Bill Text: MI SB0540 | 2013-2014 | 97th Legislature | Chaptered
Bill Title: Public utilities; consumer services; MISS DIG underground facility damage prevention and safety act; create. Creates new act & repeals 1974 PA 53 (MCL 460.701 - 460.718). TIE BAR WITH: SB 0539'13
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2013-12-03 - Assigned Pa 0174'13 With Immediate Effect [SB0540 Detail]
Download: Michigan-2013-SB0540-Chaptered.html
Act No. 174
Public Acts of 2013
Approved by the Governor
November 26, 2013
Filed with the Secretary of State
November 26, 2013
EFFECTIVE DATE: April 1, 2014
STATE OF MICHIGAN
97TH LEGISLATURE
REGULAR SESSION OF 2013
Introduced by Senator Nofs
ENROLLED SENATE BILL No. 540
AN ACT to enhance public safety, protect the environment, and prevent the disruption of vital public services by reducing the incidences of damage to underground facilities caused by excavation or blasting activity by providing notices to facility owners and facility operators before excavation or blasting; to provide for certain notices to affected parties when underground facilities are damaged; to provide for the powers and duties of certain state governmental officers and entities; to allow the promulgation of rules; to prescribe penalties; to allow the imposition of a fee; to provide for immunity for certain individuals; to allow claims for damages against certain governmental entities in certain circumstances; and to repeal acts and parts of acts.
The People of the State of Michigan enact:
Sec. 1. This act shall be known and may be cited as the “MISS DIG underground facility damage prevention and safety act”.
Sec. 3. As used in this act:
(a) “Additional assistance” means a response by a facility owner or facility operator to a request made by an excavator during business hours, for help in locating a facility.
(b) “Approximate location” means a strip of land at least 36 inches wide, but not wider than the width of the marked facility plus 18 inches on either side of the facility marks.
(c) “Blasting” means changing the level or grade of land or rendering, tearing, demolishing, moving, or removing earth, rock, buildings, structures, or other masses or materials by seismic blasting or the detonation of dynamite or any other explosive agent.
(d) “Business day” means Monday through Friday, excluding holidays observed by the notification system and posted on the notification system website.
(e) “Business hours” means from 7 a.m. to 5 p.m., eastern standard time, on business days.
(f) “Caution zone” means the area within 48 inches of either side of the facility marks provided by a facility owner or facility operator.
(g) “Commission” means the Michigan public service commission created in section 1 of 1939 PA 3, MCL 460.1.
(h) “Damage” means any impact upon or exposure of an underground facility requiring its repair or replacement due to weakening, partial destruction, or complete destruction of the facility, including, but not limited to, the protective coating, lateral support, cathodic protection, or housing of the facility.
(i) “Design ticket” means a communication to the notification system in which a request for information regarding underground facilities for predesign, design, or advance planning purposes, but not marking for excavation or blasting, is made under the procedures described in section 6a.
(j) “Dig notice” means a communication to the notification system by an excavator providing notice of intended excavation or blasting activity as required by this act.
(k) “Emergency” means a sudden or unforeseen occurrence, including a government-declared emergency, involving a clear and imminent danger to life, health, or property, or imminent danger to the environment, that requires immediate correction in order to restore or to prevent the interruption of essential governmental services, utility services, or the blockage of public transportation and that requires immediate excavation or blasting.
(l) “Emergency notice” means a communication to the notification system to alert the facility owners or facility operators of the urgent need for marking the location of a facility due to an emergency.
(m) “Excavation” means moving, removing, or otherwise displacing earth, rock, or other material below existing surface grade with power tools or power equipment, including, but not limited to, grading, trenching, tiling, digging, drilling, boring, augering, tunneling, scraping, cable or pipe plowing, and pile driving; and wrecking, razing, rending, moving, or removing a structure or mass of materials. Excavation does not include any of the following:
(i) Any of the following activities performed in the course of farming operations:
(A) Any farming operation performed in the public right-of-way to a depth of not more than 12 inches below the existing surface grade if the farming operation is not performed within 6 feet of any aboveground structure that is part of a facility.
