MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Public Utilities
By: Representative Beckett
AN ACT TO AMEND SECTION 77-13-3, MISSISSIPPI CODE OF 1972, TO EXEMPT CERTAIN ACTIVITY BY GOVERNMENT ENTITIES IN THEIR RIGHTS-OF-WAY FROM THE LAWS REGULATING THE EXCAVATION OF UNDERGROUND UTILITY LINES; TO CREATE SECTION 77-13-27, MISSISSIPPI CODE OF 1972, TO CREATE THE UNDERGROUND PIPELINE FACILITIES ADVISORY COMMITTEE AND TO PROVIDE FOR ITS MEMBERS; TO CREATE SECTION 77-13-29, MISSISSIPPI CODE OF 1972, TO CREATE THE UNDERGROUND FACILITIES DAMAGE PREVENTION BOARD; TO CREATE SECTION 77-13-31, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE POWERS OF THE BOARD; TO CREATE SECTION 77-13-33, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR INVESTIGATIONS OF COMPLAINTS OF VIOLATIONS OF THE CHAPTER; TO CREATE SECTION 77-13-35 TO CREATE THE UNDERGROUND DAMAGE PREVENTION FUND WHEREIN ALL CIVIL PENALTIES SHALL BE DEPOSITED; TO CREATE SECTION 73-13-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THE SCOPE OF AUTHORITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-13-3, Mississippi Code of 1972, is amended as follows:
77-13-3. The words defined in this section shall have the following meanings when found in this chapter:
(a) "Excavate or excavation" shall mean any operation in which earth, rock or other material or mass of material on or below the ground is moved or otherwise displaced by any means, except: (i) the tilling of the soil less than twenty-four (24) inches in depth for agricultural purposes; or (ii) an operation in which earth, rock or other material or mass of material on or below the ground is moved or otherwise displaced to a depth of less than twelve (12) inches on private property by the property owner without the use of mechanical excavating equipment; or (iii) an operation in which earth, rock or other material or mass of material on or below the ground is moved or otherwise displaced without the use of mechanical excavating equipment to a depth of less than twelve (12) inches on private property by an excavator who is not the property owner, except when such excavation is in a clearly marked underground facility right-of-way; or (iv) routine railroad maintenance activities conducted within the track structure, drainage ditches, or within the railroad right-of-way a distance not to exceed thirty (30) feet from the outside rail of the outermost track or tracks, provided this work is performed by railroad employees or railroad contractors and is carried out with reasonable care so as to protect any underground facilities properly installed in the railroad right-of-way by agreement with the railroad; or (v) routine activities of a cemetery, provided that for any cemetery that begins or expands after July 1, 2015, such activities occur only after initial notice is provided to Mississippi 811, Inc., and all affected operators have advised that there are no underground facilities within the boundaries of the subject cemetery, or (vi) any activity by a government entity in its right-of-way which does not penetrate the earth to a depth of more than twelve (12) inches and is carried out with reasonable care so as to protect any underground facilities placed in the right-of-way. The term "excavate" shall include, but not be limited to, the operations of demolition, blasting, grading, land leveling, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing, driving, jacking, wrecking, razing, rending, moving or removing any structure or other material or mass of material on or below the ground.
(b) "Utility" shall mean any person who supplies, distributes or transports by means of underground utility lines or underground facilities any of the following materials or services: gas, mixture of gases, petroleum, petroleum products or hazardous, toxic, flammable or corrosive liquids, electricity, telecommunications (including fiber optics), sewage, drainage, water, steam or other substances.
(c) "Underground utility lines" shall mean underground or buried cable, conduit pipes and related facilities for transportation and delivery of electricity, telecommunications (including fiber optics), water, sewage, gas, mixtures of gases, petroleum, petroleum products or hazardous, flammable, toxic or corrosive liquids.
(d) "Underground facility" shall mean any underground utility lines and other items which shall be buried or placed below ground or submerged for use in connection with underground utility lines and including, but not be limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, vaults, attachments and those portions of poles below the ground.
