September 24, 2013, Introduced by Senator NOFS 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; 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 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.
(C) Any farming operation performed outside a public right-of-
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 an active or retired cell
at a 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 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. 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.
(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
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.
(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
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.
(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 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) Notwithstanding any other provision of this act, 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.
(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. 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 does not take effect unless
Senate Bill No. 539 of
the 97th Legislature is enacted into law.