Bill Text: CA SB119 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Protection of subsurface installations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2016-04-25 - Last day to consider Governors veto pursuant to Joint Rule 58.5. [SB119 Detail]
Download: California-2015-SB119-Amended.html
Bill Title: Protection of subsurface installations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2016-04-25 - Last day to consider Governors veto pursuant to Joint Rule 58.5. [SB119 Detail]
Download: California-2015-SB119-Amended.html
BILL NUMBER: SB 119 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 31, 2015
AMENDED IN ASSEMBLY AUGUST 17, 2015
AMENDED IN ASSEMBLY JULY 1, 2015
AMENDED IN ASSEMBLY JUNE 16, 2015
AMENDED IN SENATE JUNE 1, 2015
AMENDED IN SENATE MAY 12, 2015
AMENDED IN SENATE MAY 5, 2015
AMENDED IN SENATE APRIL 20, 2015
AMENDED IN SENATE APRIL 6, 2015
INTRODUCED BY Senator Hill
JANUARY 14, 2015
An act to amend Sections 4216, 4216.1, 4216.2, 4216.3, 4216.4,
4216.5, 4216.6, 4216.7, 4216.8, and 4216.9 of, and to add Sections
4216.12, 4216.13, 4216.14, 4216.15, 4216.16, 4216.17, 4216.18,
4216.19, 4216.20, 4216.21, and 4216.22 to, the Government Code, and
to amend Section 1702.5 of, and to add Sections 320.5
320.5, 911.2, and 971 to, the Public Utilities
Code, relating to excavations.
LEGISLATIVE COUNSEL'S DIGEST
SB 119, 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 would declare the need to clarify and revise these
provisions. The bill would define and redefine various terms relating
to a regional notification center. The bill would expand the
definition of a subsurface installation,
installation to include an underground structure or submerged
duct, pipeline, or structure, except as specified.
The 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.
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
bill would also authorize, in any action for reimbursement or
indemnification for a claim arising from damage to a subsurface
installation in which a court finds that the excavator complied with
those provisions, the excavator to be awarded reasonable attorney's
fees and expenses.
The bill would delete the existing exemptions pertaining to an
owner of real property and would instead exempt an owner of
residential real property who, as part of improving his or her
principal residence, is performing, or is having performed, an
excavation using hand tools that does not require a permit, as
specified.
The 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 natural gas and electric underground infrastructure and
hazardous liquid pipelines, unless these operators are municipal
utilities.
This bill bill, if specified funds are
appropriated by the Legislature and authority to hire sufficient
staff is granted to the Contractors' State License Board, would
create the California Underground Facilities Safe Excavation
Advisory Committee under, and assisted by the staff of, the
Contractors' State License Board, in the Department of Consumer
Affairs. The bill would require the committee to coordinate education
and outreach activities, develop standards, and investigate
violations of the provisions described above, as specified. The
bill would also require the advisory committee, by December 31, 2017,
and in consultation with the Department of Food and Agriculture, to
make recommendations, informed by a specified study, that addresses
the long term treatment of agricultural activities in relation to
subsurface excavation, and whether those provisions are appropriate
or could be modified in ways to promote participation in
safe agricultural practices around high priority subsurface
installations, as specified.
The advisory committee would be composed of 9 members who would
serve 2-year terms, and one nonvoting ex officio member who may be
invited by the appointed members of the committee. The bill would
authorize the advisory committee, commencing on January 1, 2017, to
use compliance audits in furthering the purposes of these provisions.
The bill would require the advisory committee to conduct an annual
meeting on or before February 1, 2017, 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 to cover the administrative
expenses of the advisory committee, upon appropriation by the
Legislature. The bill would authorize the commission to use excess
moneys in the fund for specified purposes relating to the safety of
underground utilities, upon appropriation by the Legislature.
The Natural Gas Pipeline Safety Act of 2011, within the Public
Utilities Act, designates the Public Utilities Commission as the
state authority responsible for regulating and enforcing intrastate
gas pipeline transportation and pipeline facilities pursuant to
federal law, including the development, submission, and
administration of a state pipeline safety program certification for
natural gas. Existing federal law requires each operator of a buried
gas pipeline to carry out a program to prevent damage to that
pipeline from excavation activities, as specified.
The bill would require the Public Utilities Commission, no
later than February 1, 2019, to report to the Legislature and to the
California Underground Facilities Safe Excavation Advisory Committee
an analysis of excavation damage to commission-regulated pipeline
facilities. The bill would also require each gas corporation,
as part of its damage prevention program, to collect
specified certain information until January
1, 2020, to inform its outreach activities
activities, and to report this information annually
until January 1, 2020, to the Public Utilities
Commission, Commission and the California Underground
Facilities Safe Excavation Advisory Committee, as specified.
