An Act To Implement the Recommendations of the Dig Safe Work Group
Maine Legislature, Session 125, LD 1803
Committee Amendment CA_A_H842 (House)
Amends: 23 MRSA §3360-A

COMMITTEE AMENDMENT "A" to H.P. 1329, L.D. 1803, Bill, "An Act To 
Implement the Recommendations of the Dig Safe Work Group" 
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, the underground facility damage prevention system, established pursuant 
to the so-called dig safe law, ensures the health and safety of the citizens of the State 
when excavations are to occur; and 
Whereas, this Act affects the system; and 
Whereas, it is important to implement the changes to the system immediately to 
keep the people involved with the system safe; 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 inserting after section 2 the following: 
'Sec. 3. 23 MRSA §3360-A, sub-§3, ~F, as enacted by PL 2001, c. 577, §5, is 
amended to read: 
F. In the case of an excavation involving subcontractors or other arrangements in 
which more than one entity qualifies as the excavator under this section, the 
excavator directly responsible for performing the excavation shall ascertain that all 
notifications required by this subsection and subsections 5, 5-A and W 10-A are 
performed. 
Sec. 4. 23 MRSA §3360-A, sub-§3, ~G, as enacted by PL 2003, c. 373, §2, is 
amended to read: 
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COMMITTEE AMENDMENT·A" to H.P. 1329, L.D. 1803 
G. If an excavator notifies the system and nonmember operators as required by this 
section and is informed by the system and each nonmember operator, including 
private landowners, that no underground facilities exist in the proposed excavation 
area, then the excavator is not required to wait the 3 days as required by this 
subsection and subsection .w 10-A and may begin excavation immediately. 
Sec. 5. 23 MRSA §3360-A, sub-§5-D, as enacted by PL 2001, c. 577, §8, is 
amended to read: 
5-D. Exemption; cemeteries. An excavator is exempt from the notice requirements 
of subsection 3 and subsection .w 10-A for any excavation undertaken within the 
boundaries of a cemetery if the following procedures are followed. 
A. The person responsible for operating the cemetery shall provide notice pursuant 
to subsections 3 and.w lO-A identifying the entire cemetery as a potential excavation 
site. Owners and operators of underground facilities within the cemetery shall mark 
those facilities in accordance with subsections 4 and .w 10-A, as applicable. 
Thereafter, the person responsible for operating the cemetery shall maintain sufficient 
records or markings to identify the location of underground facilities within the 
cemetery. 
B. The person responsible for operating the cemetery shall identify the location of 
any underground facilities within the excavation area and take appropriate action to 
avoid damage to the facilities. 
Sec. 6. 23 MRSA §3360-A, sub-§5-E, ,A, as enacted by PL 2001, c. 577, §8, is 
amended to read: 
A. The excavator shall provide notice as required by subsections 3 and .w lO-A and 
the owner or operator of underground facilities shall respond as required by 
subsections 4 and.w 10-A. 
Sec. 7. 23 MRSA §3360-A, sub-§5-I, ,,n and C, as enacted by PL 2011, c. 
72, §4, are amended to read: 
B. Except as provided in paragraph C, an excavator is exempt from the notice 
requirements of subsection 3 and subsection .w 10-A when undertaking an 
excavation within a quarry or borrow pit lawfully located on March 1,2011. 
C. An excavator undertaking an excavation within a quarry or borrow pit lawfully 
located after March 1, 2011 or lawfully expanded after March 1, 2011 is governed by 
the following. 
(1) The owner or operator of the quarry or borrow pit shall provide notice 
pursuant to subsections 3 and .w 10-A 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.w 10-A, as applicable. Thereafter, the owner or operator of the quarry 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 
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COMMITTEE AMENDMENT 'A "to H.P. 1329, L.D. 1803 
an excavator undertaking an excavation in that area is exempt from any further 
notice requirements under subsection 3 and subsection W 10-A. 
(3) The owner or operator of the quarry or borrow pit shall take appropriate 
action to avoid damage to the underground facilities identified pursuant to 
subparagraph (2). 
Sec. 8. 23 MRSA §3360-A, sub-§5-K is enacted to read: 
5-K. Exemption; unpaved private road grading. A person is exempt from the 
requirements of this section for any grading activities undertaken on private roads that 
meet the following criteria: 
A. The grading activities are limited to the shaping, maintaining or scraping of a road 
surface or road shoulder to allow for proper drainage; and 
B. The depth of the grading activities is no deeper than 6 inches as measured from 
the road surface or shoulder of the road surface prior to the commencement of those 
grading activities.' 
