DeFelice Corp. v. Department of Public Utilities

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14-P-1056 Appeals Court

DeFELICE CORPORATION vs. DEPARTMENT OF PUBLIC UTILITIES.

No. 14-P-1056.

Suffolk. May 6, 2015. - October 19, 2015.

Present: Berry, Kafker, & Cohen, JJ.

Department of Public Utilities. "Dig Safe" Statute. Penalty.
Administrative Law, Adjudicatory proceeding, Findings,
Agency's interpretation of statute, Evidence, Substantial
evidence. Evidence, Prima facie evidence.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 18, 2013.

The case was reported by Gants, J., and the appeal was
transferred by him to the Appeals Court.

Ben N. Dunlap (Patrick E. McDonough with him) for the
plaintiff.
Bryan F. Bertram, Assistant Attorney General, for the
defendant.

COHEN, J. On November 3, 2010, DeFelice Corporation

(DeFelice), a contractor engaged in removing and reinstalling

water mains, struck an underground natural gas service line

while excavating on Danny Road in the Hyde Park neighborhood of
 2

Boston. The ensuing explosion and fire destroyed a single

family home at 17 Danny Road, and badly damaged other nearby

residences.1

The pipeline and engineering safety division (division) of

the Department of Public Utilities (department) investigated

DeFelice's operations on Danny Road, as well as its operations

at a nearby site on Como Road. As a result of the division's

investigation, it issued notices of probable violations (NOPVs)

of the "dig safe" law, G. L. c. 82, §§ 40-40E,2 and associated

regulations, for each of the two sites. DeFelice contested the

NOPVs and, after receiving adverse informal review decisions as

to both matters, requested a formal adjudicatory hearing. The

cases were consolidated, and a hearing was held before a three-

member panel of department commissioners. In a thirty-nine page

decision and order, the department found DeFelice responsible

for four violations of the dig safe law and imposed the maximum

statutory penalty allowed for each violation, resulting in a

total fine of $31,000.

As to both the Como Road and Danny Road excavations, the

department determined that DeFelice had violated G. L. c. 82,

1
While the property damage was extensive, it does not
appear that anyone sustained personal injuries.
2
The Legislature rewrote the dig safe law in 1998. See St.
1998, c. 332. Unless otherwise noted, we refer to this version
of the statute.
 3

§ 40A, which requires an excavator to provide proper advance

notice of its planned work to the telephone call center of Dig

Safe System, Inc. (call center), an information clearinghouse

and communications system statutorily required to be maintained

by various utility companies. See G. L. c. 164, § 76D.

Specifically, the department found that DeFelice's notification

to the call center failed to provide information needed to

"accurately define the location" of the excavations as required

by G. L. c. 82, § 40. See G. L. c. 82, § 40A. In addition, the

department found that, at both sites, DeFelice had failed to use

"reasonable precautions" while performing work in "close

proximity" to existing underground utility facilities, as

required by G. L. c. 82, § 40C.

Before us is DeFelice's appeal, pursuant to G. L. c. 25,

§ 5.3 DeFelice challenges the department's findings of dig safe

law violations, but only with respect to the excavation on Danny

Road.4 DeFelice also challenges the four separate penalties as

cumulative. For the following reasons, we affirm.

3
In accordance with G. L. c. 25, § 5, DeFelice sought
judicial review by filing a petition in the Supreme Judicial
Court for the county of Suffolk. Thereafter, the single justice
transferred the appeal to this court.
4
At the adjudicatory hearing, DeFelice did not contest the
violations found by the division in connection with the
excavation on Como Road; nor does DeFelice contest those
findings on appeal.
 4

Background. 1. Regulatory scheme. The dig safe law,

G. L. c. 82, §§ 40-40E, and the regulations promulgated

thereunder, 220 Code Mass. Regs. §§ 99.00-99.12 (2008), are

designed to protect life and property by requiring excavators to

comply with notification and safety procedures. See generally

Yukna v. Boston Gas Co., 1 Mass. App. Ct. 62, 66-67 (1973). An

excavator must "premark[]" the location of the intended work

using white paint, stakes, or other suitable white markings.

G. L. c. 82, § 40A. See 220 Code Mass. Regs. § 99.02 (2008).

The excavator then must notify the call center, "accurately"

describing the excavation location, and indicating the date that

excavation is expected to begin. G. L. c. 82, § 40A. 220 Code

Mass. Regs. § 99.04 (2008). Except in the case of emergency,

the excavator cannot proceed with the work until at least

seventy-two hours after giving notice. See G. L. c. 82, § 40A;

220 Code Mass. Regs. § 99.04 (2008). During this seventy-two

hour period, the call center notifies the utility companies that

have underground facilities where the excavation is to occur.