(e) "Person" shall mean any individual, firm, partnership, association, trustee, receiver, assignee, corporation, entity, limited liability company, utility, joint venture, municipality, state governmental unit, subdivision or instrumentality of the state, or any legal representative thereof.
(f) "Damage" shall mean the substantial weakening of structural or lateral support of underground utility lines and underground facilities, penetration or destruction of any protective coating, housing or other protective devices of an underground utility line or underground facility, and the partial or complete severance of any underground utility line or underground facility, but does not include any operator's abandoned facility.
(g) "Operator" shall mean any person who owns or operates a utility. However, the term "operator" shall not include any railroad or the Mississippi Department of Transportation.
(h) "Working day" shall mean a twenty-four-hour period commencing from the time the locate request is processed or entered into the system by Mississippi 811, Inc., in accordance with this chapter, excluding Saturdays, Sundays and legal holidays.
(i) "Mechanical excavating equipment" shall mean all equipment powered by any motor, engine, or hydraulic or pneumatic device used for excavating and shall include, but not be limited to, trenchers, bulldozers, backhoes, power shovels, scrapers, draglines, clam shells, augers, drills, cable and pipe plows and other plowing-in or pulling-in equipment.
(j) "Excavator" shall mean any person who engages directly in excavation.
(k) "Mark" shall mean the use of stakes, paint or other clearly identifiable materials to show the field location of underground facilities in accordance with the current color code standard of the American Public Works Association, or the uncovering or exposing of underground facilities so that the excavator may readily see the location of same, or the pointing out to the excavator of certain aboveground facilities such as, but not limited to, manhole covers, valve boxes and pipe and cable risers, which indicate the location of underground facilities.
(l) "Mississippi One-Call System, Inc." shall mean "Mississippi 811, Inc." Whenever the term "Mississippi One-Call System, Inc." appears in this chapter, the term shall mean "Mississippi 811, Inc."
(m) "Mississippi 811, Inc." shall mean a nonprofit corporation organized under the laws of the State of Mississippi that provides a service through which a person shall notify the operator(s) of underground facilities of plans to excavate and request marking of facilities.
(n) "Abandoned facility" shall mean any underground utility line or underground utility facilities no longer used in the conduct of the owner/operator's business and are not intended to be used in the future.
(o) "Emergency excavation" shall mean excavation at times of emergency involving danger to life, health or property or a customer service outage.
(p) "Approximate location" of underground utility lines or underground facilities shall mean information about an operator's underground utility lines or underground facilities which is provided to a person by an operator and must be accurate within eighteen (18) inches measured horizontally from the outside edge of each side of such operator's facility, or a strip of land eighteen (18) inches either side of the operator's field mark, or the marked width of the facility or line plus eighteen (18) inches on each side of the marked width of the facility or line.
(q) "Positive response information system" or "PRIS" means an automated information system operated and maintained by Mississippi 811, Inc., that allows excavators, locators, facility owners or operators, and other affected parties to enter and/or determine the status of a locate request.
(r) "Calendar day" shall mean a twenty-four-hour period.
(s) "Board" shall mean the Underground Facilities Damage Prevention Board, created by Section 77-13-29.
(t) "Pipeline Safety Division" shall mean the Pipeline Safety Division of the Public Service Commission.
SECTION 2. The following shall be codified as Section 77-13-27, Mississippi Code of 1972:
77-13-27. Enforcement of damage prevention. (1) Any person who violates this chapter, or the rules promulgated under this chapter, shall be subject to a civil penalty as follows:
(a) For a first violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee;
(b) For a second or subsequent violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee or pay a civil penalty in an amount set by the executive committee, not to exceed Two Thousand Five Hundred Dollars ($2,500.00) per incident, or both; and
(c) Notwithstanding this subsection and subsection (2) of this section, if any violation was the result of gross negligence or willful or wanton misconduct as determined by the executive committee, the executive committee shall require the violator to complete a course of training concerning compliance with this chapter as determined by the executive committee and pay a civil penalty in an amount set by the executive committee, not to exceed Five Thousand Dollars ($5,000.00) per incident.
