SB-1083, As Passed Senate, November 29, 2012

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 1083

 

 

 

 

 

 

 

 

 

 

 

 

A bill 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 call system and posted on the call system

 

website.

 

(e) "Business hours" means from 7 a.m. to 5 p.m., eastern

 

standard time, on business days.

 

(f) "Call 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 notification system,

 

or any successor to this corporation.

 

(g) "Caution zone" means the area within 48 inches of either

 

side of the approximate location marks provided by a facility owner

 

or facility operator.

 

(h) "Commission" means the Michigan public service commission

 

created in section 1 of 1939 PA 3, MCL 460.1.


 

(i) "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.

 

(j) "Dig notice" means a communication to the call 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 call 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, other than surface maintenance,

 

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,

 

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 excavation performed in the course of normal farming


 

operations except for the following:

 

(A) Any excavation performed in a public right-of-way

 

occurring more than 12 inches below the existing surface grade.

 

(B) Any excavation performed outside a public right-of-way

 

occurring more than 18 inches below the existing surface grade.

 

(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 at solid waste disposal site that

 

has planned for underground facilities.

 

(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 who controls the

 

operation of a facility.

 

(q) "Facility owner" means a person who 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) "Governmental agency" means the state and its political


 

subdivisions, including counties, townships, cities, villages, or

 

any other governmental entity.

 

(t) "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(2).

 

(u) "Normal farming operations" means plowing, cultivating,

 

planting, harvesting, and similar operations routine to most farms.

 

(v) "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.

 

(w) "Positive response" means the procedure administered by

 

the call system to allow excavators to determine whether all

 

facility owners or facility operators contacted under a ticket have

 

responded in accordance with this act.

 

(x) "Public right-of-way" means the area on, below, or above a

 

public roadway, highway, street, alley, easement, or waterway.

 

Public right-of-way does not include a federal, state, or private

 

right-of-way.

 

(y) "Safe zone" means an area 48 inches or more from either

 

side of the approximate location marks provided by a facility owner

 

or facility operator.

 

(z) "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.


 

(aa) "Start date" means the date that a proposed excavation or

 

blasting is expected to begin as indicated on a ticket.

 

(bb) "Surface maintenance" means the repairing or patching of

 

road potholes and cracks, reshaping a road surface, graveling and

 

repositioning loose stone, railroad rail and tie replacement, road

 

milling and resurfacing that does not extend below the original

 

road base, and reshaping and repair of the railroad grade. Surface

 

maintenance does not include any work below the depth of the

 

existing road surface material or 12 inches, whichever is less.

 

(cc) "Ticket" means a communication from the call 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.

 

(dd) "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 call 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 call system under this act on

 

and after the effective date of this act. The call 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 call 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

 

call system's articles, bylaws, and board procedures. The call

 

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 call system operations shall be

 

established by the call 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 locating and marking facilities

 

under this act.

 

(4) Facility owners and facility operators shall be members of

 

and participate in the call system and pay the fees levied by the

 

call 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) The call 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

 

call 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 call 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 for the following:

 

(a) 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.

 

(b) A ticket is valid for 3 years from the start date if the

 

proposed excavation is being performed on a farm and all of the

 

following occur:

 

(i) A dig notice is provided indicating that the proposed

 

excavation is being performed on a farm.


 

(ii) The excavator locates all marked facilities as provided in

 

this section.

 

(iii) The excavator creates a map of all facilities located on

 

that farm, including the depth of those facilities as determined at

 

soft excavation intervals under subsection (5).

 

(iv) The owner of the farm maintains the map and provides a

 

copy of the map to any person performing excavation on that farm.

 

(4) An excavator shall comply with the call 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 call 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 call

 

system, and comply with subsection (1).

 

(8) An excavator shall provide notification to the call 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 call 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

 

call 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 call 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 call 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 call system shall provide alternative means of access and

 

notification to the system. Except for shutdowns caused by acts of


 

nature, war, or terrorism, the call system shall be available 24

 

hours per day, 7 days per week.

 

(2) The call system shall publicize the availability and use

 

of the call system and educate the public, governmental agencies,

 

excavators, facility owners, and facility operators regarding the

 

practices and procedures of the call system and the requirements of

 

this act.

 

(3) The call 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 call 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 call 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 call system.

 

(5) The call system shall expedite the processing of any

 

emergency notice it receives under this act.

 

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 call system using positive response.

 

(4) Upon receiving a notification during business hours from

 

an excavator through the call 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


Senate Bill No. 1083 as amended November 29, 2012

 

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. <<A facility owner or facility operator shall notify a

landowner in writing at least 10 business days before constructing

a new facility on the landowner's property.>>

(9) This section does not apply to the state transportation

 

department.

 

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


Senate Bill No. 1083 as amended November 29, 2012

 

arising under any contract to which they may be a party.

 

Sec. 9. (1) The call 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

 

call system is not responsible for assuring performance by a

 

facility owner or facility operator of its obligation to

 

participate in the call system under section 4(4).

 

(2) Notwithstanding any other provision of this act, an

 

excavator 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 normal 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.

 

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. Excavators performing excavation 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 does not take effect unless

 

Senate Bill No. 1084 of the 96th Legislature is enacted into law.