(B) Any farming operation performed outside a public right-of-way and within 25 yards of an existing petroleum or natural gas pipeline to a depth of not more than 18 inches below the existing surface grade if the farming operation is not performed within 6 feet of any aboveground structure that is part of a facility.
(C) Any farming operation performed outside a public right-of-way and not within 25 yards of an existing petroleum or natural gas pipeline if the farming operation is not performed within 6 feet of any aboveground structure that is part of a facility.
(ii) Replacing a fence post, sign post, or guardrail in its existing location.
(iii) Any excavation performed at a grave site in a cemetery.
(iv) Any excavation performed within a landfill unit as defined in R 299.4103 of the Michigan administrative code during its active life as defined in R 299.4101 of the Michigan administrative code or during its postclosure period as set forth in R 299.4101 to R 299.4922 of the Michigan administrative code.
(v) Any of the following activities if those activities are conducted by railroad employees or railroad contractors and are carried out with reasonable care to protect any installed facilities placed in the railroad right-of-way by agreement with the railroad:
(A) Any routine railroad maintenance activities performed in the public right-of-way as follows:
(I) Within the track area, either to the bottom of the ballast or to a depth of not more than 12 inches below the bottom of the railroad tie, whichever is deeper, if the routine railroad maintenance activity is not performed within 6 feet of any aboveground structure that is part of a facility that is not owned or operated by that railroad.
(II) Outside the track area, not more than 12 inches below the ground surface, if the routine railroad maintenance activity is not performed within 6 feet of any aboveground structure that is part of a facility that is not owned or operated by that railroad.
(B) Any routine railroad maintenance activities performed to a depth of not more than 18 inches below the flow line of a ditch or the ground surface in the railroad right-of-way, excluding the public right-of-way, if the routine railroad maintenance activity is not performed within 6 feet of any aboveground structure that is part of a facility that is not owned or operated by that railroad.
(vi) Routine maintenance or preventative maintenance as those terms are defined in section 10c of 1951 PA 51, MCL 247.660c, to a depth of not more than 12 inches below the roadway and any shoulder of a street, county road, or highway.
(n) “Excavator” means any person performing excavation or blasting.
(o) “Facility” or “underground facility” means an underground or submerged conductor, pipe, or structure, including, but not limited to, a conduit, duct, line, pipe, wire, or other device and its appurtenances used to produce, store, transmit, or distribute a utility service, including communications, data, cable television, electricity, heat, natural or manufactured gas, oil, petroleum products, steam, sewage, video, water, and other similar substances, including environmental contaminates or hazardous waste.
(p) “Facility operator” means a person that controls the operation of a facility.
(q) “Facility owner” means a person that owns a facility.
(r) “Farm” means that term as defined in section 2 of the Michigan right to farm act, 1981 PA 93, MCL 286.472.
(s) “Farming operations” means plowing, cultivating, planting, harvesting, and similar operations routine to most farms and that are performed on a farm. Farming operations do not include installation of drainage tile, underground irrigation lines, or the drilling of a well.
(t) “Governmental agency” means the state and its political subdivisions, including counties, townships, cities, villages, or any other governmental entity.
(u) “Mark”, “marks”, or “marking” means the temporary identification on the surface grade of the location of a facility in response to a ticket as described in section 7.
(v) “Notification system” means MISS DIG System, Inc., a Michigan nonprofit corporation formed and operated by each facility owner and facility operator to administer a 1-call system for the location of facilities, or any successor to this corporation.
(w) “Person” means an individual, firm, joint venture, partnership, corporation, association, governmental agency, department or agency, utility cooperative, or joint stock association, including any trustee, receiver, assignee, or personal representative thereof.
(x) “Positive response” means the procedure administered by the notification system to allow excavators to determine whether all facility owners or facility operators contacted under a ticket have responded in accordance with this act.
(y) “Public right-of-way” means the area on, below, or above a public roadway, highway, street, alley, easement, or waterway.
(z) “Railroad” means that term as defined in section 109 of the railroad code of 1993, 1993 PA 354, MCL 462.109.
(aa) “Safe zone” means an area 48 inches or more from either side of the facility marks provided by a facility owner or facility operator.
