Bill Text: MS SB2711 | 2014 | Regular Session | Engrossed
Bill Title: Regulation of underground excavation; exclude routine railroad maintenance and require State Fire Marshal to enforce.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2014-03-04 - Died In Committee [SB2711 Detail]
Download: Mississippi-2014-SB2711-Engrossed.html
MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Energy
By: Senator(s) Burton
Senate Bill 2711
(As Passed the Senate)
AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO REVISE THE TERM "EXCAVATE OR EXCAVATION" TO EXCLUDE ROUTINE ROAD OR RAILROAD MAINTENANCE ACTIVITIES UNDER THE LAW WHICH REGULATES EXCAVATIONS NEAR UNDERGROUND UTILITY FACILITIES; TO DEFINE CERTAIN OTHER TERMS; TO AMEND SECTION 77-13-5, MISSISSIPPI CODE OF 1972, TO INCREASE FROM 10 TO 14 THE NUMBER OF DAYS THE MARKINGS PROVIDED BY OPERATORS ARE VALID; TO AMEND SECTION 77-13-19, MISSISSIPPI CODE OF 1972, TO REQUIRE THE STATE FIRE MARSHAL TO ENFORCE SUCH LAW; TO REQUIRE THE STATE FIRE MARSHAL TO APPOINT AN ADVISORY COMMITTEE ON 811 ENFORCEMENT; TO AUTHORIZE THE FIRE MARSHAL TO IMPOSE CERTAIN PENALTIES UNDER CERTAIN CIRCUMSTANCES; TO ESTABLISH A PROCEDURE TO REVIEW FINDINGS OF FACTS AND RECOMMENDED CIVIL PENALTIES FROM STATE FIRE MARSHAL INVESTIGATORS; TO CREATE NEW CODE SECTION 77-13-19.1, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE UNDERGROUND UTILITY DAMAGE PREVENTION SPECIAL FUND; TO AMEND SECTION 45-11-1, MISSISSIPPI CODE OF 1972, INCONFORMITY THERETO; 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 maintenance
activities that occur entirely within the right-of-way of an interstate system,
full control access highway built to interstate standards and 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 interstate system or full control access highway; or (v) 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 (vi) routine road maintenance on the roadbed of any public road, street or
highway that does not disturb the ground more than twelve (12) inches below the
top surface of the paved or graveled road; or (vii) routine activities of a
cemetery or mining operation, provided that for any cemetery or mining
operation that begins or expands after July 1, 2014, such activities occur only
after initial notice is provided to Mississippi 811, Inc., and all affected
operators have been 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) "State Fire Marshal" means the Office of the Mississippi State Fire Marshal.
(s) "Willful" means an act done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
(t) "Calendar days" means a twenty-four-hour period commencing from the time of receipt by Mississippi 811, Inc., of the notification in accordance with this chapter.
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.
(2) The markings provided
by operators shall only be valid for a period of * * * fourteen (14) calendar
days from the * * * date the locate ticket is issued by
Mississippi * * * 811, 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 * * *
fourteen (14)
calendar 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) Nothing in this chapter shall modify or abrogate any contractual provision entered into between the Mississippi Department of Transportation, or the Mississippi Transportation Commission and any other party.
(5) Nothing in this chapter shall modify or 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) The State Fire Marshal shall enforce the provisions of this act.
(2) 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.
(3) 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 causes of action by any person. The activities described in Section 77-13-3(a)(iv) through (vi) shall not be excepted from the definition of "excavation" for purposes of civil actions to collect damages caused to underground facilities.
(4) The State Fire Marshal shall, on or before September 1, 2014, appoint an advisory committee on 811 Enforcement which shall be subordinate to the State Fire Marshal. The advisory committee shall serve without compensation and consist of one (1) representative of each of the following interested parties, each of whom shall have expertise with the subject matter encompassed by the provisions of this chapter:
(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 appointee, who is appointed by the Executive Director of the Mississippi Association of Supervisors;
(g) Mississippi Department of Transportation;
(h) Cable television industry;
(i) Mississippi rural water;
(j) Mississippi municipalities appointee, 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.
(5) The initial term of the representatives provided in paragraphs (a) through (e) of subsection (4) shall be one (1) year; the initial term of the representatives provided in paragraphs (f) through (k) of subsection (4) shall be three (3) years; and the initial term of the representatives provided in paragraphs (l) through (s) of subsection (4) shall be five (5) years. Upon the expiration of the initial term of any member of the advisory committee, his or her successor shall be appointed for a term of five (5) years.
(6) The State Fire Marshal shall appoint the initial chairman of the advisory committee, and the advisory committee shall meet and elect a chairman annually thereafter. The staff of the State Fire Marshal shall serve as staff support for the committee.
(7) The advisory committee shall meet no less than once per quarter of each year, with 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.
(8) 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.
(9) 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 the advisory committee, but only in the absence of willful misconduct.
(10) The advisory committee shall assist the State Fire Marshal in the enforcement of this chapter as described in this section.
(11) The State Fire Marshal shall follow the procedures described in this section. Nothing in this section shall otherwise limit or expand the authority of the State Fire Marshal.
(12) The State Fire Marshal 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.
(13) In lieu of civil penalties, the State Fire Marshal shall issue a warning letter for any first offense and order training for any second offense. The State Fire Marshal shall impose a civil penalty of Five Hundred Dollars ($500.00) for failure to attend or participate in any training ordered.
(14) 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).
(15) In the event the State Fire Marshal determines that a person has made a good-faith effort to comply with this chapter, the State Fire Marshal may find that no civil penalty is necessary. However, if any violation of this chapter does not result in a civil penalty, the State Fire Marshal shall issue a warning letter to the person that describes such violation and may also recommend or require training.
