BILL NUMBER: SB 661 AMENDED
BILL TEXT
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
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, and 4216.9 of, and to add
Sections 4216.10, 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, and to amend Section 955.5 of
the Public Utilities 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 terms for
its purposes, including , among others, defining
"working day" for purposes of determining excavation start date and
time in the context of these provisions.
time.
The
This 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.
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.
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.
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
This 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, commencing January
July 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:
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 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.
(a) "Active subsurface installation" means a subsurface
installation currently in use or currently carrying service.
(b) "Board" means the California Underground Facilities Safe
Excavation Board.
(c) "Area of continual excavation" means a location where
excavation is part of the normal business activities of that
location, including, but not limited to, agricultural operations and
flood control facilities.
(d) "Delineate" means to mark in white the location or path of the
proposed excavation using the guidelines in Appendix B of the
"Guidelines for Excavation Delineation" published in the most recent
version of the Best Practices guide of the Common Ground Alliance. If
there is a conflict between the marking practices in those
guidelines and other provisions of this article, this article shall
control. "Delineation" also includes physical identification of the
area to be excavated using pink marking, if an excavator makes a
determination that standard delineation may be misleading to those
persons using affected streets and highways, or be misinterpreted as
a traffic or pedestrian control, and the excavator has contacted the
regional notification center to advise the operators that the
excavator will physically identify the area to be excavated using
pink markings.
(e) "Electronic positive response" means an electronic response
from an operator to the regional notification center providing the
status of an operator's statutorily required response to a ticket.
(f) (1) "Emergency" means a sudden, unexpected occurrence,
involving a clear and imminent danger, demanding immediate action to
prevent or mitigate loss of, or damage to, life, health, property, or
essential public services.
(2) "Unexpected occurrence" includes, but is not limited to, a
fire, flood, earthquake or other soil or geologic movement, riot,
accident, damage to a subsurface installation requiring immediate
repair, or sabotage.
(b)
(g) "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)
(h) Except as provided in Section 4216.8, "excavator"
means any person, firm, contractor or subcontractor, owner, operator,
utility, association, corporation, partnership, business trust,
public agency, or other entity that, 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.
(i) "Hand tool" means a piece of equipment used for excavating
that uses human power and is not powered by any motor, engine,
hydraulic, or pneumatic device.
(e)
(j) "High priority subsurface installation" means
high-pressure natural gas pipelines with normal operating pressures
greater than 415kPA gauge (60psig), petroleum pipelines, pressurized
sewage pipelines, high-voltage electric supply lines, conductors, or
cables that have a potential to ground of greater than or equal to
60kv, or hazardous materials pipelines that are potentially hazardous
to workers or the public if damaged.
(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.
(k) "Inactive subsurface installation" means either of the
following:
(1) The portion of an underground subsurface installation that is
not active but is still connected to the subsurface installation, or
to any other subsurface installation, that is active or still carries
service.
(2) A new underground subsurface installation that has not been
connected to any portion of an existing subsurface installation.
(l) "Legal excavation start date and time" means two working days,
not including the date of notification, unless the excavator
specifies a later date and time, which shall not be more than 14
calendar days from the date of notification. For excavation in an
area of continual excavation, "legal excavation start date and time"
means two working days, not including the date of notification,
unless the excavator specifies a later date and time, which shall not
be more than six months from the date of notification.
(g)
(m) "Local agency" means a city, county, city and
county, school district, or special district.
(n) (1)"Locate and field mark" means to indicate the existence of
any owned or maintained subsurface installations by using the
guidelines in Appendix B of the "Guidelines for Operator Facility
Field Delineation" published in the most recent version of the Best
Practices guide of the Common Ground Alliance and in conformance with
the uniform color code of the American Public Works Association. If
there is a conflict between the marking practices in the guidelines
and this article, this article shall control.
(2) "Locate and field mark" does not require an indication of the
depth.
(h)
(o) "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 i
nstallations 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)
(p) "Qualified person" means a person who completes a
training program in accordance with the requirements of
Title 8, Section 1509 of Title 8 of the
California Code of Regulations, Section 1509,
Regulations Injury and Illness Prevention Program,
that meets the minimum locators training guidelines and
practices of Common Ground Alliance current Best Practices.
published in the most recent version of the Best
Practices guide of the Common Ground Alliance.
