This conviction led Leonard through Harrison County where he served as a Deputy Sheriff until 1999. Upon leaving the Sheriff’s Department, Leonard went to work for the Mississippi Public Service Commission as a utility investigator where he worked until 2003. In 2004 Commissioner Bentz ran for and was elected to the Mississippi House of Representatives representing District 116. He served in the House of Representatives until April 2006.

After Hurricane Katrina in 2005, the Southern District Commissioner’s office was vacated, leaving an unexpired term to fill. Governor Barbour appointed Leonard to fill the unexpired term.

In 2007, Commissioner Bentz ran for and was elected to the office of Southern District Public Service Commissioner. He said, “It has been an honor to serve the people of Mississippi and especially the Southern District.”

He continued, “Serving on the Commission has been challenging at times. Some of the issues are mind-boggling. Dealing with issues that impact ratepayers like the cost of generating electricity, the cost of doing business in Mississippi, or dealing with the sometimes unrealistic regulations out of Washington can be very complex.”

So how do you handle these admittedly complex and difficult issues? He laughed and replied, “With lots of prayer. That’s a great start to any day. And I’ve got to say that I’ve been blessed with a tremendous staff. Without their commitment and hard work, we’d all be lost.”

He continued, “The issues may be more complex than I thought they would be, but I see in them a great opportunity to serve the public. A rule that I believe in is to regulate by common sense principles. It is easy to be against something. It’s tough to make a decision that you know impacts both sides and can impact utilities and ratepayers for the next 20 or 30 years. We’ve got to be forward thinkers, proactive in our approach in making sure that Mississippi is stronger when we leave than when we got here.”

Making decisions that ensure the viability of utility companies and at the same time protect the ratepayers can be a real balancing act at times. Commissioner Bentz said, “You can’t take sides on these kinds of issues. For me, the solution is this one thing only: ‘Do the right thing.’ A decision has to be made. We have to act on the information we have at the time. If your intent is honorable, and you are off track somehow, there will be time to change later.”

Commissioner Bentz was asked, “What are your thoughts on the Mississippi Damage Prevention Council’s (MDPC) proposal to create a stronger and more effective damage prevention program?”

He said, “As a resident of Mississippi, I applaud their efforts. Our underground infrastructure is vital to our entire state and we need to work together to protect it, first of all for the safety of our citizens, but also to help keep Mississippi competitive in the business markets. Getting the stakeholders involved is critical. I would encourage the MDPC to continue to identify other stakeholders and bring them to the table, even those who may not see things the way you do. Stakeholder participation and perspective is crucial to creating lasting change.”

He said, “I believe the will of the Commission is to do what is in the best interests of the ratepayers and utilities. Damages are not in the best interests of either group. Utilities that are disrupted can shut down industry or disrupt our economy. The cost of repairing damaged utilities certainly impacts the budgets of utility companies, and that can impact rates. And that’s true from the smallest rural water system to the largest utility in the state.”

What do you think about the PSC getting involved in the effective enforcement process? He said, “As you know, we have an outstanding Pipeline Safety Division. Their mission is to protect the public and environment, so it seems that it could be a fit. I am pleased to hear that the proposal includes a review board made up of stakeholders to ensure that throughout the entire process, their perspectives can be heard.”

He continued, “Some level of enforcement will be required in the end, but I’m convinced the solution to damages to our infrastructure is education, education and more education. Enforcement should be reserved for those who disregard the safety of others. I mean a case could be made that this is part of our responsibility to protect the public.”

What about the concern that this would give the PSC an opportunity to get involved in regulating rates for companies currently not regulated by the Commission? He paused for a moment then continued, “I’m a member of Mississippi Rural Water Association and I believe they do a good job of regulating themselves. Really, why in the world would anybody want to get in the way of these systems that are doing a good job? I don’t want the authority to meddle in their business, and I’m sure the law says we don’t have that authority.”

Commissioner Bentz concluded, “This Commission works diligently to promote the best interests of our state, our utilities and our ratepayers. I think that even though we may see things differently at times, we have worked together for a stronger and better Mississippi.”
“I personally appreciate the privilege given to me by the voters of the Southern District, and if given the opportunity to serve another four years I will continue working to do the right thing.”

By 1992 MS 811, needing more room for the Call Center, moved to a two-story office building. The center occupied the entire top floor. Donna said, “There were five full-time CSRs, the manager and a secretary/CSR. In 1995 the center manager became the office manager and I became the Call Center manager.”

In 2000 MS 811 implemented a GIS Department and again had to move, this time to an area with twice as much room as the previous building. In 2002, Donna was moved to GIS. On her work in this department, Donna said, “I love this side of the work, making sure the streets are correct for the CSRs and keeping our members database updated. Now it almost seems like I have come full-circle because I am once again training the new GIS people and answering their questions.”

Of course, Donna’s work at MS 811 cannot be summarized in only a few sentences. She says, “There have been many ups and downs and a lot of people have come and gone. I know that you know my bosses will be reading this, but that is not why I say I have loved working here. MS 811 has always been there for me no matter what. They have helped me grow and were patient while I did it.”

I thought surely this was some kind of joke. The question had nothing at all to do with algebra. I had passed him in the hallway several times. He looked like a janitor was supposed to look like. He was tall, kind of gray headed and a lot older than me, but how would I know his name?

I handed in my paper, leaving the last question blank. Just before class ended, one of the students asked if the last question would count toward our quiz grade.
“Absolutely,” said the professor. “In your careers, you will meet many people. All are significant. They deserve your attention and care, even if all you do is smile and say hello.”
I missed the question, but I’ve never forgotten that lesson. I learned his name was Henry and he had a lot to offer by way of perspective to anyone who took the time to learn that he wasn’t always a janitor.

