Amended in Senate August 22, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1415

Introduced by begin delete Committee on Accountability and Administrative Review (Frazier (Chair), Achadjian (Vice Chair), Buchanan, Ian Calderon, Cooley, Lowenthal, Medina, Quirk-Silva, and Salas) end delete begin insert Assembly Member John end insert begin insert  A. end insert begin insert  Pérez end insert

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(Coauthors: Assembly Members Bocanegra, Frazier, Gray, and Levine)

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(Coauthor: Senator De León)

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March 20, 2013

An act to amend Section 11340.5 of the Government Code, begin insert and to add Section 7109.5 to the Public Contract Code, end insert relating to administrative regulations.

LEGISLATIVE COUNSEL’S DIGEST

AB 1415, as amended, begin delete Committee on Accountability and Administrative Review end delete   begin insert John  A.  Pérez end insert . Administrative begin delete procedures: end delete regulations: begin delete determinations: judicial review. end delete begin insert corrosion prevention and mitigation projects. end insert

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(1) Existing law contains various provisions relating to contracts by a public entity for the performance of public works of improvement, including provisions for the payment of progress payments and the disbursing and withholding of retention proceeds.

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This bill would require a public entity that awards a contract for construction, alteration, demolition, installation, repair, or maintenance work after January 1, 2017, that is paid for in whole or in part with state funds, to require contractors and subcontractors performing corrosion prevention and mitigation work to comply with specified standards to be adopted by the Director of the Department of Industrial Relations in consultation with the Department of Toxic Substances Control. This bill would also exempt work on plumbing and piping systems, performed by specified persons, from the standards adopted under these provisions.

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The

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begin insert (2) end insert begin insert   end insert begin insert The end insert Administrative Procedure Act generally sets forth the requirements for the adoption, publication, review, and implementation of regulations by state agencies. begin delete The act provides that if the office is notified of, or on its own, learns of the issuance, enforcement of, or use of, an agency guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule that has not been adopted as a regulation and filed with the Secretary of State, the office may issue a determination as to whether the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, is a regulation. Existing law allows an interested person to obtain judicial review of a given determination by filing a written petition with the court within 30 days of the date of its publication. end delete

This bill would begin delete extend that filing time to 45 days. end delete begin insert make technical, nonsubstantive changes to of the act provisions. end insert

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(3) Because this bill would require local entities to comply with additional contracting regulations for these projects, it would impose a state-mandated local program.

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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.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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The Legislature finds and declares all of the
following:

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(a) California’s water and transportation infrastructure needs
will continue to increase dramatically. The cost of maintaining
the health and well-being of California and Californians is directly
linked to the safety of its water pipelines and storage tanks, bridges,
roads, and industry. Ensuring this depends primarily on two
factors: (1) the performance of proper, timely preventive
maintenance by certified workers and (2) the extent and severity
of structural corrosion or other deterioration.

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(b) According to a 2012 American Society of Civil Engineers
study, in the “1950s and 1960s, California spent 20 cents of every
dollar on capital projects. By the 1980s, that figure dropped to
less than five cents on the dollar. Current estimates put
infrastructure investment at around a penny on the dollar.
Currently, 2,978 of the 24,812 bridges in California (12 percent)
are considered structurally deficient and roughly 8,000 of them
are older than the recommended 50-year lifespan. Additionally,
corrosion was found to be at a critical level on the suspension
span of the new $6.5 billion San Francisco-Oakland Bay Bridge.

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(c) As California prepares for more than $7 billion in
investments in the state’s water infrastructure, preventative
measures like corrosion prevention applications should be a part
of all new construction, retrofitting, and maintenance work. This
protects against deterioration of the infrastructure itself, as well
as environmental degradation from leakage, breaks, or release of
toxic materials. When steel corrodes, heavy metals are released
into storage tanks, pipelines, or other structures, which is
hazardous in the case of drinking water.

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(d) Corrosion prevention work is necessary for long-term
environmental protection. When a coating is properly applied, it
can last 10 to 20 years, depending on the product. When applied
incorrectly, repairs are necessary within 1 to 3 years, requiring
untold costs. Each time the structure surfacing needs to be
repaired, the existing coating must be removed. When this removal
is not conducted by a competent workforce, the surrounding
environment can be exposed to lead or hazardous materials
contamination.

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(e) The Society for Protective Coatings (SSPC) states that 80
percent of coating failures are due to human error. Whether it be
from improper surface preparation, improper coating selection,
improper applications, improper drying, curing, or overcoating,
a certified professional can help prevent these failures. When
certified by an independent 3rd party, such as NACE or SSPC,
there is assurance that experienced professionals will complete
the project on time and according to the industry specifications.