(j)
(q) "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)
(r) "State agency" means every state agency,
department, division, bureau, board, or commission.
(l)
(s) "Subsurface installation" means any underground
pipeline, conduit, duct, wire, or other structure, except
nonpressurized sewerlines, nonpressurized storm drains, or other
nonpressurized drain lines.
(t) "Ticket" means an excavation location request issued a number
by the regional notification center.
(u) "Tolerance zone" means 24 inches on each side of the field
marking placed by the operator in one of the following ways:
(1) Twenty-four inches from each side of a single marking, assumed
to be the centerline of the subsurface installation.
(2) Twenty-four inches plus one-half the specified size on each
side of a single marking with the size of installation specified.
(3) Twenty-four inches from each outside marking that graphically
shows the width of the outside surface of the subsurface installation
on a horizontal plane.
(m)
(v) "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.
A regional notification center shall not charge a fee to a
person for notifying the regional notification center to obtain a
ticket or to renew a ticket.
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 to set
up an onsite meeting prior to the legal excavation start date
and time or 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.
excavation and the information the operator will provide to assist in
verifying the location of the subsurface installation. The
excavator shall not begin excavating until after the completion of
the onsite meeting.
(d) Except in an emergency, every excavator covered by Section
4216.8 planning to conduct an excavation on private property that
does not require an excavation permit may contact the appropriate
regional notification center if the private property is known, or
reasonably should be known, to contain a subsurface installation
other than the underground facility owned or operated by the
excavator. Before notifying the appropriate regional notification
center, an excavator shall delineate the area to be excavated. Any
temporary marking placed at the planned excavation location shall be
clearly seen, functional, and considerate to surface aesthetics and
the local community. An excavator shall check if any local ordinances
apply to the placement of temporary markings.
(e) 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.
(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.
(g) Unless an emergency exists, an excavator shall not begin
excavation until the excavator receives a positive
response from all known operators of subsurface
installations within the delineated boundaries of the proposed area
of excavation. excavation pursuant to
subdivision (a) of Section 4216.3 and until the completion of any
onsite meeting, if required by subdivision (c).
(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.
(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) 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 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 (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 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. SEC. 7. 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.
Code, and telephone corporations, as defined in
Section 234 of the Public Utilities Code, when acting as a
contractor, as defined in Article 2 (commencing with Section 7025) of
Chapter 9 of Division 3 of the Business and Professions Code.
Nothing in this section affects the California Public Utilities
Commission's existing authority over a public utility.
(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 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 incident 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. SEC. 8. 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 (m)
(v) 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. SEC. 9. 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. 10. Section 4216.10 is added to the
Government Code , to read:
4216.10. (a) In lieu of the notification and locate and field
mark requirements of Sections 4216.2 and 4216.3, an excavator may
contact a regional notification center to request a continual
excavation ticket for an area of continual excavation. 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 continual
excavation. The ticket provided to the excavator shall include the
contact information for notified operators.
(b) An operator shall provide a response to the excavator pursuant
to subdivision (a) of Section 4216.3.
(c) (1) When the area of continual excavation includes, or is
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 to set up an onsite meeting prior to the legal
excavation start date and time or at a mutually agreed upon time to
determine actions or activities required to verify the location and
to prevent damage to the high priority subsurface installation during
the continual excavation time period. The onsite meeting shall be
used to develop a mutually agreed upon plan for an area of continual
excavation. Additional onsite meetings should also be held following
unexpected occurrences or prior to excavation activities that may
create conflicts with subsurface installations. As part of the
meeting, the excavator shall discuss with the operator the method and
tools that will be used during the excavation and the information
the operator will provide to assist in verifying the location of the
subsurface installation. The excavator shall not begin excavating
until after the completion of the onsite meeting and information has
been provided describing the activities that can be safely conducted
to prevent damage to the high priority subsurface installation.