(16) 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 Fire Marshal is authorized to double the civil penalty that would otherwise apply to a particular violation.
(17) 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 Fire Marshal may require that at least one (1) manager or supervisor thereof attend any such training.
(18) 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.
(19) State Fire Marshal investigators shall issue findings of fact and recommend 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 shall 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 in support of the finding of fact and recommended civil penalties of the investigator or shall substitute their findings of fact and recommended civil penalties.
(20) If any person rejects the findings of fact and recommend civil penalties of the advisory committee, the advisory committee shall make recommendations to the State Fire Marshal 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 Fire Marshal is then authorized to adopt the recommendation of the advisory committee or to substitute his own findings of fact and civil penalties.
(21) When the person accepts the State Fire Marshal's investigators findings of fact and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the State Fire Marshal. The State Fire Marshal 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 State Fire Marshal by the investigators.
(22) When the person accepts the advisory committee's finding of facts and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the State Fire Marshal. The State Fire Marshal is then authorized to adopt the findings of fact and recommended civil penalties of the advisory committee or to substitute his own findings of fact and civil penalties.
(23) The State Fire Marshal 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.
(24) 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 4. The following shall be codified as Section 77-13-19.1, Mississippi Code of 1972:
77-13-19.1. The Underground Utility Damage Prevention Special Fund is hereby established as a revolving fund to be used by the State Fire Marshal for administering the enforcement of this chapter. All civil penalties ordered by the State Fire Marshal and collected pursuant to Section 77-13-19 shall be deposited in the special fund. Excess funds shall be used to support public awareness programs, 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 Fire Marshal 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 5. Section 45-11-1, Mississippi Code of 1972, is amended as follows:
45-11-1. (1) The Commissioner of Insurance is by virtue of his office the State Fire Marshal and shall appoint the State Chief Deputy Fire Marshal who, along with his employees, shall be designated as a division of the Insurance Department. The State Chief Deputy Fire Marshal shall be a person qualified by experience and training and thoroughly knowledgeable in the areas of arson investigation and prevention, fire prevention, firefighting and the training of firemen. The State Chief Deputy Fire Marshal shall serve at the will and pleasure of the Commissioner of Insurance.
(2) The State Chief Deputy Fire Marshal shall employ such deputy state fire marshals as are necessary and in accordance with availability of funds. Deputy fire marshals shall be deployed across the state in order to provide effective service to fire scenes.
(3) It shall be the duty of the State Chief Deputy Fire Marshal to investigate, by himself or his deputy, the origin of every fire occurring within the state to which his attention is called by the chief of the fire department or other law enforcement authority of any county or municipality. It shall also be his duty to investigate any case requested by any party in interest, whenever, in his judgment, there be sufficient evidence or circumstances indicating that such fire may be of incendiary origin. All county and municipal law enforcement authorities shall cooperate with the State Chief Deputy Fire Marshal in such investigation. This section shall not be construed to impair the duty and power of county and municipal law enforcement authorities to investigate any fire occurring within his or their jurisdiction.
(4) (a) The State Chief Deputy Fire Marshal and deputy state fire marshals shall have the following powers:
(i) To arrest without warrant any person or persons committing or attempting to commit any misdemeanor or felony within their presence or view but only such violations of law or violations of regulations adopted pursuant to this chapter or Chapter 49, Title 75, Mississippi Code of 1972;
(ii) To pursue and so arrest any person committing an offense as described under subparagraph (i) of this paragraph to and at any place in the State of Mississippi where he may go or be;
(iii) To execute all warrants and search warrants related to, and investigate any violation of the laws and regulations related to this chapter and Chapter 49, Title 75, Mississippi Code of 1972, and prevent, arrest and apprehend such violators; and
(iv) To aid and assist any peace officer of this state or any other state if requested, or in manhunts or natural disasters within the state, and upon the consent of the State Fire Marshal, within the jurisdiction of the called event.
(b) Nothing herein shall be construed as granting the State Chief Deputy Fire Marshal or deputy state fire marshals general police powers.
(c) All deputy state fire marshals hired on or after July 1, 2013, shall be required to complete or have completed the Law Enforcement Officers Training Program and shall meet the standards of the program.
(5) The State Chief Deputy Fire Marshal shall maintain in his office a record of all fires investigated by him or his deputy, including evidence obtained as to the origin of each such fire.
(6) Such record shall at all times be subject to inspection by any party of interest in the fire loss; provided, however, that no record or report of an investigation shall be subject to inspection pending such investigation or while same is in progress, and if a report of an investigation contains any evidence of arson or other felony, same shall not be subject to inspection by any person other than the district attorney and county attorney of the county in which such evidence indicates that arson or other felony may have been committed, except upon the written approval of such district attorney or the order of a court of competent jurisdiction. Provided that in cases where a person has been arrested for the crimes of arson, attempted arson, or any other felony, the defendant or his attorney shall have access to these records. Any physical evidence of arson or other felony shall be delivered to the custody of the sheriff of the county wherein such fire occurred.
(7) The State Chief Deputy Fire Marshal may appoint, with the consent of the Commissioner of Insurance, a State Chief Assistant Deputy Fire Marshal, who shall have power, during the chief deputy's absence or inability to act due to any cause, to perform any and all of the duties of the chief deputy. The chief assistant deputy shall serve at the will and pleasure of the Commissioner of Insurance.
(8) In addition to the powers and duties prescribed under this section, the State Fire Marshal shall carry out the duties prescribed under Section 77-13-19 and Section 77-13-19.1 of this act.
SECTION 6. This act shall take effect and be in force from and after July 1, 2014, and shall stand repealed on June 30, 2014.