In like manner, all stakeholder perspectives are important in defining what is fair and what will be effective in protecting our vital underground facilities. Issues of trust and fairness must be recognized, understood and fairly resolved.

The very nature of partnerships involves the perceptions of the participating stakeholders in how their interests and concerns are being addressed. If we fail to genuinely respect the points of view of other stakeholders, coming together will not culminate in staying together.

I encourage all stakeholders to take the time to learn about the other industries, personalities and perspectives that sit at the table with you. We also must learn to value each other’s insight into the business practices and the “practical considerations” that exist in our companies. Such insight and respect for insight is crucial to successful program development and implementation.

In damage prevention to say that my utility’s success is not tied to your utility’s success is like saying “Your end of the boat is sinking.”
Let’s work together to make it happen right here in our state!

Let’s begin our discussion by asking you to answer the following questions about your damage prevention team:
1. Do you want your team members to be mediocre?
2. Do you want your team members to be complacent?
3. Do you want your team members to be average? (Remember average is the best of the least and least of the best.)

My guess is that you answered “No!” to each of the above. Am I correct? Who in his right mind would want a low or mediocre performing team?

So let’s consider another question: Who is responsible for helping team members have the knowledge and skills to be successful? Correct. Supervisors. Whoops! Some supervisors have told me that employees should have the necessary knowledge and skill sets as a condition of their employment. I agree that would be nice. We also know the difficulty of finding high- performing talent.

So that leads us to wondering about those employees who are underperforming. Are you a supervisor? If so, I have another question for you to ponder and I want you think about it before responding. Are you willing to accept the responsibility of teaching your employees, including your underperformers, how to be successful? Pause … think … now answer.

I’ve asked thousands of supervisors to identify the number one responsibility of being a leader. Most of them respond with such phrases as “get things done,” “manage the assets,” “work safely” or other descriptions of their technical responsibility. Very few mention developing their people assets – which is their number one responsibility. If you think about it for a moment, people constitute your team’s resource with the greatest potential to develop.

Let me tell you a story that I’ve heard more times than I can remember. A supervisor complains about the performance of one of his employees. When I’ve asked, “What was the employee’s response when you discussed it with him?” What would you guess the answer is? “Well I suppose I should talk to him!”

Whose fault is it that the employee is not performing to the expected level in this scenario? When a supervisor points a finger at the employee, consider the fact that three are pointed back at him. A supervisor is not helping anyone by not having that conversation.

It’s confusing to understand why a company would not emphasize developing its people when considering the fact that people drive the company’s success. The fact is people must improve before the company improves. If you want a first class company, you must have first class people.

So where do you go from here? First, if you’re a supervisor you must embrace the responsibility to help your people succeed. Second, that means ensuring that your people know the results expected to achieve peak performance both in terms of their technical responsibilities as well as interpersonal performance. Note I said results instead of listing responsibilities. Of these two, defining technical expectations is the easier to discuss. For some reason, talking about interpersonal skills is a “sacred cow” and as such, this most critical subject is usually avoided. When that happens, everyone loses.

Third, people need a continuous stream of feedback to guide their performance. You don’t want them to be the blind hog that luckily finds the acorn. You want to help that hog fatten up to reach market weight. Providing feedback is critical for employees to become peak performers. Providing feedback is simply an accountability tool. Unfortunately, instead of viewing accountability as a teaching opportunity, many supervisors perceive it to be a negative event. There is nothing negative about helping people to succeed. Receiving feedback from a supervisor shows employees that they are cared for. We can look at this situation from another perspective. Is a supervisor helping anyone when he allows an employee to continue performing at an undesirable level and not intercede? Obviously not.
Take a poll among members of your damage prevention team sometime and ask if they want to be taught to be successful. My guess is you’ll like the results of your poll. Your damage prevention team is really a “schoolhouse.”

The news media’s announcement that the U. S. Postal Service is in trouble wasn’t a huge surprise to most of us. The world has shifted; we are using email so that business is down for the postal service. E-mail is immediate and doesn’t require postage. Perhaps it has the greatest cost of all, the cost of diminishing relationships. By using email we risk fading into the crowd and failing to stand out. This change in society offers an opportunity for you to separate yourself from competition while developing solid relationships with your prospects and customers.

Jeff, my postman, walked into my office and as he picked up a letter I had laid out to mail said “Nothing for you today.” I immediately thought “Great, no bills.” Bills and flyers are what I typically receive. While cleaning out my inbox recently, I discovered a note from a former associate that I received many months ago. I hadn’t discarded it because of the emotional impact it had on me when I received it. Interestingly, it had the same impact when I re-read it. That’s obviously why I kept it. In 2011 it has become rare to receive a personal hand-written note. That rarity creates an opportunity!

A personal hand-written note doesn’t have to be long. Actually, being simple and short is often preferred. “Thank you for your business. We value loyal customers like you. I enjoy working with you.” Now you’re standing out from your competition for only 44 cents!

A pre-printed card that says the same thing has a totally different effect. We quickly throw those in the trash. When something is hand written we have a tendency to value it. You see, it’s about making a personal connection and strengthening a relationship.

If you would like to make the note more specific, tell people what you like, admire, respect or appreciate about them. Next, tell them why you like or appreciate it, then share how you personally benefit. For example: “I enjoy working with you. Your sense of humor creates a bright spot in my day.”