(bb) “Soft excavation” means a method and technique designed to prevent contact damage to underground facilities, including, but not limited to, hand-digging, cautious digging with nonmechanical tools, vacuum excavation methods, or use of pneumatic hand tools.
(cc) “Start date” means the date that a proposed excavation or blasting is expected to begin as indicated on a ticket.
(dd) “Ticket” means a communication from the notification system to a facility owner or facility operator requesting the marking of underground facilities, based on information provided by an excavator in a dig notice.
(ee) “White lining” means marking by an excavator of the area of a proposed excavation or blasting, with white paint or flags, or both, before giving notice to the notification system.
Sec. 4. (1) Facility owners and facility operators shall continue to operate and be members of MISS DIG Systems, Inc., a Michigan nonprofit corporation, that shall have the duties and undertake the responsibilities of the notification system under this act on and after the effective date of this act. The notification system responsibilities and duties do not include the physical marking of facilities, which is the responsibility of a facility owner or facility operator upon notification under this act.
(2) The notification system and its procedures shall be governed by its board of directors and in accordance with its current articles of incorporation and bylaws as of the effective date of this act, with any future changes made in accordance with the nonprofit corporation act, 1982 PA 162, MCL 450.2101 to 450.3192, and the notification system’s articles, bylaws, and board procedures. The notification system shall request input regarding its policies from all interested persons, including facility owners and facility operators, excavators, marking service providers, and governmental agencies.
(3) Funding for the notification system operations shall be established by the notification system, including through fees based on a reasonable assessment of operating costs among facility owners or facility operators. A facility owner or facility operator shall not charge a fee to excavators for marking facilities under this act.
(4) Facility owners and facility operators shall be members of and participate in the notification system and pay the fees levied by the notification system under this section. This obligation and the requirements of this act for facility owners and facility operators do not apply to persons owning or operating a facility located on real property the person owns or occupies if the facility is operated solely for the benefit of that person.
(5) Owners of real property on which there is a farm operation, as that term is defined in section 2 of the Michigan right to farm act, 1981 PA 93, MCL 286.472, may become a nonvoting member of the notification system, known as a farm member, upon providing the notification system with the information necessary to send the farm member a ticket for purposes of notification under section 6(1). A farm member is not subject to any fees levied under subsection (3).
(6) The notification system is exempt from taxes collected under the general property tax act, 1893 PA 206, MCL 211.1 to 211.155.
Sec. 5. (1) An excavator shall provide a dig notice to the notification system at least 72 hours, but not more than 14 calendar days, before the start of any blasting or excavation. If the dig notice is given during business hours, the 72-hour period shall be measured from the time the dig notice is made to the notification system. If a dig notice is given before 7 a.m. on a business day, the 72-hour period begins at 7 a.m. on that day. If a dig notice is given on a nonbusiness day or after 5 p.m. on a business day, the 72-hour period begins at 7 a.m. on the next business day. All hours of nonbusiness days are excluded in counting the 72-hour period. If there are multiple excavators on the same site, each excavator shall provide its own dig notice.
(2) A dig notice shall contain at least all of the following:
(a) The name, address, and telephone number of the excavator.
(b) A description of the proposed area of blasting or excavation, including the street address and a property description.
(c) The specific type of work to be performed.
(d) The start date and time of blasting or excavation.
(e) Whether the proposed blasting or excavation will be completed within 21 days after the start date.
(3) A ticket is valid for 21 days from the start date of the excavation or blasting on the ticket as identified by the excavator, except that a ticket is valid for 180 days from the start date if the dig notice indicates that the proposed excavation or blasting will not be completed within 21 days from the start date.
(4) An excavator shall comply with the notification system procedures and all requirements of this act.
(5) Except as otherwise provided in this subsection, before blasting or excavating in a caution zone, an excavator shall expose all marked facilities in the caution zone by soft excavation. If conditions make complete exposure of the facility impractical, an excavator shall consult with the facility owner or facility operator to reach agreement on how to protect the facility. For excavations in a caution zone parallel to a facility, an excavator shall use soft excavation at intervals as often as reasonably necessary to establish the precise location of the facility. An excavator may use power tools and power equipment in a caution zone only after the facilities are exposed or the precise location of the facilities is established.
