Sec. 3. 23 MRSA §3360-A, sub-§1, ¶E, as enacted by PL 1979, c. 362, §2, is amended to read:

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, conduits, cables, valves, lines, wires, manholes, attachments, appurtenances and those parts of poles below ground, including property that is abandoned after July 1, 2002. This definition shall does not include highway drainage culverts or under drains.

Sec. 4. 23 MRSA §3360-A, sub-§1, ¶F, as enacted by PL 1991, c. 437, §1 and affected by §12, is amended to read:

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 water, sewage, electric, telephone, telegraph, gas, petroleum transportation or cable television service. "Underground facility operator" does not include a municipality or with fewer than 5 full-time employees, a public utility with fewer than 5 full-time employees or fewer than 300 customers or a person that owns underground facilities on its own property for commercial or residential purposes.

Sec. 5. 23 MRSA §3360-A, sub-§1-A, as amended by PL 1999, c. 718, §2, is further amended to read:

1-A. Damage prevention system. Each underground facility operator shall must 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. No later than February 1, 2003, the system shall maintain a location-specific information capability determined by rules developed by the Public Utilities Commission. 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.

Sec. 6. 23 MRSA §3360-A, sub-§3, ¶E, as enacted by PL 1991, c. 437, §3 and affected by §12, is amended to read:

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.

Sec. 7. 23 MRSA §3360-A, sub-§3, ¶¶F and G are enacted to read:

F.__If the proposed excavation or blasting extends 30 calendar days or longer beyond the most recent date of notification, the excavator shall again notify the system as specified in this subsection.

G.__The excavator performing the mechanical processes associated with an excavation is responsible for ascertaining that all notifications required by this subsection and subsections 5, 5-A, 5-C and 10 are performed.

Sec. 8. 23 MRSA §3360-A, sub-§4, as amended by PL 1999, c. 718, §3, is further amended to read:

4. Operator response to notice-locating facilities. 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 and all other underground facilities extending from the operator's underground facilities to the primary locating end point 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 1 1/2 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 respect to all the operator's underground facilities within 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.

Beginning no later than February 1, 2003, within 16 hours of completing the marking, the underground facility operator shall notify the system that it has completed marking its facilities.__ If the underground facility operator determines it does not own or operate any underground facilities within the proposed excavation area, it shall notify the system within 16 hours of making the determination.

By February 1, 2003, the excavator performing the mechanical processes associated with an excavation is responsible for verifying that each underground facility operator has marked its facilities as required by this subsection or has responded to the system as required by this subsection and that all other owners or operators of underground facilities have located their facilities as required by subsection 10.__The excavator has fulfilled this requirement if it has observed all locational markings made pursuant to this subsection and subsection 10, has obtained from the system electronic confirmation regarding all underground facility operators who have positively responded pursuant to this subsection and has made a reasonable effort to identify and contact each operator of underground facilities that is not a member of the system and has been noticed pursuant to subsection 10.

If an underground facility is located on the customer's side of the primary locating end point, the excavator performing the mechanical processes associated with the excavation is responsible for locating those underground facilities and performing all requirements of this subsection.__The excavator has fulfilled this requirement if it has made a reasonable effort based on conferring with the landowner, using locating or

excavating equipment or procedures and ascertaining the location of facility entrance to all structures.

Sec. 9. 23 MRSA §3360-A, sub-§§5-D and 5-E are enacted to read:

5-D.__Exemption; cemeteries.__An excavator is exempt from the notice requirements of subsection 3 for any excavation undertaken within the boundaries of a cemetery as long as the person responsible for operating the cemetery identifies the location of any underground facilities within the excavation area and takes appropriate action to avoid damage.

5-E.__Exemption; shoulder grading.__An excavator that is a licensing authority as defined by Title 35-A, section 2502, subsection 1 or its designee may be exempt from the provisions of subsections 3 and 4-C for any excavation that is shoulder-grading activity if the excavator carries out the provisions of this subsection.__If an excavator chooses to excavate under the terms of this subsection all operators of underground facilities within the area of excavation must follow the provisions of this subsection:

A.__The excavator shall contact the system to determine the identity of all underground facility operators that own or operate underground facilities within the area of the excavation;

B.__The excavator shall contact each operator of underground facilities within the area of excavation and request information regarding the depth and location of facilities;

C.__The operator of the underground facility shall indicate the location of its facilities and whether the depth of its facilities is sufficient to avoid damage based upon the excavator's description of the scope of its grading operation;

D.__The excavator and the operator of the underground facility shall take reasonable actions to carry out the terms of this subsection; and

E.__The excavator shall excavate in a manner that does not disturb the locations indicated by the operator of the underground facilities.

Sec. 10. 23 MRSA §3360-A, sub-§6-C, as corrected by RR 1999, c. 2, §27, is amended to read:

6-C. Forfeitures. 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 administrative 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 subsection 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 subsection 4; or

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

F.__Failure of an excavator to comply with the requirements of subsection 5-C, 5-D or 5-E.

Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved.

SUMMARY

This bill revises provisions of the law that govern the Dig Safe underground facilities protection program in the State. The revisions provide limited exemption for cemeteries and shoulder grading; require operators to mark inactive facilities, affirmatively respond to the underground facility damage prevention system and locate to the point of service transfer; require the system to implement a location-specific information capability; and require excavators to renotify the system monthly. The bill also clarifies that the person who mechanically performs the excavation is responsible for verifying that notifications and locations have been performed and requires that person to locate facilities on private property under some circumstances. Finally, the bill also revises the exemption for water utilities and for highway sign installation and makes some administrative changes.