Effective April 1, 2014, P.A. 174 of 2013 – MISS DIG Underground Facility Damage Prevention and Safety Act became law. While this new law mirrored many of the “Best Practices” associated with PA 53 of 1974, there are a few noteworthy changes. One change allows for a contractor to “seek recovery of actual delay costs” as a result of a utility company not providing marks and/or a positive response within 72 hours from the dig notice. The law also allows recovery of damages that can be attributed to inaccurate staking or any other failures related to complying with the new act.
The ability to recover delay cost is outlined by the following sections of PA 174.
Section 460.727 – (1) A facility owner or facility operator shall respond to a ticket by the start date and time for the excavation or blasting under section 5(1) by marking its facilities in the area of the proposed excavation or blasting in a manner that permits the excavator to employ soft excavation to establish the precise location of the facilities.
Section 460.725 – (9) An excavator shall provide immediate additional notice to the notification system and stop excavation in the immediate vicinity if the excavator has reason to suspect the presence of an unmarked facility due to any 1 of the following:
(a) Visible evidence of a facility with no marks visible.
(b) Lack of a positive response to a ticket.
((The current positive response codes are attached for your information.))
(c) A positive response from a facility owner or facility operator indicating the presence of a facility with no marks visible.
Section 460.728 – This act does not limit the right of an excavator, facility owner, or facility operator to seek legal relief and recovery of actual damages incurred and equitable relief in a civil action arising out of a violation of the requirements of this act, or to enforce the provisions of this act, nor shall this act determine the level of damages or injunctive relief in any such civil action. This section does not affect or limit the availability of any contractual or legal remedy that may be available to an excavator, facility owner, or facility operator arising under any contract to which they may be a party.
Delay Claim Due to Lack of Marks or Lack of Positive Response Provided
While this P.A. does allow for the recovery of costs associated with lack of response by a utility company, MITA urges contractors to contact MISS DIG ASAP if appropriate action is not taken to mark and provide a response by the utility company. However, in the event that their inaction has caused a delay and has impacted your work operations, it is important to properly document and present your actual costs. Therefore, to help you with this action, MITA has created the a spreadsheet and step-by-step instructions that should help as you develop your actual costs. Click here to download the Utility Delay Claim Worksheet.
- If a utility has not responded after 72 hours has passed from the time the dig notice is submitted to the MISS DIG system, contact MISS DIG for additional assistance.
- If after three hours there is no response provided per the law, notify the notification system, as well as the project engineer/project owner. Do not start an excavation without a positive response. If you have started an excavation in an area without a positive response, stop that excavation until you have a received a positive response. You are on official downtime.
- Section 460.725 (4) of the P.A. requires that “an excavator shall comply with the notification system procedures and all requirements of this act.” Therefore, you are required to check positive response prior to performing excavation. This is a step that must be performed according to the law.
- At this point you should screen capture the MISS DIG positive response web page that indicates the utility did not provide a response within the required time frame and start with documenting your idle equipment and any additional downtime cost.
- Make sure to update your CPM if a controlling operation is impacted.
- Also, make sure to inform the project engineer that you are on downtime and/or on limited productivity as a result of the delay and that you will be submitting a claim.
- All notifications to the project engineer and/or owner should be documented in an email.
- Once the delay has been remedied, compile your total cost as a result of the utility’s lack of response and submit your claim to either the project engineer or directly to the utility company. Contact information for various utility companies are provided for your use. For municipal utilities, all costs and notifications should also be sent to the Michigan Public Service Commission.
Downtime Claim as a Result of Improperly Marked or an Unmarked Facility
During the progress of your work operation, if an unmarked facility is discovered which negatively impacts your work operations either via inadvertent damage to an unknown facility or you are negatively impacted as a result of an unplanned relocation delay, the same section of the law that permits you to seek legal relief and recovery of actual damages for lack of markings (or positive response) also allows for you to seek compensation from the utility company for actual costs due to downtime as a result of mismarked facilities. To ensure you are appropriately protecting your rights to seek a downtime claim, the following steps are provided to assist you in building a defensible claim.
- If a facility is damaged, your first action item is to immediately report the incident to the facility owner.
- Pictures of the unmarked facility and/or damage and relevant marks should be taken as soon as it is safe to do so. For damaged facilities, document with pictures all measurements as it relates to proximity to the damaged facility.
- Keep a record of when utility personnel arrive and leave the job site. Ask for names of utility personnel and/or any locators. If you are not able to capture their names, take pictures of their vehicle’s license plate.
- At this point document your downtime using the attached spreadsheet and complete steps 5 thru 8 as detailed above.
This document is provided as a guide to help ensure you are following and documenting various steps that should help you be successful in submitting a valid claim for utility delay and/or inaccurate staking. It is worth noting that the Michigan Public Service Commission (MPSC) is currently in the promulgation process as it relates to fines and dealing with infractions of this act.
Utility Contact Information
This list will be updated as more contacts are added.
All claims are to be submitted to the project engineer and/or the following utility contacts:
AT&T – Claims Support Center
Call 800-894-0374 to receive a claim number. Once filed, the claim will be forwarded to their liability department and handled by a third party company (Sedgwick).
DTE Energy – Electric
Damage Claims Supervisor (260 S.B.)
One Energy Plaza
Detroit, MI 48826
for DTE Electric only MISS DIG member codes (DE00XX and DTEPL)
Consumers Energy Company
One Energy Plaza
Jackson, Michigan 49201
For all Municipal Facilities (i.e. watermains, sanitary sewers, etc.) as well as Public Utilities
Michigan Public Service Commission
MISS DIG Positive Responses for Standard Dig Notice Tickets
GREEN- Dig with caution following P.A. 174 requirements
YELLOW- Contact facility owner operator, dig with caution following P.A. 174 requirements
RED- Do not dig
000 RESPONSE PENDING- System generated default response attached to initial request
001 NO CONFLICT- Facility is outside of stated area/scope of excavation
002 MARKED- Facilities have been marked
003 NOT COMPLETE- None or some of the facilities have been marked, more time needed, coordination or assistance required to complete locating of facility
004 MARKED-UTILITY REQUIRED ON SITE DURING EXCAVATION- Facility owner operator required to be on site when excavating within noted scope of work for this specific facility
005 ONGOING COORDINATION- Ongoing mutual cooperation between facility owner operator and excavator
006 NOT MARKED-NO ACCESS TO WORK AREA-Facility owner operator could not get access to work area, and requires coordination with excavator
007 STATED SCOPE OF WORK COMPLETE- Facility owner operator confirmed stated scope of work completed
008 FACILITY RESPONSE NOT REQUIRED- This response is specifically for locate requests intended for a specific facility or facilities that have NOT been requested to locate by the excavator. Example- Locate Gas and Electric only, all other facility owners (water, sewer, telephone, cable TV, etc.) would respond “FACILITY RESPONSE NOT REQUIRED”- Facilities requested to be located would choose from the other possible positive responses
009 ADDITIONAL LOCATING REQUIRED- Facility owner discovered field conditions require additional locating and will communicate with excavator on resolution of additional locating issues
013 CANCELED- System generated response indicating the dig notice was canceled
999 HAS NOT RESPONDED- System generated response indicating the facility owner operator has not responded to the request