An Act To Require Clarification of the Dig Safe Standards
Maine Legislature, Session 125, LD 0407
Committee Amendment CA_A_H78 (House)
Amends: 23 MRSA §3360-A

COMMITTEE AMENDMENT" PI" to H.P, 325, L.D. 407, Bill, "An Act To 
Require Clarification of the Dig Safe Standards" 
Amend the bill by striking out the title and substituting the following: 
'An Act To Clarify the Dig Safe Standards' 
Amend the bill by inserting after the title and before the enacting clause the 
following: 
'Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, it is crucial to the public safety and welfare to clarify the so-called "Dig 
Safe" standards and procedures as soon as possible; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,' 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inselting the following: 
'Sec. 1. 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 JG 60 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 
~ec. 2. 23 MRSA §3360-A, sub-§5, as repealed and replaced by PL 1999, c, 718, 
§6, is amended to read: 
COM ITTEEA END ENT 
COMMITTEE AMENDMENT"~ "to H.P. 325, L.D. 407 
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. The excavator shall commence an excavation undertaken pursuant to this subsection 
within 12 hours after providing notice to the system, or as soon thereafter as can safely be 
accomplished. Each underground facility operator shall locate its underground facilities 
as soon as practicable reasonably possible after receiving notification of an emergency 
excavation whether or not the excavation has begun. 
Sec. 3. 23 MRSA §3360-A, sub-§5-B, as enacted by PL 1999, c. 718, §7, is 
amended to read: 
5-B. Exemption; commercial forestry 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. 
Sec. 4. 23 MRSA §3360-A, sub-§5-Iis enacted to read: 
5-1. 
Exemption; quarries and borrow pits. 
An excavator may undertake an 
excavation within a quarry or borrow pit in accordance with this subsection. 
A. As used in this subsection, unless the context otherwise indicates, the following 
telIDS have the following meanings. 
(1) "Lawfully expanded after March I, 2011" means an expansion of a quarry or 
borrow pit after March 1, 2011: 
(a) That requires an authorization, license, pel111it or variance issued by the 
Depmiment of Environmental Protection pursuant to Title 38, chapter 3, 
article 6, 7 or 8~A or by the Maine Land Use Regulation Commission under 
Title 12, chapter 206-A and for which a valid authorization, license, permit or 
variance has been issued; or 
. 
(b) That requires a filing..Qf a notice of intent to comply pursuant to Title 38, 
chapter 3, article 7 or 8-A and a complete filing has been made. 
(2) "Lawfully located on March 1, 2011" means that on March 1, 2011 the quarry 
or borrow pit existed and: 
(a) 
The owner or operator had been issued all authorizations, licenses, 
pennits or variances by the Department of Environmental Protection pursuant 
to Title 38, chapter 3, article 6, 7 or 8-A or by the Maine Land Use 
Regulation Commission under Title 12, chapter 206-A necessary to operate 
that quarry or borrow pit; and 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" A" to H.P. 325, L.D. 407 
(b) 
The quany or borrow pit was in compliance with any applicable 
requirements of Title 38, chapter 3, article 7 or 8-A or with any applicable 
land use district standards of the Maine Land Use Regulation Commission 
adopted under Title 12, chapter 206-A. 
(3) "Lawfully located after March 1,2011" means that the quarry or borrow pit 
is established after March 1, 2011 and: 
(a) The owner or operator possesses all authorizations, licenses, permits or 
variances issued by the Department of Environmental Protection pursuant to 
Title 38, chapter 3, article 6, 7 or 8-A or by the Maine Land Use Regulation 
Commission under Title 12, chapter 206-A necessary to operate that quarry 
or borrow pit; and 
(b) The quam or borrow pit is in compliance with the requirements of Title 
38, chapter 3, article 7 or 8-A or with applicable land use district standards of 
the Maine Land Use Regulation Commission adopted under Title 12, chapter 
206-A. 
(4) "Quarry" has the same meaning as in Title 38, section 490-W, subsection 17. 
B. 
Except as provided in paragraph C, an excavator is exempt from the notice 
requirements of subsection 3 and subsection 10 when undertaking an excavation 
within a quam or borrow pit lawfully located on March 1, 2011. 
C. An excavator undertaking an excavation within a qUany or borrow pit lawfully 
located after March 1, 2011 or lawfully expanded after March 1, 20 II is governed by 
the following. 
(1) 
The owner or operator of the quarry or borrow pit shall provide notice 
pursuant to subsections 3 and 10 identifying the entire area potentially subject to 
excavation. 
(2) Owners and operators of underground facilities in the area identified pursuant 
to subparagraph (1) shall mark those facilities in accordance with subsections 4 
and 10, as applicable. Thereafter, the owner or operator of the quam Or borrow 
pit shall maintain sufficient records or markings to identify the location of 
underground facilities within the area identified pursuant to subparagraph (1) and 
an excavator undeltaking an excavation in that area is exempt from any fmther 
notice requirements under subsection 3 and subsection 10. 
(3) The owner or operator of the quam or borrow pit shall take appropriate 
action to avoid damage to the underground facilities identified pursuant to 
subparagraph (2). 