(2) When the area of continual excavation includes a subsurface
installation but does not include, or is not within 10 feet of, a
high priority subsurface installation, the excavator or the operator
may request an onsite meeting at a mutually agreed upon time to
determine actions or activities required to verify the location and
to prevent damage to the subsurface installation during the continual
excavation time period. The onsite meeting may be used to develop a
plan for an area of continual excavation. The operator and excavator
may mutually agree to conduct additional onsite meetings following
unexpected occurrences or prior to excavation activities that may
create conflicts with subsurface installations. As part of the
meeting, the excavator may discuss with the operator the method and
tools that will be used during the excavation and the information the
operator will provide to assist in verifying the location of the
subsurface installation. If an onsite meeting is requested prior to
the legal excavation start date and time, the excavator shall not
begin excavating until after the completion of the onsite meeting and
information has been provided describing the activities that can be
safely conducted to prevent damage to the subsurface installation.
(3) The excavator and operator shall maintain records regarding
the plan of excavation, any locate and field mark and standby
activities, and any other information deemed necessary by the
excavator and operator. Excavation activities outside the scope of
the plan shall be undertaken subsequent to notification pursuant to
Section 4216.2.
(d) A ticket for an area of continual excavation shall be valid
for one year from the date of issuance. The excavator may renew the
ticket within two working days either by accessing the regional
notification center's Internet Web site or by calling "811."
(e) The board shall, in consultation with the regional
notification centers, develop through regulation a process by which
the renewal requirement for a continual excavation ticket may be
modified or eliminated for areas of continual excavation in which no
subsurface installations are present.
(f) This section shall become operative on November 1, 2017.
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 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. performing or
managing agricultural operations in the vicinity of subsurface
installations.
(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.
subsurface installation location and marking and
shall not be under the direct employment of an operator.
(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. The board shall apportion the fee in a manner
consistent with formulas used by the regional notification centers.
Revenues derived from the imposition of this fee shall be
deposited in the Safe Energy Infrastructure and Excavation Fund.
(c) Any other source.
(d) The board shall not charge a fee to a person for notifying the
regional notification center to obtain a ticket or to renew a
ticket.
SEC. 16. Section 4216.17 is added to the Government Code, to read:
4216.17. (a) The board shall annually convene a meeting 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.
(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, 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, 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 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) 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
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.
(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.
(d)
(c) 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.
(e)
(d) If the board, upon the completion of an
investigation, finds a probable violation of the article, the board
may shall 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. pursuant to subdivision (c) or (d) of
Section 4216.6.
(f)
(e) 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.
(g)
(f) This section shall become operative on
January July 1, 2018.
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 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. 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. 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. 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
that 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.
SEC. 23. Section 955.5 of the Public
Utilities Code is amended to read:
955.5. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Gas pipeline" means an intrastate distribution line as
described in paragraph (1) of, or an intrastate transmission line as
described in paragraph (2) of, Section 950.
(2) "Hospital" means a licensed general acute care hospital as
defined in subdivision (a) of Section 1250 of the Health and Safety
Code.
(3) "School" means a public or private preschool, elementary, or
secondary school.
(b) A gas corporation shall provide not less than three working
days' notice to the administration of a school or hospital prior to
undertaking nonemergency excavation or construction of a gas
pipeline pipeline, excluding any work that only uses
hand tools, pneumatic hand tools, or vacuum technology for the
purpose of marking and locating a subsurface installation pursuant to
Article 2 (commencing with Section 4216) of Chapter 3.1 of Division
5 of Title 1 of the Government Code, if the work is located
within 500 feet of the school or hospital. The notification shall
include all of the following:
(1) The name, address, telephone number, and emergency contact
information for the gas corporation.
(2) The specific location of the gas pipeline where the excavation
or construction will be performed.
(3) The date and time the excavation or construction is to be
conducted and when the work is expected to be completed.
(4) An invitation and a telephone number to call for further
information on what the school or hospital should do in the event of
a leak.
(c) The gas corporation shall maintain a record of the date and
time of any notification provided to the administration of a school
or hospital prior to undertaking nonemergency excavation or
construction of a gas pipeline and any subsequent contacts with the
administration of a school or hospital relative to the excavation or
construction and the actions taken, if any, in response to those
subsequent contacts. The gas corporation shall maintain these records
and make them available for inspection for no less than five years
from the date of the notification.