2002 Regular Session
To: Public Utilities
By: Representative Montgomery (74th)
AN ACT RELATING TO EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; TO AMEND SECTION 77-13-1, MISSISSIPPI CODE OF 1972, TO DESIGNATE CHAPTER 13, TITLE 77, MISSISSIPPI CODE OF 1972, THE "MISSISSIPPI UNDERGROUND UTILITY FACILITY PROTECTION ACT" AND TO STATE THE PURPOSE OF THE ACT; TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS USED IN THE ACT; TO AMEND SECTION 77-13-5, MISSISSIPPI CODE OF 1972, TO REVISE THE NOTICE REQUIREMENTS REQUIRED OF EXCAVATORS BEFORE BEGINNING AN EXCAVATION; TO AMEND SECTION 77-13-7, MISSISSIPPI CODE OF 1972, TO REQUIRE EXCAVATORS TO CALL 911 WHEN AN UNDERGROUND PIPELINE OR FACILITY THAT CONTAINS HAZARDOUS MATERIALS IS DAMAGED; TO AMEND SECTION 77-13-9, MISSISSIPPI CODE OF 1972, TO REQUIRE UTILITY FACILITIES INSTALLED AFTER DECEMBER 31, 2002, TO BE LOCATABLE BY ELECTRONIC LOCATING METHODS; TO AMEND SECTIONS 77-13-11 AND 77-13-13, MISSISSIPPI CODE 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO AMEND SECTION 77-13-15, MISSISSIPPI CODE OF 1972, TO REQUIRE NOTICE OF EXCAVATIONS THROUGHOUT THE STATE TO BE MADE TO MISSISSIPPI ONE CALL SYSTEM, INC.; TO AMEND SECTION 77-13-17, MISSISSIPPI CODE OF 1972, TO REQUIRE MISSISSIPPI ONE CALL SYSTEM, INC., TO DEVELOP A FEE SCHEDULE BASED UPON THE COST OF MAINTAINING MISSISSIPPI ONE CALL CENTER; TO AMEND SECTION 77-13-19, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO CREATE NEW SECTION 77-13-23, MISSISSIPPI CODE OF 1972, TO ESTABLISH PENALTIES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-13-1, Mississippi Code of 1972, is amended as follows:
77-13-1. (1) This chapter shall be known and may be cited as the "Mississippi Underground Utility Facility Protection Act."
(2) The purpose of this chapter is to safeguard against injury or loss of life due to excavation, blasting or demolition and to protect underground facilities from costly damage and the
interruption of * * * utility or other services to the general public and to avoid the delay of construction projects as a result of damage or destruction of underground facilities.
SECTION 2. Section 77-13-3, Mississippi Code of 1972, is amended follows:
77-13-3. The words defined in this section shall have the following meanings when found in Sections 77-13-1 through 77-13-21:
(a) "Excavate or excavation" * * * means any operation in which earth, rock or other material or mass of material * * * below the surface of the ground is moved or otherwise displaced by any means (including blasting, demolition and directional boring), except: (i) the tilling of the soil less than twenty-four (24) inches in depth for agricultural purposes; or (ii) an operation in which earth, rock or other material or mass of material * * * below the surface of the ground is moved or otherwise displaced to a depth of less than twelve (12) inches on private property by the property owner without the use of mechanical excavating equipment; or (iii) an operation in which earth, rock or other material or mass of material * * * below the surface of the ground is moved or otherwise displaced without the use of mechanical excavating equipment to a depth of less than twelve (12) inches on private property by an excavator who is not the property owner, except when such excavation is in a clearly marked underground facility right of way. The term "excavate" * * * includes, but is not * * * limited to, the operations of demolition, blasting, grading, land leveling, trenching, digging, ditching, drilling, directional drilling or boring, augering, tunneling, scraping, cable or pipe plowing, driving, jacking, wrecking, razing, * * * moving, demolishing or removing any structure or other material or mass of material * * * below the surface of the ground.
(b) "Utility" * * * means any person who supplies, distributes or transports, by means of underground utility lines or underground facilities, any of the following materials or services: gas; mixture of gases; petroleum; petroleum products or hazardous, toxic, flammable or corrosive liquids; electricity; telecommunications (including fiber optics); sewage; drainage; water; steam; or other substances.
(c) "Underground utility lines" * * * means underground or buried cable, conduit pipes and related facilities for transportation and delivery of electricity, telecommunications (including fiber optics and cable television lines (CATV)), water, sewage, gas, mixtures of gases, petroleum, petroleum products or hazardous, flammable, toxic or corrosive liquids.
