MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Energy
By: Senator(s) Carter
AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO DEFINE IMPENDING EMERGENCY EXCAVATION; TO AMEND SECTION 77-13-5, MISSISSIPPI CODE OF 1972, TO ESTABLISH ADVANCE NOTICE REQUIREMENTS FOR IMPENDING EMERGENCY EXCAVATIONS; TO BRING FORWARD SECTION 77-13-7 FOR PURPOSES OF POSSIBLE AMENDMENT; TO AMEND SECTION 77-13-9, MISSISSIPPI CODE OF 1972, TO REQUIRE PREMARKING FOR EMERGENCY EXCAVATIONS; TO AMEND SECTION 77-13-11, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-13-3, Mississippi Code of 1972, is amended as follows:
77-13-3. The words defined in this section shall have the following meanings when found in this chapter:
(a) "Abandoned facility" means any underground utility line or underground utility facilities no longer used in the conduct of the owner/operator's business and are not intended to be used in the future.
(b) "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.
(c) "Board" means the Underground Facilities Damage Prevention Board, created by Section 77-13-29.
(d) "Calendar day" means a twenty-four-hour period.
(e) "Commission" means the Mississippi Public Service Commission.
(f) "Damage" means the substantial weakening of structural or lateral support of underground utility lines and underground facilities, 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) "Design Information Request" means a notification made to Mississippi 811, Inc., by a person providing professional services and making a request in preparation for bidding, preconstruction engineering, or other advance planning efforts that do not involve excavation. A design information services request may not be used for excavation purposes.
(h) "Emergency excavation" means excavation at times of emergency involving imminent danger to life, health or property or a customer service outage.
(i) "Excavate or excavation" means any operation in which earth, rock or other material or mass of material on or below the ground is moved or otherwise displaced by any means, 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 on or below 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 on or below 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; or (iv) routine railroad maintenance activities conducted within the track structure, drainage ditches, or within the railroad right-of-way a distance not to exceed thirty (30) feet from the outside rail of the outermost track or tracks, provided this work is performed by railroad employees or railroad contractors and is carried out with reasonable care so as to protect any underground facilities properly installed in the railroad right-of-way by agreement with the railroad; or (v) routine activities of a cemetery, provided that for any cemetery that begins or expands after July 1, 2015, such activities occur only after initial notice is provided to Mississippi 811, Inc., and all affected operators have advised that there are no underground facilities within the boundaries of the subject cemetery; or (vi) routine maintenance activities carried out by or for those responsible for publicly maintained roadways and rights-of-way, provided that the activities occur entirely within the public right-of-way and do not penetrate the earth to a depth of more than twelve (12) inches and are carried out with reasonable care so as to protect any underground facilities placed in the right-of-way. Routine maintenance activities shall be more specifically described in the rules and regulations adopted by the board; or (vii) the driving of wooden stakes by use of hand tools which do not penetrate the earth to a depth of not more than six (6) inches. The term "excavate" shall include, but not be limited to, the operations of demolition, blasting, grading, land leveling, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing, driving, jacking, wrecking, razing, rending, moving or removing any structure or other material or mass of material on or below the ground.
(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, or the pointing out to the excavator of certain aboveground facilities such as, but not limited to, manhole covers, valve boxes and pipe and cable risers, which indicate the location of underground facilities.
(l) "Mechanical excavating equipment" means all equipment powered by any motor, engine, or hydraulic or pneumatic device used for excavating and shall include, but not be limited to, trenchers, bulldozers, backhoes, power shovels, scrapers, draglines, clam shells, augers, drills, cable and pipe plows and other plowing-in or pulling-in equipment.
(m) "Mississippi 811, Inc." means a nonprofit corporation organized under the laws of the State of Mississippi that provides a service through which a person shall notify the operator(s) of underground facilities of plans to excavate and request marking of facilities.
(n) "Mississippi One-Call System, Inc." means "Mississippi 811, Inc." Whenever the term "Mississippi One-Call System, Inc." appears in this chapter, the term shall mean "Mississippi 811, Inc."
(o) "Operator" means any person who owns or operates a utility. However, the term "operator" shall not include any railroad or the Mississippi Department of Transportation.
(p) "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.
(q) "Pipeline Safety Division" means the Pipeline Safety Division of the Public Service Commission.
