BILL NUMBER: AB 1514	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 1, 2012
	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 excavations.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1514, as amended, Bonnie Lowenthal. 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 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.  The bill would provide that, upon
receipt of   an investigation report prepared by the Public
Utilities Commission, 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 those civil penalties. The
bill would also permit the Public Utilities Commission or an
operator to provide an investigation report to the local or state
agency that issued the permit to excavate, and would permit the local
or state agency to take action to assess those 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: 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) Except as provided in paragraph (2), and in
addition to all other penalties, any operator  , 
 or  excavator  , or local agency  that
 negligently  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) In addition to all other penalties, any operator  ,
  or  excavator  , or local agency
 that knowingly and willfully violates any 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
 ,  or  excavator  , or local
agency  has not previously been subject to a civil penalty
pursuant to this  section   section. 
   (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.
   (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)  (1)    Upon receipt of 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 an
operator  may provide an investigation report to the local or
state agency that issued the permit to excavate 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 prosecuting agency. If more than one agency is involved
in enforcement, the penalties imposed shall be apportioned among them
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.  
   (2) Nothing in this section shall be construed to provide
additional jurisdiction to the Public Utilities Commission. 
  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.

    565.    (e) Notwithstanding 
    (a)     Subject to  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) 
    (b) 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.