I’m encouraging you to hop on the REA 44-10-10 Express. It’s a train for which you don’t have to purchase tickets or wait. It’s ready to go when you are. Invest 44 cents, 10 minutes and express your Recognition, Encouragement or Appreciation to another person with a hand-written note. Hop the express daily for 10 days.
Don’t limit yourself to customers; it’s applicable for all of the important people in your life. Look for opportunities to encourage folks who are facing a challenge. Provide recognition when people achieve a goal or have a success. You’ll find that you’re developing a habit which will endear you to others and set you apart. You will launch one of the most effective advertising-/relationship-building campaigns known to modern man. There is no replacement for genuine one-on-one interaction.

None of us would stand by and allow important people in our lives to starve without taking immediate action. The reality is, often without our awareness, people in our lives are starved for recognition, encouragement or appreciation and we do nothing. Let’s make sure they know they’re important to us.
I received a quote recently that impressed me and sums up my thoughts. “My religion is very simple. My religion is kindness.” ~ Dalai Lama, 1935
So start today and get on the REA 44-10-10 Express. Now you’re creating ZING!

There was a little patch of timber across the road from our house probably no more than 10 acres total. There was plenty of hard wood and lots of squirrels. I was allowed to go hunting in that little patch of woods by myself. Auntie would always say, “Son, don’t cross that fence into the big woods.”

“Yes, ma’am,” and off I’d go. Actually hunting inside the fence was usually pretty good, but today was not a day to brag about. There I was sitting in my usual spot looking at my favorite tree and nothing was happening on my side of the fence.

But on the other side, I could hear hundreds, maybe thousands of squirrels barking. Some of them even sounded like they were laughing at me. I couldn’t stand it. I reasoned, “If I crawled under the fence to get my limit, who would know?”

Though I had heard about people getting lost in the big woods, it never crossed my mind that I could, even with the sun hanging low in the west. After all, I was going to stay close to the fence and I was only going to be in there long enough to get my limit.

When I crawled under the fence, I heard a squirrel jumping from limb to limb. I looked up, took aim, fired and down he came. Just a few seconds later, I heard another squirrel and I began walking toward the sound. I don’t know exactly how long I walked, but I guess the squirrel heard me walking and hid.

That’s when I first noticed it was graveyard quiet and getting serious dark as well. Then I heard the night birds rustling around in the bushes. I think it was then that I realized that I was in the big woods and in deep trouble. It was dark, and because I had been walking around looking at the timber, I wasn’t really sure where the fence was. I wasn’t even sure where I was.

That’s when it dawned on me. I was a goner!

I stumbled around in the dark until I remembered my old friend Dillard telling me one time that if I ever got lost the best thing to do was to stay calm, sit down and pick out a landmark and walk to it. That part about staying calm was easier when I was on Dillard’s front porch. But I did sit down and began to peer through the ever increasing black night.

I knew that if I ever got out of this alive, my Auntie would kill me. Worse than that, she’d take my gun, tell our neighbors, the Shepherds and their oldest boy, Hugh, would make fun of me from now on.

Oh, what a tangled web I had weaved.

“What is that?’ I thought to myself. I could see the smallest bit of light no bigger than a lightning bug. I wasn’t sure where it was, but it seemed like a better place than where I was. I stood up and focused on that landmark and started walking. On and on I slowly walked toward the dim light that seemed so far away.

Each step was measured. I could hear things behind me that made me want to have a runaway. One step, find the light and take another step. Then I felt something grab me. It was so dark I didn’t see the barbed-wire fence that separated me from where I wanted to be.

I took one more look at the light, got down on the ground and crawled under the fence, stood up and found the light once more. I’m confident that was the feeling Moses had when the Egyptians were bearing down on him, and he turned in time to see the waters parting.

As I walked across the pasture I never took my eyes off the light that kept getting bigger each step. I soon recognized the 60-watt light bulb on the front porch of our house. I later told Dillard about how dim the light was when you were standing on the porch and how bright it seemed that night. He smiled and said, “The light was not there to see the house, it was there to see how to get to the house.” I knew that was going to be one of those things that I’d have to figure out when I got older.

So I crossed the gravel road to our house and got a “I’m so glad you’re safe” hug and then a “don’t you ever do that again” whipping all the way into the house.
But somehow it all seemed worth it to me. I had stared “lost” in the face and had the key to finding my way out. Now all these years later, I’m reminded that we don’t have to know everything there is to know before we can be successful. Just be true to the light you have and you’ll find a way to win.
“Hey Auntie,” I said while she was tucking me in for the night, “can I go over to Dillard’s tomorrow and tell him about how I stayed calm?”
“And oh, one more thing, let’s not tell the Shepherds. There are some things that Hugh just doesn’t need to know.”
“Thank you Auntie… I love you too.”

Henry says there have been many positive things take place since coming on board. He is proud of the strong relationships that have been formed with member companies and users of the system. He said, “GPSing the entire state of Mississippi has been a remarkable opportunity and it has benefited not only the member companies, but the entire population of the state.”

You’d think turning 70 would slow most folks down. It might, but that’s not what Henry has in mind. Henry is very active in his church and enjoys going on mission trips to help others, and he doesn’t see that slowing down in his future.

And how much longer does he intend to work at Mississippi 811? He answers with a smile, “To work until Sam retires.” Sam Johnson, president of Mississippi 811, says, “All things being equal, that won’t be until I’m 87.”

“One thing’s for sure,” says Henry. “As much as I enjoy the job, when I do leave I’ll miss the people more than the job itself.”

The document beginning on the following page represents part of their effort toward this honorable goal. The board recognizes that effective enforcement is always a work in progress, and that once the accountability process is seen as fair, it will be effective.