(d) "Underground facility" * * * means any underground utility lines and other items which are buried or placed below ground or submerged for use in connection with underground utility lines, * * * including, but not * * * limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, vaults, attachments, and those portions of poles below the ground.
(e) "Person" * * * means any individual, firm, partnership, association, trustee, receiver, assignee, corporation, entity, limited liability company, utility, joint venture, municipality, state governmental unit, subdivision or instrumentality of the state, or any legal representative thereof.
(f) "Damage" * * * means the * * * weakening of structural or lateral support of underground utility lines and underground facilities caused by excavation and resulting in repair or customer outage, penetration or destruction of any protective coating, housing or other protective devices of an underground utility line or underground facility, and the partial or complete severance of any underground utility line or underground facility, but does not include any operator's abandoned facility.
(g) "Operator" * * * means any person who owns or operates a utility.
(h) "Working day" * * * means a twenty-four-hour period commencing from the time of receipt by Mississippi One Call Center on a business day.
(i) "Mechanical excavating equipment" * * * means all equipment powered by any motor, engine, or hydraulic or pneumatic device used for excavating and * * * includes, but is not * * * limited to, trenchers, bulldozers, trackhoes, backhoes, power shovels, scrapers, drag lines, clam shells, augers, drills, cable and pipe plows and other plowing-in or pulling-in equipment.
(j) "Excavator" * * * means any person who engages directly in excavation.
(k) "Mark" * * * means the use of stakes, paint or other clearly identifiable materials to show the field location of underground facilities in accordance with the current color code standard of the American Public Works Association, or the uncovering or exposing of underground facilities so that the excavator may readily see the location of same * * *.
(l) "Mississippi One Call Center" * * * means a service operated by Mississippi One Call System, Inc., through which a person can notify the operator(s) of underground facilities of plans to excavate and request marking of facilities * * *.
(m) "Mississippi One Call System, Inc.," means a nonprofit corporation organized under the laws of the State of Mississippi which is owned and operated by its members.
(n) "Member operator * * *" means all utility owners and operators within the State of Mississippi who are members of Mississippi One Call System, Inc.
(o) "Abandoned facility" * * * means any underground utility line or underground utility facilities no longer used in the conduct of the owner/operator's business and * * * not intended to be used in the future.
(p) "Emergency excavation" * * * means excavation at times of emergency involving danger to life, health or property or a customer service outage.
(q) "Approximate location" of underground utility lines or underground facilities * * * means information about an operator's underground utility lines or underground facilities which is provided to a person by an operator and must be accurate within eighteen (18) inches measured horizontally from the outside edge of each side of such operator's facility, or a strip of land eighteen (18) inches either side of the operator's field mark, or the marked width of the facility or line plus eighteen (18) inches on each side of the marked width of the facility or line.
(r) "Blasting" means any operation by which the level or grade of land is changed or by which earth, rock, buildings, structures or other masses or materials are rendered, torn, demolished moved or removed by the detonation of dynamite or any other explosive agent.
(s) "Business days" means Monday through Friday, excluding the following holidays: New Year's Day; Birthday of Dr. Martin Luther King, Jr.; Memorial Day; Independence Day; Labor Day; Thanksgiving Day and the following Friday; Christmas Eve; and Christmas Day. Any of these holidays which falls on a Saturday will be observed on the preceding Friday and any that falls on a Sunday shall be observed on the following Monday.
(t) "Business hours" means the period of time from 7:30 a.m. to 5:00 p.m. local prevailing time on business days.
(u) "By hand" means an excavation performed without mechanical excavating equipment.
(v) "Demolition or demolished" means any operation by which a structure or mass of material is wrecked, razed, moved or removed by means of any mechanical excavating equipment or discharge of explosives.
(w) "Emergency" means: a sudden or unforeseen occurrence involving a clear and imminent danger to life, health or property; the interruption of utility services; or repairs to transportation facilities that require immediate action.
(x) "Facility owner or operator" means any person or entity who owns, operates or controls the operation of a utility for the purpose of commercial enterprise.
(y) "Locate request" means a written, telephonic or electronic communication or notification request from an excavator to Mississippi One Call Center in which a request for locating underground utility lines or underground facilities complies with the advance notice requirements of Section 77-13-5.
