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 10 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:
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 10 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:
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 10 10-A and the owner or operator of underground facilities shall respond as required by subsections 4 and 10 10-A.
Sec. 7. 23 MRSA §3360-A, sub-§5-I, ¶¶B 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 10 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 10 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 10 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 an excavator undertaking an excavation in that area is exempt from any further notice requirements under subsection 3 and subsection 10 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:
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:
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 1-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 of 23 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;
(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
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:
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 Commission 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 commission 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;
4. Permits a respondent to request an adjudicatory hearing only after an informal review and requires that the commission approve any request by a respondent to waive the informal 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)