subsurface installations, nor is this section
27intended to create any new civil remedies for those injuries or that
28 damage.

29(4) This article shall not be construed to limit any other provision
30of law granting governmental immunity to state or local agencies
31or to impose any liability or duty of care not otherwise imposed
32by law upon any state or local agency.

33(b) An action may be brought by the Attorney General, the
34district attorney, or the local or state agency that issued the permit
35to excavate, for the enforcement of the civil penalty pursuant to
36this section in a civil action brought in the name of the people of
37the State of California. If penalties are collected as a result of a
38civil suit brought by a state or local agency for collection of those
39civil penalties, the penalties imposed shall be paid to the general
40fund of the agency. If more than one agency is involved in
P14   1enforcement, the penalties imposed shall be apportioned among
2them by the court in a manner that will fairly offset the relative
3costs incurred by the state or local agencies, or both, in collecting
4these fees.

5(c) The requirements of this article may also be enforced
6following a recommendation of the California Underground
7Facilities Safe Excavation Board by the following agencies, that
8shall act to accept, amend, or reject the recommendations of the
9board as follows:

10(1) The Registrar of Contractors of the Contractors’ State
11License Board shall enforce the provisions of this article on
12contractors, as defined in Article 2 (commencing with Section
137025) of Chapter 9 of Division 3 of the Business and Professions
14
begin delete Code.end deletebegin insert Code, and telephone corporations, as defined in Section
15234 of the Public Utilities Code, when acting as a contractor, as
16defined in Article 2 (commencing with Section 7025) of Chapter
179 of Division 3 of the Business and Professions Code. Nothing in
18this section affects the California Public Utilities Commission’s
19existing authority over a public utility.end insert

20(2) The Public Utilities Commission shall enforce the provisions
21of this article on gas corporations, as defined in Section 222 of the
22Public Utilities Code, and electrical corporations, as defined in
23Section 218 of the Public Utilities Code, and water corporations,
24as defined in Section 241 of the Public Utilities Code.

25(3) The Office of the State Fire Marshal shall enforce the
26provisions of this article on operators of hazardous liquid pipeline
27facilities, as defined in Section 60101 of Chapter 601 of Subtitle
28VIII of Title 49 of the United States Code.

29(d) A local governing board may enforce the provisions of this
30article on local agencies under the governing board’s jurisdiction.

31(e) The California Underground Facilities Safe Excavation
32Board shall enforce the provisions of this article on persons other
33than those listed in subdivisions (c) and (d).

34(f) Moneys collected as a result of penalties imposed pursuant
35to subdivisions (c) and (e) shall be deposited into the Safe Energy
36Infrastructure and Excavation Fund.

37(g) Statewide information provided by operators and excavators
38regardingbegin delete facilityend deletebegin insert incidentend insert events shall be compiled and made
39available in an annual report by regional notification centers and
40posted on the Internet Web sites of the regional notification centers.

P15   1(h) For purposes of subdivision (g), the following terms have
2the following meanings:

3(1) “Incident event” means the occurrence of excavator
4downtime, damages, near misses, and violations.

5(2) “Statewide information” means information submitted by
6operators and excavators using the California Regional Common
7Ground Alliance’s Virtual Private Damage Information Reporting
8Tool. Supplied data shall comply with the Damage Information
9Reporting Tool’s minimum essential information as listed in the
10most recent version of the Best Practices guide of the Common
11Ground Alliance.

12

begin deleteSEC. 9.end delete
13
begin insertSEC. 8.end insert  

Section 4216.7 of the Government Code is amended
14to read:

15

4216.7.  

(a) If a subsurface installation is damaged by an
16excavator as a result of failing to comply with Section 4216.2 or
174216.4, or subdivision (b) of Section 4216.3, or as a result of failing
18to comply with the operator’s requests to protect the subsurface
19installation as specified by the operator before the start of
20excavation, the excavator shall be liable to the operator of the
21subsurface installation for resulting damages, costs, and expenses
22to the extent the damages, costs, and expenses were proximately
23caused by the excavator’s failure to comply.

