MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Public Utilities

By: Senator(s) Minor

AN ACT TO REENACT SECTIONS 77-13-1, 77-13-3, 77-13-5, 77-13-7, 77-13-9, 77-13-11, 77-13-13, 77-13-15, 77-13-17 AND 77-13-19, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE REGULATION OF EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; TO REPEAL SECTION 77-13-21, MISSISSIPPI CODE OF 1972, TO REMOVE THE REPEALER ON THE PROVISIONS OF LAW WHICH REGULATE EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; 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 reenacted as follows:

77-13-1. It is the intent of the Legislature to protect underground utility facilities and other underground facilities from destruction or damage, in order to prevent death of or injury to persons, property damage to public and private property, and loss or interruption of essential utility services to the general public.

SECTION 2. Section 77-13-3, Mississippi Code of 1972, is reenacted as follows:

77-13-3. The words defined in this section shall have the following meanings when found in Sections 77-13-1 through 77-13-17:

(a) "Excavate or excavation" shall mean 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. 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.

(b) "Utility" shall mean 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" shall mean 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.

(d) "Underground facility" shall mean 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.

(e) "Person" shall mean any individual, firm, partnership, association, trustee, receiver, assignee, corporation, utility, joint venture, municipality, state governmental unit, subdivision or instrumentality of the state, or any legal representative thereof.

(f) "Damage" shall mean 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) "Operator" shall mean any individual who owns or operates a utility.

(h) "Working day" shall mean a twenty-four-hour period commencing from the time of receipt by Mississippi One-Call System, Inc., or the nonmember operator of the notification in accordance with this act, excluding Saturdays, Sundays and legal holidays.

(i) "Mechanical excavating equipment" shall mean 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, drag lines, clam shells, augers, drills, cable and pipe plows and other plowing-in or pulling-in equipment.

(j) "Excavator" shall mean any person who engages directly in excavation.

(k) "Mark" shall mean 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) "One-call association" shall mean a service through which a person can notify the operator(s) of underground facilities of plans to excavate and request marking of facilities, hereinafter referred to as Mississippi One-Call System, Inc.

(m) "Nonmember operator" shall mean any operator who elects not to join Mississippi One-Call System, Inc.

(n) "Member operator" shall mean any operator who is a member of Mississippi One-Call System, Inc.

(o) "Abandoned facility" shall mean 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.

(p) "Emergency excavation" shall mean 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 shall mean 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.

SECTION 3. Section 77-13-5, Mississippi Code of 1972, is reenacted 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 act. 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, provide not less than two (2) 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 One-Call System, Inc., and any nonmember operator(s) of any underground utility lines or underground facilities in and near the excavation area, so that Mississippi One-Call System, Inc., member operator(s) and any nonmember 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 subparagraph (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.

(2) The markings provided by member and nonmember operators shall only be valid for a period of ten (10) working days from the proposed starting date provided to the nonmember operator(s) or Mississippi One-Call System, Inc. The person responsible for the excavation project shall renew the notification with Mississippi One-Call and any nonmember operator(s) at least two (2) 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) working days from the date of the expiration of the prior notification.

(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.

SECTION 4. Section 77-13-7, Mississippi Code of 1972, is reenacted 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 System, Inc., or 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, notify Mississippi One-Call System, 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 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 5. Section 77-13-9, Mississippi Code of 1972, is reenacted 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 77-13-7, make an investigation, within two (2) working days from the time notice is provided in accordance with this act to the nonmember operator(s) or Mississippi One-Call System, 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; 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 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) 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 act, that excavator must immediately contact Mississippi One-Call System, Inc., and the nonmember operator(s). All operator(s) thus notified must contact the excavator within four (4) 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 act, 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 optic) and CATV Safety Alert Orange

Water and Irrigation Safety Precaution Blue

Slurry Lines Safety Precaution Blue

Sewer and Drain Lines Safety Green

Temporary Survey Markings High Visibility Pink

Proposed Excavation White

SECTION 6. Section 77-13-11, Mississippi Code of 1972, is reenacted as follows:

77-13-11. (1) The advance notice provisions of this chapter shall not apply to any person making an excavation at times of emergency involving 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 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 herein. 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.

SECTION 7. Section 77-13-13, Mississippi Code of 1972, is reenacted as follows:

77-13-13. The act of giving notice 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 said notice be materially inaccurate; provided, however, the act of giving advance notice and/or obtaining information as required by this act 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 his/her negligence.

SECTION 8. Section 77-13-15, Mississippi Code of 1972, is reenacted as follows:

77-13-15. In any area where a Mississippi One-Call System, Inc., is operative, notification to all members of Mississippi One-Call System, Inc., may be effected by giving notice to Mississippi One-Call System, Inc., in writing as set forth in Section 77-13-5, or by telephone, 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 reenacted as follows:

77-13-17. (1) Any operator who fails to follow, abide by or comply with this chapter shall be responsible for the cost or expense the excavator shall incur as a direct result of the failure of the operator to follow, abide by, or comply with the provisions of this chapter.

(2) Operators who have underground utility lines or underground facilities within this state shall either (a) participate in Mississippi One-Call System, Inc., or (b) provide an in-house program which meets the operational requirements of receiving those excavation notifications mandated by this act.

(3) Nonmember operators of underground pipeline facilities must notify the public and known excavators of the availability and use of its in-house notification program.

(4) The person giving notice of the intent to excavate to Mississippi One-Call System, Inc., or to a nonmember operator shall be furnished an individual reference file number for each notification and, upon request, shall be furnished the names of the operators to whom the notification will be transmitted.

(5) An adequate record of all notifications shall be maintained by Mississippi One-Call System, Inc., and nonmember operators in order to document timely compliance with this act. 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.

(6) The services of Mississippi One-Call System, Inc., acting on behalf of member operators will be provided on working days as defined in Section 77-13-3(h) at least between the hours of 7:30 a.m. and 5:00 p.m. A nonmember operator will supply the same services during its normal business hours.

(7) Mississippi One-Call System, Inc., and nonmember operators will voice-record the notification telephone calls and after-hours calls will at least reach a voice recording which explains emergency notification procedures.

(8) 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.

SECTION 10. Section 77-13-19, Mississippi Code of 1972, is reenacted 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 statute and to restrain and prevent violations and threatened violations thereof.

SECTION 11. Section 77-13-21, Mississippi Code of 1972, which repeals Sections 77-13-1 through 77-13-19, Mississippi Code of 1972, the provisions of law that regulate excavations near underground utility facilities, is hereby repealed.

SECTION 12. This act shall take effect and be in force from and after July 1, 1999.