Sec. 5. 23 MRSA §3360-A, sub-§5-J is enacted to read: 
5-J. Unpaved public road grading procedure. A person may undeltake qualified 
grading activity in accordance with this subsection. 
A. As used in this subsection, unless the context otherwise indicates, the following 
terms have the following meanings. 
COMMITTEE AMENDMENT 
( 0'1 
;j\ ~ 
~ 
COMMITTEE AMENDMENT ,/;,,, to H.P. 325, L.D. 407 
(1) "Approved road" means a public way, or portion of a public way, on which a 
person may undertake~ualified grading activity in accordance with this 
subsection. 
(2) "Licensing authority" has the same meaning as in Title 35-A, section 2502, 
subsection 1. 
(3) "Qualified grading activity" means maintenance work that involves the use of 
suitable equipment with a blade to level or otherwise maintain the sand, gravel, 
sod or other surface of an unpaved public way. 
!A) "Requested road" means a public way, or portion of a public way, on which a 
licensing authority requests authority to conduct qualified grading activity under 
this subsection. 
(5) 
"Shallow-depth facilities" means underground facilities located at an 
insufficient depth to allow qualified grading activity. 
B. A licensing authority shall provide notice identifying the requested road and the 
intended depth of the qualified grading activity to the system and to persons who are 
not members of the system who 0.\\'11 or operate underground facilities in the 
requested road. 
e. 
Upon receiving notice pursuant to paragraph B, the system shall notify 
immediately all members whose underground facilities may be affected in 
accordance with subsection 3-A. 
D. The owner or operator of each underground facility within the requested road 
shaH within 3 business days of receiving notice advise the licensing authority of the 
location and size of the owner's or operator's underground facilities and all 
underground facilities used in flU11ishing electric or gas service that are connected to 
the owner's or operator's facilities and known to the owner or operator that are located 
in the requested road and whether the depth of the facilities is sufficient to avoid 
damage by qualified grading activity~ 
E. After waiting 3 business days of providing notice under paragraph B, the licensing 
authority may file with the Public Utilities Commission a notice of intent to conduct 
qualified grading activity on the requested road. Upon filing the notice of intent, the 
requested road becomes an approved road and any person may undertake qualified 
grading activity on the approved road at any time during the 12 months following 
filing of the notice of intent and is not required to provide any further notices under 
this section during those 12 months. If the licensing authority has been notified 
pursuant to paragraph D that there are shallow-depth facilities within the requested 
road, any qualified grading activity must be conducted in a manner that does not 
disturb the shallow-depth facilities. The licensing authority may require the owner or 
operator of the shallow-depth facilities to lower or otherwise move its facility in 
accordance with applicable law and the terms of its license. 
Sec. 6. 23 MRS A §3360~A, sub-§6-C, ~F, as enacted by PL 2001, c. 577, § 11, 
is amended to read: 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" ~"to H.P. 325, L.D. 407 
F. Failure of an excavator to comply with the requirements of subsection 5-C, 5-D 
ffi'~ 5-E, 5-1 or 5-J. 
Sec. 7. 23 MRS A §3360-A, sub-§6-D is enacted to read: 
6-D. 
Penalty payment plan. 
The Public Utilities Commission shall allow a 
qualified person who is assessed an administrative penalty under subsection 6-C to pay 
the penalty through a payment plan. For purposes of this subsection, "qualified person" 
means a person who demonstrates to the Public Utilities Commission that the person is 
unable to pay the penalty in full or that paying the penalty in full will cause undue 
financial hardship. 
The Public Utilities Commission shall establish a schedule of 
payments over time that allows the person to pay the fine within that person's financial 
mean.§.,. 
Sec. 8. Work group; Dig Safe standards. The Dig Safe Work Group, referred 
to in this section as "the work group," is established. 
1. Membership. The work group consists of23 members as follows. 
A. Twenty-two persons appointed by the Public Advocate: 
(1) Two persons who are municipal public works officials, one of whom is from 
a municipality with a large population and one from a municipality with a small 
population. 
The Public Advocate shall consider any recommendations for 
appointments under this subparagraph submitted by the Maine Municipal 
Association within 20 days of the effective date of this Act; 
(2) 
Four persons who are builders or contractors who conduct business in 
geographically diverse areas of the State. The Public Advocate shall consider 
any recommendations for appointments under this subparagraph submitted by the 
Associated Builders and Contractors of Maine within 20 days of the effective 
date of this Act; 
(3) 
Four persons who are general contractors who conduct business in 
geographically diverse areas of the State. The Public Advocate shall consider 
any recommendations for appointments under this subparagraph submitted by the 
Associated General Contractors of Maine within 20 days of the effective date of 
this Act; 
(4) One person with expertise in the underground facility damage prevention 
system who does not represent an active excavator or underground facility 
operator. The Public Advocate shall consider any person with appropriate 
expertise who submits a request to be appointed under this subparagraph within 
days of the effective date of this Act; 
(5) Two persons who represent quasi-municipal water or sewer utilities, one of 
whom represents a small utility and one of whom represents a large utility. The 
Public Advocate shall consider any recommendation for a person representing a 
small utility submitted by the Maine Rural Water Association within 20 days of 
the effective date of this Act. 