24(b) If an operator has failed to become a member of, participate
25in, or share in the costs of, a regional notification center, that
26operator shall forfeit his or her claim for damages to his or her
27subsurface installation arising from an excavation against an
28excavator who has complied with this article to the extent damages
29were proximately caused by the operator’s failure to comply with
30this article.

31(c) If an operator of a subsurface installation without a
32reasonable basis, as determined by a court of competent
33jurisdiction, has failed to comply with the provisions of Section
344216.3, including, but not limited to, the requirement to field mark
35the appropriate location of subsurface installations within two
36working days of notification, as defined by subdivisionbegin delete (m)end deletebegin insert (v)end insert of
37Section 4216 and subdivision (b) of Section 4216.2, has failed to
38comply with subdivision (c) of Section 4216.2, or has failed to
39comply with subdivision (b) of Section 4216.4, the operator shall
40be liable for damages to the excavator who has complied with
P16   1Section 4216.2, subdivisions (b) and (d) of Section 4216.3, and
2Section 4216.4, including liquidated damages, liability, losses,
3costs, and expenses, actually incurred by the excavator, resulting
4from the operator’s failure to comply with these specified
5requirements to the extent the damages, costs, and expenses were
6proximately caused by the operator’s failure to comply.

7(d) An excavator who damages a subsurface installation due to
8an inaccurate field mark by an operator, or by a third party under
9contract to perform field marking for the operator, shall not be
10liable for damages, replacement costs, or other expenses arising
11from damages to the subsurface installation if the excavator
12complied with Sections 4216.2 and 4216.4.

13This section is not intended to create any presumption or to affect
14the burden of proof in any action for personal injuries or property
15damage, other than damage to the subsurface installation, nor is
16this section intended to affect, create, or eliminate any remedy for
17personal injury or property damage, other than damage to the
18subsurface installation.

19(e) For the purposes of this section, “inaccurate field mark”
20means a mark, or set of markings, made pursuant to Section 4216.3,
21that did not correctly indicate the approximate location of a
22subsurface installation affected by an excavation and includes the
23actual physical location of a subsurface installation affected by an
24excavation that should have been marked pursuant to Section
254216.3 but was not.

26(f) Nothing in this section shall be construed to do any of the
27following:

28(1) Affect claims including, but not limited to, third-party claims
29brought against the excavator or operator by other parties for
30damages arising from the excavation.

31(2) Exempt the excavator or operator from his or her duty to
32mitigate any damages as required by common or other applicable
33law.

34(3) Exempt the excavator or operator from liability to each other
35or third parties based on equitable indemnity or comparative or
36contributory negligence.

37

begin deleteSEC. 10.end delete
38
begin insertSEC. 9.end insert  

Section 4216.9 of the Government Code is amended
39to read:

P17   1

4216.9.  

(a) A permit to excavate issued by any local agency,
2as defined in Section 4216, or any state agency, shall not be valid
3unless the applicant has been provided an initial ticket by a regional
4notification center pursuant to Section 4216.2. For purposes of
5this section, “state agency” means every state agency, department,
6division, bureau, board, or commission, including the Department
7of Transportation.

8(b) This article does not exempt any person or corporation from
9Sections 7951, 7952, and 7953 of the Public Utilities Code.

10begin insert

begin insertSEC. 10.end insert  

end insert

begin insertSection 4216.10 is added to the end insertbegin insertGovernment Codeend insertbegin insert,
11to read:end insert

begin insert
12

begin insert4216.10.end insert  

(a) In lieu of the notification and locate and field
13mark requirements of Sections 4216.2 and 4216.3, an excavator
14may contact a regional notification center to request a continual
15excavation ticket for an area of continual excavation. The regional
16notification center shall provide a ticket to the person who contacts
17the center pursuant to this section and shall notify any member, if
18known, who has a subsurface installation in the area of continual
19excavation. The ticket provided to the excavator shall include the
20contact information for notified operators.

21
(b) An operator shall provide a response to the excavator
22pursuant to subdivision (a) of Section 4216.3.