(z) "Willfully" or "willful" means an act done intentionally, knowingly and purposely, without justifiable cause or excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
SECTION 3. Section 77-13-5, Mississippi Code of 1972, is amended as follows:
77-13-5. (1) In addition to complying with all other applicable regulations and requirements of federal, state, county and municipal authorities, no person shall engage in excavation of any kind, before meeting the notification requirements of this chapter. Under this chapter, the excavator shall:
(a) Inform himself/herself of the presence and designated location of any underground utility lines and underground facilities in or near the area where excavation is to be conducted;
(b) Plan and conduct the excavation to avoid or minimize interference with or damage to underground utility lines and underground facilities in or near the excavation area; maintain a clearance between any underground utility line or underground facility and the cutting edge or point of any mechanical excavating equipment, taking into account the known limit of control of such cutting edge or point, as may be reasonably necessary to avoid damage to such facility; and provide such support for underground utility lines or underground facilities in and near the excavation area, including during any backfilling operations, as may be reasonably necessary for the protection of such facilities; and
(c) Except as provided in Section 77-13-11, provide a locate request to Mississippi One Call Center not less than two (2) and not more than ten (10) business days before the beginning of the actual excavation.
The locate request required by this paragraph shall contain the name, address and telephone number of the person filing the locate request, the person responsible for the excavation, the starting date, anticipated duration, type of excavation to be conducted, the location of the proposed excavation and whether or not explosives are to be used.
(2) The markings provided by member * * * operators shall only be valid for a period of ten (10) business days from the proposed starting date provided to * * * Mississippi One Call Center. The person responsible for the excavation project shall renew the notification with Mississippi One Call Center at least two (2) business days prior to this expiration date and shall continue to renew such notification in the same manner throughout the duration of the excavation. Such renewal notice shall be valid for a period of ten (10) business days from the date of the expiration of the prior notification.
(3) No person may request marking of a site through the Mississippi One Call Center unless excavating is scheduled to commence or the request is for design purposes and the Mississippi One Call Center is notified that the request is for design purposes. No person may make repeated requests for remarking unless the repeated request is required for excavating to continue or due to circumstances not reasonably within the control of that person.
(4) Compliance with the notice requirements of this section shall not be required of: (a) persons plowing less than twenty-four (24) inches in depth for agricultural purposes; (b) persons who are moving or otherwise displacing, by hand, earth, rock or other material or mass of material on or below the ground at a depth of less than twelve (12) inches on property they own; and (c) persons, other than the property owner, who are moving or otherwise displacing, by hand, earth, rock or other material or mass of material on or below the ground at a depth of less than twelve (12) inches, except when such excavation is in a clearly marked underground facility right-of-way.
(5) When a locate request is made in accordance with this section, no person other than the person conducting the excavation and submitting the locate request may conduct any excavation at the site. There may be multiple locate requests for the same excavation site by multiple excavators who plan to excavate at the site. Each excavator must have a valid locate request number from Mississippi One Call Center before that excavator may commence excavation.
(6) The excavation or utility owner or operator shall mark the route or boundary of the proposed excavation site by means of white paint, white flags or white stakes before making the locate request to Mississippi One Call Center.
SECTION 4. Section 77-13-7, Mississippi Code of 1972, is amended as follows:
77-13-7. (1) Each person responsible for any excavation that results in damage to an underground utility line or underground facility, immediately upon discovery of such damage, shall notify Mississippi One Call Center of such damaged line or facility of the location of the damage and shall allow the operator reasonable time to accomplish any necessary repairs before completing the excavation in the immediate area of the damage to such line or facility.
(2) Each person responsible for any excavation that results in damage to an underground pipeline or underground facility permitting the escape of any hazardous, flammable, toxic or corrosive gas or liquid shall, immediately upon discovery of such damage, first call 911 and then notify or call Mississippi One Call Center and take all other actions as may reasonably be necessary to protect persons and property and to minimize the hazards, until arrival of the operator's personnel and police or fire departments.
(3) Except where the excavator has fully complied with the provisions of Section 77-13-5 and subsections (1) and (2) of this section, each person responsible for excavation that results in damage to an underground line or underground facility, except the property owner, unless the property owner is the excavator, shall be responsible for the reasonable costs and expenses incurred by the operator in restoring, correcting, repairing or replacing the damaged line or facility.
SECTION 5. Section 77-13-9, Mississippi Code of 1972, is amended as follows:
77-13-9. (1) Every person owning or operating underground utility lines or underground facilities shall, upon receiving a locate request, in accordance with Section 77-13-5, make an investigation, within two (2) business days from the time the locate request is provided in accordance with this chapter to * * * Mississippi One Call Center, to determine the approximate location of its underground utility lines or underground facilities in the area of the proposed excavation, and shall either: (a) mark the approximate location of underground utility lines and underground facilities in or near the area of the excavation, so as to enable the person engaged in excavation work to avoid the lines and facilities * * * during the excavation work; or (b) advise in writing or by telephone or electronic means that it has no underground utility lines or underground facilities in the excavation area.
