House Bill 1063

(As Passed the House)

AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS "LOCATE REQUEST TICKET" AND "TRENCHLESS EXCAVATION"; TO AMEND SECTION 77-13-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE NOTICE REQUIRED FOR EXCAVATION SHALL CONTAIN THE LOCATION OF THE PROPOSED EXCAVATION, WHICH IS LIMITED TO AN AREA THE EXCAVATOR REASONABLY BELIEVES MAY BE COMPLETED WITHIN FOURTEEN CALENDAR DAYS FROM THE DATE AND TIME THE LOCATE REQUEST TICKET IS ENTERED INTO THE MISSISSIPPI 811, INC. SYSTEM AND DOES NOT INCLUDE ANY AREA IN WHICH THE EXCAVATOR HAS ALREADY COMPLETED THE EXCAVATION WORK; TO PROVIDE THAT PRIOR TO PROVIDING THE ADVANCE NOTICE TO MISSISSIPPI 811, INC., THE EXCAVATOR SHALL PRE-MARK THE APPROXIMATE BOUNDARY OF THE PROPOSED EXCAVATION AREA WITH WHITE PAINT, FLAGS, OR STAKES; TO PROVIDE THAT THE PROPOSED EXCAVATION LOCATION ON A RENEWAL LOCATE REQUEST TICKET SHALL NOT INCLUDE ANY AREA IN WHICH THE EXCAVATOR HAS ALREADY COMPLETED THE EXCAVATION WORK; TO PROVIDE THAT THE EXCAVATOR SHALL NOT USE POWER-DRIVEN EQUIPMENT FOR TRENCHLESS EXCAVATION, INCLUDING DIRECTIONAL DRILLING, ACROSS OR WITHIN THE MARKED APPROXIMATE LOCATION OF UNDERGROUND UTILITY LINES OR UNDERGROUND FACILITIES, WITH CERTAIN EXCEPTIONS; TO PROVIDE THAT FOR TRENCHLESS EXCAVATIONS, INCLUDING DIRECTIONAL DRILLING, PARALLEL TO THE MARKED APPROXIMATE LOCATION OF UNDERGROUND UTILITY LINES OR UNDERGROUND FACILITIES, THE EXCAVATOR SHALL USE CERTAIN NONINVASIVE METHODS TO IDENTIFY THE LOCATION OF THE UNDERGROUND UTILITY FACILITY AT CAREFUL AND PRUDENT INTERVALS; 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.

(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, directional boring, tunneling, scraping, cable or pipe plowing, driving, jacking, wrecking, razing, rending, dredging and anchoring, 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.

(x) "Locate request ticket" means an electronic document generated by Mississippi 811, Inc. which includes the information described in Section 77-13-5(c).

(y) "Trenchless excavation" means horizontal excavation parallel to the surface of the earth which does not use trenching or vertical digging as the primary means of excavation, including but not limited to directional boring, tunneling, or augering.

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 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 advance written, electronic or telephonic notice required by this paragraph (c) shall not be required when a qualified operator using reasonable care so as to protect himself or herself and any underground facility that may be in the area, uses a hand-powered probe rod to locate that operator's underground facilities for the purpose of underground facility mapping.

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, which is limited to an area the excavator reasonably believes may be completed within fourteen (14) calendar days from the date and time the locate request ticket is processed or entered into the Mississippi 811, Inc. system and does not include any area in which the excavator has already completed the excavation work, and whether or not explosives are to be used.

In addition to all other violations of this chapter, providing advanced written notification required by this paragraph (c) where the proposed excavation location could not reasonably be completed within fourteen (14) calendar days from the date and time the locate request ticket is processed or entered into the Mississippi 811, Inc., system, or where the proposed excavation location includes any area in which the excavator has already completed the excavation work shall constitute violations of this chapter.

Prior to providing the advance notice to Mississippi 811, Inc., as required by this paragraph (c), 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. Premarking of the proposed excavation area with white paint, flags or stakes shall not be required if the area can be defined in the advance written, electronic or telephonic notice by a street address, lot and block number, distance from a driveway or street intersection, or by other geographical descriptions more specifically described in the rules and regulations adopted by the board.

(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) of this section, 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 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, Incorporated. The proposed excavation location on a renewal locate request ticket shall not include any area in which the excavator has already completed the excavation work. In addition to all other violations of this chapter, renewing a locate request ticket that includes any area within the proposed excavation location in which the excavator has already completed the excavation work shall constitute a violation of this chapter.

(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.

(5) (a) Notwithstanding any other provision of this chapter to the contrary, the procedures and requirements set forth in this subsection (5) shall apply on the site of any excavation involving trenchless excavation, including directional drilling, where the approximate location of underground utility lines or underground facilities has been marked in compliance with Section 77-13-9.

(b) The excavator shall not use power-driven equipment for trenchless excavation, including directional drilling, across or within the marked approximate location of underground utility lines or underground facilities unless, when reasonably practical, the excavator exposes the planned trenchless excavation path by a noninvasive method such as hand digging, pot holing when practical, soft digging, vacuum methods, use of pressurized air or water, or pneumatic hand tools and then carefully and prudently monitors the horizontal and vertical location of the trenchless excavation device in a manner calculated to enable the device to be visually observed by the excavator as it crosses the entire width of the marked approximate location of the underground facilities.

(c) For trenchless excavations, including directional drilling, parallel to the marked approximate location of underground utility lines or underground facilities, the excavator shall, when reasonably practical, use a noninvasive method such as hand digging, pot holing when practical, soft digging, vacuum methods, use of pressurized air or water, or pneumatic hand tools such to identify the actual location of the underground utility facility at careful and prudent intervals.

SECTION 3. This act shall take effect and be in force from and after July 1, 2024.