MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Energy; Accountability, Efficiency, Transparency
By: Senator(s) Burton
AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO REVISE THE TERM "EXCAVATE OR EXCAVATION" TO INCLUDE ROUTINE ROAD OR RAILROAD MAINTENANCE ACTIVITIES IN THE LAW WHICH REGULATES EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; TO AMEND SECTION 77-13-5, MISSISSIPPI CODE OF 1972, TO REQUIRE THE EXCAVATOR TO MARK THE ROUTE OR BOUNDARY OF THE PROPOSED AREA OF EXCAVATION WITH STAKES, FLAGS, POSTS OR PAINTED OR CHALKED LINES UNLESS OTHERWISE AGREED BY ALL AFFECTED OPERATORS; TO AMEND SECTION 77-13-19, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE RIGHTS, REMEDIES, DUTIES, PROHIBITIONS AND PENALTIES IN THE CHAPTER SHALL NOT BE EXCLUSIVE; TO CREATE AN ADVISORY COMMITTEE TO ASSIST THE STATE BOARD OF CONTRACTORS IN THE ENFORCEMENT OF THIS CHAPTER; TO PROVIDE CIVIL PENALTIES; TO CREATE THE "UNDERGROUND UTILITY DAMAGE PREVENTION SPECIAL FUND" TO BE USED FOR THE ENFORCEMENT OF THIS 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; or (iv) routine road or railroad maintenance activities, provided that such activities occur entirely within the right-of-way of an interstate system, full control access highway built to interstate standards or railroad; are carried out with reasonable care so as to protect any underground facilities placed in the right-of-way; and are carried out within the limits of any original excavation on the railroad, interstate system or full control access highway or, routine road maintenance on the road bed of any public road, street or highway that does not disturb the ground more than eighteen (18) inches below the top surface of the paved or graveled road; or (v) routine activities of a cemetery or mining operation, provided that for any cemetery or mining operation that begins or expands after July 1, 2013, 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 or mining operation. 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. 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 of receipt by Mississippi 811, 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 "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 can 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) "Mississippi Damage Prevention Council, Inc." shall mean a nonprofit corporation organized under the laws of the State of Mississippi that is made up of stakeholders responsible for or affected by excavation or locating, operating or maintaining underground facilities and promotes excavation safety, prevention of damage to underground facilities, and public awareness and education programs regarding excavation safety and prevention of damage to underground facilities.
(s) "Willful" means an act done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
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 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.
(4) Unless otherwise agreed by all affected operators, the excavator shall mark the route or boundary of the proposed area of excavation with stakes, flags, posts or painted or chalked lines that are white in color and are clearly visible. However, this subsection shall not apply to any proposed area of excavation in any municipality, or in any unincorporated area where the size of the lot is less than three (3) acres.
(5) Nothing in this chapter shall abrogate any contractual provision entered into between the Mississippi Department of Transportation, or the Mississippi Transportation Commission, and any other party.
(6) Nothing in this chapter shall abrogate any contractual provision entered into between any railroad and any other party owning or operating an underground facility or underground utility lines within the railroad's right-of-way.
SECTION 3. Section 77-13-19, Mississippi Code of 1972, is amended as follows:
77-13-19. (1) 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 chapter and to restrain and prevent violations and threatened violations thereof.
(2) The rights, remedies, duties, prohibitions and penalties provided in this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies and penalties provided by law. Nothing in this chapter shall restrict or limit civil causes of action by any person. The activities described in Section 77-13-3(a)(4) shall not be excepted from the definition of "excavation" for purposes of civil actions to collect damages caused to underground utility facilities.
(3) There is hereby created the Advisory Committee on 811 Enforcement which shall be subordinate to the State Board of Contractors. The advisory committee shall serve without compensation and consist of one (1) representative of each of the following interested parties, unless otherwise stated in this subsection:
(a) Mississippi 811, Inc.;
(b) Four (4) representatives of the telecommunications industry, including one (1) representative each of an Incumbent Local Exchange Carrier (ILEC), a Competitive Local Exchange Carrier (CLEC), an Interexchange Carrier (IEC) and a Data Transport Provider;
(c) Excavation contractors;
(d) Electric power industry investor-owned utilities;
(e) Electric Power Associations of Mississippi;
(f) Mississippi county government appointed by the Executive Director of the Mississippi Association of Supervisors;
(g) Mississippi Department of Transportation;
(h) Cable television industry;
(i) Rural water;
(j) Mississippi municipalities appointed by the Executive Director of the Mississippi Municipal League;
(k) The Mississippi Public Service Commission Pipeline Safety Division;
(l) Utility locators;
(m) Natural gas distribution;
(n) Liquid transmission;
(o) Natural gas transmission;
(p) Railroad industry;
(q) Insurance industry;
(r) Mississippi surveyors appointed by the Executive Director of the Mississippi Association of Professional Surveyors, Inc.; and
(s) Mississippi design engineers appointed by the Executive Director of the Mississippi Society of Professional Engineers.
(4) The initial terms of the representatives provided in paragraphs (a) through (e) of subsection (3) shall be one (1) year; the initial terms of those representatives provided in paragraphs (f) through (k) of subsection (3) shall be three (3) years; and the initial terms of those representatives provided in paragraphs (l) through (s) of subsection (3) shall be five (5) years. Upon the expiration of the initial term of any member of the advisory committee, his successor shall be appointed for a term of five (5) years.