The bill would also require the each gas corporation to estimate
Californians' use of regional notification centers, as specified,
and to provide this estimate to the commission and the advisory
committee on or before July 1, 2016.
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 requirements described above are within the act, a
violation of these requirements would impose a state-mandated local
program by creating a new crime.
Existing law requires the Public Utilities Commission to develop
and implement a safety enforcement program that is applicable to gas
corporations and electrical corporations and that includes procedures
for monitoring, data tracking and analysis, and investigations, as
well as issuance of citations by commission staff, under the
direction of the executive director of the commission, for correction
and punishment of safety violations. That law requires the
commission to develop and implement an appeals process to govern
issuance and appeal of citations, or resolution of corrective action
orders. That law requires the commission to implement the safety
enforcement program for gas safety by July 1, 2014, and for
electrical safety by January 1, 2015.
This bill would require that moneys collected as a result of the
issuance of citations to gas corporations and electrical corporations
pursuant to the above-described law be deposited in the Safe Energy
Infrastructure and Excavation Fund.
The bill would make other conforming changes.
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. The Legislature finds and declares all of the
following:
(a) For the state's "one-call" law to be effective, it needs
greater clarity and effective enforcement, and it must foster
communication between operators of subsurface installations and the
various types of excavators in California.
(b) Regional notification centers, or "one-call" centers, have
developed means of electronic communication that improve the
efficiency of the "one-call" process, and statutory barriers to using
new methods of notification should be eliminated.
(c) Electronic positive response is a means to communicate the
status of responses to an excavator's notice of excavation via the
one-call center and provides the safety benefit that an excavator has
an easy means to know whether or not all of the utilities within the
excavation area have marked their subsurface installations.
(d) The delineation by an excavator of the area to be excavated in
advance of the field location and marking by subsurface facility
operators of their installations aids the excavator in understanding
where subsurface installations were marked, and thus improves safety.
This practice was recommended by the National Transportation Safety
Board in its 1997 study "Protecting Public Safety through Excavation
Damage Prevention" and is a best practice of the Common Ground
Alliance.
(e) Continuing an excavation after an excavation "ticket" has
expired does not promote safety, and excavators should renew their
ticket with the one-call center before expiration. Continuing
excavation when markings are no longer visible does not promote
safety, and excavators should stop work until the subsurface
installations are remarked.
(f) Increased communication between subsurface installation
operators and excavators before breaking ground has safety benefits.
(g) Construction sites often have many parties conducting
different, ongoing work, and so the inherent safety risks associated
with that work can be increased by a failure of these parties to
effectively communicate. Excavators, operators of subsurface
installations, and locators have a responsibility to communicate with
other parties before entering these worksites, which may require
advance schedule coordination, and also have a responsibility to
observe the safety requirements set for those worksites.
(h) Abandoned subsurface installations can be mistaken for active
subsurface installations that are marked, and thus present a safety
risk to excavators and the public. Safety will be improved if
subsurface facility operators identify these subsurface installations
when their existence is known.
(i) The ability of an operator of subsurface installations to
locate and mark affected installations can be seriously impaired by a
lack of high-quality records of those installations, and thus
operators should keep records of their facilities for as long as they
are in the ground, whether or not they are in use.
(j) Failure by an operator of subsurface installations to mark the
installations within the required two-working-day period is a
serious breach of duty.
(k) While an operator has two working days after an excavator's
call to the one-call center to mark its subsurface installations,
failure of that operator to do so does not relieve the excavator of
the safety responsibility to wait until the operator has marked
before commencing excavation.
(l) Mismarks by an operator place excavators and the public at
great safety risk, and so operators who mismark their installations
are entitled to no award for any damages to those installations.
(m) Installations that are embedded in pavement require more
extensive communication among operators, locators, and excavators to
prevent the installations from being damaged.
(n) Exemptions that allow a class of persons to excavate without
calling 811 are to be permitted only if alternative procedures allow
the excavation to take place without compromising safety.
(o) More communication is needed between the Department of
Transportation and the regional notification centers, including the
sharing of subsurface installation location information, so that
excavators may be alerted of possible Department of Transportation
subsurface installations in the area of planned excavation and, if
the excavation is to take place in a Department of Transportation
right-of-way, the need to seek a Department of Transportation
encroachment permit.
(p) Insufficient information exists on how to best achieve safety
when conducting agricultural activities around subsurface
installations. installations, and a study, informed by
data collected about damages in agricultural areas is needed to
determine effective and appropriate safety measures.
(q) Prevention of boring through sewer laterals with natural gas
and other subsurface installation services may be achieved through
reasonable care in the use of trenchless excavating technologies.
