GOVERNMENT CODE SECTION 4216-4216.9
4216. As used in this article the following definitions apply:
(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 which, 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) or greater than six inches nominal pipe diameter, 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 sewer lines, nonpressurized storm drains, or other nonpressurized drain lines.
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 South Shore Utility Coordinating Council, the Underground Service Alert--Northern California or the Underground Service Alert--Southern California are in compliance with this section and Section 4216.9.
4216.2.
(a)(1) Except in an emergency, any person planning to conduct any excavation
shall contact the appropriate regional
notification center, at least two working days, but not more than 14 calendar
days, prior to commencing that excavation, if the excavation will be conducted
in an area that is known, or reasonably should be known, to contain subsurface
installations other than the underground facilities owned or operated
by the excavator and, if practical, the excavator shall delineate with
white paint or other suitable markings the area to be excavated.
(2) 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,
as such date and time are authorized pursuant to paragraph (1) of subdivision
(a) of Section 4216.2. The excavator and operator or its representative
shall conduct an onsite meeting at a mutually-agreed-on time to determine
actions or activities required to verify the location of the high priority
subsurface installations prior to start time.
(b) Except in an emergency, every excavator covered by Section 4216.8
planning to conduct an excavation on private property 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 and,
if practical, the excavator shall delineate with white paint or other
suitable markings the area to be excavated.
(c) The regional notification center shall provide an inquiry identification
number 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. An inquiry identification number
may be validated for more than 28 days when mutually agreed between the
excavator and any member operator so notified that has a subsurface installation
in the area of the proposed excavation; and, it may be revalidated by
notification to the regional notification center by the excavator prior
to the time of its expiration.
(d) A record of all notifications by excavators and operators 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.
(e) As used in this section, the delineation is practical when any of
the following conditions exist:
(1) When delineating a prospective excavation site with white paint could
not be misleading to those persons using affected streets and highways.
(2) When the delineation could not be misinterpreted as a traffic or pedestrian
control.
(3) Where an excavator can determine the exact location of an excavation
prior to the time an area has been field marked pursuant to Section 4216.3.
(4) Where delineation could not be construed as duplicative.
(f) Where an excavator makes a determination that it is not practical
to delineate the area to be excavated, the excavator shall contact the
regional notification center to advise the operators that the excavator
shall identify the area to be excavated in another manner sufficient to
enable the operator to determine the area of the excavation to be field
marked pursuant to Section 4216.3.
4216.3. (a) (1) Any operator of a subsurface installation who
receives timely notification of any proposed excavation work in accordance
with Section 4216.2 shall, within two working days of that notification,
excluding weekends and holidays, or before the start of the excavation
work, whichever is later, or at a later time mutually agreeable to the
operator and the excavator, locate and field mark the approximate location
and, if known, the number of subsurface installations that may be affected
by the excavation to the extent and degree of accuracy that the information
is available either in the records of the operator or as determined through
the use of standard locating techniques other than excavating, otherwise
advise the person who contacted the center of the location of the operator's
subsurface installations that may be affected by the excavation, or advise
the person that the operator does not operate any subsurface installations
that would be affected by the proposed excavation.
(2) Only a qualified person shall perform subsurface installation locating
activities.
(3) A qualified person performing subsurface installation locating activities
on behalf of a subsurface installation operator shall use a minimum of
a single-frequency utility locating device and shall have access to alternative
sources for verification, if necessary.
(4) Operators of high priority subsurface installations shall maintain
and preserve all plans and records for its subsurface installations.
(b) Every operator of a subsurface installation who field marks the location
of a subsurface installation shall make a reasonable effort to make field
markings in conformance with the uniform color code of the American Public
Works Association.
(c) If, at any time during an excavation for which there is a valid inquiry
identification number, an operator's field markings are no longer reasonably
visible, the excavator shall contact the appropriate regional notification
center. The regional notification center shall contact any member, if
known, who has a subsurface installation in the area of the excavation.
Upon receiving timely notification or renotification pursuant to this
subdivision, the operator shall re-locate and re-mark, within two working
days, those subsurface installations that may be affected by the excavation
to the extent necessary, in conformance with this section.
(d) The excavator shall notify the appropriate regional notification center
of the failure of an operator to comply with this section. The notification
shall include the inquiry identification number 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 (d) of Section 4216.2.
4216.4. (a) When the excavation is within the approximate location
of subsurface installation, the excavator shall determine the exact location
of subsurface installations in conflict with the excavation by excavating
with hand tools within the area of the approximate location of subsurface
installations as provided by the operators in accordance with Section
4216.3 before using any power-operated or power-driven excavating or boring
equipment within the approximate location of the subsurface installation,
except that power-operated or power-driven excavating or boring equipment
may be used for the removal of any existing pavement if there are no subsurface
installations contained in the pavement. If documented notice of the intent
to use vacuum excavation devices, or power- operated or power-driven excavating
or boring equipment, has been provided to the subsurface installation
operator or operators and it is mutually agreeable with the operator or
operators and the excavator, the excavator may utilize vacuum excavation
devices, or power- operated or power-driven excavating or boring equipment
within the approximate location of a subsurface installation and to any depth.
(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. The
regional notification center shall provide the excavator with the contact
phone 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, the excavator shall
call 911 emergency services.
4216.5. The requirements of this article apply to state agencies and to local agencies which own or operate subsurface installations, except as otherwise provided in Section 4216.1. A local agency which 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.
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 which 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, in collecting these fees.
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 as
a result of failing to comply with the operator's requests to protect
the subsurface installation as specified by the operator prior to 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 the operator of a subsurface installation has failed to comply
with the regional notification center system requirements of Section 4216.1,
that operator shall forfeit his or her claim for damages to his or her
subsurface installation, arising from the excavation, against an excavator
who has complied with the requirements of Section 4216.2 to the extent
damages were proximately caused by the operator's failure to comply.
(c) If an operator of a subsurface installation has failed to comply with
the provisions of Section 4216.3, 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,
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) 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.
4216.8. This article does not apply to any of the following persons:
(a) An owner of real property who contracts for an excavation project on the property, not requiring a permit issued by a state or local agency, with 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.
(b) 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 appurtenances thereto is performing or having performed excavation work not requiring a permit issued by a state or local agency.
(c) 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."
4216.9. (a) No permit to excavate issued by any local agency, as defined in Section 4216, or any state agency, shall be valid unless the applicant has been provided an initial inquiry identification number 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.