(5) The advisory committee shall meet and elect a chairman annually, and the staff of the State Board of Contractors shall serve as staff support for the committee.
(6) The advisory committee shall meet no less than once per quarter of each year, a date and time to be set by its chairman upon at least five (5) business days' notice provided by United States mail, electronic mail or personal delivery to every committee member.
(7) Twelve (12) members of the advisory committee shall constitute a quorum and a majority vote of those present and voting at any meeting shall be necessary to transact business.
(8) The members of the advisory committee shall be immune, individually and jointly, from civil liability for any act or omission done or made in the performance of their duties while serving as members of such advisory committee, but only in the absence of willful misconduct.
(9) The advisory committee shall assist the State Board of Contractors in the enforcement of this chapter as described in this section.
(10) The State Board of Contractors shall follow the procedures described in this section. Nothing in this section shall otherwise limit or expand the authority of the board.
(11) The State Board of Contractors is authorized to impose civil penalties as provided in this section. Civil penalties may be imposed on any person for violation of any of the provisions of this chapter regardless of whether or not such violation results in injury to people, damage to property, or the interruption of utility service.
(12) In lieu of civil penalties, the State Board of Contractors shall issue a warning letter for any first offense and order training for any second offense. The State Board of Contractors shall impose a civil penalty of Five Hundred Dollars ($500.00) for failure to attend or participate in any training ordered.
(13) Civil penalties authorized in this section shall be imposed in accordance with a tiered penalty structure. The penalty for any third offense within the same calendar year as the first offense shall be Eight Hundred Eleven Dollars and Eleven Cents ($811.11). The penalty for any fourth or greater offense within the same calendar year as the first offense shall be Eight Thousand Eight Hundred Eleven Dollars and Eleven Cents ($8,811.11).
(14) In the event the State Board of Contractors determines that a person has made a good-faith effort to comply with this chapter, the State Board of Contractors may find that no civil penalty is necessary. However, if any violation of this chapter does not result in a civil penalty, the State Board of Contractors shall issue a warning letter to the person describing such violation and may also recommend or require training.
(15) In the event that any person has demonstrated a pattern of willful noncompliance or in the event that the gravity of a violation warrants, the State Board of Contractors is authorized to double the civil penalty that would otherwise apply to a particular violation.
(16) For those instances in which training is ordered, if the person is a firm, partnership, association, corporation, limited liability company, joint venture, department or subdivision of the state or other governmental entity, or any other body or organization, the State Board of Contractors may require that at least one (1) manager or supervisor thereof attend any such training.
(17) An operator of an underground facility shall not be subject to a civil penalty where a delay in marking, failure to mark, or failure to properly mark the location of an underground facility is caused by conditions beyond the reasonable control of the operator.
(18) The State Board of Contractors investigators shall issue findings of fact and recommended civil penalties to any person accused of a violation under this chapter. That person may accept or reject the findings of fact and recommended civil penalties. If the person rejects the findings of fact and recommended civil penalties, the advisory committee will review the alleged violation and may consider written or oral statements from any person concerning the alleged violation. The advisory committee shall then render a recommendation either supporting the investigators' findings of fact and recommended civil penalties or substituting its own findings of fact and recommended civil penalties.
(19) If any person rejects the findings of fact and recommended civil penalties of the advisory committee, the advisory committee shall make recommendations to the State Board of Contractors regarding enforcement, including civil penalties, and taking into account the gravity of the violation or violations, the degree of the person's culpability, the person's history of prior offenses, and such other mitigating factors as may be appropriate. The State Board of Contractors is then authorized to adopt the recommendations of the advisory committee or to substitute its own findings of fact and civil penalties.
(20) When the person accepts the State Board of Contractors investigators' findings of fact and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the State Board of Contractors. The State Board of Contractors is then authorized to adopt the findings of fact and recommended civil penalties of the investigators or to submit the matter for review by the advisory committee, which will then make its recommendations to be presented to the commission by the investigators.
(21) When the person accepts the advisory committee's findings of fact and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the State Board of Contractors. The State Board of Contractors is then authorized to adopt the findings of fact and recommended civil penalties of the advisory committee or to substitute its own findings of fact and civil penalties.
(22) The State Board of Contractors is not authorized to impose a civil penalty greater than the civil penalty recommended by the advisory committee or to impose any civil penalty if the advisory committee does not recommend a civil penalty.
(23) 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.
(24) The Underground Utility Damage Prevention Special Fund is hereby established as a revolving fund to be used by the State Board of Contractors for administering the enforcement of this chapter. All civil penalties ordered by the State Board of Contractors and collected pursuant to this section shall be deposited in the special fund created in this section. Excess funds shall be used to support public awareness programs and training and education programs for excavators, operators, line locators, and other persons to reduce the number and severity of violations of this chapter. The State Board of Contractors 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 any other fund of the state, but shall remain available for appropriations pursuant to this chapter.
SECTION 4. This act shall take effect and be in force from and after July 1, 2013, and shall stand repealed on June 30, 2013.