J.Greenlee - October 11, 2022 - Municipal Responsibility Regarding Excavations Involving Underground Utilities

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 October 11, 2022 J. Lane Greenlee, Esq. Attorney, Town of Kilmichael Post Office Box 430 Winona, Mississippi 38967 Re: Municipal Responsibility Regarding Excavations Involving Underground Utilities Dear Mr. Greenlee: The Office of the Attorney General has received your request for an official opinion. Questions Presented 1. If the Town of Kilmichael (the “Town”) is the owner and/or operator of an underground utility or facility, and its agent meets with the excavator at the site, is it sufficient under Mississippi Code Annotated Section 77-13-9(2) to verbally indicate the location of the utility lines, and does such action fulfill the Town’s responsibility under E811 and its enacting statutes? 2. If verbally indicating the location of the underground utility lines in lieu of marking is sufficient, is it the excavator’s responsibility to modify its plans in order to avoid the utility, and if not, to then be responsible for any resulting damage to the utility? Brief Response 1. While meeting with the excavator at the site and verbally indicating the location of the utility lines satisfies the requirements of Section 77-13-9(2), it would not encompass all of the Town’s duties under Sections 77-13-1 et seq. 2. This office is unable to opine on questions of liability. J. Lane Greenlee, Esq. October 11, 2022 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Applicable Law and Discussion Mississippi Code Annotated Sections 77-13-1 et seq. govern the regulation of excavations near underground utilities and facilities. The chapter places specific requirements on both excavators and utility owners before any excavation around or near underground utilities or facilities commences. Every entity or individual owning or operating underground utility lines or underground facilities is required to mark the approximate location of the underground lines and facilities in accordance with Section 77-13-9(1) when notice is received of the pending excavation. With respect to your first question, Section 77-13-9(2) provides, “[i]n 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.” While meeting with the excavator at the site and verbally indicating the location of the utility lines satisfies the requirements of Section 77- 13-9(2), other sections of the chapter specify additional duties and responsibilities of underground utilities and facilities owners and operators. See Miss. Code Ann. § 77-13-9(1) (requiring certain investigation and reporting responsibilities for owners and operators of underground utility lines or facilities); § 77-13-9(5) (specifying post-2010 installation requirements for all owners and operators of underground utility facilities); §§ 77-13-17(2), (7) (requiring operators of underground utilities or facilities to be members of Mississippi 811, Inc. and to provide enumerated information). As to your question about the responsibility for any damage to the utility lines, the Attorney General cannot issue official opinions regarding liability. MS AG Op., Hammack at *2 (Oct. 13, 1993) (“We cannot by opinion determine liability.”); MS AG Op., Lawrence at *1 (July 20, 2007) (declining to speculate on questions of liability). However, the plain language of Sections 77-13- 5(1)(b), 77-13-7(3), and 77-13-13 speaks to the duties and responsibilities of the excavator. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Gregory Alston Gregory Alston Special Assistant Attorney General