SB-0540, As Passed Senate, October 8, 2013

SUBSTITUTE FOR

SENATE BILL NO. 540

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 notification system and posted on the

notification system website.

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

standard time, on business days.

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

side of the facility marks provided by a facility owner or facility

operator.

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

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

(h) "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.

(i) "Design ticket" means a communication to the notification

system in which a request for information regarding underground

facilities for predesign, design, or advance planning purposes, but

not marking for excavation or blasting, is made under the

procedures described in section 6a.

(j) "Dig notice" means a communication to the notification

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

notification 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,

tiling, 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 of the following activities performed in the course of

farming operations:

(A) Any farming operation performed in the public right-of-way

to a depth of not more than 12 inches below the existing surface

grade if the farming operation is not performed within 6 feet of

any aboveground structure that is part of a facility.

(B) Any farming operation performed outside a public right-of-

way and within 25 yards of an existing petroleum or natural gas

pipeline to a depth of not more than 18 inches below the existing

surface grade if the farming operation is not performed within 6

feet of any aboveground structure that is part of a facility.

way and not within 25 yards of an existing petroleum or natural gas

pipeline if the farming operation is not performed within 6 feet of

any aboveground structure that is part of a facility.

(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 within a landfill unit as defined

in R 299.4103 of the Michigan administrative code during its active

life as defined in R 299.4101 of the Michigan administrative code

or during its postclosure period as set forth in R 299.4101 to R

299.4922 of the Michigan administrative code.

(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 that controls the

operation of a facility.

(q) "Facility owner" means a person that 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) "Farming operations" means plowing, cultivating, planting,

harvesting, and similar operations routine to most farms and that

are performed on a farm. Farming operations do not include

installation of drainage tile, underground irrigation lines, or the

drilling of a well.

(t) "Governmental agency" means the state and its political

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

any other governmental entity.

(u) "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.

(v) "Notification 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 system for the

location of facilities, or any successor to this corporation.

(w) "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.

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

the notification system to allow excavators to determine whether

all facility owners or facility operators contacted under a ticket

have responded in accordance with this act.

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

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

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

side of the facility marks provided by a facility owner or facility

operator.

(aa) "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.

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

blasting is expected to begin as indicated on a ticket.

(cc) "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.

(dd) "Ticket" means a communication from the notification

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.

(ee) "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 notification 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 notification system under

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

notification 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 notification 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 notification system's articles, bylaws, and board

procedures. The notification 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 notification system operations shall be

established by the notification 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 marking facilities under

this act.

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

and participate in the notification system and pay the fees levied

by the notification 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) Owners of real property on which there is a farm

operation, as that term is defined in section 2 of the Michigan

right to farm act, 1981 PA 93, MCL 286.472, may become a nonvoting

member of the notification system, known as a farm member, upon

providing the notification system with the information necessary to

send the farm member a ticket for purposes of notification under

section 6(1). A farm member is not subject to any fees levied under

subsection (3).

(6) The notification 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

notification 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

notification 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 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

date.

(4) An excavator shall comply with the notification 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

notification 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 notification system, and comply with subsection (1).

(8) An excavator shall provide notification to the

notification 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 notification 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

notification 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 notification

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 notification 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 notification system shall provide alternative means of access

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

of nature, war, or terrorism, the notification system shall be

available 24 hours per day, 7 days per week.

(2) The notification system shall publicize the availability

and use of the notification system and educate the public,

governmental agencies, excavators, farm operators, facility owners,

and facility operators regarding the practices and procedures of

the notification system, the requirements of this act, and

practices to protect underground facilities from damage.

(3) The notification 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 notification 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 notification

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 notification system.

(5) The notification system shall expedite the processing of

any emergency notice it receives under this act.

(6) The notification system shall receive design tickets under

the procedures described in section 6a and transmit them to

facility owners or facility operators.

Sec. 6a. (1) The notification system shall establish

reasonable procedures, including marking response times, for design

ticket notification to facility owners or facility operators of

requests for project design or planning services to determine the

type, size, and general location of facilities during the planning

and design stage of a construction or demolition project. Facility

owners or operators may charge the person requesting project design

or planning services separate fees for design or planning services.

(2) Procedures under this section do not affect or alter the

obligation of excavators to provide notice of blasting or

excavation under section 5.

(3) The response to a design ticket is to provide general

information regarding the location of underground facilities, not

to mark any facilities. However, if a facility owner or operator

does not have drawings or records that show the location of a

facility, the facility owner or operator shall mark that facility

under the procedures described in section 7. A design ticket or

information provided in response to a design ticket does not

satisfy the requirement under this act for excavation or blasting

notice to the notification system or marking the approximate

location of facilities for blasting or excavation.

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 notification system using positive response.

(4) Upon receiving a notification during business hours from

an excavator through the notification 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

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.

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

department or to the marking of a county or intercounty drain by a

county drain commissioner's office or drainage board.

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. (1) The notification 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

notification system is not responsible for assuring performance by

a facility owner or facility operator of its obligation to

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

(2) An excavator or a farmer engaged in farming operations

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 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.

(5) Not later than October 1, 2014, the commission shall

establish requirements for reporting incidents involving damage to

underground facilities.

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.

Sec. 13. An individual engaged in a farming operation 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 takes effect 90 days after the

date it is enacted into law.

Enacting section 3. This act does not take effect unless

Senate Bill No. 539 of the 97th Legislature is enacted into law.