(6) An excavator shall provide support or bracing of facilities or excavation walls in an excavation or blasting area that are reasonably necessary for protection of the facilities.
(7) An excavator shall provide notification to the notification system if facility markings are destroyed or covered by excavation or blasting activities or if a ticket expires before the commencement of excavation. If a ticket expires before the commencement of excavation, an excavator shall provide a new dig notice to the notification system, and comply with subsection (1).
(8) An excavator shall provide notification to the notification system requesting additional assistance if the location of a marked facility within the approximate location cannot be determined.
(9) An excavator shall provide immediate additional notice to the notification system and stop excavation in the immediate vicinity if the excavator has reason to suspect the presence of an unmarked facility due to any 1 of the following:
(a) Visible evidence of a facility with no marks visible.
(b) Lack of a positive response to a ticket.
(c) A positive response from a facility owner or facility operator indicating the presence of a facility with no marks visible.
(10) If an excavator contacts or damages a facility, the excavator shall provide immediate notice to the facility owner or facility operator.
(11) If an excavator damages a facility resulting in the escape of any flammable, toxic, or corrosive gas or liquid, or endangering life, health, or property, the excavator shall call 9-1-1 and provide immediate notice to the facility owner or facility operator. The excavator shall also take reasonable measures to protect the excavator, those in immediate danger, the general public, and the environment until the facility owner or facility operator, or emergency first responders, have arrived and taken control of the site.
(12) An excavator shall provide prompt emergency notice to the notification system for any proposed excavation or blasting in an emergency. In an emergency, blasting or excavation required to address the conditions of the emergency may be performed as the emergency conditions reasonably require, subject to the provisions in this act for emergency notice and marking facilities in response to an emergency notice.
(13) If the location of a proposed excavation or blasting cannot be described in a manner sufficient to enable the facility owner or facility operator to ascertain the precise tract or parcel involved, an excavator shall provide white lining in advance of submitting a ticket or additional assistance to the facility owner or facility operator on reasonable request to identify the area of the proposed excavation or blasting.
(14) For purposes of this section, notice to the notification system constitutes notice to all facility owners or facility operators regarding facilities located in the area of the proposed excavation or blasting.
(15) Except as otherwise provided in this act, an excavator may conduct excavation in a safe zone using power equipment without establishing the precise location of any facilities.
Sec. 6. (1) The notification system shall receive dig notice notification of proposed excavation and blasting activities and promptly transmit a ticket to facility owners or facility operators of facilities in the area of the proposed excavation or blasting. The notification system shall provide alternative means of access and notification to the system. Except for shutdowns caused by acts of nature, war, or terrorism, the notification system shall be available 24 hours per day, 7 days per week.
(2) The notification system shall publicize the availability and use of the notification system and educate the public, governmental agencies, excavators, farm operators, facility owners, and facility operators regarding the practices and procedures of the notification system, the requirements of this act, and practices to protect underground facilities from damage.
(3) The notification system shall administer a positive response system to allow excavators to determine whether all of the facility owners or facility operators in the area have responded to a ticket and whether a particular facility owner or facility operator does not have facilities in the area of a proposed excavation or blasting.
(4) The notification system shall maintain adequate records of its notification activity for a period of 6 years after the date of the notice, including voice recordings of calls. The notification system shall provide copies of those records to any interested person upon written request and payment of a reasonable charge for reproduction and handling as determined by the notification system.
(5) The notification system shall expedite the processing of any emergency notice it receives under this act.
(6) The notification system shall receive design tickets under the procedures described in section 6a and transmit them to facility owners or facility operators.
Sec. 6a. (1) The notification system shall establish reasonable procedures, including marking response times, for design ticket notification to facility owners or facility operators of requests for project design or planning services to determine the type, size, and general location of facilities during the planning and design stage of a construction or demolition project. Facility owners or operators may charge the person requesting project design or planning services separate fees for design or planning services.
(2) Procedures under this section do not affect or alter the obligation of excavators to provide notice of blasting or excavation under section 5.
(3) The response to a design ticket is to provide general information regarding the location of underground facilities, not to mark any facilities. However, if a facility owner or operator does not have drawings or records that show the location of a facility, the facility owner or operator shall mark that facility under the procedures described in section 7. A design ticket or information provided in response to a design ticket does not satisfy the requirement under this act for excavation or blasting notice to the notification system or marking the approximate location of facilities for blasting or excavation.