Amend the bill by striking out all of sections 4 and 5 and inserting the following: 
'Sec. 4. 23 MRSA §3360-A, sub-§10, as enacted by PL 1991, c. 437, §10 and 
affected by § 12, is repealed. 
Sec. 5. 23 MRSA §3360-A, sub-§10-A is enacted to read: 
lO-A. Further notice requirements. 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 and who is not a voluntary member of the system 
established under subsection I-A. 
A. In addition to other notice requirements under this section and except for an 
employee with respect to that employee's 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. 
B. If the underground facilities are located on private property and are owned and 
operated by the owner of that property: 
(1) That landowner may mark the underground facilities in accordance with 
paragraph D; 
(2) The excavator may wait 3 business days from the date of notification to 
commence the excavation or may commence the excavation upon notification; 
(3) If the excavator waits 3 business days from the date of notification or until 
after the underground facilities are marked, if sooner, to commence excavation or 
if the markings made by the landowner pursuant to subparagraph (1) fail to 
identify the location of the underground facilities in accordance with paragraph 
D, an excavator damaging or injuring underground facilities is not liable for any 
damage or injury caused by the excavation, except on proof of negligence; and 
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COMMITTEE AMENDMENT ,A "to H.P. 1329, L.D. 1803 
(4) If the excavator does not wait until the underground facilities are marked or 3 
business days from the date of notification to commence excavation, whichever 
occurs earlier, the excavator is liable for all damages to the underground facilities 
as a result of the excavation. 
C. If the underground facilities are located on private or public land and are owned 
and operated by a person other than the owner of the property where the excavation is 
to occur: 
(1) The person who owns or operates the underground facilities shall mark the 
underground facilities in accordance with paragraph D; and 
(2) The excavator shall wait until the underground facilities are marked or 3 
business days from the date of notification, whichever occurs earlier, before 
commencing the excavation. 
If an excavator complies with paragraph A and subparagraph (2) and if information 
pursuant to paragraph D is not provided within the time specified or if the 
information provided does not identifY the location of the underground facilities in 
accordance with paragraph D, an excavator damaging or injuring underground 
facilities is not liable for any damage or injury caused by the excavation, except on 
proof of negligence. 
D. A person who marks underground facilities under this subsection shall mark the 
location and size of the underground facilities in the proposed excavation area by 
marking the location of the facilities with stakes, with paint or by any other 
identifiable markings within 36 inches horizontally from the exterior sides of the 
underground facilities and if the depth is known the depth of the underground 
facilities. 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. 
Sec. 6. Convene a "dig safe" work group. The Public Advocate shall convene 
a work group, referred to in this section as "the work group," to examine, improve and 
enhance the underground facility damage prevention system established in the Maine 
Revised Statutes, Title 23, section 3360-A, subsection I-A and referred to in this section 
as "the damage prevention system." 
1. Chair. The Public Advocate shall serve as the chair of the work group. 
2. Membership. When appointing members, the Public Advocate shall consider a 
fair representation of members and nonmembers of the damage prevention system. 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; 
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COMMITTEE AMENDMENT 'A "to H.P. 1329, L.D. 1803 
(2) Three 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; 
(3) Three 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; 
(4) One person with expertise in the 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; 
(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 the person to represent a 
small utility submitted by the Maine Rural Water Association. The Public 
Advocate shall consider any recommendation for the person to represent a large 
utility submitted by the Maine Water Utilities Association; 
(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; 
(7) One person representing cable television service providers in the State; 
(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; 
(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; 
(12) One person who represents the Dig Safe system. The Public Advocate shall 
consider any recommendations for appointments under this subparagraph 
submitted by Dig Safe System, Inc.; and 
(13) Two municipal officials or persons representing municipal officials; and 
B. The Public Advocate. 
3. Convening. The Public Advocate shall convene the work group no later than 60 
days following the effective date of this section. 
4. Duties. The work group, in consultation with the Public Utilities Commission, 
shall examine ways to facilitate the creation of a centralized one-call system to notify the 
operators of underground facilities of pending excavations. This examination must 
include, but is not limited to: 
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COMMITTEE AMENDMENT "A" to H.P. 1329, L.D. 1803 
A. 