Using standard, color-coded markings, each such company must

mark the location of any of its facilities within the

excavator's premarking zone and an additional fifteen-foot

safety zone. See G. L. c. 82, § 40B; 220 Code Mass. Regs.

§ 99.05 (2008).
 5

At the conclusion of the seventy-two hour period, the

excavator may begin work, but must use "reasonable precautions"

when in close proximity to an underground facility in order to

avoid damaging it. G. L. c. 82, § 40C. 220 Code Mass. Regs.

§ 99.06(1) (2008). "[R]easonable precautions" include using

"non-mechanical means" when excavating near an underground

facility. G. L. c. 82, § 40C. See 220 Code Mass. Regs.

§ 99.06(1) (2008). Violation of any provision of the dig safe

statute or regulations is subject to a penalty of $1,000 for a

first offense, and between $5,000 and $10,000 for any subsequent

offense within twelve consecutive months. See G. L. c. 82,

§ 40E; 220 Code Mass. Regs. § 99.12(1) (2008).

2. Facts. We summarize the essential facts established in

the administrative record. In 2010, DeFelice began work on a

public works contract awarded to it by the Boston Water and

Sewer Commission to replace and repair underground municipal

water mains and sewer pipes in the Hyde Park, Roslindale, and

West Roxbury neighborhoods of Boston. Among other things, the

project involved the "re-lay" of water mains on Reynold Road in

Hyde Park, including the junctions where Reynold Road intersects

with Danny Road and Como Road.

On October 1, 2010, DeFelice notified the call center of

its planned excavation work, reporting that it had done its

premarking and giving the following description of the
 6

excavation location: "Starting at and including the

intersection with Como Road, continuing approximately 500 feet

north on Reynold Road to and including the intersection with

Chesterfield Street." DeFelice also stated that the work would

be from "street to property lines." Based upon this

notification, the call center issued a dig safe ticket to

DeFelice and relayed the information to NSTAR Gas Company

(NSTAR), which, at the time, was the owner of the underground

natural gas facilities in that area.

DeFelice began working at the junction of Reynold Road and

Como Road on or about October 22, 2010. The department found

that DeFelice excavated parts of Como Road that were sixty-five

feet away from the intersection with Reynold Road and that,

therefore, DeFelice had failed to provide the call center with

an accurate description of the excavation location, in violation

of G. L. c. 82, § 40A. The department also found that DeFelice

had used a jackhammer on Como Road in close proximity to

unidentified underground gas facilities and, therefore, DeFelice

had failed to use reasonable precautions in performing the

excavation, in violation of G. L. c. 82, § 40C.

DeFelice began working at the junction of Reynold Road and

Danny Road on November 3, 2010. This excavation was for a

connection to a water main drain pipe starting at the corner of

Reynold Road and Danny Road, and continuing down Danny Road.
 7

While excavating on Danny Road seventeen feet beyond the

property line running along the east side of Reynold Road, the

work crew's backhoe machine struck and punctured a one-inch

steel gas pipeline that serviced the home at 17 Danny Road. Gas

entered the home and ignited, causing the explosion. At the

time of the excavation, there were a few NSTAR markings on Danny

Road beyond the immediate intersection with Reynold Road;

however, the service pipeline to 17 Danny Road was not marked.

Prior to the Danny Road gas explosion, DeFelice had

encountered gas utility pipelines buried beneath Reynold Road

that either had not been marked or had been improperly marked by

NSTAR. This had led DeFelice personnel in the field to make an

oral request of an NSTAR employee to remark the gas facilities

in the vicinity of Reynold and Danny Roads. Also, on November

2, 2010, DeFelice's general manager, Robert Savage, had

telephoned the call center, requesting that NSTAR again mark the

areas to be excavated. Savage asked that the remarking include

"all intersections," but did not mention Danny Road by name. In

addition, Savage confirmed with the call center operator that

the excavation location would remain "street to property line";

Savage did not inform the call center that the excavation would

extend from any intersection beyond the Reynold Road property

line.
 8

The department found that DeFelice had failed to provide

proper notification to the call center, as required by G. L.

c. 82, § 40A. Accordingly, the department also found that

DeFelice became subject to the final sentence in G. L. c. 82,

§ 40C, which provides that excavating without first giving

proper notice constitutes prima facie evidence that any

resulting damage was caused by the excavator's negligence.5 The

department's findings also rested on DeFelice's use of a

mechanical excavator at the time it encountered the gas

pipeline, thus implicating that portion of § 40C requiring that

"[w]hen excavating in close proximity to the underground

facilities of any company when such facilities are to be

exposed, non-mechanical means shall be employed, as necessary,

to avoid damage in locating such facility."