Indication of the location of sewer laterals can aid in prevention of
these cross-bores.
(r) The exemption that permits private property owners to dig on
their property without calling a regional notification center to have
the area marked for subsurface installations does not have a basis
in safety.
(s) The exemption that permits homeowners to conduct excavation on
their property with heavy machinery or when there is a utility
easement on his or her property does not have a basis in safety.
(t) Behaviors that are suspected to be unsafe, but upon which
there is not widespread agreement as to the level of risk and,
therefore, are unregulated, must be monitored to better assess the
risk.
(u) The Study on the Impact of Excavation Damage on Pipeline
Safety, submitted by the United States Department of Transportation
to Congress on October 9, 2014, reported that other states have found
that exemption of landscape maintenance activities of less than 12
inches deep, when performed with hand tools, does not appear to have
a significant impact on safety. The report cautions, however, that
while those activity-based exemptions may be acceptable, they should
be supported by sufficient data.
(v) Insufficient data exists on the safety risks of the
installation of temporary real estate signposts; therefore, it is
important that natural gas distribution companies collect information
on whether damages are caused by these signposts.
(w) Gas corporations have ready access to information about
damages that occur on their subsurface installations and should
collect relevant data to inform future discussions regarding the risk
of notification exemptions.
(x) Other states have experienced a dramatic improvement in safety
after implementing centralized administrative oversight of one-call
laws.
(y) California should have an advisory committee, composed of
excavation stakeholders, subject to oversight by the Legislature and
the Department of Finance, to perform three major tasks, which are to
coordinate the diverse education and outreach efforts undertaken by
state and local agencies, operators, and excavators throughout the
state and issue grants for targeted efforts, to study excavation
questions and develop standards that clarify best practices, and to
investigate potential violations of the one-call law that inform both
the standards it is to develop and potential enforcement actions.
Due to the size of the state, and in order to reduce costs, the
advisory committee should meet in northern and southern California.
(z) The advisory committee should not be funded through the
General Fund, but should be funded through fines levied on gas and
electric corporations for safety violations, instead of having those
fines go to the General Fund.
SEC. 2. Section 4216 of the Government Code is amended to read:
4216. As used in this article the following definitions apply:
(a) "Abandoned subsurface installation" means a subsurface
installation that is no longer in service and is physically
disconnected from any active or inactive subsurface installation.
(b) "Active subsurface installation" means a subsurface
installation currently in use or currently carrying service.
(c) "Advisory Committee" means the California Underground
Facilities Safe Excavation Advisory Committee.
(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 Best
Practices Version 11.0 by 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.
(g) (1) "Excavation" means any operation in which earth, rock,
pavement, 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, gouging, crushing, jack hammering, saw cutting, or any other
way.
(2) For purposes of this article, "excavation" does not include
any of the following:
(A) Landscape maintenance activity that is performed with hand
tools at a depth of no more than 12 inches. Landscape maintenance
activity includes all of the following:
(i) Aeration, dethatching, and cutting of vegetation, including
lawn edging.
(ii) Installation or replacement of ground cover and plant life.
(iii) Minor fixes to existing drainage and sprinkler systems.
(B) Operator maintenance activities that are performed with hand
tools around an operator's facilities that traverse from above the
ground to below ground in areas known, or reasonably believed, to
contain only the operator's facilities. Operator maintenance
activities include all of the following:
(i) Clearing soil, debris, or vegetation from around or inside
vaults, casings, and other in-ground structures that house an
operator's facilities.
(ii) Moving, removing, or displacing soil for the specific purpose
of mitigating or preventing corrosion to pipeline facilities such as
gas meters, risers, pipes, and valves located above ground or inside
vaults, casings, and other in-ground structures.
(iii) Replacing or repairing an operator's facilities located
above ground or inside vaults, casings, and other in-ground
structures.
(iv) Repairing or replacing vaults, casings, and other in-ground
structures that house an operator's facilities.
(C) Subparagraph (A) shall become inoperative on January 1, 2020.
(3) The exclusion of the activities in paragraph (2) from the
definition of "excavation" shall not be used to discourage a person
planning to perform those activities from voluntarily notifying a
regional notification center pursuant to Section 4216.2, and does not
relieve an operator of a subsurface installation from the obligation
to locate and field mark pursuant to Section 4216.3 following the
notification. The exclusion of activities in paragraph (2) does not
relieve a person performing those activities from a duty of
reasonable care to prevent damage to subsurface installations, and
failure to exercise reasonable care may result in liability for
damage to a subsurface installation that is proximately caused by
those activities.
(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 his, her, or its own employees or
equipment, performs any excavation.
(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.
(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.