We recognize that the issue is one of public safety, which is a priority for all stakeholders involved. Laws that state what the expected behavior is but do not state what the consequences are for failing to follow the law will not be effective. Effective enforcement is not now, nor has it ever been, about fines. As a matter of fact, fines are always a last resort. Effective enforcement is about changing behaviors. Behavioral change comes about first and foremost as the result of education.

On the following pages, the text in black is current law. The red text is the proposed amendments. Our hope is that you will take the time to review the amendments and share your thoughts with us.

For your convenience, we’ve briefly identified the amendments for you.
• 77-13-3 (a)
Defines excavation
• 77-13-3 (r), (s), (t):
Defines new language found in 77-13-19
• 77-13-5
Adds white striping to the law
• 77-13-19:
Defines the enforcement process

You can reach us by email at mdpc@msdamageprevention.com. We look forward to hearing from you.

Chapter 13
Regulation of excavations near underground utility facilities
§ 77-13-1. Legislative intent.
It is the intent of the Legislature to protect underground utility facilities and other underground facilities from destruction or damage, in order to prevent death of or injury to persons, property damage to public and private property, and loss or interruption of essential utility services to the general public.
Sources: Laws, 1985, Ch. 494, § 1; reenacted without change, Laws, 1999, Ch. 302, § 1, eff from and after July 1, 1999.
§ 77-13-3. Definitions.

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; (iv) routine road or railroad maintenance activities carried out by road maintenance or railroad workers, provided that such activities occur entirely within the right of way of a public road, street, railroad, or highway; are carried out with reasonable care so as to protect any underground facilities placed in the right of way; and are carried out within the limits of any original excavation on the traveled way, shoulders, or drainage ditches of a public road, street, railroad, or highway; or (v) routine activities of a cemetery or mining operation, provided that for any cemetery or mining operation that begins or expands after July 1, 2012, 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 mining operation. 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 twenty-four-hour period commencing from the time of receipt by Mississippi 811, Inc., of the notification 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 above ground 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 can 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) “Commission” shall mean the Public Service Commission of the State of Mississippi.

(s) “Mississippi Damage Prevention Council, Inc.” shall mean a nonprofit corporation organized under the laws of the State of Mississippi that is made up of stakeholders responsible for or affected by excavation or locating, operating, or maintaining underground facilities and promotes excavation safety, prevention of damage to underground facilities, and public awareness and education programs regarding excavation safety and prevention of damage to underground facilities.

(t) “Willful” means an act done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.

Sources: Laws, 1985, ch. 494, § 2; Laws, 1997, ch. 483, § 1; reenacted without change, Laws, 1999, ch. 302, § 2; Laws, 2008, ch. 497, § 1; Laws, 2009, ch. 382, § 1; Laws, 2010, ch. 427, § 1, eff from and after passage (approved Mar. 24, 2010.)

§ 77-13-5. Excavator’s investigation of site; notice to utility of planned excavation.

(1) In addition to complying with all other applicable regulations and requirements of federal, state, county and municipal authorities, no person shall engage in excavation of any kind, before meeting the notification requirements of this chapter. Under this chapter the excavator shall:
(a) Inform himself/herself of the presence and location of any underground utility lines and underground facilities in or near the area where excavation is to be conducted;

(b) Plan and conduct the excavation to avoid or minimize interference with or damage to underground utility lines and underground facilities in or near the excavation area; maintain a clearance between any underground utility line or underground facility and the cutting edge or point of any mechanical excavating equipment, taking into account the known limit of control of such cutting edge or point, as may be reasonably necessary to avoid damage to such facility; and provide such support for underground utility lines or underground facilities in and near the excavation area, including during any backfilling operations, as may be reasonably necessary for the protection of such facilities.

(c) Except as provided in Section 77-13-11, provide not less than two (2) and not more than ten (10) working days’ advance written, electronic or telephonic notice of the commencement, extent, location and duration of the excavation work to Mississippi One-Call System, Inc., so that Mississippi One-Call System, Inc., operator(s) may locate and mark the location of underground utility lines and underground facilities in the excavation area.

The written, electronic or telephonic notice required by this subparagraph (c) shall contain the name, address and telephone number of the person filing the notice of intent, the person responsible for the excavation, the starting date, anticipated duration, type of excavation to be conducted, the location of the proposed excavation and whether or not explosives are to be used.

(2) The markings provided by operators shall only be valid for a period of ten (10) working days from the proposed starting date provided to Mississippi One-Call System, Inc. The person responsible for the excavation project shall renew the notification with Mississippi One-Call System, Inc., at least two (2) working days prior to this expiration date and shall continue to renew such notification in the same manner throughout the duration of the excavation. Such renewal notice shall be valid for a period of ten (10) working days from the date of the expiration of the prior notification.

(3) Compliance with the notice requirements of this section shall not be required of: (a) persons plowing less than twenty-four (24) inches in depth for agricultural purposes; (b) persons who are moving or otherwise displacing, by hand, earth, rock or other material or mass of material on or below the ground at a depth of less than twelve (12) inches on property they own; and (c) persons, other than the property owner, who are moving or otherwise displacing, by hand, earth, rock or other material or mass of material on or below the ground at a depth of less than twelve (12) inches, except when such excavation is in a clearly marked underground facility right-of-way.

(4) Unless otherwise agreed by all affected operators, the excavator shall mark the route or boundary of the proposed area of excavation with stakes, flags, posts or painted or chalked lines that are white in color and are clearly visible.

Sources: Laws, 1985, ch. 494, § 3; Laws, 1997, ch. 483, § 2; reenacted without change, Laws, 1999, ch. 302, § 3; Laws, 2008, ch. 497, § 2, eff from and after July 1, 2008.

§ 77-13-7. Notification of damaged lines.

