BILL NUMBER: AB 811 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Lowenthal
(Principal coauthor: Senator Hill)
FEBRUARY 21, 2013
An act to add Section 7058.3 to the Business and Professions Code,
and to amend Sections 4216 and 4216.6 of the Government Code,
relating to excavations.
LEGISLATIVE COUNSEL'S DIGEST
AB 811, as introduced, Lowenthal. Excavations: regional
notification center system: contractor certification.
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 the requirements of these and related provisions.
This bill would provide that these requirements may also be
enforced by the Contractors' State License Board or by an action for
civil damages brought in a court of competent jurisdiction by the
person or entity that has sustained damages due to a violation of
these requirements. The bill would provide that an operator or
excavator that violates any of these requirements may be required to
attend an education program, in addition to, or instead of, any other
applicable penalty or enforcement mechanism. The bill would
authorize specified entities, which have responsibility for the
safety of operator facilities, to require operators and excavators to
attend an education program. The bill would require the regional
notification centers to post on their Internet Web sites statewide
information provided by operators and excavators regarding violations
of these requirements and damages resulting from those violations.
The Contractors' State License Law provides for licensing and
regulation of contractors by the Contractors' State License Board.
Existing law requires contractors to obtain special certifications in
order to perform asbestos-related work or to engage in hazardous
substance removal or remedial action, as specified.
This bill would prohibit a contractor from engaging in any
excavation activity, as defined, unless the qualifier for the license
had passed an approved excavation certification examination. The
bill would require the board to develop a written examination, as
specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Public health and safety are benefitted by safe excavation
practices that protect underground operator infrastructure.
(b) The law provides various rules and requirements in order to
ensure that excavations that may impact underground operator
infrastructure be done in the safest and most efficient manner
possible.
(c) Violations of excavation rules and requirements may range from
minor violations with no damage to violations that result in serious
damage, including major property damage, service outages, and
serious bodily injury or death.
(d) Violators may range from homeowners or small contractors to
major contractors, operators, and municipalities.
(e) Construction, maintenance, and repair of public
infrastructure, private and public buildings, and residences are an
important part of the economy and the well being of Californians.
(f) Enforcement of excavation rules and requirements should
achieve the public safety goal of safe excavation practices, while
not unduly burdening the operators and excavators involved in the
construction, maintenance, and repair of public infrastructure,
private and public buildings, and residences with unnecessary costs
and time delays.
(g) The enforcement options contained in Section 4 of this act are
intended to achieve both goals by providing the flexibility needed
to apply the enforcement method that will best achieve safe
excavation practices in a given case, and in the most cost-efficient
and timely manner possible.
SEC. 2. Section 7058.3 is added to the Business and Professions
Code, to read:
7058.3. (a) A contractor shall not engage in any excavation
activity, as defined in subdivision (c) of Section 4216 of the
Government Code, unless the qualifier for the license passes an
approved excavation certification examination.
(b) The Contractors' State License Board shall develop a written
examination for the certification of contractors engaged in
excavation activities, in consultation with the Division of
Occupational Safety and Health in the Department of Industrial
Relations, the Northern and Southern California One Call Centers, and
the California Common Ground Alliance.
(c) A contractor or an employee of the contractor shall not
excavate unless the contractor or the employee doing the excavation
has passed the excavation certification examination.
(d) A contractor who is not certified may bid on, or contract for,
the excavation if the work is performed by a contractor who is
certified pursuant to this section.
SEC. 3. Section 4216 of the Government Code is amended to read:
4216. As used in this article the following definitions apply:
(a) "Approximate location of subsurface installations" means a
strip of land not more than 24 inches on either side of the exterior
surface of the subsurface installation. "Approximate location" does
not mean depth.
(b) "Education program" means a training program in accordance
with the requirements of Section 1509 of Title 8 of the California
Code of Regulations, that meets the minimum training guidelines and
practices of the current Common Ground Alliance Best Practices.
(b)
(c) "Excavation" means any an
operation in which earth, rock, or other material in the ground
is moved, removed, or otherwise displaced by means of tools,
equipment, or explosives in any of the following ways: grading,
trenching, digging, ditching, drilling, augering, tunneling,
scraping, cable or pipe plowing and driving, or any other way.