(k) "Inactive subsurface installation" means both of the
following:
(1) The portion of an underground subsurface installation that is
not in use but is still connected to the subsurface installation, or
to any other subsurface installation, that is in use 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 at least two
working days, not including the date of notification, or up to 14
calendar days from the date of notification, if so specified by the
excavator.
(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 Best Practices Version 11.0
by 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.
(o) "Near miss" means an event in which damage did not occur, but
a clear potential for damage was identified.
(p) "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 installations 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.
(q) "Pavement" means a manmade surface material that cannot be
removed with a conventional hand tool.
(r) "Positive response" means the response from an operator
directly to the excavator providing the status of an operator's
statutorily required response to a ticket.
(s) "Qualified person" means a person who completes a training
program in accordance with the requirements of Section 1509 of Title
8 of the California Code of Regulations, Injury and Illness
Prevention Program, that meets the minimum locators training
guidelines and practices published in Best Practices Version
11.0 by the most recent version of the Best Practices
guide of the Common Ground Alliance.
(t) "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.
(u) "State agency" means every state agency, department, division,
bureau, board, or commission.
(v) "Subsurface installation" means any underground or submerged
duct, pipeline, or structure, including, but not limited to, a
conduit, duct, line, pipe, wire, or other structure, except
nonpressurized sewerlines, nonpressurized storm drains, or other
nonpressurized drain lines.
(w) "Ticket" means an excavation location request issued a number
by the regional notification center.
(x) "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.
(y) "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 of the Government Code.
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.
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.
(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 set up an onsite meeting 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. 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) If an excavator gives less than the legal excavation start
date and time and it is not an emergency, the regional notification
center shall take the information and provide a ticket but an
operator shall have until the legal excavation start date and time to
respond.
(f) 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 update the ticket either by accessing the center's
Internet Web site or by calling "811" by the end of the 28th day.
(g) 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.
(h) Unless an emergency exists, an excavator shall not begin
excavation until the excavator receives a positive response from all
known subsurface installations within the delineated boundaries of
the proposed area of excavation.
(i) 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.
(j) 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, 2016, 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
area to be remarked is not the full extent of the original
excavation, the excavator shall delineate the portion 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.
Excavation shall cease in the area where the remarks are requested.
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) 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.
(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 (h) 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 approximate location of a subsurface
installation, the excavator shall determine the exact location of the
subsurface installations within the tolerance zone 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) 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 high priority subsurface
installations are damaged and the operator cannot be contacted
immediately, the excavator shall call 911 emergency services.
(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. 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 either 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 Advisory Committee by a state or local agency, which
may include the Attorney General or a district attorney, with
jurisdiction over the activity or business undertaken in commission
of the violation. The following agencies shall act to accept, amend,
or reject the recommendations of the advisory committee 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 of Chapter 9 of Division 3 of the Business
and Professions Code.
(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.
(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) Statewide information provided by operators and excavators
regarding facility 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.
(e) For purposes of subdivision (d), the following terms have the
following meanings:
(1) "Facility 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 Best Practices
Version 11.0 by the most recent version of the Best
Practices guide of the Common Ground Alliance.
SEC. 9. 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 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,
has failed to comply with paragraph (2) of subdivision (a) of Section
4216.2, or has failed to comply with subdivision (b) of Section
4216.4, the operator shall be liable to the excavator who has
complied with Sections 4216.2 and 4216.4 for damages, including
liquidated damages, liability, losses, costs, and expenses 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) In any actions for reimbursement or indemnification for a
claim arising from damage to a subsurface installation in which a
court finds that the excavator complied with the requirements of this
article, the excavator may be awarded reasonable attorney's fees and
expenses.
(f) 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.
(g) 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. Section 4216.8 of the Government Code is amended to read:
4216.8. This article does not apply to either of the following
persons:
(a) An owner of residential real property, not engaged as a
contractor or subcontractor licensed pursuant to Article 5
(commencing with Section 7065) of Chapter 9 of Division 3 of the
Business and Professions Code, who, as part of improving his or her
principal residence or an appurtenance thereto, is performing or is
having an excavation performed using hand tools, including the
installations installation of temporary
real estate signposts, that does not require a permit issued by a
state or local agency. A person described in this subdivision is not
an "excavator" as defined in subdivision (h) of Section 4216, however
this subdivision shall not discourage a person from voluntarily
notifying a regional notification center pursuant to Section 4216.2,
and does not relieve an operator of a subsurface facility from the
obligation to locate and field mark pursuant to Section 4216.3
following the notification. Notwithstanding Section 4216.2, an owner
of real residential property is not required to wait until 14
calendar days before the beginning of an excavation to notify the
regional notification center, but rather may do so at any time to
learn the locations of subsurface installations on his or her
property. This subdivision does not relieve a person performing
excavation activities from a duty of reasonable care to prevent
damage to subsurface installations, and failure to exercise
reasonable care may result in liability for damage to a subsurface
installation that is proximately caused by those activities.