(1) Each person responsible for any excavation that results in damage to an underground utility line or underground facility, immediately upon discovery of such damage, shall notify Mississippi One-Call System, Inc., and notify all operators of such damaged line or facility of the location of the damage and shall allow the operator reasonable time to accomplish any necessary repairs before completing the excavation in the immediate area of the damage to such line or facility.

(2) Each person responsible for any excavation that results in damage to an underground pipeline or underground facility permitting the escape of any hazardous, flammable, toxic or corrosive gas or liquid that may endanger life or cause serious bodily harm or damage to property shall, immediately upon discovery of such damage, call 911 and then notify or call Mississippi One-Call System, Inc., and the operator and take all other action as may reasonably be necessary to protect persons and property and to minimize the hazards, until arrival of the operator’s personnel and the police or fire departments.

(3) Except where the excavator has fully complied with the provisions of Section 77-13-5 and subsections (1) and (2) of this section, each person responsible for excavation that results in damage to an underground line or underground facility, except the property owner, unless the property owner is the excavator, shall be responsible for any and all costs and expenses incurred by the operator in restoring, correcting, repairing or replacing the damaged line or facility.
Sources: Laws, 1985, ch. 494, § 4; Laws, 1997, ch. 483, § 3; reenacted without change, Laws, 1999, ch. 302, § 4; Laws, 2008, ch. 497, § 3; Laws, 2009, ch. 382, § 2, eff from and after July 1, 2009.

§ 77-13-9. Marking location of underground facilities; timeliness.

(1) Every person owning or operating underground utility lines or underground facilities shall, upon receiving advance notice of the commencement of excavation, in accordance with Section 77-13-7, make an investigation, and may report through the use of the PRIS the status of the work performed, within two (2) working days from the time notice is provided in accordance with this chapter to the Mississippi 811, Inc., to determine the approximate location of its underground utility lines or underground facilities in the area of the proposed excavation, and shall either: (a) mark the approximate location of underground utility lines and underground facilities in or near the area of the excavation, so as to enable the person engaged in excavation work to locate the lines and facilities in advance of and during the excavation work; (b) advise in writing or by telephone or electronic means that it has no underground utility lines or underground facilities in the excavation area; or (c) advise in writing or by telephone or electronic means that it can locate its underground utility lines or underground facilities in the excavation area only by excavation. If an operator can locate its underground utility lines or underground facilities in the excavation area only by excavation and has given proper notice of such, that operator shall be allowed a reasonable amount of additional time, not to exceed two (2) additional working days, to mark the approximate location of the underground utility lines or underground facilities.

(2) In lieu of such marking, the operator may request to be present at the site upon commencement of the excavation, so long as the operator complies within two (2) working days of the receipt of the notice.

(3) When an excavator, upon arriving at an excavation site, sees evidence of unmarked underground utility lines or underground facilities or encounters an unmarked underground utility line or underground facility on an excavation site after excavation has commenced where notice of intent has been made in accordance with the provisions of this chapter, that excavator must immediately contact Mississippi 811, Inc. All operator(s) thus notified must contact the excavator within four (4) hours and inform the excavator of any of their known underground facilities, active or abandoned, at the site of the excavation.

(4) When marking the approximate location of the facilities, the operator shall follow the color code designated and described herein, unless otherwise provided for by specific administrative rule or regulation promulgated pursuant to this chapter, namely:
UTILITY OR TYPE OF FACILITY GROUP IDENTIFYING COLOR
Electric – Safety Red
Petroleum Product/Hazardous/
Flammable/Corrosive/Toxic
Materials, Product and Steam Lines,
Gas or Gaseous Material – High Visibility Safety Yellow
Telecommunications (including fiber optic)
and CATV - Safety Alert Orange
Potable Water – Safety Precaution Blue
Reclaimed Water, Irrigation, Slurry Lines – Purple
Sewer and Drain Lines – Safety Green
Temporary Survey Markings – High Visibility Pink
Proposed Excavation - White

(5) All utility facilities installed by owners or operators of utilities on or after January 1, 2010, shall be installed in such manner that the utility facility may be located by using a generally accepted electronic locating method.

(6) Except for emergency excavations, if, before the expiration of the two (2) working days waiting period, all identified facility owners or operators have responded to the locate request and all have indicated that their facilities are either not in conflict or have been marked as indicated through the use of the PRIS, then the person planning to perform excavation or blasting shall be authorized to commence work, subject to the other requirements of this section, without waiting the full two (2) working days.

Sources: Laws, 1985, ch. 494, § 5; Laws, 1997, ch. 483, § 4; reenacted without change, Laws, 1999, ch. 302, § 5; Laws, 2008, ch. 497, § 4; Laws, 2009, ch. 382, § 3; Laws, 2010, ch. 427, § 2, eff from and after passage (approved Mar. 24, 2010.)

§ 77-13-11. Exceptions to advance notice requirement.

(1) The advance notice provisions of this chapter shall not apply to any person making an excavation at times of emergency involving danger to life, health or property or a customer service outage. However, every person who shall engage in such emergency excavation shall take all necessary and reasonable precautions to avoid or minimize interference with or damage to existing underground utility lines and underground facilities in and near the excavation area, and shall notify as promptly as reasonably possible the operators of underground utility lines or underground facilities in and near the emergency excavation area specifically designating whether such excavation is an emergency excavation as defined herein. In the event of damage to or dislocation of any underground utility lines or underground facilities caused by any such emergency excavation work, the person responsible for the excavation shall immediately notify the operator of the damaged or dislocated underground facilities of the damage or dislocation.