Sec. 7. (1) A facility owner or facility operator shall respond to a ticket by the start date and time for the excavation or blasting under section 5(1) by marking its facilities in the area of the proposed excavation or blasting in a manner that permits the excavator to employ soft excavation to establish the precise location of the facilities.
(2) A facility owner or facility operator shall mark the location of each facility with paint, stakes, flags, or other customary methods using the uniform color code of the American national standards institute as follows:
(a) White - used by excavators to mark a proposed excavation or blasting area.
(b) Pink - temporary survey markings.
(c) Red - electric power lines, cables, conduit, and lighting cables.
(d) Yellow - gas, oil, steam, petroleum, or gaseous materials.
(e) Orange - communication, cable television, alarm or signal lines, cables, or conduit.
(f) Blue - potable water.
(g) Purple - reclaimed water, irrigation, and slurry lines.
(h) Green - sewers and drain lines.
(3) A facility owner or facility operator shall provide notification to the notification system using positive response.
(4) Upon receiving a notification during business hours from an excavator through the notification system of previous marks being covered or destroyed, a facility owner or facility operator shall mark the location of a facility within 24 hours, excluding all hours on nonbusiness days.
(5) If a facility owner or facility operator receives a request under section 5(8) or (9), that facility owner or facility operator shall provide additional assistance to an excavator within 3 hours of a request made by the excavator during business hours. An excavator and a facility owner or facility operator may agree to an extension of the time for additional assistance. If a request for additional assistance is made at a time when the additional assistance cannot be provided during normal business hours or assistance is required at a remote rural location, the response time shall be no later than 3 hours after the start of the next business day or a time based on mutual agreement.
(6) If a facility owner or facility operator receives notice that a facility has been damaged, that facility owner or facility operator shall promptly dispatch personnel to the area.
(7) A facility owner or facility operator shall respond within 3 hours to an emergency notice, or before the start day and time provided in an emergency notice if that start day and time is more than 3 hours from the time of notice.
(8) New facilities built after the effective date of this act shall be constructed in a manner that allows their detection when in use.
(9) This section does not apply to the state transportation department or to the marking of a county or intercounty drain by a county drain commissioner’s office or drainage board.
Sec. 8. This act does not limit the right of an excavator, facility owner, or facility operator to seek legal relief and recovery of actual damages incurred and equitable relief in a civil action arising out of a violation of the requirements of this act, or to enforce the provisions of this act, nor shall this act determine the level of damages or injunctive relief in any such civil action. This section does not affect or limit the availability of any contractual or legal remedy that may be available to an excavator, facility owner, or facility operator arising under any contract to which they may be a party.
Sec. 9. (1) The notification system and its officers, agents, or employees are not liable for any damages, including damages for injuries or death to persons or damage to property, caused by its acts or omissions in carrying out the provisions of this act. The notification system is not responsible for assuring performance by a facility owner or facility operator of its obligation to participate in the notification system under section 4(4).
(2) An excavator or a farmer engaged in farming operations that complies with this act is not responsible for damages that occur to a facility that is improperly marked, not marked, or determined to be within the safe zone.
(3) An owner of a farm who complies with this act is not liable for any damages to a facility if the damage occurred in the course of farming operations, except in those lands within the public right-of-way, unless the owner intentionally damaged the underground facility or acted with wanton disregard or recklessness in damaging the facility. As used in this subsection, “owner” includes a family member, employee, or tenant of the owner.
Sec. 10. This act does not authorize, affect, or impair local ordinances, charters, or other provisions of law requiring permits to be obtained before excavating or tunneling in a public street or highway or to construct or demolish buildings or other structures on private property. A permit issued by a governmental agency does not relieve a person from the responsibility of complying with this act. The failure of any person who has been granted a permit to comply with this act does not impose any liability upon the governmental agency issuing the permit.
Sec. 11. (1) A person who engages in any of the following conduct is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $5,000.00, or both:
(a) Knowingly damages an underground facility and fails to promptly notify the facility owner or facility operator.
