California Senate Bill SB661 Amended / Bill

 BILL NUMBER: SB 661AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 15, 2016 AMENDED IN ASSEMBLY JUNE 28, 2016 AMENDED IN SENATE JANUARY 4, 2016 AMENDED IN SENATE APRIL 13, 2015 INTRODUCED BY Senator Hill FEBRUARY 27, 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, 4216.22, 4216.23, and 4216.24 to, the Government Code, relating to excavations. LEGISLATIVE COUNSEL'S DIGEST SB 661, 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, the Dig Safe Act of 2016, would define "working day" for purposes of determining excavation start date and time in the context of these provisions. 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 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 gas corporations, electrical corporations, water corporations, and operators of hazardous liquid pipeline facilities, as specified. The bill would also authorize a local governing board to enforce these provisions on local agencies under its jurisdiction. This bill would create the California Underground Facilities Safe Excavation Board under, and assisted by the staff of, the Office of the State Fire  Marshall.   Marshal.  The bill would require the board to coordinate education and outreach activities, develop standards,  and investigate violations of,  and enforce, as specified, the provisions described above. The bill would also authorize the board to prescribe rules and regulations as may be necessary or proper to carry out the purposes of these provisions and to exercise the power and duties conferred upon it. The board would be composed of 9 members who would serve 4-year terms, and 2 nonvoting ex officio members who may be invited by the appointed members of the board. The  bill would authorize the board, to the extent that resources allow, commencing on   bill, commencing  January 1, 2018,  to use compliance audits in furthering the purposes of these provisions.   would require the board to investigate possible violations of the provisions described above, and would authorize the board to transmit the investigation results and any recommended penalty to the state or local agency with jurisdiction over the activity or business undertaken in the commission of the violation, as specified.  The bill would require the advisory committee   board  to  conduct   convene  an annual meeting and, on or before February 1, 2018, 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, upon appropriation by the Legislature, to cover the operational expenses of the board and  for  educational and outreach purposes, except 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. This act shall be known, and may be cited, as the Dig Safe Act of 2016. SEC. 2. 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) "Excavation" means any 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) 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, or his or her, own employees or equipment performs any excavation. (d) "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) "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) "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) "Local agency" means a city, county, city and county, school district, or special district. (h) "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) "Qualified person" means a person who completes a training program in accordance with the requirements of Title 8, California Code of Regulations, Section 1509, Injury Prevention Program, that meets the minimum training guidelines and practices of Common Ground Alliance current Best Practices. (j) "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) "State agency" means every state agency, department, division, bureau, board, or commission. (l) "Subsurface installation" means any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewerlines, nonpressurized storm drains, or other nonpressurized drain lines. (m) "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, 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. However, an excavator and an operator may mutually agree to a different notice and start date.    The contact information for operators notified shall be available to the excavator.  (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.   As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation.  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)   (e)  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 renew the ticket either by accessing the center's Internet Web site or by calling "811" by the end of the 28th day.  (g)   (f)  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)   (g)  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)   (h)  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)   (i)  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, 2017, 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 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. 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   Commencing   January 1, 2018, 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.   available to the excavator.  (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)   (f)  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 tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation 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)  (1)    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.   If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow   the instructions provided by the regional notification center through its Internet web site or the telephone line recorded message.   (2) An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:   (A) A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.   (B) A high priority subsurface installation of any kind.  (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 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 Board by the following agencies, that shall act to accept, amend, or reject the recommendations of the board 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 (commencing with Section 7025) 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, and water corporations, as defined in Section 241 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) A local governing board may enforce the provisions of this article on local agencies under the governing board's jurisdiction. (e) The California Underground Facilities Safe Excavation Board shall enforce the provisions of this article on persons other than those listed in  subdivision   subdivisions  (c) and (d). (f) Moneys collected as a result of penalties imposed pursuant to subdivisions (c) and (e) shall be deposited into the Safe Energy Infrastructure and Excavation Fund. (g) 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. (h) For purposes of subdivision (g), the following terms have the following meanings: (1) "Incident 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 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 without a reasonable basis, as determined by a court of competent jurisdiction, 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, as defined by subdivision  (y)   (m)  of Section 4216 and subdivision (b) of Section 4216.2, has failed to comply with subdivision (c) of Section 4216.2, or has failed to comply with subdivision (b) of Section 4216.4, the operator shall be liable for damages to the excavator who has complied with Section 4216.2, subdivisions (b) and (d) of Section 4216.3, and Section 4216.4, including liquidated damages, liability, losses, costs, and expenses, actually incurred by the excavator, 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) 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. (f) 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 4216.9 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. 11. Section 4216.12 is added to the Government Code, to read: 4216.12. (a) The California Underground Facilities Safe Excavation Board is hereby created under, and shall be assisted by the staff of, the Office of the State Fire  Marshall.   Marshal.  (b) The board 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. (4) Enforce this article to the extent authorized by subdivision (e) of Section 4216.6. (c) Notwithstanding any other law, on and after January 1, 2019, the board shall be subject to review by the appropriate policy committees of the Legislature. SEC. 12. Section 4216.13 is added to the Government Code, to read: 4216.13. (a) The board shall be composed of nine members, of which seven shall be appointed by the Governor, one shall be appointed by the Speaker of the Assembly, and one shall be appointed by the Senate Committee on Rules. (b) The seven 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) Three members 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. (3) 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 member appointed by the Speaker of the Assembly shall have knowledge and expertise in representing in safety matters the workers employed by contract excavators. (d) 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. (e) The board may invite two directors of operations of regional notification centers to be nonvoting ex officio members of the board. SEC. 13. Section 4216.14 is added to the Government Code, to read: 4216.14. (a) The term of a member of the board is four years. Of the first members of the board, four members, determined by lot, shall serve for two years 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 board within 60 days after the vacancy occurs. (d) Upon the recommendation of the board, the Governor may remove a member appointed by the Governor for incompetence or misconduct. (e) The board 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 board. (g) A member of the board shall not serve more than two consecutive years as the chairperson of the board. SEC. 14. Section 4216.15 is added to the Government Code, to read: 4216.15. The board shall meet at least once every three months. The board shall hold meetings in Sacramento and Los Angeles, and in other locations in the state it deems necessary. SEC. 15. Section 4216.16 is added to the Government Code, to read: 4216.16. The board may obtain funding for its operational expenses from: (a) A federal or state grant. (b) A fee charged to members of the regional notification centers not to exceed the reasonable regulatory cost incident to enforcement of this article. Revenues derived from the imposition of this fee shall be deposited in the Safe Energy Infrastructure and Excavation Fund. (c) Any other source. SEC. 16. 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 those groups with the highest awareness and education needs, such as homeowners, and to facilitate discussion on how to coordinate those efforts, the   The  board 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.   for the following purposes:   (1) To understand the existing needs for education and outreach, including to those groups with the highest awareness and education needs, including, but not limited to, homeowners.   (2) To facilitate discussion on how to coordinate existing education and outreach efforts 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.   (3) To determine the areas in which additional education and outreach efforts may be targeted through use, upon appropriation by the Legislature, of the moneys in the Safe Energy Infrastructure and Excavation Fund pursuant to subdivision (c).   (b) In addition to state and local government agencies, California operators, regional notification centers, and trade associations that fund outreach and education programs that encourage safe excavation practices, the meeting pursuant to subdivision (a) shall include representatives of groups that may be the target of those outreach and education efforts.   (b) The board shall use the annual meeting described in subdivision (a) to determine the areas in which additional education and outreach efforts should be targeted. Upon appropriation   (c)     Upon appropriation  by the Legislature, the board shall grant the use of the moneys in the  Safe  Energy Infrastructure and Excavation Fund to fund public education and outreach programs designed to promote excavation safety around subsurface installations and targeted towards specific excavator groups, giving priority to those with the highest awareness and education needs,  such as   including, but not limited to,  homeowners. SEC. 17. Section 4216.18 is added to the Government Code, to read: 4216.18. The board 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 publicly available data,  such as   including, but not limited to   ,  that collected by state and federal agencies and by the regional notification centers pursuant to subdivision (g) of Section 4216.6, and the board 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 (h) of Section 4216.6. The standard or set of standards are not intended to replace other relevant standards, including the  best practices   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: (a) Evidence necessary for excavators and operators to demonstrate compliance with Sections 4216.2, 4216.3, and 4216.4.  (b) 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:   (1) The type of violation and its gravity.   (2) The degree of culpability.   (3) The operator's or excavator's history of violations.   (4) The operator's or excavator's history of work conducted without violations.   (5) 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.   (6) 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.   (c)   (b)  What constitutes reasonable care, as required by paragraph (1) of subdivision (a) of Section 4216.4, in using hand tools around subsurface installations within the tolerance zone, considering the need to balance worker safety in trenches with the protection of subsurface installations. As part of determining reasonable care, the  advisory committee   board  shall consider the appropriate additional excavating depth an excavator should make if either of the following occur: (1) The subsurface installation is delineated within the tolerance zone but it is not in conflict with the excavation. (2) The location of a subsurface installation is determined, but additional subsurface installations may exist immediately below the located subsurface installation.  (d)   (c)  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. SEC. 18. Section 4216.19 is added to the Government Code, to read: 4216.19. (a) The board shall investigate possible violations of this article. (b) The board may investigate reports of incident events, as defined in paragraph (1) of subdivision (h) of Section 4216.6 and complaints from affected parties and members of the public.  (c) In furthering the purposes of this article, to the extent that resources allow, the board may authorize staff allocated to it by the Office of the State Fire Marshal to use compliance audits, including field audits, and investigations of incidents.   (c)   (d)  In determining whether to pursue an investigation, the board shall consider whether the parties have settled the matter and whether further enforcement is necessary as a deterrent to maintain the integrity of subsurface installations and to protect the safety of excavators and the public.  (d) In furthering the purposes of this article, to the extent that resources allow, the board may authorize staff allocated to it by the Office of the State Fire Marshall to use compliance audits, including field audits, and investigations of incidents and near misses.   (e) If the board, upon the completion of an investigation, finds a probable violation of the article, the board 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, pursuant to subdivision (c) of Section 4216.6, and may take action pursuant to subdivision (e) of Section 4216.6.   (f) Sanctions shall be graduated and may include notification and information letters, direction to attend relevant education, and financial penalties. When considering the issuance of citations and assessment of penalties, the board shall consider all of the following:   (1) The type of violation and its gravity.   (2) The degree of culpability.   (3) The operator's or excavator's history of violations.   (4) The operator's or excavator's history of work conducted without violations.   (5) 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.   (e)   (g)  This section shall become operative on January 1, 2018.  SEC. 19.   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 board 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 board, upon the completion of an investigation, finds a probable violation of the article, the board 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, pursuant to subdivision (c) of Section 4216.6, and may take action pursuant to subdivision (e) of Section 4216.6.   SEC. 20.  SEC. 19.  Section 4216.21 is added to the Government Code, to read: 4216.21. (a) For an investigation that the board undertakes as a result of a complaint of a violation of Section 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   6 months  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 Section 4216.2, 4216.3, or 4216.4, after the completion of a board investigation in which the person was found not to have violated the article, the complainant shall also notify the board when the action is filed. (c) This section only applies to a claim for damages to a subsurface installation.  SEC. 21.   SEC. 20.  Section 4216.22 is added to the Government Code, to read: 4216.22. Consistent with all laws of this state, the board may prescribe rules and regulations as may be necessary or proper to carry out the purposes and intent of this act and to exercise the powers and duties conferred upon it by this act.  SEC. 22.   SEC. 21.  Section 4216.23 is added to the Government Code, to read: 4216.23. (a) Notwithstanding Section 10231.5, the board shall report to the Governor and the Legislature on or before February 1, 2018, and each year thereafter, on the activities of the board and any recommendations of the board. (b) A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795.  SEC. 23.   SEC. 22.  Section 4216.24 is added to the Government Code, to read: 4216.24. The Safe Energy Infrastructure and Excavation Fund is hereby established in the State Treasury. Moneys deposited into the fund shall be used, upon appropriation by the Legislature, to cover the operational expenses of the board and for the purposes specified in subdivision (b) of Section 4216.17, except as follows: (a) Revenues derived from penalties imposed pursuant to Section 4216.6 shall not be used for operational expenses. (b) Revenues derived from the fee imposed pursuant to Section 4216.16 shall not be used for the purposes specified in subdivision (b) of Section 4216.17.