House Bill 1221

AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO EXCLUDE RAILROAD RIGHT-OF-WAY MAINTENANCE FROM THE DEFINITION OF "EXCAVATE OR EXCAVATION" AS CONTAINED IN THE PROVISION OF LAW RELATING TO THE REGULATION OF EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; TO AMEND SECTION 77-13-5, TO EXEMPT A RAILROAD PERFORMING CERTAIN MAINTENANCE FROM CERTAIN NOTIFICATION REQUIREMENTS; TO AMEND SECTION 77-13-7, TO PROVIDE THAT CERTAIN CONTRACTUAL PROVISIONS BETWEEN A RAILROAD AND AN OPERATOR OF UNDERGROUND FACILITIES SHALL NOT BE AFFECTED BY CERTAIN EXEMPTIONS; 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:

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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, or (iv) railroad right-of-way maintenance. 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, entity, limited liability company, 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 person 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., of the notification in accordance with this chapter, 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, draglines, 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) "Mississippi One-Call System, Inc.," shall mean a nonprofit corporation organized under the laws of the State of Mississippi that provides a service through which a person can notify the operator(s) of underground facilities of plans to excavate and request marking of facilities.

(m) "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.

(n) "Emergency excavation" shall mean excavation at times of emergency involving danger to life, health or property or a customer service outage.

(o) "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.

(p) "Positive response information system" or "PRIS" means an automated information system operated and maintained by Mississippi One-Call System, Inc., that allows excavators, locators, facility owners or operators, and other affected parties to enter and/or determine the status of a locate request.

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,except a railroad performing maintenance on a right-of-way which it owns or operates or excavation on land adjacent to a railroad right-of-way in the event of an emergency, 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, 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., so that Mississippi One-Call System, 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.

(2) The markings provided by operators shall only be valid for a period of ten (10) working days from the proposed starting date provided to Mississippi One-Call System, Inc. The person responsible for the excavation project shall renew the notification with Mississippi One-Call System, Inc., at least two (2) 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 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 3. 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 System, 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, 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 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) Notwithstanding any provision in this section to the contrary, no provision in this section shall affect any contractual provision entered into between any railroad and any other party owning or operating an underground facility or underground utility lines that are within a railroad's right-of-way.

SECTION 4. This act shall take effect and be in force from and after July 1, 2010.