23
(c) (1) When the area of continual excavation includes, or is
24within 10 feet of, a high priority subsurface installation, the
25operator of the high priority subsurface installation shall notify
26the excavator of the existence of the high priority subsurface
27installation to set up an onsite meeting prior to the legal excavation
28start date and time or at a mutually agreed upon time to determine
29actions or activities required to verify the location and to prevent
30damage to the high priority subsurface installation during the
31continual excavation time period. The onsite meeting shall be used
32to develop a mutually agreed upon plan for an area of continual
33excavation. Additional onsite meetings should also be held
34following unexpected occurrences or prior to excavation activities
35that may create conflicts with subsurface installations. As part of
36the meeting, the excavator shall discuss with the operator the
37method and tools that will be used during the excavation and the
38information the operator will provide to assist in verifying the
39location of the subsurface installation. The excavator shall not
40begin excavating until after the completion of the onsite meeting
P18   1and information has been provided describing the activities that
2can be safely conducted to prevent damage to the high priority
3subsurface installation.

4
(2) When the area of continual excavation includes a subsurface
5installation but does not include, or is not within 10 feet of, a high
6priority subsurface installation, the excavator or the operator may
7request an onsite meeting at a mutually agreed upon time to
8determine actions or activities required to verify the location and
9to prevent damage to the subsurface installation during the
10continual excavation time period. The onsite meeting may be used
11to develop a plan for an area of continual excavation. The operator
12and excavator may mutually agree to conduct additional onsite
13meetings following unexpected occurrences or prior to excavation
14activities that may create conflicts with subsurface installations.
15As part of the meeting, the excavator may discuss with the operator
16the method and tools that will be used during the excavation and
17the information the operator will provide to assist in verifying the
18location of the subsurface installation. If an onsite meeting is
19requested prior to the legal excavation start date and time, the
20excavator shall not begin excavating until after the completion of
21the onsite meeting and information has been provided describing
22the activities that can be safely conducted to prevent damage to
23the subsurface installation.

24
(3) The excavator and operator shall maintain records regarding
25the plan of excavation, any locate and field mark and standby
26activities, and any other information deemed necessary by the
27excavator and operator. Excavation activities outside the scope
28of the plan shall be undertaken subsequent to notification pursuant
29to Section 4216.2.

30
(d) A ticket for an area of continual excavation shall be valid
31for one year from the date of issuance. The excavator may renew
32the ticket within two working days either by accessing the regional
33notification center’s Internet Web site or by calling “811.”

34
(e) The board shall, in consultation with the regional notification
35centers, develop through regulation a process by which the renewal
36requirement for a continual excavation ticket may be modified or
37eliminated for areas of continual excavation in which no subsurface
38installations are present.

39
(f) This section shall become operative on November 1, 2017.

end insert
P19   1

SEC. 11.  

Section 4216.12 is added to the Government Code,
2to read:

3

4216.12.  

(a) The California Underground Facilities Safe
4Excavation Board is hereby created under, and shall be assisted
5by the staff of, the Office of the State Fire Marshal.

6(b) The board shall perform the following tasks:

7(1) Coordinate education and outreach activities that encourage
8safe excavation practices, as described in Section 4216.17.

9(2) Develop standards, as described in Section 4216.18.

10(3) Investigate possible violations of this article, as described
11in Section 4216.19.

12(4) Enforce this article to the extent authorized by subdivision
13(e) of Section 4216.6.

14(c) Notwithstanding any other law, on and after January 1, 2019,
15the board shall be subject to review by the appropriate policy
16committees of the Legislature.

17

SEC. 12.  

Section 4216.13 is added to the Government Code,
18to read:

19

4216.13.  

(a) The board shall be composed of nine members,
20of which seven shall be appointed by the Governor, one shall be
21appointed by the Speaker of the Assembly, and one shall be
22appointed by the Senate Committee on Rules.

23(b) The seven members appointed by the Governor shall be
24appointed, as follows:

25(1) Three members shall have knowledge and expertise in the
26operation of subsurface installations. Of those three members, one
27shall have knowledge and expertise in the operation of the
28subsurface installations of a municipal utility. At least one of the
29three members shall have knowledge and experience in the
30operation of high priority subsurface installations.

31(2) Three members shall have knowledge and experience in
32contract excavation for employers who are not operators of
33subsurface installations. Of the three members, one member shall
34be a general engineering contractor, one member shall be a general
35building contractor, and one member shall be a specialty contractor.
36For the purposes of this section, the terms “general engineering
37contractor,” “general building contractor,” and “specialty
38contractor” shall have the meanings given in Article 4
39(commencing with Section 7055) of Chapter 9 of Division 3 of
40the Business and Professions Code.

