DeFelice Corp. v. Department of Public Utilities

Citations: 88 Mass. App. Ct. 544; 38 N.E.3d 1040Docket: AC 14-P-1056

Court: Massachusetts Appeals Court; October 19, 2015; Massachusetts; State Appellate Court

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All slip opinions and orders are subject to formal revision and are superseded by the Official Reports. Errors should be reported to the Reporter of Decisions at the Supreme Judicial Court. The case DeFelice Corporation vs. Department of Public Utilities (No. 14-P-1056) concerns an incident on November 3, 2010, where DeFelice Corporation, while excavating on Danny Road in Boston, struck an underground natural gas service line, leading to an explosion that destroyed a home and damaged others. The Department of Public Utilities investigated and issued notices of probable violations (NOPVs) for breaches of the 'dig safe' law, G. L. c. 82, 40-40E, at both the Danny Road and Como Road sites. DeFelice contested the NOPVs and requested a formal hearing, which concluded with a decision that found DeFelice responsible for four violations of the dig safe law, resulting in a total fine of $31,000—the maximum penalty for each violation. The department determined that DeFelice failed to provide adequate advance notice to the Dig Safe System and did not take reasonable precautions near existing utility facilities. DeFelice appealed the findings and penalties, specifically regarding the Danny Road excavation, but did not contest the violations associated with the Como Road excavation. The Appeals Court affirmed the department's findings and penalties.

The dig safe law (G. L. c. 82, 40-40E) and associated regulations (220 Code Mass. Regs. 99.00-99.12) mandate that excavators follow specific notification and safety protocols to prevent damage to underground facilities. Excavators must premark their work areas using white markings, notify a call center about the excavation details, and wait 72 hours before commencing work, except in emergencies. During this waiting period, utility companies are informed to mark their underground facilities within the excavation zone and an additional 15-foot buffer. Failure to comply can lead to penalties ranging from $1,000 for first offenses to $5,000-$10,000 for subsequent violations within a year.

In 2010, DeFelice was contracted by the Boston Water and Sewer Commission to replace underground water mains and sewer pipes in several neighborhoods. DeFelice notified the call center on October 1, 2010, providing a description of the excavation site, but later excavated areas not specified in the notification, violating G. L. c. 82, 40A. Additionally, while using a jackhammer near unidentified gas facilities, DeFelice did not take reasonable precautions as required by G. L. c. 82, 40C. On November 3, 2010, while working on Danny Road, DeFelice's crew accidentally punctured a gas pipeline, resulting in a gas leak that ignited and caused an explosion.

During the excavation near Danny Road, NSTAR had some markings, but the service pipeline to 17 Danny Road was unmarked. Previously, DeFelice had found unmarked or improperly marked gas utility pipelines beneath Reynold Road, prompting their personnel to request NSTAR to remark the facilities. On November 2, 2010, DeFelice's general manager, Robert Savage, called NSTAR to request remarking for the excavation, specifying "all intersections" but not mentioning Danny Road. He confirmed that the excavation would extend from the street to the property line but did not indicate it would extend beyond Reynold Road. The department determined that DeFelice failed to provide adequate notification to the call center as mandated by G. L. c. 82, 40A. Consequently, DeFelice was subject to the presumption of negligence under G. L. c. 82, 40C for excavating without proper notice. Additionally, the use of a mechanical excavator near the gas pipeline invoked the requirement to use non-mechanical means when working close to underground facilities. The department concluded that NSTAR's potential contribution to the explosion did not absolve DeFelice of its noncompliance with the dig safe law, and DeFelice failed to challenge the presumption of negligence arising from its notification failure. The findings led to DeFelice being found in violation of G. L. c. 82, 40A and G. L. c. 82, 40C. DeFelice's appeal, under G. L. c. 25, 5, faces a high burden of proof, as the department's decisions are upheld unless proven to be legally erroneous, unsupported by evidence, or arbitrary. The law requires excavators to provide precise descriptions of excavation locations, and the department found DeFelice's notification inadequate, despite their arguments to the contrary.

DeFelice did not specify Danny Road or indicate an intention to excavate beyond the property line alongside Reynold Road in its communications with the call center. The department determined that DeFelice excavated 17 feet beyond the property line, supported by substantial evidence, rejecting the argument that the term "all intersections" sufficed for defining the excavation area. Although DeFelice marked the intersection of Danny and Reynold Roads, its actions did not fulfill the dual requirements of the dig safe statute: premarking and accurate notification to the call center. DeFelice's informal request to NSTAR did not exempt it from these statutory obligations. 

The department found that DeFelice failed to take reasonable precautions while operating a backhoe near a gas line at 17 Danny Road, violating G. L. c. 82, 40C. DeFelice admitted to using the backhoe but claimed ignorance of the proximity to the gas line due to NSTAR markings. However, G. L. c. 82, 40C states that failing to provide proper notice creates prima facie evidence of negligence for any resulting damage. The department concluded that DeFelice's reliance on incomplete NSTAR markings did not negate this evidence and found DeFelice in violation of the dig safe law.

The department has the authority to impose civil fines for violations of the dig safe law, with $1,000 for a first offense and $5,000 to $10,000 for subsequent violations within a year. DeFelice argued that all violations from its October 1, 2010 notification should be treated as a single offense. However, violations occur when excavation begins without proper notice, leading to separate fines for each instance of non-compliance. Substantial evidence supported the finding of four distinct violations, as DeFelice excavated in unapproved areas on two separate occasions and failed to take precautions at each site. The department's decision to impose separate fines was affirmed, with no extraordinary circumstances justifying a revision of their discretion.