65-407-895 Me. Code R. § 4

Current through 2024-25, June 19, 2024

Section 407-895-4 - RESPONSIBILITIES OF THE EXCAVATOR

A.Pre-marking. The excavator shall mark the approximate boundary of a proposed excavation and the excavator's initials in white, or as otherwise established by the Dig Safe System, prior to notifying the Dig Safe System, as required by Section 4(B). If an excavator uses a single stake or other single point indicator as a pre-mark, the excavator must indicate the radius of the proposed excavation area. Alternative colors, pink or black, may be used by the excavator during snow or ice conditions.

B.Notification

1.Notification to the Dig Safe system

a.Notice process. Except for emergency notifications and as provided in Subsection 4(B)(1)(a)(i), an excavator shall notify the Dig Safe System of the location of the intended excavation at least 72 hours, not including Saturdays, Sundays and legal Maine holidays, but not more than 30 calendar days, prior to the commencement of excavation. The excavation must commence within 30 days of the notification to the Dig Safe System. Notification may be given in writing, by telephone, or by electronic means. Non-emergency notification shall take place between the hours of 7 a.m. and 5 p.m. on normal business days. In the event of an emergency, an excavator shall notify the Dig Safe System and non-member operators as required by Subsection 4(C)(1), and shall indicate that it is an emergency notification.

i.No facilities. If an excavator notifies the Dig Safe System and nonmember operators as required by this Section, and is informed by the Dig Safe 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 3 days as required by Subsection 4(B)(1)(a) and may begin excavation immediately.

ii.PUC OKTODIG database. An excavator may check the Commission's OKTODIG database within 30 days of the date excavation begins to determine whether any non-member operators have underground facilities in the municipality in which the excavation area is located. The excavator may re-check the OKTODIG database pursuant to this subsection for each successive 60-day period. If the Commission's OKTODIG database indicates that there are no member facilities located in the municipality in which excavation is planned, the excavator is not required to notify the Dig Safe System of the planned excavation. The excavator must notify all non-member operators that are listed on the Commission's OKTODIG database as having underground facilities in the municipality in which the excavation area is located as required in Subsection 4(B)(2).

b.Acknowledgement. An excavator shall acquire and record an acknowledgement from the Dig Safe System for any notice the excavator sends by electronic means.

c.Blasting. If an excavation involves blasting, the excavator shall notify the Dig Safe System in writing of the date and location of the blasting. This written notice must be given and received at least 24 hours in advance of the blasting, except that, in the case of an unanticipated obstruction requiring blasting, the excavator shall provide written notice not less than four hours in advance of that blasting.

d.Renotification. If the proposed excavation or blasting is not completed 60 calendar days after notification or the excavation or blasting will be expanded outside the location originally specified in the notification, the excavator shall renotify the Dig Safe System as specified in this section.

e.Contents of notice. Notification to the Dig Safe System shall contain the following information:

i. the name of the individual serving such notice;

ii. the location of the proposed excavation; the location may include Global Positioning System (GPS) coordinates. If the excavator does not, or is unable to, provide GPS coordinates, the excavation location information shall include the name of the city or town where the excavation will take place; and the street, way, or route number where appropriate; and the name of the streets at the nearest intersection to the excavation if not more than a quarter mile from the proposed excavation; and the number of the buildings closest to the excavation and/or any other description, including landmarks, utility pole numbers or other information which will accurately define the location of the excavation and the date and location of any blasting.

iii. the name, address, telephone number and the telefacsimile (fax) number, if available, of the excavator;

iv. the excavator's field telephone number, if available; and

v. the type and extent of the proposed excavation.

2.Additional notifications. In addition to notifying the Dig Safe System as required in Subsection 4(B)(1), an excavator shall notify any non-member operator in the area of the proposed excavation. This notice must be in accordance with Subsection 4(B)(1) except that it will be provided directly to the non-member operator and not to the Dig Safe System.

a. If the underground facilities are located on private property, provide service to a single-family residence, and are owned and operated by the owner of that property:

i. That landowner may mark the underground facilities in accordance with Subsection 6(B);

ii. The excavator may wait 3 business days from the date of notification to commence the excavation or may commence the excavation upon notification;

iii. 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 (i) fail to identify the location of the underground facilities in accordance with subsection 6(B), 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

iv. 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.

3.Subcontractors and multiple excavators. In the case of an excavation involving subcontractors or other arrangements in which more than one entity qualifies as the excavator under this rule, the excavator directly responsible for performing the excavation shall ascertain that all notifications required by this rule are performed.

C.Excavation

1.Emergency excavations. In an emergency, an excavator may commence an excavation after taking all reasonable steps, consistent with the emergency, to pre-mark the excavation site and notify the Dig Safe System and non-member operators pursuant to Section 4(B).