P20   1(3) One member shall have knowledge and expertise in begin delete2 subsurface installation location and marking, and shall not be under
3 the direct employment of an operator. end delete
begin insert performing or managing
4agricultural operations in the vicinity of subsurface installations.end insert

5(c) The member appointed by the Speaker of the Assembly shall
6have knowledge and expertise in representing in safety matters
7the workers employed by contract excavators.

8(d) The member appointed by the Senate Committee on Rules
9shall have knowledge and expertise inbegin delete managing the underground
10installations on one’s own property, and may be drawn from
11agricultural, commercial, or residential, or other, property sectors. end delete

12
begin insert subsurface installation location and marking and shall not be
13under the direct employment of an operator.end insert

14(e) The board may invite two directors of operations of regional
15notification centers to be nonvoting ex officio members of the
16board.

17

SEC. 13.  

Section 4216.14 is added to the Government Code,
18to read:

19

4216.14.  

(a) The term of a member of the board is four years.
20Of the first members of the board, four members, determined by
21lot, shall serve for two years so that the terms of the members shall
22be staggered.

23(b) A member shall not be appointed for more than two
24consecutive full terms.

25(c) To the extent possible, the appointing power shall fill any
26vacancy in the membership of the board within 60 days after the
27vacancy occurs.

28(d) Upon the recommendation of the board, the Governor may
29remove a member appointed by the Governor for incompetence
30or misconduct.

31(e) The board shall select a chairperson from among its members
32at the first meeting of each calendar year or when a vacancy in the
33chair exists.

34(f) Subject to subdivision (g), the manner in which the
35chairperson is selected and the chairperson’s term of office shall
36be determined by the board.

37(g) A member of the board shall not serve more than two
38consecutive years as the chairperson of the board.

39

SEC. 14.  

Section 4216.15 is added to the Government Code,
40to read:

P21   1

4216.15.  

The board shall meet at least once every three months.
2The board shall hold meetings in Sacramento and Los Angeles,
3and in other locations in the state it deems necessary.

4

SEC. 15.  

Section 4216.16 is added to the Government Code,
5to read:

6

4216.16.  

The board may obtain funding for its operational
7expenses from:

8(a) A federalbegin delete or stateend delete grant.

9(b) A fee charged to members of the regional notification centers
10not to exceed the reasonable regulatory cost incident to enforcement
11of this article.begin insert The board shall apportion the fee in a manner
12consistent with formulas used by the regional notification centers.end insert

13 Revenues derived from the imposition of this fee shall be deposited
14in the Safe Energy Infrastructure and Excavation Fund.

15(c) Any other source.

begin insert

16
(d) The board shall not charge a fee to a person for notifying
17the regional notification center to obtain a ticket or to renew a
18ticket.

end insert
19

SEC. 16.  

Section 4216.17 is added to the Government Code,
20to read:

21

4216.17.  

(a) The board shall annually convene a meeting for
22the following purposes:

23(1) To understand the existing needs for education and outreach,
24including to those groups with the highest awareness and education
25needs, including, but not limited to, homeowners.

26(2) To facilitate discussion on how to coordinate existing
27education and outreach efforts with state and local government
28agencies, California operators, regional notification centers, and
29trade associations that fund outreach and education programs that
30encourage safe excavation practices.

31(3) To determine the areas in which additional education and
32outreach efforts may be targeted through use, upon appropriation
33by the Legislature, of the moneys in the Safe Energy Infrastructure
34and Excavation Fund pursuant to subdivision (c).

35(b) In addition to state and local government agencies, California
36operators, regional notification centers, and trade associations that
37fund outreach and education programs that encourage safe
38excavation practices, the meeting pursuant to subdivision (a) shall
39include representatives of groups that may be the target of those
40outreach and education efforts.

P22   1(c) Upon appropriation by the Legislature, the board shall grant
2the use of the moneys in the Safe Energy Infrastructure and
3Excavation Fund to fund public education and outreach programs
4designed to promote excavation safety around subsurface
5installations and targeted towards specific excavator groups, giving
6priority to those with the highest awareness and education needs,
7including, but not limited to, homeowners.