(r) "Positive response information system" or "PRIS" means an automated information system operated and maintained by Mississippi 811, Inc., that allows excavators, locators, facility owners or operators, and other affected parties to enter and/or determine the status of a locate request.
(s) "Underground facility" means any underground utility lines and other items which shall be buried or placed below ground or submerged for use in connection with underground utility lines and including, but not be limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, vaults, attachments and those portions of poles below the ground.
(t) "Underground utility lines" means underground or buried cable, conduit pipes and related facilities for transportation and delivery of electricity, telecommunications (including fiber optics), water, sewage, gas, mixtures of gases, petroleum, petroleum products or hazardous, flammable, toxic or corrosive liquids.
(u) "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.
(v) "Working day" means a twenty-four-hour period commencing from the time the locate request is processed or entered into the system by Mississippi 811, Inc., in accordance with this chapter, excluding Saturdays, Sundays and legal holidays.
(w) "Impending emergency" means circumstances potentially dangerous to life, health, property or the loss of customer services, which would likely develop into an emergency, as defined in Section 77-13-11, if excavation is not initiated sooner than permitted under the standard notification requirements.
SECTION 2. 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 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.
(c) Except as provided
in Section 77-13-11, before beginning any excavation, other than an impending
emergency excavation, as defined in Section 77-13-3(w), provide not less
than * * *
three (3) and not more than ten (10) working days' advance written,
electronic or telephonic notice of the commencement, extent, location and
duration of the excavation work to Mississippi 811, Inc., so that Mississippi
811, Inc., operator(s) may locate and mark the location of underground utility
lines and underground facilities in the excavation area.
The written, electronic or telephonic notice required by this paragraph (c) shall contain the name, address and telephone number of the person filing the notice of intent, 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.
(d) For excavations required due to an impending emergency, provide advance written, electronic or telephonic notice of the commencement, extent, location and duration of the excavation work to Mississippi 811, Inc. For notices provided between 8:00 p.m. and 11:59 a.m., the excavation shall commence no less than twelve (12) hours from the time notice is provided. For notices provided between 12:00 p.m. and 7:59 p.m., the excavation shall commence no sooner than 8:00 a.m. on the next calendar day, to provide sufficient time for Mississippi 811, Inc., operators to locate and mark the location of underground facilities in the excavation area. In addition to the notice required by paragraph (c) of this subsection, the excavator shall also provide contact information for a person readily available to discuss the impending emergency excavation with operators.
(e) Prior to providing the advance notice to Mississippi 811, Inc., as required by paragraph (c) of this subsection, the excavator shall pre-mark the approximate boundary of the proposed excavation area with white paint, flags or stakes. Where an excavator pre-marks the proposed excavation area with a single stake or other single point indicator, that excavator represents that the proposed excavation area does not exceed fifty (50) feet in any direction from the pre-mark. In the event that the location of the proposed excavation provided in the notice includes sufficient details to enable the operator to locate same with reasonable certainty, pre-marking shall not be required.
(2) The markings provided
by operators and the locate request number shall only be valid for a period of
fourteen (14) calendar days from the date and time the locate request ticket is
processed or entered into the system by Mississippi 811, Inc. The person
responsible for the excavation project shall renew the notification with
Mississippi 811, Inc., at least * * * three (3) and not more than * * * four (4) working 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 fourteen (14) calendar days from the date and
time the renewal locate request is processed or entered into the system by Mississippi
811, Inc.
(3) 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.
(4) A person may make a written, electronic or telephonic design information request to Mississippi 811, Inc., so that owners and operators of utilities may locate underground utility lines and underground facilities in the design information area. The design information request shall contain the name, address, and telephone number of the person making the request, the type of project planned, and a description of the area to be located with sufficient particularity to enable the utility owner or operator to ascertain the precise tract or parcel of land involved.
SECTION 3. Section 77-13-7, Mississippi Code of 1972, is brought forward 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 811, Inc., and notify all operators 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, call 911 and then notify Mississippi 811, Inc., and the operator and take other action as may reasonably be necessary to protect persons and property and to minimize the hazards, until arrival of the operator's personnel and the 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 any and all costs and expenses incurred by the operator in restoring, correcting, repairing or replacing the damaged line or facility.