(b) Any person or private entity that leases or rents power
operated or power-driven excavating or boring equipment, regardless
of whether an equipment operator is provided for that piece of
equipment or not, to a contractor or subcontractor licensed pursuant
to Article 5 (commencing with Section 7065) of Chapter 9 of Division
3 of the Business and Professions Code, if the signed rental
agreement between the person or private entity and the contractor or
subcontractor contains the following provision:
"It is the sole responsibility of the lessee or renter to follow the
requirements of the regional notification center law pursuant to
Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5
of Title 1 of the Government Code. By signing this contract, the
lessee or renter accepts all liabilities and responsibilities
contained in the regional notification center law."
SEC. 11. 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. 12. Section 4216.12 is added to the Government Code, to read:
4216.12. (a) The California Underground Facilities Safe
Excavation Advisory Committee is hereby created under, and shall be
assisted by the staff of, the Contractors' State License Board in the
Department of Consumer Affairs.
(b) The advisory committee 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.
(c) Notwithstanding any other law, the repeal of this section
renders the advisory committee subject to review by the appropriate
policy committees of the Legislature.
(d) This section shall remain in effect so long as, pursuant to
subdivision (c) of Section 7000.5 of the Business and Professions
Code, there is in the Department of Consumer Affairs a Contractors'
State License Board.
(e) This section shall become operative only if the Legislature
appropriates moneys from the Safe Energy Infrastructure and
Excavation Fund to the California Underground Facilities Safe
Excavation Advisory Committee for the purposes of this section and
grants authority to the Contractors' State License Board to hire
sufficient staff.
SEC. 13. Section 4216.13 is added to the Government Code, to read:
4216.13. (a) The advisory committee shall be composed of nine
members, of which four shall be appointed by the Governor, three
shall be appointed by the Contractors' State License Board, one shall
be appointed by the Speaker of the Assembly, and one shall be
appointed by the Senate Committee on Rules.
(b) The four 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) One member shall have knowledge and expertise in subsurface
installation location and marking and shall not be under the direct
employment of an operator.
(c) The three members appointed by the Contractors' State License
Board 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.
(d) 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.
(e) 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.
(f) The advisory committee may invite one director of operations
of a regional notification center to be a nonvoting ex officio member
of the advisory committee.
SEC. 14. Section 4216.14 is added to the Government Code, to read:
4216.14. (a) The term of a member of the advisory committee is
two years. Of the first members of the advisory committee, four
members, determined by lot, shall serve for one year 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 advisory committee within 60 days
after the vacancy occurs.
(d) Upon the recommendation of the advisory committee, the
Governor may remove a member appointed by the Governor for
incompetence or misconduct.
(e) The advisory committee 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 advisory committee.
(g) A member of the advisory committee shall not serve more than
two consecutive years as the chairperson of the advisory committee.
SEC. 15. Section 4216.15 is added to the Government Code, to read:
4216.15. The advisory committee shall meet at least once every
three months. The advisory committee shall hold meetings in
Sacramento and Los Angeles, and in other locations in the state it
deems necessary.
SEC. 16. Section 4216.16 is added to the Government Code, to read:
4216.16. The advisory committee may obtain funding for its
operational expenses from:
(a) The Safe Energy Infrastructure and Excavation Fund, created in
Section 320.5 of the Public Utilities Code.
(b) A federal or state grant.
(c) A fee charged to members of the regional notification centers
not to exceed the reasonable regulatory cost incident to enforcement
of this article.
(d) A filing or administrative fee to hear a complaint pursuant to
Section 4216.20.
(e) Any other source.
SEC. 17. Section 4216.17 is added to the Government Code, to read:
4216.17. (a) In order to understand the needs for education and
outreach, including of those groups with the highest awareness and
education needs, such as homeowners, and to facilitate discussion on
how to coordinate those efforts, the advisory committee shall
annually convene a meeting 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.
(b) The advisory committee shall use the annual meeting described
in subdivision (a) to determine the areas in which additional
education and outreach efforts should be targeted. The advisory
committee shall grant the use of the moneys that may be apportioned
to it by the Public Utilities Commission pursuant to paragraph (1) of
subdivision (b) of Section 320.5 of the Public Utilities Code to
fund public education and outreach programs designed to promote
excavation safety around subsurface installations and target towards
specific excavator groups, giving priority to those with the highest
awareness and education needs, such as homeowners.