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begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 11340.5 of the Government Code is amended
to read:

11340.5.  

(a) A state agency shall not issue, utilize, enforce,
or attempt to enforce any guideline, criterion, bulletin, manual,
instruction, order, standard of general application, or other rule,
which is a regulation as defined in Section 11342.600, unless the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule has been adopted as a
regulation and filed with the Secretary of State pursuant to this
chapter.

(b) If the office is notified of, or on its own, learns of the
issuance, enforcement of, or use of, an agency guideline, criterion,
bulletin, manual, instruction, order, standard of general application,
or other rule that has not been adopted as a regulation and filed
with the Secretary of State pursuant to this chapter, the office may
issue a determination as to whether the guideline, criterion, bulletin,
manual, instruction, order, standard of general application, or other
rule, is a regulation as defined in Section 11342.600.

(c) The office shall do all of the following:

(1) File its determination upon issuance with the Secretary of
State.

(2) Make its determination known to the agency, the Governor,
and the Legislature.

(3) Publish its determination in the California Regulatory Notice
Register within 15 days of the date of issuance.

(4) Make its determination available to the public and the courts.

(d) Any interested person may obtain judicial review of a given
determination by filing a written petition requesting that the
determination of the office be modified or set aside. A petition
shall be filed with the court within begin delete 45 end delete begin insert 30 end insert days of the date the
determination is published.

(e) A determination issued by the office pursuant to this section
shall not be considered by a court, or by an administrative agency
in an adjudicatory proceeding if all of the following occurs:

(1) The court or administrative agency proceeding involves the
party that sought the determination from the office.

(2) The proceeding began prior to the party’s request for the
office’s determination.

(3) At issue in the proceeding is the question of whether the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule that is the legal basis for the
adjudicatory action is a regulation as defined in Section 11342.600.

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begin insert SEC. 3. end insert   

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begin insert Section 7109.5 is added to the end insert begin insert Public Contract Code end insert begin insert ,
to read: end insert

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begin insert 7109.5. end insert   

(a) A public entity, as defined in Section 7200, that
awards a contract for construction, alteration, demolition,
installation, repair, or maintenance work after January 1, 2017,
that is paid for in whole or in part with state funds shall require
all contractors and subcontractors performing corrosion
prevention and mitigation work to comply with the standards
adopted pursuant to this section.

(b) Contractors and subcontractors performing contracts for
construction, alteration, demolition, installation, repair, or
maintenance work awarded after January 1, 2017, that are paid
for in whole or in part with state funds shall, when performing
corrosion prevention and mitigation work, comply with the
standards adopted pursuant to this section.

(c) On or before January 1, 2016, the Director of the
Department of Industrial Relations in consultation with the
Department of Toxic Substances Control, shall adopt regulations
establishing standards for the performance of corrosion prevention
and mitigation work on public projects that reflect industry best
practices. Such industry best practices shall include, but are not
limited to, all of the following:

(1) Use of trained and certified personnel for surface
preparation and application of protective coatings and linings to
steel and concrete surfaces.

(2) Use of inspectors to ensure best practices and standards
are met.

(3) A plan to prevent environmental degradation, including, but
not limited to, careful handling and containment of hazardous
materials such as lead paint.

(d) For purposes of this section:

(1) “Trained and certified personnel” means both of the
following:

(A) To the maximum extent feasible, workers performing surface
preparation and application of protective coatings and linings to
steel and concrete surfaces who are classified as journey-level
workers and are certified by an organization generally accepted
in the industry as meeting the NACE 13/ACS 1 standard or a
similar standard that is generally accepted in the industry.

(B) Workers performing surface preparation and application
of protective coatings and linings to steel and concrete surfaces
who are classified as apprentices and are registered in an
industrial apprenticeship program approved by the Division of
Apprenticeship Standards that provides training to meet the NACE
13/ACS 1 standard or a similar standard that is generally accepted
by the industry.

(2) “NACE 13/ACS 1 standard” means the Society for Protective
Coatings/NACE International standard for an industrial coating
and lining application specialist.

(e) The standards adopted pursuant to this chapter shall not
apply to work on plumbing and piping systems performed by either:

(1) Skilled journey persons who are graduates of an
apprenticeship program for the applicable occupation that was
either approved by the Chief of the Division of Apprenticeship
Standards pursuant to Section 3075 of the Labor Code or located
outside California and approved for federal purposes pursuant to
the apprenticeship regulations adopted by the federal Secretary
of Labor.

(2) Apprentices registered in an apprenticeship program for
the applicable occupation that was approved by the Chief of the
Division of Apprenticeship Standards pursuant to Section 3075 of
the Labor Code.

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begin insert SEC. 4. end insert   

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If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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