NOTE : This rule does not reflect the amendments to the law adopted March 28, 2002 and are in the process of being revised.

STATE OF MAINE TITLE 23, MRSA 3360-A
Sec. 1 23 MRSA § 3360-A Protection of Underground Facilities

1. Definitions. As used in this section, unless the context otherwise indicates, the following terms shall have the following meanings

A. "Business day" means any day other than Saturday, Sunday or a legal holiday.

A-1. "Borrow pit" has the same meaning as provided in Title 38, section 482, subsection 1-A.

A-2. "Commercial timber harvesting activity" means the cutting or removal of timber for the primary purpose of selling or processing forest products and includes the attendant operation of mobile or portable chipping mills and of cutting and skidding machinery and the creation, use and maintenance of skid trails, skid roads, winter haul roads and other roads to facilitate timber harvesting.

B. "Emergency excavation" means immediate excavation necessary to prevent injury, death or loss of an existing vital service.

C. "Excavation" means any operation in which earth, rock or other material below the ground is moved or otherwise displaced, by means of power tools, power equipment or explosives and including grading, trenching, digging, ditching, drilling, auguring, tunneling, scraping and cable or pipe driving, except tilling of soil and gardening or displacement of earth, rock or other material for agricultural purposes, and except installation and maintenance of signs performed by the Department of Transportation.

C-1. "Excavator" means any person proposing to make, making or contracting for an excavation.

D. "Person" means an individual, partnership, municipality, state, county, political subdivision, utility, joint venture or corporation and includes the employer of an individual.

E. "Underground facility" means any item of personal property buried or placed below ground for use in connection with the storage or
conveyance of water, sewage, electronic, telephonic or telegraphic communications, electric energy, oil, gas or other substances and including but not limited to, pipes, sewers, conduit, cables, valves, lines, wires, manholes, attachments, appurtenances and those parts of poles below ground. This definition shall not include highway drainage culverts or under drains.

F. "Underground facility operator" means the owner or operator of any underground facility, other than an underground oil storage facility as defined in Title 38, section 562-A, subsection 21 or an airport aviation fuel hydrant piping system, used in furnishing electric, telephone, telegraph, gas, petroleum transportation or cable television service. "Underground facility operator" does not include a municipality or a public utility with fewer than 5 full-time employees or fewer than 300 customers.

G. "Utility" means any public utility as defined in Title 35-A, section 102, subsection 13.

1-A. Damage prevention system. Each underground facility operator shall be a member of and participate in an underground facility damage prevention system, referred to in this section as the "system." The system shall operate during regular business hours throughout the year and maintain adequate operations at all other times to receive and process emergency notifications of proposed excavations. The system shall receive notices of proposed excavations and immediately transmit those notices to underground facility operators whose facilities may be affected. The cost for operation of the system must be apportioned equitably among members. Nothing in this subsection prohibits a municipality, utility or other entity that owns or operates an underground facility from voluntarily becoming a member of the system. Notwithstanding subsection 1, paragraph F, a person that voluntarily becomes a member of the system is deemed an underground facility operator for the purposes of this section.

2. Responsibility of designers. Architects, engineers or other persons designing or requiring excavation shall obtain recorded information from persons with underground facilities, as to the nature and location of underground facilities and then make the information and location a part of the plan by which the contractors operate.

3. Notice by excavator. A person may not begin excavation without first giving notice as required by this section, unless exempted pursuant to this section.

A. In addition to any other notices required under this section, each excavator shall notify the system of the location of the intended excavation at least 3 business days but not more than 30 calendar days prior to the commencement of excavation.

B. Notice may be in writing, by telephone or by electronic facsimile as long as an excavator acquires and records an acknowledgment of the receipt of any notice the excavator sends by electronic facsimile. For purposes of this section, the system shall provide a toll-free telephone number.

C. Prior to notifying the system, the area of proposed excavation must be marked by the excavator in a manner designed to enable the operator of the underground facility to know the approximate boundaries of the proposed excavation.

D. If an excavation involves blasting, the excavators shall provide written notice of that blasting, either in the initial notice or in a subsequent notice, accurately specifying the date and location of that blasting. This written notice must be given and received at least 24 hours in advance except that, in the case of an unanticipated obstruction requiring blasting, the excavator shall provide written notice not less than 4 hours in advance of that blasting.

E. If the proposed excavation or blasting does not commence within 30 calendar days of notification under this subsection or the excavation or blasting will be expanded outside of the location originally specified in the notification, the excavator responsible for that excavation shall again notify the system as specified in paragraph A.

