MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Public Utilities
By: Representative Beckett
AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS AS USED IN THE LAWS REGULATING THE EXCAVATION OF UNDERGROUND UTILITY LINES; TO AMEND SECTIONS 77-13-5 AND 77-13-7, MISSISSIPPI CODE OF 1972, TO ESTABLISH A CIVIL PENALTY AGAINST ANY PERSON WHO VIOLATES THE NOTIFICATION REQUIREMENTS OF THE ACT AND CAUSES DAMAGE TO A PIPELINE FACILITY IN THE AREA OF EXCAVATION; TO AMEND SECTION 77-13-9, MISSISSIPPI CODE OF 1972, TO ESTABLISH A CIVIL PENALTY AGAINST THE OPERATOR OF A PIPELINE FACILITY IN CERTAIN INSTANCES; TO CREATE SECTION 77-13-27, MISSISSIPPI CODE OF 1972, TO CREATE THE UNDERGROUND PIPELINE FACILITIES ADVISORY COMMITTEE AND TO PROVIDE FOR ITS MEMBERS; TO CREATE SECTION 77-13-29, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE PIPELINE FACILITIES PROTECTION ACCOUNT AS A REVOLVING FUND TO BE USED BY THE PUBLIC SERVICE COMMISSION FOR ADMINISTERING THE CHAPTER; TO CREATE SECTION 77-13-31, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ADDITIONAL PENALTIES ON AN OPERATOR OF A PIPELINE FACILITY; TO CREATE SECTION 77-13-33, MISSISSIPPI CODE OF 1972, TO REQUIRE THE PUBLIC SERVICE COMMISSION TO ADOPT RULES AND REGULATIONS TO CARRY OUT ITS RESPONSIBILITIES UNDER THE CHAPTER; 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) "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; (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. 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, pipeline facilities, 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, * * * the partial or complete severance of any
underground utility line or underground facility, and rendering any
underground facility inaccessible, but does not include any operator's
abandoned facility.
(g) "Operator" shall mean any person who owns or operates a utility. However, the term "operator" shall not include any railroad or the Mississippi Department of Transportation.
(h) "Working day" shall mean 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.
(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 "Mississippi 811, Inc." Whenever the term "Mississippi One-Call System, Inc." appears in this chapter, the term shall mean "Mississippi 811, Inc."
(m) "Mississippi 811, Inc." shall mean 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) "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.
(o) "Emergency excavation" shall mean excavation at times of emergency involving danger to life, health or property or a customer service outage.
(p) "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.
(q) "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.
(r) "Calendar day" shall mean a twenty-four-hour period.
(s) "Pipeline facilities" means a gas pipeline facility and a hazardous liquid pipeline facility.
(t) "Gas pipeline facility" includes a pipeline, a right-of-way, a facility, a building, or equipment used in transporting gas or treating gas during its transportation.
(u) "Hazardous liquid pipeline facility" includes a pipeline, a right of way, a facility, a building, or equipment used or intended to be used in transporting hazardous liquid.
(v) "Hazardous liquid" includes petroleum or petroleum products; nonpetroleum fuel, including biofuel, that is flammable, toxic, or corrosive or would be harmful to the environment if released in significant quantities; and any substance the United States Secretary of Transportation decides may pose an unreasonable risk to life or property when transported by a hazardous liquid pipeline facility in a liquid state (except for liquefied natural gas).
(w) "Commission" shall mean the Mississippi Public Service Commission.
(x) "Pipeline Safety Division" shall mean the Pipeline Safety Division of the Mississippi Public Service Commission.
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, 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 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) Notify Mississippi 811 if there is evidence of an unmarked pipeline facility in the area of the excavation or demolition or if the markings indicating the location of an underground facility have become illegible.
(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 two (2) and not more than three (3) 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 who:
(a) Violates subsection (1) of this section; and
(b) Causes damage to a pipeline facility in the area of the excavation or demolition;
may be subject to a civil penalty in an amount recommended by the advisory committee and approved by the commission, not to exceed Ten Thousand Dollars ($10,000.00).
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) Each person who:
(a) Causes damage to a pipeline facility located in an area of excavation or demolition;
(b) Is required to provide notice under this section for the excavation or demolition; and
(c) Fails to provide the notice;
may be subject to a civil penalty in an amount recommended by the advisory committee and approved by the commission, not to exceed Ten Thousand Dollars ($10,000.00).
( * * *4) 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 77-13-7, make an investigation, and may report through the use of the PRIS the status of the work performed, within two (2) working days from the time notice is provided in accordance with this chapter to the 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; (b) advise in writing or by telephone or electronic means that it has no underground utility lines or underground facilities in the excavation area; or (c) advise in writing or by telephone or electronic means 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) 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 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 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
optic) 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) 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) working days.
