April 19, 2012, Introduced by Senators NOFS, PAPPAGEORGE, SCHUITMAKER, PROOS, WALKER, COLBECK and JANSEN and referred to the Committee on Energy and Technology.
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;
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
"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 facility plus 18
inches on either side of the facility.
(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 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
(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 60 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 by 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, or
government-declared emergency, involving a clear and imminent
danger to an individual's life or health, the environment, or
property, or the interruption of essential utility services or
blockage of public transportation 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.
(n) "Excavator" means any person performing excavation or
(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
(p) "Facility operator" means a person who controls the
operation of a facility.
(q) "Facility owner" means a person who owns a facility.
(r) "Governmental body" means the state and its political
subdivisions, including counties, townships, cities, villages, or
any other governmental entity.
(s) "Mark", "marks", or "marking" means the temporary
identification on the surface grade of the approximate location of
a facility in response to a ticket as described in section 7(2).
(t) "Person" means an individual, firm, joint venture,
partnership, corporation, association, governmental body,
department or agency, utility cooperative, or joint stock
association, including any trustee, receiver, assignee, or personal
(u) "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.
(v) "Safe zone" means an area 60 inches or more from either
side of the approximate location marks provided by a facility owner
or facility operator.
(w) "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.
(x) "Start date" means the date that a proposed excavation or
blasting is expected to begin as indicated on a ticket.
(y) "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, 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.
(z) "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.
(aa) "White lining" means the voluntary marking by an
excavator, not required by this act, 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
(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 and
(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 faciliy located on
real property the person owns or occupies if the facility is
operated solely for the benefit of that person.
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
(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
(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 are 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
(10) If an excavator contacts or damages a facility, the
excavator shall provide immediate notice to the facility owner or
(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
(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 bodies,
excavators, facility owners, and facility operators regarding the
practices and procedures of the call system and the requirements of
(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 utility 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 the approximate location
of 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
approximate 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
(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 approximate 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, 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) A facility owner or facility operator shall be a member of
and participate in the call system, including the positive response
system, and pay any applicable fees. A facility owner or facility
operator shall not charge a fee to excavators for locating and
marking facilities under this section.
(9) New facilities built after the effective date of this act
shall be constructed in a manner that allows their detection when
(10) A facility owner or facility operator shall comply with
the call system procedures and all requirements of this act.
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. 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).
Sec. 10. (1) A person who engages in 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 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 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
(a) The ability of the person charged to pay or continue in
(b) The nature, circumstances, and gravity of the violation.
(c) Good-faith efforts by the person charged to comply with
(d) The degree of culpability of the person charged.
(e) The history of prior violations of the person charged.
(3) The commission may develop forms with instructions and
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.
Enacting section 1. 1974 PA 53, MCL 460.701 to 460.718, is
Enacting section 2. This act does not take effect unless
Senate Bill No. 1084 of
the 96th Legislature is enacted into law.