(2) An imminent danger to life, health, property or customer service exists whenever there is a substantial likelihood that injury, loss of life, health or customer services, or substantial property loss could result before the person responsible for the excavation or demolition can fully comply with the notification and response procedures required in Sections 77-13-7 and 77-13-17.

Sources: Laws, 1985, ch. 494, § 6; Laws, 1997, ch. 483, § 5; reenacted without change, Laws, 1999, ch. 302, § 6, eff from and after July 1, 1999.

§ 77-13-13. Advance notice as relieving excavator of certain liabilities.

The act of giving notice in accordance with Section 77-13-5 shall relieve the notifying party of all liability to a utility should such notice be ignored or the information provided by the utility subsequent to said notice be materially inaccurate; provided, however, the act of giving advance notice and/or obtaining information as required by this chapter shall not relieve any person making excavations from doing so in a careful and prudent manner, nor shall it relieve such person from liability for any injury or damage proximately resulting from his/her negligence.

Sources: Laws, 1985, ch. 494, § 7; reenacted without change, Laws, 1999, ch. 302, § 7, eff from and after July 1, 1999.
§ 77-13-15. Notice to one-call system.

Notification to Mississippi One-Call System, Inc., as provided in Section 77-13-5, may be effected by giving notice to Mississippi One-Call System, Inc., in writing, by telephone, fax or other electronic means made available through Mississippi One-Call System, Inc.

Sources: Laws, 1985, ch. 494, § 8; Laws, 1997, ch. 483, § 6; reenacted without change, Laws, 1999, ch. 302, § 8; Laws, 2008, ch. 497, § 5, eff from and after July 1, 2008.

§ 77-13-17. Operator responsibilities.

(1) Any operator who fails to follow, abide by or comply with this chapter shall be responsible for the cost or expense the excavator shall incur as a direct result of the failure of the operator to follow, abide by or comply with the provisions of this chapter.

(2) Operators who have underground utility lines or underground facilities within the State of Mississippi shall be a member of Mississippi One-Call System, Inc.

(3) The person giving notice of the intent to excavate to Mississippi One-Call System, Inc., shall be furnished an individual reference file number for each notification and, upon request, shall be furnished the names of the operators to whom the notification will be transmitted.

(4) An adequate record of all notifications shall be maintained by Mississippi One-Call System, Inc., in order to document timely compliance with this chapter. These records shall be retained for a period of not less than four (4) years and shall be made available at a reasonable cost upon proper and adequate advance request.

(5) The services of Mississippi One-Call System, Inc., will be provided on working days as defined in Section 77-13-3(h) at least between the hours of 7:30 a.m. and 5:00 p.m.

(6) Mississippi One-Call System, Inc., will voice-record the notification telephone calls and after-hour calls will at least reach a voice recording which explains emergency notification procedures.

(7) All operators shall provide Mississippi One-Call System, Inc., the following information:
(a) A list of counties, cities and towns in which the operator has underground utility lines or underground facilities in each county.
(b) The townships, ranges, sections and quarter sections in each county in which the operator has underground utility lines or underground facilities or for other reasons wish to receive notification of proposed excavation.
(c) An update on an annual basis of each operator’s underground utility lines or underground facilities for the State of Mississippi.

Sources: Laws, 1997, ch. 483, § 7; reenacted without change, Laws, 1999, ch. 302, § 9; Laws, 2008, ch. 497, § 6, eff from and after July 1, 2008.

§ 77-13-19. Enforcement; injunctions.

(1) In addition to any other rights and remedies which a person may have, any person shall have the right to resort to and apply for injunctive relief, both temporary and permanent, in any court of competent jurisdiction to enforce compliance with the provisions of this chapter and to restrain and prevent violations and threatened violations thereof.

(2) The rights, remedies, duties, prohibitions, and penalties set forth in this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies, and penalties provided by law. Nothing in this chapter shall restrict or limit civil causes of action by any person.

(3) The Mississippi Damage Prevention Council, Inc., shall appoint an advisory committee that shall serve without compensation and consist of one employee, official, or representative of each of the following interested parties:
(a) Mississippi 811, Inc.
(b) telecommunications industry
(c) excavation contractors
(d) electric power industry
(e) county agencies
(f) Mississippi Department of Transportation
(g) cable television industry
(h) rural water
(i) municipal agencies
(j) the commission’s pipeline safety division
(k) utility locators
(l) natural gas distribution
(m) liquid transmission
(n) natural gas transmission
(o) railroad industry
(p) insurance industry

(4) The member representing the commission’s pipeline safety division shall serve as chairperson of the advisory committee and shall cast a vote only in the case of a tie.

(5) The members of the advisory committee 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 such advisory committee, but only in the absence of willful misconduct.

(6) The advisory committee shall assist the commission in the enforcement of this chapter as described in this section.

(7) Commission enforcement of this chapter shall follow the procedures described in this section. Nothing in this section shall otherwise limit or expand the authority of the commission.

(8) The commission is authorized to impose civil penalties as provided in this section. Civil penalties may be imposed on any person for violation of any of the provisions of this chapter regardless of whether or not such violation results in injury to people, damage to property, or the interruption of utility service.

(9) In lieu of civil penalties, the commission shall issue a warning letter for any first offense and order training for any second offense. The commission shall impose a civil penalty of $500 for failure to attend or participate in any training ordered.

(10) Civil penalties authorized in this section shall be imposed in accordance with a tiered penalty structure. The penalty for any third offense shall be $250. The penalty for any fourth offense shall be $500. The penalty for any fifth offense or greater offense shall be $1,000 each.