(2) Any person who is required to complete a course of training under subsection (1)(a) of this section shall be responsible for paying for the cost of the training.
(3) Any excavator who violates this chapter may be issued a notice of violation by the inspector, and the inspector may require any excavator to cease work on any excavation, or not start a proposed excavation, until the excavator complies with this chapter.
(4) Enforcement provided by this section shall begin after the board promulgates rules to carry out its responsibilities under this chapter.
SECTION 3. The following shall be codified as Section 77-13-29, Mississippi Code of 1972:
77-13-29. Underground Facilities Damage Prevention Board. (1) There is created within the Pipeline Safety Division, an Underground Facilities Damage Prevention Board for the purpose of enforcing this chapter.
(2) It is the intent of the Legislature that the board and its enforcement activities not be funded by appropriations from the state budget.
(3) The Pipeline Safety Division will provide administrative and investigative support for the board, both subject to concurrence by the board. The Pipeline Safety Division shall charge the expenses associated with the administration and investigative duties of the board back to the board, subject to concurrence by the board.
(4) The board shall be composed of twenty-two (22) members and all board appointments shall be made by July 31, 2016. The Governor shall make the appointments specified in paragraphs (a) through (c) of this subsection (4); the Lieutenant Governor shall make the appointments specified in paragraphs (d) through (i) of this subsection (4), and the Speaker of the House shall make the appointments specified in paragraphs (j) through (o) of this subsection (4). The board shall consist of one (1) representative of each of the following interested parties, with each member having expertise with the subject matter encompassed by the provisions of this chapter:
(a) Mississippi 811, Inc.;
(b) Four (4) representatives of the telecommunications industry, including one (1) representative each of an Incumbent Local Exchange Carrier (ILEC), a Competitive Local Exchange Carrier (CLEC), an Interexchange Carrier (IEC) and a Data Provider;
(c) Excavation contractors;
(d) Electric power industry investor-owned utilities;
(e) Electric Power Associations of Mississippi;
(f) Railroad industry;
(g) Mississippi Department of Transportation;
(h) Cable television industry;
(i) Mississippi rural water;
(j) Insurance industry;
(k) The Mississippi Public Service Commission Pipeline Safety Division;
(l) Utility locators;
(m) Natural gas distribution;
(n) Liquid transmission;
(o) Natural gas transmission;
(p) Mississippi design engineers, appointed by the Executive Director of the Mississippi Society of Professional Engineers;
(q) Mississippi surveyors appointed by the Executive Director of the Mississippi Association of Professional Surveyors, Inc.;
(r) Mississippi county government appointee, who is appointed by the Executive Director of the Mississippi Supervisors Association; and
(s) Mississippi municipality appointee, appointed by the Executive Director of the Mississippi Municipal League.
(5) The initial term of the representatives provided in subsection (4)(a) through (e) of this section shall end December 31, 2017; the initial term of the representatives provided in subsection (4)(f) through (k) of this section shall end December 31, 2019; and the initial term of the representatives provided in subsection (4)(l) through (s) of this section shall end December 31, 2021. Upon the expiration of the initial term of any member of the board, his or her successor shall be appointed for a term of five (5) years.
(6) The Governor shall appoint the initial chairman of the board, and the initial board shall elect other officers as the board deems necessary. The board shall meet and elect a chairman and other officers every two (2) years thereafter. The staff of Mississippi 811 shall serve as staff support for the board.
(7) The board shall meet no less than twice each year, with a date and time to be set by its chairman upon at least five (5) business days' notice provided by United States mail, electronic mail or personal delivery to every board member.
(8) Twelve (12) members of the board shall constitute a quorum and a majority vote of those present and voting at any meeting shall be necessary to transact business.
(9) The members of the board shall be immune, individually and jointly, from civil liability for any act or omission done or made in the performance of their duties while serving as members of the board, but only in the absence of willful misconduct.
(10) The members of the board shall serve without compensation.