8

SEC. 17.  

Section 4216.18 is added to the Government Code,
9to read:

10

4216.18.  

The board shall develop a standard or set of standards
11relevant to safety practices in excavating around subsurface
12installations and procedures and guidance in encouraging those
13practices. When possible, standards should be informed by publicly
14available data, including, but not limited to, that collected by state
15and federal agencies and by the regional notification centers
16pursuant to subdivision (g) of Section 4216.6, and the board should
17refrain from using data about facility events not provided either
18to a state or federal agency or as statewide information, as defined
19in paragraph (2) of subdivision (h) of Section 4216.6. The standard
20or set of standards are not intended to replace other relevant
21standards, including the Best Practices of the Common Ground
22Alliance, but are to inform areas currently without established
23standards. The standard or set of standards shall address all of the
24following:

25(a) Evidence necessary for excavators and operators to
26demonstrate compliance with Sections 4216.2, 4216.3, and 4216.4.

27(b) What constitutes reasonable care, as required by paragraph
28(1) of subdivision (a) of Section 4216.4, in using hand tools around
29subsurface installations within the tolerance zone, considering the
30need to balance worker safety in trenches with the protection of
31subsurface installations. As part of determining reasonable care,
32the board shall consider the appropriate additional excavating depth
33an excavator should make if either of the following occur:

34(1) The subsurface installation is delineated within the tolerance
35zone but it is not in conflict with the excavation.

36(2) The location of a subsurface installation is determined, but
37additional subsurface installations may exist immediately below
38the located subsurface installation.

39(c) What constitutes reasonable care, as required by paragraph
40(1) of subdivision (a) of Section 4216.4, in grading activities on
P23   1road shoulders and dirt roads which may include standards for
2potholing.

3

SEC. 18.  

Section 4216.19 is added to the Government Code,
4to read:

5

4216.19.  

(a) The board shall investigate possible violations
6of this article.

7(b) The board may investigate reports of incident events, as
8defined in paragraph (1) of subdivision (h) of Section 4216.6 and
9complaints from affected parties and members of the public.

begin delete

10(c) In furthering the purposes of this article, to the extent that
11resources allow, the board may authorize staff allocated to it by
12the Office of the State Fire Marshal to use compliance audits,
13including field audits, and investigations of incidents.

end delete
begin delete

14(d)

end delete

15begin insert(c)end insert In determining whether to pursue an investigation, the board
16shall consider whether the parties have settled the matter and
17whether further enforcement is necessary as a deterrent to maintain
18the integrity of subsurface installations and to protect the safety
19of excavators and the public.

begin delete

20(e)

end delete

21begin insert(d)end insert If the board, upon the completion of an investigation, finds
22a probable violation of the article, the boardbegin delete mayend deletebegin insert shallend insert transmit
23the investigation results and any recommended penalty to the state
24or local agencybegin delete with jurisdiction over the activity or business
25undertaken in commission of the violation, pursuant to subdivision
26(c) of Section 4216.6, and may take action pursuant to subdivision
27(e) of Section 4216.6.end delete
begin insert pursuant to subdivision (c) or (d) of Section
284216.6.end insert

begin delete

29(f)

end delete

30begin insert(e)end insert Sanctions shall be graduated and may include notification
31and information letters, direction to attend relevant education, and
32financial penalties. When considering the issuance of citations and
33assessment of penalties, the board shall consider all of the
34following:

35(1) The type of violation and its gravity.

36(2) The degree of culpability.

37(3) The operator’s or excavator’s history of violations.

38(4) The operator’s or excavator’s history of work conducted
39without violations.

P24   1(5) The efforts taken by the violator to prevent violation and,
2once the violation occurred, the efforts taken to mitigate the safety
3consequences of the violation.

begin delete

4(g)

end delete

5begin insert(f)end insert This section shall become operative onbegin delete Januaryend deletebegin insert Julyend insert 1, 2018.

6

SEC. 19.  

Section 4216.21 is added to the Government Code,
7to read:

8

4216.21.  