SECTION 4. 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 advance notice of the commencement of excavation, in accordance
with Section 77-13-5(1)(c), make an investigation, and shall report
through the use of the PRIS the status of the work performed, within * * * three (3) working days from the
time notice is provided in accordance with this chapter to Mississippi 811, Inc.,
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 locate the lines and facilities in advance of and
during the excavation work and notify the excavator through the PRIS that the
facilities have been marked; (b) advise through the PRIS that it has no underground
utility lines or underground facilities in the excavation area; or (c) advise
through the PRIS that it can locate its underground utility lines or
underground facilities in the excavation area only by excavation. If an
operator can locate its underground utility lines or underground facilities in
the excavation area only by excavation and has given proper notice of such,
that operator shall be allowed a reasonable amount of additional time, not to
exceed four (4) working days from the day the original notice was provided in
accordance with this chapter, to mark the approximate location of the
underground utility lines or underground facilities.
(2) In lieu of such marking,
the operator may request to be present at the site upon commencement of the
excavation, so long as the operator complies within * * * three (3) working days of the
receipt of the notice.
(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 notice of intent has been made in accordance with the provisions of this
chapter, that excavator must immediately contact Mississippi 811, Inc. All
operator(s) thus notified must contact the excavator within * * * two (2) hours and inform the
excavator of any of their known underground facilities, active or abandoned, at
the site of the excavation.
(4) When marking the approximate location of the facilities, the operator shall follow the color code designated and described herein, 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
Petroleum Product/Hazardous/
Flammable/Corrosive/Toxic
Materials, Product and Steam
Lines, Gas or Gaseous Material High Visibility Safety
Yellow
Telecommunications (including fiber
optics) and CATV Safety Alert Orange
Potable Water Safety Precaution Blue
Reclaimed Water, Irrigation,
Slurry Lines Purple
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 on or after January 1, 2010, shall be installed in such manner that the utility facility may be located by using a generally accepted electronic locating method.
(6) Except for emergency
excavations, if, before the expiration of the * * * three (3) working days' waiting
period, all identified facility owners or operators have responded to the
locate request and all have indicated that their facilities are either not in
conflict or have been marked as indicated through the use of the PRIS, then the
person planning to perform excavation or blasting shall be authorized to
commence work, subject to the other requirements of this section, without
waiting the full * * * three (3) working days.
(7) Upon receiving a design information request, the utility owner or operator shall within seven (7) working days from the time notice is provided in accordance with this chapter to Mississippi 811, Inc., respond by one (1) of the following methods: (a) marking the approximate location of its underground utility lines and underground facilities in the area in accordance with subsection (1) of this section; (b) providing to the person making the design information request the best available description of its underground utility lines and underground facilities in the area which may include drawings or other records maintained by the utility owner or operator; or (c) allowing the person making the design information request or any other authorized person to inspect or copy the drawings or other records for all underground utility lines and utility facilities in the area.
(8) Every person owning or operating an underground utility line or underground facility shall, upon receiving advance notice of the commencement of impending emergency excavation in accordance with Section 77-13-5(1)(d), make an investigation into and report through the use of the PRIS the status of the work performed, prior to the noticed time of excavation provided in accordance with this chapter, to Mississippi 811, Inc., to determine the approximate location of the underground utility line or underground facility in the area of the proposed excavation, and shall either:
(a) Mark the approximate location of any underground utility lines or underground facilities in or near the area of the excavation, so as to enable the person engaged in excavation work to locate the lines and facilities in advance of and during the excavation work and notify the excavator through the PRIS that the facilities have been marked; or
(b) Advise through the PRIS that there are no underground utility lines or underground facilities in the excavation area.
SECTION 5. 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 emergency excavation
at times of emergency involving an imminent danger to life, health or
property or a customer service outage. However, every person who shall engage 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 Mississippi 811, Inc., of the specifically designated emergency
excavation as promptly as reasonably possible * * *
so that operators may locate and mark the location of underground utility lines
and underground facilities in the specifically designated emergency excavation area.
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 Sections 77-13-7 and 77-13-17.
(3) Any misrepresentation of an emergency excavation as defined in Section 77-13-3(h) or of an impending emergency as defined in Section 77-13-3(w) shall constitute a violation of this chapter.
SECTION 6. This act shall take effect and be in force from and after July 1, 2023.