2.Safety zone. An excavator may not use mechanical means of excavation when excavating within 18 inches in any direction 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 underground facilities have been exposed, further excavation must be performed employing reasonable precautions to avoid damage to the underground facilities (unless the operator of the underground facilities has positively identified the facilities as inactive or abandoned, pursuant to Subsection 6(F)(3), and has indicated that there is no need to protect them from damage), 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. The lateral boundaries of the safety zone shall be the operator's tolerance zone markings as directed in Subsection 6(B)(4)(b).

3.Maintenance of markings. An excavator shall maintain markings made by an operator pursuant to Section 6(B). If an excavator cannot maintain the markings, the excavator shall request that the operator reapply the markings.

4.Unmarked underground facilities. Any unmarked underground facility discovered during an excavation must be treated as an active facility until the facility operator has been notified by the excavator (pursuant to Subsection 4(D)(1) ) and has visited the site and positively identified the facility as inactive or abandoned.

D.Reporting

1. Notice of damage to operator. An excavator who damages an underground facility or discovers an unmarked underground facility shall immediately notify the affected operator. The excavator shall not backfill an excavation where damage has occurred or where an unmarked facility has been discovered without first receiving permission from the affected operator.

2.Report to Commission. An excavator involved in an excavation shall report to the Commission when it has reason to believe that one or more damage prevention incidents as defined in Section 2(E-1) have occurred associated with that excavation.

The damage prevention incident shall be reported by 1) calling the Commission as soon as possible at (207) 287-3831 or emailing the Commission at IncidentReport.PUC@maine.govand 2) completing the Underground Facility Damage Prevention Incident Report form available from the Commission (207) 287-3831 or http://www.maine.gov/mpuc). The excavator shall submit this written report within 10 days of discovering a damage prevention incident.

Any person may report to the Commission any other failure to comply with this rule or other concerns regarding underground facilities damage prevention, using the Underground Facility Damage Prevention Incident Report form.

E.Legal Effect of Non-compliance

1.Excavator. The failure of an excavator to provide any or all notices required by Subsections 4(B)(1) and 4(B)(2) for an excavation that results in damage to an underground facility or facilities shall be prima facie evidence in any civil or administrative proceeding that the damage was caused by the negligence of the excavator.

2.Member Operator. If an excavator complies with all excavator responsibilities described in Section 4(A) and Subsection 4(B)(1), and if the Dig Safe System does not provide all information pursuant to Section 5(A) or an operator does not provide all information pursuant to Section 6(B) or the information provided fails to identify the location of the underground facilities in accordance with Section 6(B), then an excavator is not liable for any damage or injury caused by the excavation, except on proof of negligence.

3.Non-member Operator. If an excavator provides notice to non-member operators pursuant to Subsection 4(B)(2), and if a non-member operator fails to mark the location of its facilities or if the facilities are not properly marked pursuant to Section 6(B), then an excavator is not liable for any damage or injury caused by the excavation, except on proof of negligence.

F.Exemptions

1. For additional exemptions, see 23 M.R.S.A §3360-A §§5-I and 5-J.

2.Commercial Forestry

a.Activity requiring no written agreement. An excavator is exempt from the notice requirements of Sections 4(A) and 4(B) for any excavation undertaken in conjunction with a commercial timber harvesting activity provided the excavation:

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

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

iii. is not conducted within 100 feet of an underground facility; and

iv. does not involve the use of explosives.

b.Activity requiring written agreement. An excavator is exempt from the requirements of Sections 4(A), 4(B) and 4(C) for any excavation undertaken in conjunction with a commercial timber harvesting activity, when that excavation is within 100 feet of an underground facility or on an easement or land owned by an operator or within 100 feet of an easement or land owned by an operator if the excavator:

i. contacts the Dig Safe System to identify all member operators within the area of the excavation;

ii. enters into written agreements with all operators within the area of the excavation and with all persons owning the land on which the excavation occurs; and

iii. undertakes the excavation in accordance with the terms of the written agreements.

3.Cemeteries. An excavator is exempt from the notice requirements of Section 4(B) 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 Section 4(B) 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 Section 6(B) 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.

4.Shoulder-grading Activity. An excavator that is a licensing authority as defined by 35-A M.R.S.A. §2502(1) or its designee is exempt from Subsection 4(C)(2) 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.

a. The excavator shall provide notice as required by Section 4(B) and the owner or operator of underground facilities shall respond as required by Section 6(B).

b. The excavator shall contact each owner or operator of underground facilities within the area of proposed shoulder-grading activity and describe the scope of its proposed shoulder-grading activity, including the anticipated depth of grading.

c. The owner or operator of each underground facility shall within 3 business days determine and notify the excavator whether the depth of its facility is sufficient to avoid damage.

d. After receipt of notice pursuant to Subsection 4(F)(3)(c), the excavator may commence its shoulder-grading activity in a manner that does not disturb the facilities indicated by the owners or operators of the underground facilities or, if a facility is located at an insufficient depth to allow the proposed shoulder-grading activity, prior to the shoulder-grading activity the licensing authority may require the owner or operator of the underground facility to lower or otherwise move its facility in accordance with applicable law and the terms of its license.

65-407 C.M.R. ch. 895, § 4