(a) For an investigation that the board undertakes as
9a result of a complaint of a violation of Section 4216.2, 4216.3,
10or 4216.4, the complainant shall not file an action in court for
11damages based on those violations until the investigation is
12complete, or for 6 months after the investigation begins, whichever
13comes first, during which time, applicable statutes of limitation
14shall be tolled.

15(b) If a complainant files an action in court against a person for
16damages based upon violations of Section 4216.2, 4216.3, or
174216.4, after the completion of a board investigation in which the
18person was found not to have violated the article, the complainant
19shall also notify the board when the action is filed.

20(c) This section only applies to a claim for damages to a
21subsurface installation.

22

SEC. 20.  

Section 4216.22 is added to the Government Code,
23to read:

24

4216.22.  

Consistent with all laws of this state, the board may
25prescribe rules and regulations as may be necessary or proper to
26carry out the purposes and intent of this act and to exercise the
27powers and duties conferred upon it by this act.

28

SEC. 21.  

Section 4216.23 is added to the Government Code,
29to read:

30

4216.23.  

(a) Notwithstanding Section 10231.5, the board shall
31report to the Governor and the Legislature on or before February
321, 2018, and each year thereafter, on the activities of the board and
33any recommendations of the board.

34(b) A report to be submitted pursuant to subdivision (a) shall
35be submitted in compliance with Section 9795.

36

SEC. 22.  

Section 4216.24 is added to the Government Code,
37to read:

38

4216.24.  

The Safe Energy Infrastructure and Excavation Fund
39is hereby established in the State Treasury. Moneys deposited into
40the fund shall be used, upon appropriation by the Legislature, to
P25   1cover the operational expenses of the board and for the purposes
2specified in subdivision (b) of Section 4216.17, exceptbegin delete as follows:end delete

3begin delete(a)end deletebegin deleteend deletebegin deleteRevenuesend deletebegin insert that revenuesend insert derived from penalties imposed
4pursuant to Section 4216.6 shall not be used for operational
5expenses.

begin delete

6(b) Revenues derived from the fee imposed pursuant to Section
74216.16 shall not be used for the purposes specified in subdivision
8(b) of Section 4216.17.

end delete
9begin insert

begin insertSEC. 23.end insert  

end insert

begin insertSection 955.5 of the end insertbegin insertPublic Utilities Codeend insertbegin insert is amended
10to read:end insert

11

955.5.  

(a) For purposes of this section, the following terms
12have the following meanings:

13(1) “Gas pipeline” means an intrastate distribution line as
14described in paragraph (1) of, or an intrastate transmission line as
15described in paragraph (2) of, Section 950.

16(2) “Hospital” means a licensed general acute care hospital as
17defined in subdivision (a) of Section 1250 of the Health and Safety
18Code.

19(3) “School” means a public or private preschool, elementary,
20or secondary school.

21(b) A gas corporation shall provide not less than three working
22days’ notice to the administration of a school or hospital prior to
23undertaking nonemergency excavation or construction of a gas
24begin delete pipelineend deletebegin insert pipeline, excluding any work that only uses hand tools,
25pneumatic hand tools, or vacuum technology for the purpose of
26marking and locating a subsurface installation pursuant to Article
272 (commencing with Section 4216) of Chapter 3.1 of Division 5 of
28Title 1 of the Government Code,end insert
if the work is located within 500
29feet of the school or hospital. The notification shall include all of
30the following:

31(1) The name, address, telephone number, and emergency
32contact information for the gas corporation.

33(2) The specific location of the gas pipeline where the excavation
34or construction will be performed.

35(3) The date and time the excavation or construction is to be
36conducted and when the work is expected to be completed.

37(4) An invitation and a telephone number to call for further
38information on what the school or hospital should do in the event
39of a leak.

P26   1(c) The gas corporation shall maintain a record of the date and
2time of any notification provided to the administration of a school
3or hospital prior to undertaking nonemergency excavation or
4construction of a gas pipeline and any subsequent contacts with
5the administration of a school or hospital relative to the excavation
6or construction and the actions taken, if any, in response to those
7subsequent contacts. The gas corporation shall maintain these
8records and make them available for inspection for no less than
9five years from the date of the notification.



O

    94