3-A. Notification by system. Upon receiving notice of excavation, the system shall notify immediately all members whose underground facilities may be affected. The system shall maintain adequate records to document compliance with requirements of this chapter.

3-B. Additional notification by certain utilities. In addition to providing any other notices required under this section and before commencing any excavation for the purposes of working on an underground gas transmission line, a gas utility as defined in Title 35-A, section 102, subsection 8 or a natural gas pipeline utility as defined in Title 35-A, section 102, subsection 10 shall provide to the fire department within whose service area the excavation will occur notice of its intent to excavate. This notice must be in writing or by telephone and must be given at least 3 business days prior to the utility commencing work. The utility may not commence work until it has received from the fire department an acknowledgment of the notice either by telephone or in writing.

3-C.lnformation provided to municipalities, fire departments and emergency response agencies. Each gas utility as defined in Title 35-A, section 102, subsection 8 or natural gas pipeline utility as defined in Title 35-A, section 102, subsection 10 shall provide maps to:

A. Each municipality within which it operates gas or natural gas underground transmission facilities. These maps must clearly indicate the location and depth of all main supply underground transmission facilities located within the jurisdiction of the municipality;

B. Each fire department within whose service territory it operates gas or natural gas underground transmission facilities. These maps must clearly indicate the location and depth of all main supply underground transmission facilities located within the jurisdiction of the fire department;
C. Each county emergency management agency within which it operates gas or natural gas underground transmission facilities. These maps must clearly indicate the location and depth of all main supply underground transmission facilities located within the jurisdiction of the county emergency management agency; and

D. The Maine Emergency Management Agency. These maps must clearly indicate the location and depth of all main supply underground transmission facilities that the utility operates in this State. The utility must provide updated maps to the appropriate entities whenever changes occur in the configuration of the utility's main supply underground facilities.

4. Response to notice. An underground facility operator shall, upon receipt of the notice provided for in subsection 3-A, advise the excavator of the location and size of the operator's underground facilities in the proposed excavation area by marking the location of the facilities with stakes, paint or by other identifiable markings. The marking must identify a strip of land not more than 3 feet wide directly over the facility or a strip of land extending not more than 11/2 feet on each side of the underground facility and
must indicate the depth of the underground facility, if known. The underground facility operator shall complete this marking no later than 2 full business days after receipt of the notice. After the underground facility operator has marked the location of that operator's underground facilities in the proposed excavation area, the excavator is responsible for maintaining the markings at the location, unless the excavator requests remarking at the location due to obliteration, destruction or other removal of the markings. The underground facility operator shall remark the location within one business day following the receipt of a request to remark.

If the proposed excavation is of such length or size that the underground facility operator advises the excavator that the operator can not reasonably respond with 2 full business days, the excavator shall notify the operator of the specific location in which excavation will first be made and the operator shall respond with respect to the operator's underground facilities in that location within 2 full business days and for the remaining facilities within a reasonable time thereafter. The system may adopt rules requiring, under certain circumstances, face-to-face meetings between excavators and underground facility operators.

4-C. Excavation methods. An excavator may not use mechanical means of excavation when excavating within 18 inches of any marked underground facilities until the underground facilities have been exposed, except that mechanical means may be used, as necessary, for initial penetration and removal of pavement, rock or other materials requiring use of mechanical means of excavation. Once the underground facilities have been exposed, further excavation must be performed employing reasonable precautions to avoid damage to the underground facilities, including, but not limited to, any substantial weakening of structural or lateral support of the facilities or penetration or destruction of the facilities or their protective coatings. For the purposes of this subsection, "mechanical means of excavation" means excavation using any device or tool powered by an engine except air vacuum methods of excavation.

5. Emergency excavations. In an emergency, an excavator may commence an excavation after having taken all reasonable steps, consistent with the emergency, to notify the system and to mark the excavation site consistent with subsection 3, paragraph C. Each underground facility operator shall locate its underground facilities as soon as practicable after receiving notification of an emergency excavation whether or not the excavation has begun.

5-A. Notice of damage. When an underground facility is damaged, the excavator causing the damage shall immediately notify the affected underground facility operator. The excavator may not backfill an excavation where damage has occurred without first receiving permission from the affected operator.

5-B. Exemption; commercial forestry and borrow pit operations. A person is exempt from the notice requirements of subsection 3 for any excavation undertaken in conjunction with a commercial timber harvesting activity or borrow pit as long as the excavation:

A. Is not conducted in a public place, on public land or within a public easement, including, but not limited to, a public way;

B. Is not conducted within 100 feet of an easement or land owned by an underground facility operator;

C. Is not conducted within 100 feet of an underground facility; and

D. Does not involve the use of explosives.

6. Liability of excavator. If an excavator complies with subsection 3 and if information pursuant to subsections 3-A and 4 is not provided within the time specified or if the information provided fails to identify the location of the underground facilities in accordance with subsection 4, then an excavator damaging or injuring underground facilities is not liable for any damage or injury caused by the excavation, except on proof of negligence.

