§ 23 §3360-A — Protection of underground facilities
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1.
Definitions.
As used in this section, unless the context otherwise indicates, the following terms shall have the following meanings.
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.
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.
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.
Information 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:
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 underground facilities used in furnishing electric or gas service that are connected to the operator's facilities, located in the public way and known to the operator 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.
4-A.
Alternative notice by certain excavators.
4-B.
Modification and revocation of clearance.
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.
4-D.
Abandoned or inactive facilities.
Beginning on the date an owner or operator of underground facilities is required by the Public Utilities Commission to implement electronic mapping, the owner or operator shall indicate the existence of facilities abandoned or inactive after that date on its electronic mapping system and shall notify an excavator when abandoned or inactive facilities exist in the area of an excavation. If an owner or operator of an underground facility does not maintain an electronic mapping system, the owner or operator shall notify the excavator if the operator is aware of abandoned or inactive facilities in the area of an 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. 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 reasonably possible 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 operations.
A person is exempt from the notice requirements of subsection 3 for any excavation undertaken in conjunction with a commercial timber harvesting activity as long as the excavation:
5-C.
Exemptions; written agreements.
A person undertaking an excavation in conjunction with a commercial timber harvesting activity within 100 feet of an underground facility or on an easement or land owned by an underground facility operator or within 100 feet of an easement or land owned by an underground facility operator is exempt from the notice requirements of subsection 3 and from the provisions of subsection 4‑C if the person:
5-D.
Exemption; cemeteries.
An excavator is exempt from the notice requirements of subsection 3 and subsection 10‑A for any excavation undertaken within the boundaries of a cemetery if the following procedures are followed.
5-E.
Shoulder-grading procedure.
An excavator that is a licensing authority as defined by Title 35‑A, section 2502, subsection 1 or its designee may be exempt from subsection 4‑C for any excavation that is shoulder-grading activity if the excavator complies with this subsection. If an excavator chooses to excavate under this subsection, all owners of underground facilities within the area of excavation must comply with this subsection.
5-F.
Water well construction; rulemaking.
The Public Utilities Commission shall by rule establish notice requirements for excavation associated with drinking water well construction. In establishing the rule, the commission shall consider:
5-G.
Alternative notice requirement procedures for excavations; rulemaking.
The Public Utilities Commission may by rule extend alternative notice requirements established for excavation associated with drinking water well construction pursuant to subsection 5‑F to other types of excavation. Rules adopted under this subsection are major substantive rules as defined in Title 5, chapter 375, subchapter 2‑A.
5-H.
Newly installed underground facilities in active excavation areas; rulemaking.
The Public Utilities Commission shall by rule establish procedures to reduce the incidence of damage to newly installed underground facilities in active excavation areas as defined by the commission by rule. In establishing the rule, the commission may consider adopting additional requirements for excavators or operators, including renotification and marking requirements and system notification procedures. Rules adopted pursuant to this subsection are major substantive rules as defined in Title 5, chapter 375, subchapter 2‑A.
5-I.
Exemption; quarries and borrow pits.
An excavator may undertake an excavation within a quarry or borrow pit in accordance with this subsection.
5-J.
Unpaved public road grading procedure.
A person may undertake qualified grading activity in accordance with this subsection.
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:
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-A.
Forfeitures.
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 was caused by the negligence of the excavator.
6-C.
Penalties.
In an adjudicatory proceeding, the Public Utilities Commission may, in accordance with this subsection, impose an administrative penalty on any person who violates this subsection. The administrative penalty may not exceed $1,000, except that, if the person has been found in violation of this subsection within the prior 12 months, the administrative penalty may not exceed $10,000. 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. Before 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.
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 means.
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.
9.
Exceptions.
10.
Further notice requirements.
10-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 1‑A.
10-B.
Calling 9-1-1.
If contact with or damage to an underground pipe or another underground facility results in the escape of any natural gas or other hazardous substance or material regulated by the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration, the excavator shall immediately report the contact or damage by calling 9-1-1.
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 may request that the Public Utilities Commission issue a cease and desist order to prevent a person from undertaking an excavation that may result in damage to the underground facility. The Public Utilities Commission may issue a cease and desist order if the commission determines that the excavation or proposed excavation:
13.
Rules.
The Public Utilities Commission may adopt rules necessary to implement this section. Except as otherwise specified in this section, rules adopted under this section are major substantive rules as defined in Title 5, chapter 375, subchapter 2‑A.
14.
Discovered facilities.
When an underground facility is discovered during an excavation and the location of that facility was, prior to the discovery, unknown or unclear to the underground facility operator, the Public Utilities Commission may direct that operator to determine and map the location of the facility for a reasonable distance, as determined by the commission, from the point of discovery.
Maine § 23 §3360-A (Protection of underground facilities) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.