(2) In addition to markings, the operator may request to be present at the site upon commencement of the excavation, so long as the operator complies within two (2) business days of the receipt by Mississippi One Call Center of the locate request.
(3) When an excavator, upon arriving at an excavation site, sees evidence of unmarked underground utility lines or underground facilities or encounters an unmarked underground utility line or underground facility on an excavation site after excavation has commenced where a locate request has been made in accordance with the provisions of this chapter, that excavator must immediately contact Mississippi One Call Center. All operators or owners, or both, thus notified must contact the excavator within four (4) hours and inform the excavator that there are no active underground utility lines or underground facilities at the excavation site or within the same period of four (4) hours, locate any known underground utility lines or underground facilities.
(4) When marking the approximate location of the facilities, the operator shall follow the color code designated and described in this subsection, unless otherwise provided for by specific administrative rule or regulation promulgated pursuant to this chapter, namely:
UTILITY OR TYPE OF FACILITY GROUP IDENTIFYING COLOR
Electric Safety Red
Materials, Product and Steam Lines,
Gas or Gaseous Material High Visibility Safety Yellow
(including fiber optic) and CATV Safety Alert Orange
Potable Water * * *
Slurry Lines Purple
Reclaimed Water, Irrigation and
Sewer and Drain Lines Safety Green
Temporary Survey Markings High Visibility Pink
Proposed Excavation White
(5) All utility facilities installed by owners or operators of utilities after December 31, 2002, must be installed in a manner that will make the utility locatable or findable using a generally accepted electronic locating method.
(6) Construction plans may not be put to bid before the completion of an investigation designed to determine the existence and approximate location of all underground utility lines or underground facilities within the boundaries of the proposed project which shall be shown on the plans.
SECTION 6. Section 77-13-11, Mississippi Code of 1972, is amended as follows:
77-13-11. (1) The advance notice provisions of this chapter shall not apply to any person making an excavation in times of emergency involving danger to life, health or property or a customer service outage. However, every person who * * * engages in such emergency excavation shall take all necessary and reasonable precautions to avoid or minimize interference with or damage to existing underground utility lines and underground facilities in and near the excavation area, and shall notify, as promptly as reasonably possible, the operators of underground utility lines or underground facilities in and near the emergency excavation area specifically designating whether such excavation is an emergency excavation as defined in Section 77-13-3. In the event of damage to or dislocation of any underground utility lines or underground facilities caused by any such emergency excavation work, the person responsible for the excavation shall immediately notify the operator of the damaged or dislocated underground facilities of the damage or dislocation.
(2) An imminent danger to life, health, property or customer service exists whenever there is a substantial likelihood that injury, loss of life, health or customer services, or substantial property loss could result before the person responsible for the excavation or demolition can fully comply with the notification and response procedures required in this chapter.
SECTION 7. Section 77-13-13, Mississippi Code of 1972, is amended as follows:
77-13-13. The act of giving the locate request in accordance with Section 77-13-5 shall relieve the notifying party of all liability to a utility should such notice be ignored or the information provided by the utility subsequent to the locate request be materially inaccurate; * * * however, the act of giving the locate request or obtaining information as required by this chapter shall not relieve any person making excavations from doing so in a careful and prudent manner, nor shall it relieve such person from liability for any injury or damage proximately resulting from that person's negligence.
SECTION 8. Section 77-13-15, Mississippi Code of 1972, is amended as follows:
77-13-15. In the State of Mississippi, notification to the members of Mississippi One Call System, Inc., must be made by giving notice to Mississippi One Call Center in writing, by telephone or electronically, as set forth in Section 77-13-5, * * * provided that the same information required by Section 77-13-5 is furnished by the person or public agency responsible for the excavation activities.
SECTION 9. Section 77-13-17, Mississippi Code of 1972, is amended as follows:
77-13-17. (1) Any operator who fails to fully follow, abide by or comply with this chapter shall be responsible for the reasonable cost or expense the excavator * * * incurs as a direct result of the failure of the operator to fully follow, abide by, or comply with the provisions of this chapter.
(2) All operators or owners of underground utility lines or underground facilities within this state shall * * * participate in Mississippi One Call System, Inc., Mississippi One Call System, Inc., through its board of directors, shall develop a schedule of fees for its members. The fees must be based upon the actual costs incurred to operate and maintain Mississippi One Call Center.