(11) The board shall elect an executive committee, which shall be responsible for levying civil penalties and taking action as described in Section 77-13-27. The executive committee shall be composed of the following members of the board:
(a) One (1) member from subsection (4)(c) of this section;
(b) One (1) member from a state agency or local government; and
(c) One (1) member from a utility as defined by Section 77-13-3(b).
(12) A member serving on the executive committee shall be limited to two (2) consecutive one-year terms.
(13) The board and the executive committee may hold meetings and vote by telephone, television, or other electronic means.
SECTION 4. The following shall be codified as Section 77-13-31, Mississippi Code of 1972:
77-13-31. Powers of the board. (1) The board has the power and authority to:
(a) Promulgate rules to carry out its responsibilities under this chapter no later than December 31, 2016.
(b) Make and enter into contracts.
(2) The board shall:
(a) Through its executive committee, initiate investigations and conduct hearings as required by this section;
(b) Manage the Underground Damage Prevention Fund created by Section 73-13-33;
(c) Assess its annual operating cost to operators in an amount equal to the amount necessary to offset the cost of investigative and administrative services performed by the Pipeline Safety Division at the direction of the board. The annual operating costs shall be apportioned in a proportional manner and collected by Mississippi 811 from the operators; and
(d) Subject to the availability of funding in the Underground Damage Prevention Fund created by Section 73-13-35, contract with appropriate entities or agencies to conduct training and public awareness for damage prevention.
SECTION 5. The following shall be codified as Section 77-13-33, Mississippi Code of 1972:
77-13-33. (1) Upon receipt of a complaint of a violation of this chapter, the executive committee shall initiate an investigation of the complaint by requesting that the Pipeline Safety Division designate an employee of the authority who will investigate the complaint at the executive committee's direction.
(2) Any investigator acting at the direction of the executive committee may issue citations for violations of this chapter. Any citation may include a recommendation for the penalty to be assessed under Section 77-13-27.
(3) If the person to whom the citation is issued under subsection (2) of this section does not pay the citation or submit to ordered training, or both, within thirty (30) days, then the executive committee shall appoint a hearing officer to conduct a hearing and issue an initial order. The hearing shall be held at the time and place set forth in the citation notice of hearing. The hearing shall be conducted in the county where the excavation referenced in the citation occurred, unless otherwise agreed to by the person to whom the citation was issued. In the event the excavation occurred in more than one (1) county, then the hearing shall be conducted in the county where the greatest amount of excavation referenced in the citation occurred.
(4) An appeal of the initial order shall be heard by the executive committee.
(5) A person aggrieved by the final order may, within sixty (60) days, seek judicial review in the Chancery Court of Hinds County, Mississippi.
(6) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this chapter shall not be admissible in any other civil causes of action. This chapter shall not limit any person's right to pursue any additional civil remedy otherwise allowed by law.
(7) Nothing in this chapter shall grant the executive committee or the board jurisdiction over damage to utilities located above the ground.
SECTION 6. The following shall be codified as Section 73-13-35, Mississippi Code of 1972:
73-13-35. Underground Damage Prevention Fund. There is created an Underground Damage Prevention Fund within the Pipeline Safety Division. All civil penalties collected pursuant to this chapter shall be deposited into the Underground Damage Prevention Fund. Any monies remaining in the underground damage prevention fund at the end of the fiscal year shall not revert to the general fund, but shall remain in the underground damage prevention fund for the exclusive use of the board. The expenditure of monies in the underground damage prevention fund shall be at the discretion of the board to carry out its duties under this chapter. Excess funds shall be used to support public awareness programs, training and education programs for excavators, operators, line locators, and other persons to reduce the number and severity of violations of this chapter.
SECTION 7. The following shall be codified as Section 73-13-37, Mississippi Code of 1972:
73-13-37. Scope of authority. The administrative and investigative support provided by the Pipeline Safety Division to the board in an advisory capacity only, and nothing in this chapter shall expand the jurisdiction of the Pipeline Safety Division or the commission in any way.
SECTION 8. This act shall take effect and be in force from and after July 1, 2016.