(c)
(d) Except as provided in Section 4216.8, "excavator"
means any person, firm, contractor or subcontractor, owner, operator,
utility, association, corporation, partnership, business trust,
public agency, or other entity that, with their
its , or his or her, own employees or equipment performs
any excavation.
(d)
(e) "Emergency" means a sudden, unexpected occurrence,
involving a clear and imminent danger, demanding immediate action to
prevent or mitigate loss of, or damage to, life, health, property, or
essential public services. "Unexpected occurrence" includes, but is
not limited to, fires, floods, earthquakes or other soil or geologic
movements, riots, accidents, damage to a subsurface installation
requiring immediate repair, or sabotage.
(e)
(f) "High priority subsurface installation" means
high-pressure natural gas pipelines with normal operating pressures
greater than 415kPA gauge (60psig), petroleum pipelines, pressurized
sewage pipelines, high-voltage electric supply lines, conductors, or
cables that have a potential to ground of greater than or equal to
60kv, or hazardous materials pipelines that are potentially hazardous
to workers or the public if damaged.
(f)
(g) "Inquiry identification number" means the number
that is provided by a regional notification center to every person
who contacts the center pursuant to Section 4216.2. The inquiry
identification number shall remain valid for not more than 28
calendar days from the date of issuance, and after that date shall
require regional notification center revalidation.
(g)
(h) "Local agency" means a city, county, city and
county, school district, or special district.
(h)
(i) "Operator" means any person, corporation,
partnership, business trust, public agency, or other entity that
owns, operates, or maintains a subsurface installation. For purposes
of Section 4216.1, an "operator" does not include an owner of real
property where subsurface facilities are exclusively located if they
are used exclusively to furnish services on that property and the
subsurface facilities are under the operation and control of that
owner.
(i)
(j) "Qualified person" means a person who completes a
training program in accordance with the requirements of
Title 8, California Code of Regulations, Section 1509,
Section 1509 of Title 8 of the California Code of Regulations,
Injury and Illness Prevention Program, that meets the
minimum training guidelines and practices of Common Ground Alliance
current Best Practices.
(j)
(k) "Regional notification center" means a nonprofit
association or other organization of operators of subsurface
installations that provides advance warning of excavations or other
work close to existing subsurface installations, for the purpose of
protecting those installations from damage, removal, relocation, or
repair.
(k)
(l) "State agency" means every state agency,
department, division, bureau, board, or commission.
(l)
(m) "Subsurface installation" means any underground
pipeline, conduit, duct, wire, or other structure, except
nonpressurized sewerlines, nonpressurized storm drains, or other
nonpressurized drain lines.
SEC. 4. Section 4216.6 of the Government Code is amended to read:
4216.6. (a) (1) Any operator or excavator who
that negligently violates a requirement of 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 that
knowingly and willfully violates any of the provisions
a requirement 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
does not affect any civil remedies otherwise provided by
law for personal injury or for property damage, including any damage
to subsurface installations, nor is does
this section intended to create any new
civil remedies for those injuries or that damage.
(4) This article shall does 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 a state or local
agency.
(b) An action may be brought by the Attorney General, the district
attorney, or the local or state agency which
that issued the permit to excavate, for the enforcement of the
civil penalty pursuant to this section. 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, agencies in collecting these fees.
(c) The requirements of this article may also be enforced by
either of the following:
(1) The Contractors' State License Board as provided in Section
7058.3 of the Business and Professions Code.
(2) An action for civil damages brought in a court of competent
jurisdiction by the person or entity that has sustained damages due
to a violation of the requirements of this article.
(d) In addition to, or instead of, any other penalty or
enforcement mechanism provided by this article, an operator or
excavator that violates any requirement of this article may be
required to attend an education program. The following entities,
which have responsibility for the safety of operator facilities, may
require operators and excavators to attend an education program:
(1) The Contractors' State License Board.
(2) The Public Utilities Commission.
(3) The State Fire Marshal.
(4) The Division of Occupational Safety and Health in the
Department of Industrial Relations.
(5) A court of competent jurisdiction.
(e) Statewide information provided by operators and excavators
regarding violations of the requirements of this article and damages
resulting from those violations shall be posted on the Internet Web
site of the regional notification centers.