6-B. Failure to notify. An excavation that is made without the excavator providing any or all of the notices required by this section that results in any damage to an underground facility or facilities is prima facie evidence in any civil or administrative proceeding that the damage caused by the negligence of the excavator.

6-C. Forfeiture. In an adjudicatory proceeding, the Public Utilities Commission may, in accordance with this subsection, impose an administrative penalty for any violation of this subsection. The administration penalty may not exceed $500, except that if the person has been found in violation of this subsection within the prior 12 months the administrative penalty may not exceed $5,000. Administrative penalties imposed pursuant to this subsection are in addition to any other remedies or forfeitures provided by law and any liability that may result from the act or omission constituting the violation. Prior to imposing any penalties under this subsection, the commission shall consider evidence of the record of the violator, including, to the extent applicable, the number of successful excavations undertaken by the violator or the number of locations successfully marked by the violator during the prior 12 months. The commission may require a person who violates any provision of this section to participate, at the expense of the violator, in an educational program developed and conducted by the system.

The Public Utilities Commission may impose administrative penalties for any of the following violations:

A. Failure of an excavator to give notice of an excavation as required under subsection 3, except to the extent the excavator is exempt from the provisions of subsection 3 pursuant to other provisions of this section;

B. Excavation by an excavator in a reckless or negligent manner that poses a threat to an underground facility;

C. Excavation by an excavator that does not comply with the requirements of section 4-C, except to the extent the excavator is exempt from the provisions of subsection 4-C pursuant to subsection 5-C;

D. Failure of an underground facility operator to mark the location of the operator's underground facilities within the time limits required by section 4;or

E. Marking by an underground facility operator of the location of an underground facility in a reckless or negligent manner.

7. Imprudent action. Compliance with this section does not excuse a person from acting in a careful and prudent manner nor does compliance with this section excuse a person from liability for damage or injury for failure to so act.

8. Effect on existing statutes or ordinances. Nothing contained in this section shall be construed to effect or impair any statute or ordinance requiring permits for excavation in a street or public highway.

10 Further notice requirement. The following provisions govern excavations in areas where there are underground facilities owned or operated by a person
who is not an underground facility operator as defined in subsection 1 and who is not a voluntary member of the system established under subsection 1-A

A. In addition to other notice requirements under this section and except for an employee with respect to an employer's facility, an excavator shall notify any person who is not a member of the system and has underground facilities in the area of the proposed excavation. This notice must be in writing or in person and must be given a least 3 business days prior to the commencement of excavation.

B. A person owning or operating an underground facility shall, upon receipt of the notice provided for in paragraph A, advise the excavator of the location and size of the underground facilities in the proposed excavation area by marking the location of the facilities with stakes, paint or by any other identifiable markings within 36 inches horizontally from the exterior sides of the underground facilities and the depth of the underground facilities, if known. The person providing information shall respond no later than 2 full business days after receipt of the notice. It is the responsibility of the excavator to maintain those location markings until the excavations are completed.

If an excavator complies with paragraph A and if information pursuant to paragraph B is not provided within the time specified or if the information fails to identify the location of the underground facilities in accordance with paragraph B. then an excavator damaging or injuring underground facilities is not liable for any damage or injury caused by the excavation, except on proof of negligence.

The duties imposed by this section of this Act are in addition to those imposed under Title 23, section 3360-A. Nothing in this section of this Act may be interpreted to limit, alter or otherwise affect any duties and liabilities established under Title 23, section 3360-A.

11. Enforcement. The Public Utilities Commission may adopt procedures necessary and appropriate to gather information and hear and resolve complaints concerning failure to comply with the provisions of this section.

12. Injunctions; costs. The owner or operator of an underground facility or the Public Utilities Commission may commence an action in a court of competent jurisdiction seeking a temporary restraining order or injunction to prevent a person from undertaking an excavation that may result in damage to the underground facility. The court may issue a temporary restraining order or injunction if the court determines that the excavation or proposed excavation:

A. Is being conducted or is likely to be conducted in a negligent or unsafe manner; and

B. Is causing or is likely to cause damage to the underground facility.

If the owner or operator prevails in an action brought pursuant to this subsection, the owner or operator is entitled to an award of the costs of bringing the action, including reasonable attorney's fees.