SB2102_H_Cmte_Amend

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.

(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, Incorporated, 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, Incorporated, 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, Incorporated" 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, Incorporated" means "Mississippi 811, Incorporated" Whenever the term "Mississippi One-Call System, Incorporated" appears in this chapter, the term shall mean "Mississippi 811, Incorporated"

(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, Incorporated, 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, Incorporated, in accordance with this chapter, excluding Saturdays, Sundays and legal holidays.

(w) "Impending Emergency" means circumstances potentially dangerous to life, health, property, or 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 the normal notification requirements allow.

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 as defined in Section 77-13-3, provide not less than * * *~~two (2)~~ 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, Incorporated, so that Mississippi 811, Incorporated, 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) Provide advance written, electronic or telephonic notice of the commencement, extent, location and duration of the excavation work to Mississippi 811, Incorporated, for excavations required due to an impending emergency, that includes an excavation start time that is not less than twelve (12) hours from the time of notices provided between 8:00 p.m. and 11:59 a.m., and not sooner than 8:00 a.m., on the next calendar day for notices provided between 12:00 p.m. and 7:59 p.m., so that Mississippi 811, Incorporated, operators may locate and mark the location of underground utility lines and underground facilities in the excavation area.

In addition to the written, electronic or telephonic notice information required in subsection (1)(c), the excavator shall also provide contact information for a person readily available to discuss the impending emergency excavation with operators.

(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, Incorporated The person responsible for the excavation project shall renew the notification with Mississippi 811, Incorporated, at least * * *~~two (2)~~ three (3) and not more than * * *~~three (3)~~ 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, Incorporated.

(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, Incorporated, 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 77-13-9, 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, make an investigation, and shall report through the use of the PRIS the status of the work performed, within * * *~~two (2)~~ three (3) working days from the time notice is provided in accordance with this chapter to Mississippi 811, Incorporated, 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 * * *~~two (2)~~ 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, Incorporated. All operator(s) thus notified must contact the excavator within * * *~~four (4)~~ 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 * * *~~two (2)~~ 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 * * *~~two (2)~~ 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, Incorporated, 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 underground utility lines or underground facilities shall, upon receiving advance notice of the commencement of impending emergency excavation, make an investigation, and report through the use of the PRIS the status of the work performed, prior to the noticed time of excavation provided to Mississippi 811, Incorporated, 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; or

(b) Advise through the PRIS that it has no underground utility lines or underground facilities in the excavation area.

SECTION 4. 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, Incorporated, 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 either an emergency excavation or an impending emergency as defined in Section 77-13-3, shall constitute a violation of this act.

SECTION 5. 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 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.

(4) In the event that an operator brings a lawsuit to enforce compliance with this section, then the prevailing party in any such lawsuit shall be awarded its legal costs, expenses, and fees, including reasonable attorney's fees, incurred in connection with such lawsuit. If more than one (1) party is found to be responsible, the costs, expenses, and fees, including reasonable attorney's fees, shall be equitably apportioned among the responsible parties.

SECTION 6. This act shall take effect and be in force from and after July 1, 2023.