BILL NUMBER: AB 1514 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 10, 2012
INTRODUCED BY Assembly Members Bonnie Lowenthal and Dickinson
JANUARY 13, 2012
An act to amend Section 4216.6 of the Government Code , and
to add Section 565 to the Public Utilities Code , relating to
public works excavations .
LEGISLATIVE COUNSEL'S DIGEST
AB 1514, as amended, Bonnie Lowenthal. Public works:
excavations: Excavations: subsurface installations:
violations.
Existing law generally requires any person planning to conduct an
excavation to contact a regional notification center prior to
excavation, and, if practical, to delineate the areas to be
excavated. Existing law authorizes the Attorney General, a district
attorney, or the state or a local agency that issued a permit to
excavate to bring an action for the enforcement of a civil penalty
against an operator or excavator who negligently or knowingly and
willfully violates these and related provisions.
This bill would also authorize the Public Utilities
Commission to bring an action for enforcement pursuant to the
provisions described above increase the maximum
amounts for civil penalties that may be assessed for
negligent or knowing and willful violations, and would specify what
are separate violations for purposes of assessing civil penalties
.
Under existing law, the Public Utilities Commission has regulatory
authority over public utilities, including electrical corporations,
gas corporations, heat corporations, pipeline corporations, sewer
system corporations, telephone corporations, and water corporations,
as defined. Existing law authorizes the commission to establish rules
for all public utilities, subject to control by the Legislature.
Existing law authorizes the commission after a hearing, to require
every public utility to construct, maintain, and operate its line,
plant, system, equipment, apparatus, tracks, and premises in a manner
so as to promote and safeguard the health and safety of its
employees, passengers, customers, and the public. Existing law makes
any person who injures or destroys, through want of proper care, any
necessary or useful facility or equipment of any telephone,
electrical, or gas corporation, liable to the corporation for all
damages sustained thereby, and makes any person who willfully and
maliciously injures telephone, electric, or gas property liable to
the telegraph, telephone, electrical, or gas corporation for 3 times
the amount of actual damages sustained thereby.
This bill would authorize the commission to adopt rules requiring
public utilities that are operators, as defined, to comply with the
above-described requirements relative to excavations, and to adopt
rules to protect subsurface installations and high-priority
subsurface installations, as defined, from damage resulting from
excavations. The bill would require the commission to adopt rules
requiring public utilities to report damage that occurs to
utility-owned subsurface installations and high-priority subsurface
installations as a result of an excavation. The bill would require
the commission to adopt procedures for obtaining from public
utilities who are subsurface operators reports of specified
violations that the commission determines should be investigated for
enforcement, as specified. The bill would require the commission to
investigate the cause of any damage reported to the commission and to
make a specified investigation report that would be admissible as a
public record in any civil penalty enforcement action brought by the
Attorney General or a district attorney, or the state or a local
agency that issued a permit to excavate, or in an action brought by a
telephone, electrical, or gas corporation for damages to its
subsurface facilities or equipment. The bill would require the
commission to include a summary of any damage reported to the
commission by public utility operators that results from excavations
and any investigation report in a specified annual report to the
Governor and Legislature.
Under existing law, a violation of the Public Utilities Act or any
order, decision, rule, direction, demand, or requirement of the
commission is a crime.
Because the provisions of this bill are within the act and require
action by the commission to implement its requirements, a violation
of these provisions would impose a state-mandated local program by
creating a new crime.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4216.6 of the Government Code is amended to
read:
4216.6. (a) (1) Any Except as provided in
paragraph (2), and in addition to all other penalties, any
operator or , excavator who
negligently violates ,
or local agency that violates any requirement of this article
is subject to a civil penalty in an amount not to exceed ten thousand
dollars ($10,000) for the first violation, and not more than
one hundred thousand dollars ($100,000) for each
subsequent violation .
(2) Any In addition to all other
penalties, any operator or ,
excavator who , or local agency
that knowingly and willfully violates any of the
provisions requirement of this article is
subject to a civil penalty in an amount not to exceed fifty thousand
dollars ($50,000) for the first violation, and not more than two
hundred fifty thousand dollars ($250,000) for each subsequent
knowing and willful violation .