The Public Advocate shall consider any 
recommendation for a person representing a large utility submitted by the Maine 
Water Utilities Association within 20 days of the effective date of this Act; 
COMMITTEE AMENDMENT 
1'\ 
COMMITTEE AMENDMENT "A" to H.P. 325, L.D. 407 
(6) Two persons who represent telephone utilities, one of whom represents a 
small rural telephone utility and one of whom represents a large telephone utility. 
The Public Advocate shall consider any recommendations for appointments 
under this subparagraph submitted by the Telephone Association of Maine within 
days of the effective date of this Act; 
(7) One person representing cable television service providers in Maine; 
(8) Two persons representing owners or operators of underground fuel facilities. 
The Public Advocate shall consider any recommendations for appointments 
under this subparagraph submitted by the Maine Energy Marketers Association 
within 20 days of the effective date of this Act; 
. 
(9) One person representing the owner or operator of a natural gas pipeline; 
(10) 
One person representing investor-owned transmission and distribution 
utilities; 
(11) One person representing consumer-owned transmission and distribution 
utilities; and 
(12) One person who represents the Dig St}fe system. The Public Advocate shall 
consider any recommendations for appointments under this subparagraph 
submitted by Dig Safe System, Inc. within 20 days of the effective date of this 
Act; and 
B. The Public Advocate. 
2. Chair. The Public Advocate serves as chair of the work group. 
3. Appointments; convening. All appointments must be made no later than 30 days 
following the effective date of this section. 
4. Duties. The work group, in consultation with the Public Utilities Commission, 
shall examine ways to clarifY and simplify the so-called "dig safe" laws and rules to 
facilitate compliance and to eliminate regulatory uncertainty. 
The work group, in 
consultation with the Public Utilities Commission, shall examine at least the following 
matters: 
A. Preexcavation marking standards for excavators; 
B. Marking standards for owners and operators of underground facilities; 
C. Enforcement procedures and standards and the appropriate use of penalties; and 
D. 
Clarification of incident reporting and ensuring that incident investigations 
involve appropriate fact-finding and do not assume or require inappropriate 
admission of fault. 
5. Staff assistance. The Public Advocate and the Public Utilities Commission shall 
provide necessary staffing services to the work group. 
6. Report. No later than January 15, 2012, the Public Utilities COlmnission and the 
chair of the work group shall jointly submit a repOli to the Joint Standing Committee on 
Energy, Utilities and Technology that includes all findings and recommendations 
suppOlied by at least 2/3 of the appointed members of the work group. The commission 
shall also submit provisionally adopted rules to the Second Regular Session of the 125th 
COMMITTEE AMENDMENT 
~~., 
COMMITTEE AMENDMENT" j)" to H.P. 325, L.D. 407 
Legislature pursuant to the Maine Revised Statutes, Title 23, section 3360-A, subsection 
necessary to carry out the recommendations of the work group and any legislation 
necessary to carry out the recommendations of the work group. 
Emergency clause. 
In view of the emergency cited In the preamble, this 
legislation takes effect when approved.' 
SUMMARY 
This amendment replaces the bill. This amendment: 
1. Adds an emergency preamble and clause to the bill; 
2. Modifies the law that requires an excavator to renotify an underground facility 
damage prevention system if the excavator does not commence an excavation within 30 
days of approval by the system to extend the time of commencement to 60 days; 
3. Requires an excavator to commence an emergency excavation within 12 hours of 
providing notice to the underground facility damage prevention system or as soon 
thereafter as can be safely accomplished; 
4. Creates a new provision for road grading of unpaved public roads that allows 
grading to occur during a 12-month period after notice has been provided to underground 
facility owners, as long as the activity occurs in a mariner that does not disturb those 
underground facilities; 
5. Creates an exemption from the notice requirements for quarries and borrow pits; 
6. Directs the Public Utilities Commission to provide payment schedules for persons 
fined for violations of the dig safe laws for whom paying the fine at once would create an 
undue financial hardship; and 
7. 
Establishes a work group to develop recommendations for clarifying and 
simplifying the so-called "dig safe" laws and rules. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Fiscal Detail and Notes 
Approved: 03/23/11 
hac:::.. 
LD407 
LR 1874(02) 
An Act To Require Clarification of the Dig Safe Standards 
Fiscal Note for BiH as Amended by Committee Amendment 'A" 
Committee: Energy, Utilities and Technology 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - Other Special Revenue Funds 
Additional costs to the Public Utilities Commission (PUC) to provide payment schedules for persons fined for 
violations of the "dig safe laws"but who face undue financial hardship if forced to pay the entire fine at once can be 
absorbed within existing budgeted resources. Additional costs to the PUC and the Office of the Public Advocate to 
participate in a working group to develop recommendations for clarifYing and simplifYing the "dig safe laws" and 
related administrative rules and to submit the required report can be absorbed within existing budgeted resources. 
LR 1874(02) - Fiscal Note - Page 1 of 1