If a Mississippi town owns underground utility lines, can its agent show up and verbally point them out instead of marking them?

Plain-English summary

The Town of Kilmichael owns underground utility lines (typically water and sewer for a small Mississippi municipality). When an excavator notifies Mississippi 811 of an upcoming dig, the town as the line owner has duties under the state's underground-utility-protection statute. The town's attorney asked whether an onsite meeting with the excavator, where the town's agent verbally points to where the lines run, satisfies those duties.

The AG: that approach satisfies one specific subsection (§ 77-13-9(2)), which lets an operator request to be present at the site and arrive within two working days as an alternative to marking. But it does not satisfy all of the town's duties under the chapter.

Other obligations include: marking duties under § 77-13-9(1) when notice is received; post-2010 installation requirements under § 77-13-9(5); membership in Mississippi 811, Inc. (the state's one-call notification system) under § 77-13-17(2) and (7); and providing enumerated information under those subsections. So a verbal-location-onsite practice handles the locate step, but it does not let a municipal owner skip the broader compliance framework.

The AG declined to address the second question (who is liable for damage). The AG's office does not opine on liability questions, citing the 1993 Hammack and 2007 Lawrence opinions. The opinion does point readers to §§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13 as the statutory provisions speaking to the excavator's duties, leaving liability allocation to the courts.

What this means for you

For small-town water and sewer departments

Under the opinion, meeting the excavator at the site and verbally indicating the location of the lines "satisfies the requirements of Section 77-13-9(2)," which lets an operator "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." But the opinion is clear that this "would not encompass all of the Town's duties under Sections 77-13-1 et seq." The town still has the marking and investigation/reporting duties of § 77-13-9(1), the post-2010 installation requirements of § 77-13-9(5), and the Mississippi 811 membership and information duties of § 77-13-17(2) and (7).

For excavation contractors

The opinion confirms that an operator's verbal on-site location, under § 77-13-9(2), is a statutory alternative to marking. It points to §§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13 as the provisions that "speak[] to the duties and responsibilities of the excavator," but it does not detail those duties or allocate fault.

For municipal attorneys

The opinion's takeaway is that the § 77-13-9(2) verbal-locate option handles one duty, not the whole chapter: the town must also confirm Mississippi 811 membership and the § 77-13-17 information duties, the § 77-13-9(1) marking and investigation duties, and the § 77-13-9(5) post-2010 installation requirements. The opinion expressly declines to opine on liability if a line is damaged.

Common questions

Q: Does verbally pointing out the lines satisfy the town's duties?
A: It satisfies one of them. The opinion holds that verbally indicating the location at the site "satisfies the requirements of Section 77-13-9(2)," but "would not encompass all of the Town's duties under Sections 77-13-1 et seq."

Q: What other duties does the chapter impose on the utility owner?
A: The opinion lists the § 77-13-9(1) marking and investigation/reporting duties, the § 77-13-9(5) post-2010 installation requirements, and the § 77-13-17(2) and (7) requirement to be a member of Mississippi 811, Inc. and to provide enumerated information.

Q: What is the § 77-13-9(2) on-site option?
A: "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."

Q: Can the AG say who pays if a line is hit?
A: No. The opinion states the office "cannot issue official opinions regarding liability," citing the Hammack and Lawrence opinions. It points to §§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13 for the excavator's duties, but leaves fault to the courts.

Q: Does this apply to private utilities, or only the town?
A: The opinion describes the duty as resting on "[e]very entity or individual owning or operating underground utility lines or underground facilities." The request came from a municipality, but the statutory analysis is not limited to municipal owners.

Background and statutory framework

Mississippi's underground-utility-protection law is in Title 77, Chapter 13. The opinion describes it as placing "specific requirements on both excavators and utility owners before any excavation around or near underground utilities or facilities commences." An owner or operator must mark the approximate location under § 77-13-9(1) when it receives notice of a pending excavation, or, under § 77-13-9(2), request to be present at the site within two working days in lieu of marking.

Key sections:

• § 77-13-5(1)(b) and § 77-13-7(3): excavator duties.
• § 77-13-9(1): operator's duty to mark.
• § 77-13-9(2): operator's option to be onsite within two working days as an alternative to marking.
• § 77-13-9(5): post-2010 installation tracking.
• § 77-13-13: excavator duty when locating utilities.
• § 77-13-17(2) and (7): operator membership in Mississippi 811 and required information disclosures.

The Greenlee opinion confirms that subsection (2) is a legitimate alternative to marking, which is meaningful for small operators that may lack the equipment or staff for routine marking. But the opinion is careful to note that (2) is one duty in a chapter full of duties.

Citations

• Miss. Code Ann. §§ 77-13-1 et seq. (regulation of excavations near underground utilities)
• Miss. Code Ann. § 77-13-5(1)(b) (excavator duties)
• Miss. Code Ann. § 77-13-7(3) (excavator duties)
• Miss. Code Ann. § 77-13-9(1) (operator duty to mark approximate location)
• Miss. Code Ann. § 77-13-9(2) (alternative onsite presence within two working days)
• Miss. Code Ann. § 77-13-9(5) (post-2010 installation requirements)
• Miss. Code Ann. § 77-13-13 (excavator duty when locating utilities)
• Miss. Code Ann. § 77-13-17(2) and (7) (Mississippi 811 membership and information disclosure)
• MS AG Op., Hammack (Oct. 13, 1993) (AG does not determine liability)
• MS AG Op., Lawrence (July 20, 2007) (AG does not speculate on liability)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/10/J.Greenlee-October-11-2022-Municipal-Responsibility-Regarding-Excavations-Involving-Underground-Utilities.pdf

Original opinion text

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
3. 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.
4. This office is unable to opine on questions of liability.

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