(11) In the event the commission determines that a person has made a good faith effort to comply with this chapter, the commission may find that no civil penalty is necessary. However, if any violation of this chapter does not result in a civil penalty, the commission shall issue a warning letter to the person describing such violation and may also recommend or require training.

(12) In the event that any person has demonstrated a pattern of willful noncompliance or in the event that the gravity of a violation warrants, the commission is authorized to double the civil penalty that would otherwise apply to a particular violation.

(13) For those instances in which training is ordered, if the person is a firm, partnership, association, corporation, limited liability company, joint venture, department or subdivision of the state or other governmental entity, or any other body or organization, the commission may require that at least one manager or supervisor thereof attend any such training.

(14) An operator of an underground facility shall not be subject to a civil penalty where a delay in marking, failure to mark, or failure to properly mark the location of an underground facility is caused by conditions beyond the reasonable control of the operator.

(15) Commission investigators shall issue findings of fact and recommended civil penalties to any person accused of a violation under this chapter. That person may accept or reject the findings of fact and recommended civil penalties. If the person rejects the findings of fact and recommended civil penalties, the advisory committee will review the alleged violation and may consider written or oral statements from any person concerning the alleged violation. The advisory committee shall then render a recommendation either supporting the investigators’ findings of fact and recommended civil penalties or substituting its own findings of fact and recommended civil penalties.

(16) If any person rejects the findings of fact and recommended civil penalties of the advisory committee, the advisory committee shall make recommendations to the commission regarding enforcement, including civil penalties, and taking into account the gravity of the violation or violations, the degree of the person’s culpability, the person’s history of prior offenses, and such other mitigating factors as may be appropriate. The commission is then authorized to adopt the recommendations of the advisory committee or to substitute its own findings of fact and civil penalties.

(17) When the person accepts the commission investigators’ findings of fact and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the commission. The commission is then authorized to adopt the findings of fact and recommended civil penalties of the investigators or to submit the matter for review by the advisory committee, which will then make its recommendations to be presented to the commission by the investigators.

(18) When the person accepts the advisory committee’s findings of fact and recommended civil penalties, the investigators shall present such accepted findings of fact and recommended civil penalties to the commission. The commission is then authorized to adopt the findings of fact and recommended civil penalties of the advisory committee or to substitute its own findings of fact and civil penalties.

(19) The commission is not authorized to impose a civil penalty greater than the civil penalty recommended by the advisory committee or to impose any civil penalty if the advisory committee does not recommend a civil penalty.

(20) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this section shall not be admissible in any other civil causes of action.

(21) The Underground Utility Damage Prevention Special Fund is hereby established as a revolving fund to be used by the commission for administering the enforcement of this chapter. All civil penalties ordered by the commission and collected pursuant to this section shall be deposited in the special fund created in this section. Excess funds shall be used to support public awareness programs and training and education programs for excavators, operators, line locators, and other persons to reduce the number and severity of violations of this chapter. The commission shall determine the appropriate allocation of any excess funds among such programs. At the end of each fiscal year, earned interest and unexpended monies remaining in the fund may not revert to any other fund of the state, but shall remain available for appropriations pursuant to this chapter.

Sources: Laws, 1997, ch. 483, § 8; reenacted without change, Laws, 1999, ch. 302, § 10, eff from and after July 1, 1999.

§ 77-13-21. Repealed.
Repealed by Laws, 1999, ch. 302, § 11, eff from and after July 1, 1999.
[Laws, 1997, ch. 483, § 9, eff from and after July 1, 1997]

§ 77-13-23. Operator waives right to recover damages to operator’s underground facilities under certain circumstances; exemption.

Any operator who suffers damages as a result of not participating as a member of Mississippi 811, Inc., waives the right to recover damages to the operator’s underground facilities from the excavator if the excavator complied with the provisions of this chapter. The provisions of this section shall not apply to any municipality, as defined in Section 17-1-1, that owns or operates a utility.

Sources: Laws, 2010, ch. 427, § 3, eff from and after passage (approved Mar. 24, 2010.)

As a result of the congressional interest, the Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a directive that stakeholders come to the table to work together to create a measurable and more effective damage prevention program in each state and is based on an age-old principle of accountability.

Frankly, we all understand and endorse the principle in our society. It’s not the fine that causes us to drive within the speed limit; rather it is the threat of the fine. If it were not in place, I dare say most would be driving much faster than they do today. And in addition to the threat of the fine, speed limit signs, billboards and other advertising avenues remind us to drive safely. The patrol cars are seen along the roadsides. All of these have been put into place because it is expected that there be a behavioral change to all who drive on our state or county roads and even city streets. They don’t want to fine us; they want us to slow down. If we slow down, then the law is working. Fines are for folks who simply won’t change their poor behavioral patterns.

The object of enforcement on our state’s highways is to keep the public safe. We don’t want our families to be placed in harm’s way by the reckless behavior of others, whether it is excessive speeding or driving under the influence. We have certain expectations that those who disregard these laws will be held accountable for their decisions.

There should be the same expectations when it comes to protecting our underground infrastructure. It is about public safety. The object of enforcement is damage prevention, and damage prevention benefits everybody. Hitting someone with a fine for making a mistake just makes folks angry, and is not effective or fair. Effective enforcement is designed to change behaviors. To expect acceptable behaviors, we must educate all stakeholders to those behaviors.

Effective enforcement in any state is a work in progress. It requires a willingness to continue to look for ways of making it fair. Working out the bugs in any process requires input from interested parties. Stakeholder groups must actively get involved in the process. The MDPC has worked diligently to bring all stakeholders together to discuss this very important topic, and when it is seen as fair, it will be effective.
It is not unreasonable to have higher expectations for those involved in the construction industry. Things were a lot different twenty years ago. People didn’t know to call. There weren’t as many underground facilities carrying the kinds or amounts of emergency information as there are today. It is critical that all stakeholders view their role as the vital link to public safety.