(7) The operator of the pipeline facility may be subject to a civil penalty in an amount recommended by the advisory committee and approved by the commission, not to exceed Ten Thousand Dollars ($10,000.00) for each instance in which:
(a) An operator of a pipeline facility is required to supply information, including facility locate markings, under subsection (1) of this section to a person responsible for an excavation or demolition;
(b) The operator of the pipeline facility fails to supply the information described in subsection (1) of this section or provides incorrect facility locate markings; and
(c) The operator's pipeline facility is damaged during the excavation or demolition for which the operator was required to supply the information described in subsection (1) of this section.
(8) Subsection (7) of this section does not apply to an operator who:
(a) Is repairing its own underground facilities; or
(b) Fails to supply required information or provide facility locate markings due to factors beyond the control of the operator.
SECTION 5. The following shall be codified as Section 77-13-27, Mississippi Code of 1972:
77-13-27. Underground Pipeline Facilities Advisory Committee. (1) The Underground Pipeline Facilities Advisory Committee is established and consists of the following seven (7) members appointed by the Governor:
(a) One (1) member representing Mississippi 811.
(b) One (1) member representing investor-owned gas utilities.
(c) One (1) member representing operators of pipeline facilities or pipelines.
(d) One (1) member representing municipal gas utilities.
(e) Two (2) members representing commercial excavators.
(f) One (1) member representing providers of facility locate marking services.
(2) The term of a member is four (4) years. A member of the advisory committee serves at the will and pleasure of the Governor. The Governor shall fill a vacancy in the membership of the advisory committee for the unexpired term of the vacating member.
(3) The association and the commission shall provide staff support and meeting space to the advisory committee.
(4) The members of the advisory committee shall elect a chairperson. The advisory committee shall meet at the call of the chairperson.
(5) The affirmative vote of a majority of members appointed under subsection (1) of this section is required to take action.
(6) The pipeline safety division shall investigate alleged violations of this chapter. If the pipeline safety division finds that a person has violated a provision of this chapter, the pipeline safety division shall forward its finding to the advisory committee.
(7) The advisory committee shall act in an advisory capacity to the commission concerning the implementation and enforcement of this chapter. In this capacity, and subject to subsections (8) and (9) of this section, the advisory committee may recommend the following penalties with respect to persons found by the pipeline safety division to violate this chapter:
(a) Civil penalties consistent with this chapter.
(b) Participation in education or training programs developed and implemented by the commission.
(c) Warning letters.
(d) Development of a plan to avoid future violations of this chapter.
Before making a recommendation under this subsection, the advisory committee shall provide notice to the person found to be in violation of this chapter of an opportunity to appear before the advisory committee with respect to the violation.
(8) The advisory committee may consider the following when making a recommendation under subsection (7) of this section:
(a) Whether the person found to be in violation of this chapter is a first-time or repeat violator.
(b) Whether the person found to be in violation of this chapter is a homeowner or tenant performing excavation or demolition:
(i) On the homeowner's or tenant's residential property; and
(ii) Outside an operator's easement or right-of-way;
(c) The severity of the violation.
(9) If the advisory committee determines that:
(a) The person found to be in violation of this chapter is a first-time violator described in subsection (8)(b) of this section; and
(b) The violation did not result in physical harm to a person;
then the advisory committee may not recommend a penalty described in subsection (7)(a) or (7)(d) of this section.
(10) Upon receiving a recommendation from the advisory committee under subsection (7) of this section, and after notice and opportunity for a public hearing, the commission shall do the following as applicable:
(a) Uphold or reverse the finding of a violation by the pipeline safety division under subsection (6) of this section.
(b) Approve or disapprove each recommendation of the advisory committee.
(c) Collect any civil penalties and deposit the penalties in the pipeline facilities protection account.
(11) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this section shall not be admissible in any other civil causes of action.
SECTION 6. The following shall be codified as Section 77-13-29, Mississippi Code of 1972:
77-13-29. Pipeline Facilities Protection Account. The Pipeline Facilities Protection Account is hereby established as a revolving fund to be used by the commission for administering the enforcement of this chapter. All civil penalties ordered by the commission and collected pursuant to Section 77-13-27 shall be deposited in the special fund. Excess funds shall be used to support public awareness programs, training and education programs for excavators, pipeline operators, line locators, and other persons to reduce the number and severity of violations of this chapter. The commission shall determine the appropriate allocation of any excess funds among such programs. At the end of each fiscal year, earned interest and unexpended monies remaining in the fund may not revert to the State General Fund or any other fund of the state. The expenses of administering the account shall be paid from money in the account.
SECTION 7. The following shall be codified as Section 77-13-31, Mississippi Code of 1972:
77-13-31. Penalties not exclusive. An operator of a pipeline facility who violates this chapter may be subject to a civil penalty imposed under this chapter in addition to penalties imposed by the commission pursuant to other provisions of Title 77.
SECTION 8. The following shall be codified as Section 77-13-33, Mississippi Code of 1972:
77-13-33. Authority of commission to adopt rules. The commission shall adopt rules, regulations and procedures to carry out its responsibilities under this chapter.
SECTION 9. This act shall take effect and be in force from and after July 1, 2016.