SEC. 18. Section 4216.18 is added to the Government Code, to read:
4216.18. (a) The advisory committee 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
public ly available data, such as that collected by state and federal
agencies and by the regional notification centers pursuant to
subdivision (d) of Section 4216.6, and the advisory committee 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 (e) 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:
(1) Evidence necessary for excavators and operators to demonstrate
compliance with Sections 4216.2, 4216.3, and 4216.4.
(2) Guidance for recommended sanctions against excavators and
operators for violations of the article designed to improve safety.
Sanctions may include notification and information letters, direction
to attend relevant education, and financial penalties. The guidance
shall state the circumstances under which the investigation and a
recommendation for sanction shall be transmitted to a state or local
agency, which may include the Attorney General or a district
attorney, for enforcement pursuant to subdivision (b) of Section
4216.20 and may allow for a decision not to transmit if the
investigation was initiated by a complaint, the parties have settled
the matter, and the advisory committee has determined that further
enforcement is not necessary as a deterrent to maintain the integrity
of subsurface installations and to protect the safety of excavators
and the public. Recommendations for sanctions shall be graduated and
shall consider all of the following:
(A) The type of violation and its gravity.
(B) The degree of culpability.
(C) The operator's or excavator's history of violations.
(D) The operator's or excavator's history of work conducted
without violations.
(E) 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.
(F) That homeowners have high awareness and education needs, and
for this reason, financial penalties shall not be recommended except
in cases in which a person's violations have been willful, repeated,
and flagrant.
(3) What constitutes reasonable care, as required by paragraph (1)
of subdivision (a) of Section 4216.4, in conducting deep excavations
within the tolerance zone, considering the need to balance the
protection of subsurface installations by the use of hand tools
within the tolerance zone with the safety concerns of trench work.
(4) 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.
(b) The advisory committee shall develop and recommend a standard
or set of standards requiring all new subsurface
installations, nonpressurized sewerlines, nonpressurized
storm drains, and other nonpressurized lines
drains that connect from building structures to the public
right-of-way to include the installation of tracer tape or wire
to aid in detection and tracing of these subsurface installations,
nonpressurized sewerlines, nonpressurized storm drains, and other
nonpressurized lines drains for
adoption by the California Building Standards Commission as mandatory
building standards.
(c) On or before December 31, 2017, the advisory committee shall,
in consultation with the Department of Food and Agriculture and after
an agricultural stakeholder process, make recommendations for long
term treatment of agricultural activities that include determining
whether the notification requirements of Section 4216.2, the locate
and field mark requirements of Section 4216.3, and the excavation
requirements of Section 4216.4 are appropriate for all types of
agricultural activities, or whether they could be modified in ways to
promote participation in safe agricultural practices around high
priority subsurface installations.
(1) The recommendations shall be informed by a study that
includes, but is not limited to, the following:
(A) A review of past damages attributable to agricultural
activities, including information provided by gas corporations
pursuant to subdivision (b) of Section 971 of the Public Utilities
Code.
(B) Estimations of the use of regional notification centers by
persons involved in agricultural activities provided by gas
corporations, including the methodology used for the development of,
the sources of error in, and confidence intervals for the
estimations, pursuant to subdivision (c) of Section 971 of the Public
Utilities Code.
(C) A review of the outreach and education practices of operators
of high priority subsurface installations toward persons who
undertake agricultural activities and measures of the successes of
those practices, with an explanation of
how the measure of success is defined.
(D) A review of existing standards for operator communication with
excavators, such as Recommended Practice 1162 by the American
Petroleum Institute.
(2) The recommendations shall address the following questions:
(A) Do agricultural activities differ from common types of
excavation in ways that may affect the applicability of Sections
4216.2, 4216.3, and 4216.4 to agricultural activities?
(B) Should a person notify the regional notification center before
undertaking agricultural activities that are not in the vicinity of
subsurface installations? What is a sufficient means by which a
person would know if there are subsurface installations in the
vicinity?
(C) What is the benefit of the requirement in subdivision (c) of
Section 4216.2 for an onsite meeting in advance of the performance of
agricultural activities in the vicinity of high priority subsurface
installations? Under what circumstances is an onsite meeting
appropriate in advance of the performance of agricultural activities,
and how far in advance of the performance of agricultural activities
does the onsite meeting requirement retain its benefit? What is the
most convenient and expedient means to initiate an onsite meeting in
advance of the performance of agricultural activities?
(D) What outreach and education activities on the part of
operators of high priority subsurface installations are important to
promote safety in performing agricultural activities? What actions
should the outreach and education activities induce in persons
performing agricultural activities, and how can success be measured?
(E) How should the success of the advisory committee's
recommendations be measured?
SEC. 19. Section 4216.19 is added to the Government Code, to read:
4216.19. (a) The advisory committee shall investigate possible
violations of this article, including complaints from affected
parties and members of the public.