(3) (A) Each violation of a separate requirement of this chapter
is a separate violation that is subject to civil penalty pursuant to
paragraphs (1) and (2).
(B) Each day that a violation of a separate requirement of this
chapter takes place is a separate violation that is subject to civil
penalty pursuant to paragraphs (1) and (2).
(C) Multiple separate violations as specified in this paragraph
arising from a single excavation performed shall each only be subject
to the maximum civil penalty for a first violation if the operator,
excavator, or local agency has not previously been subject to a civil
penalty pursuant to this section
(3)
(4) 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)
(5) 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 Upon receipt o f an
investigation report prepared by the Public Utilities Commission
pursuant to subdivision (d) of Section 565 of the Public Utilities
Code, an action may be brought by the Attorney
General , or the district attorney
, in the name of the people of the State of
California for the enforcement of the civil penalty pursuant to this
section. Alternatively, the Public Utilities Commission
, or may provide an investigation report to
the local or state agency which that
issued the permit to excavate , for the
enforcement of the and the local or state
agency may take action to assess a civil penalty pursuant to
this section. If penalties are collected as a result of a civil suit
brought by the Attorney General, a district attorney, or a
state or local agency that issued a permit to excavate
for collection of those civil penalties, the penalties imposed shall
be paid to the general fund of the
prosecuting 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. The Public Utilities Commission shall
be entitled to an apportionment of the penalties for the cost of
completing its investigation report.
SEC. 2. Section 565 is added to the
Public Utilities Code , to read:
565. (a) For purposes of this section, "excavation," "excavator,"
"emergency," "high-priority subsurface installation," "local agency,"
"operator," "state agency," and "subsurface installation" have the
same meanings as defined in Section 4216 of the Government Code.
(b) The commission may adopt rules requiring public utilities that
are operators to comply with the requirements of Article 2
(commencing with Section 4216) of Chapter 3.1 of Division 5 of Title
1 of the Government Code, including rules for responding to an
emergency.
(c) (1) The commission shall adopt rules requiring public
utilities who are subsurface operators to report damage that occurs
to utility-owned subsurface installations and high-priority
subsurface installations as a result of an excavation. The commission
may adopt different rules for utility facilities that are and are
not high-priority subsurface installations and different rules
depending upon whether the damage does or does not result in an
emergency.
(2) The commission shall adopt procedures for obtaining from
public utilities who are subsurface operators reports of violations
of Article 2 (commencing with Section 4216) of Chapter 3.1 of
Division 5 of Title 1 of the Government Code that the commission
determines should be investigated as an enforcement action pursuant
to Section 4216.6 of the Government Code, including procedures
regarding which violations are required to be immediately reported.
The procedures shall require reporting of all pertinent information
necessary for the commission to thoroughly investigate the complaint
and prepare a complete investigation report pursuant to subdivision
(d).
(d) (1) Upon receipt of a report of violation pursuant to
paragraph (2) of subdivision (c), the commission shall investigate
the violation and prepare an investigation report documenting any
violation determined by the commission to warrant possible
enforcement pursuant to Section 4216.6 of the Government Code. An
investigation report shall include, but not be limited to, all of the
following:
(A) The facts and evidence establishing the violation.
(B) A list of witnesses to the violation and contact information
for the witnesses.
(C) All contacts with or responses from the regional notification
center.
(D) Any excavation plans associated with the violations.
(2) The report shall be admissible as a public record in any
action brought pursuant to Section 4216.6 of the Government Code or
pursuant to Chapter 4 (commencing with Section 7951) of Division 4.
(e) Notwithstanding Section 583, the commission may provide the
Attorney General, the district attorney for the county in which the
damage occurred, the local or state agency that issued the permit to
excavate, or the United States Department of Transportation's
Pipeline and Hazardous Materials Safety Administration a copy of an
investigation report completed pursuant to subdivision (d) to take
enforcement action pursuant to subdivision (b) of Section 4216.6 of
the Government Code.
(f) The commission shall include a summary of any damage reported
to the commission pursuant to subdivision (c) and of any
investigation undertaken pursuant to subdivision (d) in the report
submitted to the Governor and Legislature pursuant to paragraph (4)
of subdivision (a) of Section 321.6.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.