(b) Knowingly damages an underground facility and backfills the excavation or otherwise acts to conceal the damage.
(c) Willfully removes or otherwise destroys stakes or other physical markings used to mark the approximate location of underground facilities unless that removal or destruction occurs after the excavation or blasting is completed or as an expected consequence of the excavation or blasting activity.
(2) Upon complaint filed with the commission or upon the commission’s own motion, following notice and hearing, a person, other than a governmental agency, who violates any of the provisions of this act may be ordered to pay a civil fine of not more than $5,000.00 for each violation. In addition to or as an alternative to any fine, the commission may require the person to obtain reasonable training to assure future compliance with this act. Before filing a complaint under this subsection, a person shall attempt to settle the dispute with the adverse party or parties using any reasonable means of attempted resolution acceptable to the involved parties. In determining the amount of any fine, the commission shall consider all of the following:
(a) The ability of the person charged to pay or continue in business.
(b) The nature, circumstances, and gravity of the violation.
(c) Good-faith efforts by the person charged to comply with this act.
(d) The degree of culpability of the person charged and of the complainant.
(e) The history of prior violations of the person charged.
(3) A commission determination under subsection (2) shall not be used against a party in any action or proceeding before any court. A complaint filed under subsection (2) does not limit a person’s right to bring a civil action to recover damages that person incurred arising out of a violation of the requirements of this act.
(4) The commission shall develop forms with instructions and may promulgate administrative rules for processing complaints under this act, pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
(5) Not later than October 1, 2014, the commission shall establish requirements for reporting incidents involving damage to underground facilities.
(6) Beginning April 1, 2015, the commission shall maintain information on damaged facilities reported under subsection (5), including, but not limited to, any damage that occurs during excavation, digging, or blasting that is excluded from the definition of excavation under section 3(m). The commission shall make any information maintained under this subsection publicly available on its website.
Sec. 12. (1) Except as provided in this section, this act does not affect the liability of a governmental agency for damages for tort or the application of 1964 PA 170, MCL 691.1401 to 691.1419.
(2) A facility owner or a facility operator may file a complaint with the commission seeking a civil fine and, if applicable, damages from a governmental agency under this section for any violation of this act.
(3) After notice and a hearing on a complaint under subsection (2), the commission may order the following, as applicable:
(a) If the commission has not issued an order against the governmental agency under this section within the preceding 12 months, a civil fine of not more than $5,000.00. In determining the amount of the fine, the commission shall consider the factors in section 11(2).
(b) If the commission has issued an order under subdivision (a) against the governmental agency within the preceding 12 months, both of the following:
(i) A civil fine of not more than $10,000.00. In determining the amount of the fine, the commission shall consider the factors in section 11(2).
(ii) That the governmental agency provide at its expense underground facility safety training to all its personnel involved in underground utility work or excavating.
(c) If the commission has issued an order under subdivision (b) against the governmental agency within the preceding 12 months, both of the following:
(i) A civil fine of not more than $15,000.00. In determining the amount of the fine, the commission shall consider the factors in section 11(2).
(ii) If the violation of this act by the governmental agency caused damage to the facilities of the facility owner or facility operator, that the governmental agency pay to the owner or operator the cost of repair of the facilities.
(4) A party to a complaint filed under this section or section 11 may file an appeal of a commission order issued under this section or section 11 in the Ingham county circuit court.
(5) This section does not apply if the violation of this act was a result of action taken in response to an emergency.
(6) A finding by the commission under this section is not admissible in any other proceeding or action.
(7) A civil fine ordered under this act shall be paid to the commission and used for underground facilities safety education and training.
(8) Each day upon which a violation described in this act occurs is a separate offense.
Sec. 13. An individual engaged in a farming operation on a farm shall comply with this act beginning May 1, 2014.
Enacting section 1. 1974 PA 53, MCL 460.701 to 460.718, is repealed.
Enacting section 2. This act takes effect April 1, 2014.
Enacting section 3. This act does not take effect unless Senate Bill No. 539 of the 97th Legislature is enacted into law.
This act is ordered to take immediate effect.
Secretary of the Senate
Clerk of the House of Representatives
Approved
Governor
