The new act is much more comprehensive than its predecessor (PUFA) and while some aspects of the old law are being continued, a number of new provisions have been added. A few of those new provisions are worth highlighting.
Positive Response System
Facility owners and operators will be required to provide notification to the notification system using positive response. This will arguably enable excavators to determine whether all facility owners or facility operators contacted under a ticket have responded in accordance with the act. See generally MCL 460.727(3) and MCL 460.723(x).
Caution Zone & Safe Zone Designations
The Miss Dig Act will break a construction site into two zones relative to underground facilities that have been marked by the facility owner or operator. The “caution zone” is defined as, “the area within 48 inches of either side of the facility marks provided by a facility owner or facility operator.” MCL 460.723(f) (emphasis added). An excavator will be required to expose all marked facilities in the caution zone by “soft excavation” (i.e., hand digging) before power tools and equipment can be used in this zone. MCL 460.725(5). If conditions make complete exposure of the facility impractical, an excavator will be required to consult with the facility owner or operator to reach agreement on how to protect the facility. For excavations in a caution zone parallel to a facility, the excavator will be required to use soft excavation at intervals as often as reasonably necessary to establish the precise location of the facility.
The other zone is designated the “safe zone” and is defined as, “an area 48 inches or more from either side of the facility marks provided by a facility owner or facility operator.” MCL 460.723(aa) (emphasis added). Subject to the new act’s provisions, an excavator will be allowed to conduct excavation in a safe zone using power equipment without establishing the precise location of any facilities. MCL 460.725(15).
Liability & Damages
The new act exempts the notification system (i.e., MISS DIG System, Inc.), as well as its officers, agents and employees from liability 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 the act. Further, the notification system will not be responsible for assuring performance by a facility owner or facility operator of its obligation to participate in the notification system under section 4(4) of the act. MCL 460.729(1).
Governmental agencies, conversely, lost their immunity relative to potential civil liability for excavating around underground facilities. Passage of the Miss Dig Act required that the Governmental Tort Liability Act be amended to provide that, “the immunity provided by this act does not apply to liability of a governmental agency under the MISS DIG underground facility damage prevention and safety act.” MCL 691.1407(7). In short, that means that as of April 1, 2014, governmental agencies will be in essentially the same position as private companies and individuals with regard to potential civil liability for excavating around underground facilities.
Finally, the act adds a new layer of administrative sanctions that can be assessed against “persons” – which includes individuals, companies and governmental agencies – who violate the act. The Michigan Public Service Commission (“MPSC”) will be responsible for enforcing the act’s provisions.
Under the new administrative scheme, persons other than governmental agencies (i.e., individuals and companies) can be ordered to pay civil fines of not more than $5,000 for each violation and, either additionally or alternatively, be ordered to obtain reasonable training to assure future compliance of the act. The MPSC will be required to consider all of the following factors in determining the amount of any fine it imposes:
(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; and
(e) The history of prior violations of the person charged. [MCL 460.731(2)]
A progressive approach will be taken with regard to governmental agencies insofar as administrative sanctions are concerned. If the MPSC has not issued an order against the governmental agency within the preceding 12 months, the potential civil fines are the same as set forth above for non-governmental agencies. MCL 460.732(3)(a). In determining the amount of the fine, the MPSC will be required to consider factors (a) through (e) above.
Where the MPSC has issued an order against the governmental agency within the preceding 12 months, the civil fine can potentially double (to not more than $10,000.00), and the governmental agency can be required to provide underground facility safety training at its expense to all its personnel involved in underground utility work or excavating. Once again, the MPSC will be required to consider factors (a) through (e) above in determining the amount of the fine. MCL 460.732(3)(b).
If the MPSC has issued two orders against the governmental agency within the preceding 12 months, the civil fine can increase to up to $15,000 (with the MPSC again considering factors (a) through (e) above in determining the amount of the fine). Additionally, the MPSC will be able to order the government agency to pay to the facility owner or operator the cost to repair the facilities if the government agency’s violation caused the damage. MCL 460.732(3)(c).
All civil fines ordered under the act are to be paid to the MPSC and used for underground facilities safety education and training. MCL 460.732(7). Each day upon which a violation occurs will be considered a separate offense. MCL 460.732(8).
- Disclaimers -