Michigan first enacted a statute protecting public underground facilities in 1974, M.C.L. § 460.701 et seq. P.A. 1974, No. 53. It was substantially amended in 1992. P.A. 1992, No. 38. However, the law was completely repealed and replaced in 2014 with MISS DIG Underground Facility Damage Prevention and Safety Act, M.C.L.§ 460.721 et seq. P.A. 2013, No. 174. Michigan decided to enact these laws 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 for certain notices to affected parties when underground facilities are damaged. Id.
There are notable differences between the old statute as amended and the 2014 MISS DIG statute. For starters, over twenty new definitions were added to the “definition section” under MISS DIG, definitions like “approximate location,” “blasting,” “caution zone,” “damage,” “dig notice,” “emergency notice,” “excavation,” “soft excavation,” etc. M.C.L.§ 460.723. These additional definitions more than likely arose out of the lack of and need for clarity as to what could qualify for what. For example, damage or excavation are materially necessary terms for bringing action if someone damaged an underground facility during excavation.
The MISS DIG statute also removed sections that pertained to explicit exemptions and prerequisites to discharge explosives, excavation, tunneling or demolition. P.A. 2013, No. 174. The notice requirements were slightly changed from requiring notice “at least 2 [with a statutory provision changing it to at least 3 full working days after October, 1990] full working days, excluding Saturdays, Sundays, and holidays but not more than 21 calendar days,” to “at least 72 hours, but not more than 14 calendar days, before the start of any blasting or excavation.” M.C.L. § 460.705(1); M.C.L § 460.725(1). Giving notice is crucial so that proper locate marks are performed avoiding unwanted damage to the underground facilities. By the MISS DIG language requiring notice 72 hours in advance but not having the time run during non-business day hours, and not more 14 days in advance, expedites the process and helps to ensure the locate marks are legible and in the proper area when the excavation does begin.
The MISS DIG statute imposed additional duties on the excavator such as requiring soft excavation (hand-digging, cautious digging with non-mechanical tools, vacuum excavation methods, or use of pneumatic hand tools) in a caution zone, which is 48 inches on either side of the underground facility. M.C.L § 460.725(5). It further requires the excavator to provide support or bracing of facilities as reasonably necessary for their protection. M.C.L.§ 460.725(6).
Another new statutory duty under MISS DIG requires excavators to notify the notification system and to stop excavation immediately if there’s visible evidence of an unmarked facility, lack of a positive response to a ticket, or a positive response from a facility owner or operator indicating the presence of an unmarked facility. M.C.L.§ 460.725(9)(a)-(c).
The MISS DIG statute also changed the associated penalties. Previously, someone who on more than 3 occasions for a specific construction job failed to comply with any provision of the Act could be enjoined from any further excavation work within the state and could face up to $5,000 per violation. M.C.L.§ 460.715. The MISS DIG statute now provides that if anyone knowingly damages or backfills the excavation in an attempt to conceal the damage to an underground facility and fails to promptly notify the facility owner or facility operator is guilty of misdemeanor punishable by imprisonment for up to a year, or a fine of $5,000, or both. M.C.L.§ 460.731(1)(a)-(b).
Knowing the differences between the old statute and the new MISS DIG statute can not only prevent unwanted damage to an underground facility, but can also help to minimize potential liability.
Corey Meridew of Camden & Meridew, P.C. practices in the areas of appellate law, business litigation, consumer protection and utility law. Corey has litigated hundreds of claims under Indiana’s Damage To Underground Facilities Act and Michigan’s MISS DIG and can help you. Should you need an attorney in this specialized area, call 317-770-0000 or complete our online contact form today.
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