(3) The person giving the locate request to Mississippi One Call Center shall be furnished an individual reference file number for each locate request and * * * shall be offered by Mississippi One Call Center the names of the operators to whom the notification will be transmitted.
(4) An adequate record of all notifications shall be maintained by Mississippi One Call System, Inc., * * * in order to document timely compliance with this chapter. These records shall be retained for a period of not less than four (4) years and shall be made available at a reasonable cost upon proper and adequate advance request.
(5) The services of Mississippi One Call System, Inc., acting on behalf of all member operators, and owners, to receive locate requests will be provided on business days, as defined in Section 77-13-3, at least between the hours of 7:30 a.m. and 5:00 p.m. Mississippi One Call Systems, Inc., shall provide an emergency locate service to receive emergency locate requests at all times.
(6) Mississippi One Call Center * * * will voice-record all notification telephone calls, including all emergency locate requests.
(7) All member operators shall provide Mississippi One Call System, Inc., the following information:
(a) A list of counties, cities and towns in which the operator has underground utility lines or underground facilities in each county.
(b) The townships, ranges, sections and quarter sections in each county in which the operator has underground utility lines or underground facilities or for other reasons wish to receive notification of proposed excavation.
(c) An update on an annual basis of each operator's underground utility lines or underground facilities for the State of Mississippi.
(d) Emergency telephone numbers to be used if there is an emergency and the utility owner/operator needs to be notified of the emergency by either the 911 system or the Mississippi One Call Center.
SECTION 10. Section 77-13-19, Mississippi Code of 1972, is amended as follows:
77-13-19. In addition to any other rights and remedies which a person may have, any person shall have the right to resort to and apply for injunctive relief, both temporary and permanent, in any court of competent jurisdiction to enforce compliance with the provisions of this chapter and to restrain and prevent violations and threatened violations of this chapter.
SECTION 11. The following shall be codified as Section 77-13-23, Mississippi Code of 1972:
77-13-23. (1) A person who willfully violates any provision of this chapter is guilty of a misdemeanor and is subject to a fine not to exceed Five Thousand Dollars ($5,000.00) or a term of imprisonment not to exceed forty-eight (48) hours, or both, for each occurrence of a violation.
(2) A person who willfully violates the provisions of this chapter may be issued a citation by any local or state law enforcement officer or permitting agency inspector. The issuer of the citation may require that the person cease working on the excavation or may prohibit the person from starting a proposed excavation until there is compliance with the provisions of this chapter.
(3) The amount of penalties imposed under this section will be dependent upon the degree of noncompliance, the amount of injury or damage caused, the degree of threat to public safety, the degree of public inconvenience caused as a result of the violation, and the number of past violations. Mitigation of the penalty may be allowed by "good faith" efforts of the violator to have complied with the provisions of this chapter.
(4) (a) A person who willfully violates any provision of this chapter may be required to appear before the appropriate court where the violation has occurred. A person who fails to appear or otherwise properly respond to a citation issued pursuant to this section will be charged with failure to appear and upon conviction, in addition to the penalties set forth in this section, is punishable by an additional fine not to exceed Two Hundred Fifty Dollars ($250.00).
(b) The issuing officer shall indicate on the citation the time, date and location of the scheduled hearing.
(c) A person charged with a violation of this chapter, unless required to appear before the appropriate court, may pay the penalty, in lieu of appearance, either by mail or in person, within ten (10) business days after the date of receiving the citation.
(d) A person who pays the penalty in lieu of appearance is deemed to have admitted to committing the violation and to have waived the right to a hearing on the issue of the violation. The admission may be used as evidence in any other proceeding relating to the violation of this chapter.
(5) After a hearing, the court shall make a determination as to whether or not a willful violation has been committed. If the commission of a willful violation is proven, the court may impose, for each occurrence, a fine not to exceed Five Thousand Dollars ($5,00000) or a term of imprisonment not to exceed forty-eight (48) hours, or both. In determining the amount of the fine, the court may consider previous violations of this chapter. If a person is found by the appropriate court to have committed the violation, the person may appeal that finding to the circuit court of the county where the violation occurred.
(6) Any person who knowingly and willfully moves or removes or otherwise destroys the stakes, flags, paint or other physical markings used to mark or locate an underground utility facility commits the offense of malicious mischief as set forth in Section 97-17-67.
(7) This section does not affect any civil remedies for personal injury or property damage or criminal sanctions except as otherwise specifically provided for in this chapter.
SECTION 12. This act shall take effect and be in force from and after July 1, 2002.