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.

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.

(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.

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.

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.

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.

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.

(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.