Creating a new apportionment of the costs of membership in the damage 
prevention system so that members could pay a flat fee for each notification of 
pending excavation; 
B. Authorizing an operator who is not a member of the damage prevention system to 
be subject to administrative penalties for violations of Title 23, section 3360-A; 
C. Requiring an operator who is not a member of the damage prevention system to 
maintain insurance when an excavator is working on that operator's underground 
facilities; 
D. 
Identifying appropriate tolerance zones for marking different types of 
underground facilities; 
E. Developing a process for the commission to keep records of successful markings 
or excavations completed by members of the damage prevention system; and 
F. 
Evaluating the need for an ongoing advisory board to provide input to the 
commission regarding the damage prevention system. The work group shall consider 
staffing requirements, membership, funding and the scope of responsibility for the 
advisory board. 
5. Staff assistance. To the extent possible within existing resources, the Public 
Advocate and the Public Utilities COlmnission shall provide necessary staffing services to 
the work group. 
6. Report. No later than January 15,2013, the Public Utilities Commission and the 
Public Advocate shall jointly submit a report to the joint standing committee of the 
Legislature having jurisdiction over energy, utilities and technology matters that includes 
all findings and recommendations of the work group that are supported by at least 2/3 of 
the appointed members of the work group. The cOlmnission shall submit to the First 
Regular Session of the 126th Legislature by January 15, 2013 any legislation necessary to 
carry out the recommendations of the work group and provisionally adopted rules 
pursuant to Title 23, section 3360-A, subsection 13 necessary to carry out the 
recommendations of the work group. 
Sec. 7. Rule adoption. Final adoption of portions of Chapter 895: Underground 
Facility Damage Prevention Requirements, a provisionally adopted major substantive rule 
of the Public Utilities Commission that has been submitted to the Legislature for review 
pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A, is 
authorized only if the commission: 
1. Modifies the notification requirements of excavators to notify private property 
owners that own and operate underground facilities on their property in accordance with 
this Act; 
2. Requires a 36-inch tolerance zone for marking underground facilities operated by 
nonmember operators; 
3. Removes the requirement that the commission include the number of excavations 
and markings by a respondent in the past 12 months that did not result in a violation of 
the so-called dig safe law or rules on a notice of enforcement investigation; 
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COMMITTEE AMENDMENT "A "to H.P. 1329, L.D. 1803 
4. Permits a respondent to request an adjudicatory hearing only after an infonnal 
review and requires that the commission approve any request by a respondent to waive 
the infonnal review; and 
5. Corrects a cross-reference to the definition of an underground facility operator in 
section 6 of the rule. 
Emergency clause. 
In view of the emergency cited in the preamble, this 
legislation takes effect when approved.' 
Amend the bill by relettering or renumbering any nonconsecutive Part letter or 
section number to read consecutively. 
SUMMARY 
This amendment creates an exemption from the requirement to notify the 
underground facility damage prevention system, established pursuant to the so-called dig 
safe law, for grading completed on private unpaved roads. It also changes the 
circumstances under which an excavator notifies a private landowner of excavations that 
occur on that landowner's property and the excavator's liability for work completed on 
that land. This amendment specifies the membership of the "dig safe" work group, 
changes the requirement that the work group convene within 30 days of the effective date 
of the bill to 60 days, as well as adds additional items to the work group's scope of work. 
Finally, this amendment addresses major substantive rulemaking proposed for 
authorization in L.D. 1790, H.P. 1315, "Resolve, Regarding Legislative Review of 
Portions of Chapter 895: Underground Facility Damage Prevention Requirements, a 
Major Substantive Rule of the Public Utilities Commission," by conditionally authorizing 
final adoption of portions of Chapter 895 only if the Public Utilities Commission makes 
specific changes to the rule. 
This amendment also adds an emergency preamble and emergency clause to the bill. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03/16/12 
~.::zc. 
LD 1803 
LR 2734(02) . 
An Act To Implement the Recommendations of the Dig Safe Work Group 
Fiscal Detail and Notes 
Fiscal Note for Bill as Amended by Committee Amendment ',q" (.f-I" BLfJ ') 
Committee: Energy, Utilities and Technology 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - Other Special Revenue Funds 
Any additional costs to the Public Advocate to convene, staff and report on a Dig Safe work group can be absorbed 
within existing budgeted resources. Any additional costs to the Public Utilities Commission to staff and report on the 
Dig Safe work group and to fmally adopt a provisionally adopted rule can be absorbed within existing budgeted 
resources. 
LR2734(02) - Fiscal Note - Page 1 of 1