(b) In furthering the purposes of this article, the advisory
committee may authorize staff allocated to it by the Contractors'
State License Board to use compliance audits, including field audits,
and investigations of incidents and near-misses.
(c) This section shall become operative on January 1, 2017.
SEC. 20. Section 4216.20 is added to the Government Code, to read:
4216.20. (a) Upon the completion of an investigation of a
possible violation of this article, the advisory committee shall
inform the following parties of the result of the investigation,
including any findings of probable violation:
(1) The party or parties whose activities were the subject of the
investigation.
(2) The complainant, if the investigation was initiated because of
a complaint.
(3) Any excavator or operator whose activities or subsurface
installations were involved in the incident investigated.
(b) If the advisory committee, upon the completion of an
investigation, finds a probable violation of the article, the
advisory committee may 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.
SEC. 21. Section 4216.21 is added to the Government Code, to read:
4216.21. (a) For an investigation that the advisory committee
undertakes as a result of a complaint of a violation of Sections
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 120 days 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 Sections 4216.2, 4216.3, or 4216.4,
after the completion of an advisory committee investigation in which
the person was found not to have violated the article, the
complainant shall also notify the advisory committee when the action
is filed.
(c) This section only applies to a claim for damages to a
subsurface installation.
SEC. 22. Section 4216.22 is added to the Government Code, to read:
4216.22. (a) Notwithstanding Section 10231.5, the advisory
committee shall report to the Governor and the Legislature on or
before February 1, 2017, and each year thereafter, on the activities
of the advisory committee and any recommendations of the advisory
committee.
(b) A report to be submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795.
SEC. 23. Section 320.5 is added to the Public Utilities Code, to
read:
320.5. (a) The Safe Energy Infrastructure and Excavation Fund is
hereby established in the State Treasury. Moneys deposited into the
fund shall be used to cover the administrative expenses of the
California Underground Facilities Safe Excavation Advisory Committee,
upon appropriation by the Legislature. Additionally, the moneys may
be used as described in subdivision (b).
(b) Up to five hundred thousand dollars ($500,000) of moneys in
the fund that are in excess of the moneys necessary for the
administrative expenses of the California Underground Facilities Safe
Excavation Advisory Committee may, upon appropriation by the
Legislature, be apportioned by the commission for the following
purposes:
(1) The California Underground Facilities Safe Excavation Advisory
Committee, to fund public education and outreach programs designed
to promote excavation safety around subsurface installations and
targeted toward specific excavator groups.
(2) The commission, to further a workforce development program,
which shall be consistent with its equal employment opportunity
program, that recruits and trains safety staff to perform the highest
quality gas and electric utility inspections, audits, accident
investigations, and data tracking and analysis. Moneys used for
training purposes may not be used to fulfill existing federal or
state training requirements but, instead, shall only be used for
training in addition to those requirements. The commission may only
apportion moneys for this purpose upon commission approval of the
workforce development program at a meeting of the commission. No more
than one hundred fifty thousand dollars ($150,000) of the Safe
Energy Infrastructure and Excavation Fund may be used for this
purpose.
(c) Any moneys not allocated pursuant to subdivisions (a) and (b)
shall be deposited into the General Fund.
SEC. 24. Section 911.2 is added to the
Public Utilities Code , to read:
911.2. No later than February 1, 2019, the commission shall
report to the Legislature and to the California Underground
Facilities Safe Excavation Advisory Committee an analysis of
excavation damage to commission-regulated pipeline facilities. The
report shall include analyses of the types of damage and other
information described in Section 971.
SEC. 24. SEC. 25. Section 971 is
added to the Public Utilities Code, to read:
971. (a) As a part of its damage prevention program carried out
pursuant to Section 192.614 of Part 192 of Title 49 of the Code of
Federal Regulations, each gas corporation shall collect data to
inform its outreach activities. The Until
January 1, 2020, the data shall include all of the
following:
(1) Damages Damage to
underground commission-regulated pipeline facilities that occurred
during the performance of landscaping activities. Each gas
corporation shall note in its investigation of excavation damage
incidents the approximate depth of the gas facility at the time of
damage, the type of excavator involved, which may include "homeowner,"
"licensed contractor," or "unlicensed contractor," and whether the
excavator had called the regional notification center before
performing the excavation. This paragraph shall become
inoperative on January 1, 2020.
(2) All claims filed by the gas corporation against an excavator
for damage to commission-regulated pipeline facilities.
(3) Damages to underground commission-regulated pipeline
facilities that occurred in the installation of temporary real estate
signposts. Each gas corporation shall note in its investigation of
excavation damage incidents the type of signpost installed and the
method of installation, including the types of tools used.