Laws that state what the expected behavior is, but do not state what the consequences are for failing to follow the law will not be effective. Effective enforcement is not now, nor has it ever been, about fines. As a matter of fact, fines are always a last resort. Effective enforcement is about changing behaviors. Behavioral change comes about as the result of education first and foremost.

And because enforcement has a crucial role to play in the criminal and civil justice systems and in a modern, democratic society, there must be ways to enforce rules. Imagine if there were no way to collect property taxes or child support debts or to enforce road traffic laws such as speeding or driving under the influence. People ordered to pay a court judgment, civil penalties, and compensation awards, or to comply with the terms of a community sentence, have little or no incentive to do so if they know there is no effective means of enforcing it. Unless there is prompt and effective enforcement, the effectiveness of penalties and public confidence in the justice system are all undermined.

The model of effective enforcement has already been adopted and embraced by our elected officials. It seems only logical and reasonable that stakeholders charged with looking out for the best interests of the citizens of Mississippi while protecting our underground infrastructure would find a way to develop a similar standard. A document created by consensus would protect those who are doing it right, educate all involved so that the desired behavior is known, and finally hold accountable those who simply refuse to act in the best interest of our communities and families. It should be a lot easier than it will be, but those who are committed to protecting our families and our infrastructure will find a way to make it happen. And it will not be achieved by going around or over someone. It will be achieved by working together with other professionals who recognize what is at stake.

Building on the considerable progress and goodwill that has been achieved through working closely with all stakeholders, the MDPC intends to address this very critical issue in 2012. The Council is working to build consensus to amend the current “dig law” to promote accountability in working around underground facilities. It aims to improve existing good practices, raise the level of professionalism across the entire industry, and increase awareness of all stakeholders’ responsibilities.

Yes, if we are able to control our own destiny in Mississippi in regards to preventing damages to our vital infrastructure, it will be because we were able to put aside our personal agendas and commit ourselves to changing stakeholders’ behaviors while minimizing damages through education and, if necessary, enforcement. The federal government through PHMSA published the nine elements of effective damage prevention programs in the 2006 PIPES Act. Element number seven, “Fair and consistent enforcement of the law,” has identified in part these characteristics of good enforcement programs:

• Enforcement is applied consistently.
• Enforcement is seen as fair and equitable to all stakeholders.
• The enforcement process is accountable to ensure its credibility.
• The enforcement program is transparent to all stakeholders.
• Application of the appropriate enforcement is based on the severity of the violations, the significance of the events, past behavior of the at-fault parties and their willingness to change behavior.

The Mississippi Damage Prevention Summit scheduled for November 7-9, 2011, in Biloxi will focus on the details of the proposed effective enforcement amendment. We invite you to attend this important event to share your perspective with hundreds of other stakeholders who realize that now is the time to do the right thing.

You are four independent companies: (1) the one call system, (2) locator, (3) excavator, and (4) utility. So are you a team or not? Regardless of how you answer that question, participants at a recent focus group at the TX811 Summit advanced the notion that the stakeholders could do a lot more to help each other be successful. One participant went so far as to say, “We do a good job at beating on each other.”
There are a lot of differences between the stakeholders. As independent companies, you have different owners and each of you has your own goals along your journey to be financially successful. What you do is different. You’ve got issues within your company that the other entities are not aware of and you might argue don’t need to be aware of. You’ve got your set of personnel issues and struggle to maximize the use of resources.

Let’s address another question: What do you have in common? You want to be profitable, you provide a livelihood to employees and their families, you have common people issues, etc. More specifically, you interact in the same industry. The question is, do these commonalities make you a team?
Before answering that question, let’s list the basic characteristics of a team.

1. Members have a common vision and goal.
2. Each member knows his or her roles and responsibilities to achieve.
3. Each member proactively meets/exceeds the expectations of other team members.
4. Each member gives and receives feedback.
5. There is an accountability system to keep members working to achieve a common goal.

Let’s consider the impact of a common vision and goal. Having worked within organizations as a consultant the past 20 + years, I know that having a common vision and goal is critical for members within a team or departments within the same company to feel as one team. A vision and goal provide direction so employees know where you are going and what is to be achieved. They provide employees a purpose and give meaning to their work. People like feeling like an integral part of something larger than themselves. Consequently, your employees will be more loyal, have a higher morale, and will be more productive when they feel as though everyone in your company is striving to achieve the same vision and common goals.

In your case, you are independent companies working together under the umbrella of damage prevention. You may not have sat around a conference table to define your common vision and goal, but it seems logical to assume that you should have a common vision to prevent damages. Could we be so bold as to say that the glue that binds you independent stakeholders together is the goal to prevent damages? If so, it would seem logical that each of you is a member of an overall damage prevention team.

If you agree, that sets the stage for you to help each other succeed rather than each of you going off in different directions with little regard for other stakeholders. Chris Ernst and Donna Chrobot-Mason report the same in their recent book, Boundary Spanning Leadership (2011). Common sense dictates that we ought to help each other to be successful. Would you agree?
Let’s look at this issue from another perspective. As I’ve said, WHAT each of you does is different. Consequently HOW you do what you do is different. If I were to ask you “WHY” you do what you do, you may respond to “make a profit.” In reality, though, profit is a by-product of successfully completing your job responsibilities so that the excavator works safely. The logical conclusion is that the common WHY among you independent companies is to prevent damages by helping people work safely.

I’m out of space so the next time we’ll continue our discussion of being members of a damage prevention team.