(4) Damage to underground commission-regulated pipeline facilities
that occurred during agricultural activities, including the type of
activity performed and the type of tool involved in the damage.
(4)
(5) Any other information that the commission shall
require.
(b) Each Until January 1, 2020, each
gas corporation shall annually report to the commission and to
the California Underground Facilities Safe Excavation Advisory
Committee excavation damage data and analyses contained in
subdivision (a) in a format of the commission's choosing.
(c) No later than February 1, 2019, the commission shall report to
the Legislature an analysis of excavation damages to
commission-regulated pipeline facilities. The report shall include
analyses of the types of damages and other information described in
subdivision (a).
(c) As a part of its damage prevention program carried out
pursuant to Section 192.614 of Part 192 of Title 49 of the Code of
Federal Regulations, each gas corporation shall estimate Californians'
use of regional notification centers, as defined in Section 4216 of
the Government Code, before conducting agricultural activities. This
estimation shall consider the use of regional notification centers
before conducting agricultural activities that are both in the
vicinity of its natural gas transmission pipelines and not in the
vicinity of its natural gas transmission pipelines. Each gas
corporation shall provide this estimate to the commission and to the
California Underground Facilities Safe Excavation Advisory Committee
on or before July 1, 2016. In performing this estimation, each gas
corporation shall do all of the following:
(1) Estimate the amount and locations of agricultural activity
being performed by using relevant publically available information,
such as maps prepared pursuant to the Farmland Mapping and Monitoring
Program of the California Natural Resources Agency, information from
the National Agricultural Statistics Service, and information
available from assessor parcel numbers.
(2) Determine the number and locations of notifications to
regional notification centers for excavation activities on
agricultural land by using information from its own mark and locate
activities and, to the extent the information is available, from the
regional notification centers or other sources.
(3) For notifications in the vicinity of its natural gas
transmission pipelines, determine the average number of notifications
on agricultural land per transmission pipeline mile per year as well
as a histogram to describe the number of transmission pipeline
intervals Y, in units of the best available precision, on which X
notifications occurred, where X increases from zero.
(4) Describe the methodology used for the development of any
estimates and identify sources of error in the estimation and a
confidence interval for the estimation.
SEC. 25. SEC. 26. Section 1702.5 of
the Public Utilities Code is amended to read:
1702.5. (a) The commission shall, in an existing or new
proceeding, develop and implement a safety enforcement program
applicable to gas corporations and electrical corporations that
includes procedures for monitoring, data tracking and analysis, and
investigations, as well as issuance of citations by commission staff,
under the direction of the executive director. The enforcement
program shall be designed to improve gas and electrical system safety
through the enforcement of applicable law, or order or rule of the
commission related to safety using a variety of enforcement
mechanisms, including the issuance of corrective actions, orders, and
citations by designated commission staff, and recommendations for
action made to the commission by designated commission staff.
(1) When considering the issuance of citations and assessment of
penalties, the commission staff shall take into account voluntary
reporting of potential violations, voluntary removal or resolution
efforts undertaken, the prior history of violations, the gravity of
the violation, and the degree of culpability.
(2) The procedures shall include, but are not limited to,
providing notice of violation within a reasonable period of time
after the discovery of the violation.
(3) The commission shall adopt an administrative limit on the
amount of monetary penalty that may be set by commission staff.
(b) The commission shall develop and implement an appeals process
to govern the issuance and appeal of citations or resolution of
corrective action orders issued by the commission staff. The appeals
process shall provide the respondent a reasonable period of time,
upon receiving a citation, to file a notice of appeal, shall afford
an opportunity for a hearing, and shall require the hearing officer
to expeditiously provide a draft disposition.
(c) The commission shall, within a reasonable time set by the
commission, conclude a safety enforcement action with a finding of
violation, a corrective action order, a citation, a determination of
no violation, approval of the corrective actions undertaken by the
gas corporation or electrical corporation, or other action. The
commission may institute a formal proceeding regarding the alleged
violation, potentially resulting in additional enforcement action,
regardless of any enforcement action taken at the commission staff
level.
(d) The commission shall implement the safety enforcement program
for gas safety by July 1, 2014, and implement the safety enforcement
program for electrical safety no later than January 1, 2015.
(e) This section does not apply to an exempt wholesale generator,
a qualifying small power producer, or qualifying cogenerator, as
defined in Section 796 of Title 16 of the United States Code and the
regulations enacted pursuant thereto. Nothing in this section affects
the commission's authority pursuant to Section 761.3.
(f) Notwithstanding any other law, moneys collected as a result of
the issuance of citations pursuant to this section shall be
deposited in the Safe Energy Infrastructure and Excavation Fund.
SEC. 26. SEC. 27. 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.