Concluding that NSTAR's role, if any, in contributing to

the explosion did not excuse DeFelice's noncompliance with the

dig safe law, and that DeFelice had failed to refute the prima

facie evidence of negligence arising from its notification

5
The last sentence of G. L. c. 82, § 40C, provides in full:

"The making of an excavation without providing the notice
required by section 40A with respect to any proposed
excavation which results in any damage to a pipe, main,
wire or conduit, or its protective coating, shall be prima
facie evidence in any legal or administrative proceeding
that such damage was caused by the negligence of such
person."
 9

violation, the department found DeFelice in violation of both

§ 40A and § 40C.

Discussion. 1. Standard of review. DeFelice's appeal is

pursuant to G. L. c. 25, § 5. The standard of review under that

statute is "well settled . . . [and the] burden [on an

appellant] is heavy. . . . [W]e give deference to the

department's expertise and experience . . . [and] uphold [the

department's] decision unless it is based on an error of law,

unsupported by substantial evidence, unwarranted by facts found

on the record as submitted, arbitrary and capricious, an abuse

of discretion, or otherwise not in accordance with law."

Massachusetts Elec. Co. v. Department of Pub. Util., 469 Mass.

553, 558-559 (2014), quoting from Bay State Gas Co. v.

Department of Pub. Util., 459 Mass. 807, 813-814 (2011).

2. Notification. Pursuant to G. L. c. 82, § 40A, an

excavator is required to give initial notice setting forth a

"description of the excavation location." As defined in G. L.

c. 82, § 40, such description

"shall include the name of the city or town, street, way,
or route number where appropriate, the name of the streets
at the nearest intersection to the excavation, the number
of the buildings closest to the excavation or any other
description, including landmarks, utility pole numbers or
other information which will accurately define the location
of the excavation"6 (emphasis supplied).

6
The related regulation, 220 Code Mass. Regs. § 99.02
(2008), is identical to the text of G. L. c. 82, § 40, except
that the regulation contains the phrase "and/or any other
 10

A prior version of G. L. c. 82, § 40, as appearing in St. 1983,

c. 353, required the excavator to describe the location of the

excavation "reasonably accurate[ly]." However, in 1998, the

word "reasonably" was deleted. See St. 1998, c. 332. As a

result of this deletion, excavators became legally required to

identify excavation locations with precision.

DeFelice argues that its initial notice, combined with

Savage's later confirmation that the excavation location would

include "all intersections," sufficed to inform the call center

of the location of the planned excavation on Danny Road. The

department was entitled to conclude otherwise. In neither of

its communications with the call center did DeFelice identify

Danny Road by name or voice any intention to go beyond the

property line running alongside Reynold Road as to any

intersections. Indeed, in the second communication, Savage

reiterated that the excavation location was "street to property

line." The department's finding that DeFelice excavated on

Danny Road in an area seventeen feet beyond the property line

running alongside Reynold Road is supported by substantial

evidence and forecloses any argument that the shorthand phrase

"all intersections" sufficed as any "other information" that

description which will accurately define the excavation
location" (emphasis supplied). The addition of the conjunctive
reinforces the need for a full and detailed description.
 11

"accurately" described the excavation location. G. L. c. 82,

§ 40.

DeFelice also points to the premarking that it made at the

intersection of Danny and Reynold Roads, consisting of painted

arrows pointing down Danny Road in both directions with

notations of "50'." According to DeFelice, this indicated its

intention to excavate outside the intersection and resulted in

some markings by NSTAR, albeit ones that were incomplete.

However, the dig safe statute and regulations place two separate

requirements on an excavator -- premarking and providing an

accurate description to the call center. Satisfying one

requirement does not excuse the failure to satisfy the other.

Similarly, DeFelice's oral request to an NSTAR employee did not

relieve it of its statutory duty to provide the call center with

complete and accurate notice of the location of the excavation.

It is a fundamental dictate of the dig safe law that any and all

requests by an excavator for markings must be made through the

call center and not by informal requests in the field.7

3. Reasonable precautions. The department found that

DeFelice failed to use reasonable precautions when it used a

7
This has long been the position of the department, see J.
Derenzo Co., D.P.U. 94-DS-10, at 7 (1997), and the authorities
cited therein. We accord substantial discretion to an agency
interpreting the statute it is charged with enforcing. Alliance
to Protect Nantucket Sound, Inc. v. Energy Facilities Siting
Bd., 457 Mass. 663, 681 (2010).
 12

mechanical excavator (a backhoe) near the gas line at 17 Danny

Road, in violation of G. L. c. 82, § 40C. DeFelice admits that

it used a mechanical excavator, but claims that it relied on the

fact that there were some NSTAR markings on Danny Road, but none

in the vicinity of 17 Danny Road. According to DeFelice, it did

not know that it was excavating in close proximity to a facility

and, hence, its use of a mechanical excavator was reasonable.

DeFelice fails to take into account the provision in G. L.

c. 82, § 40C, that the "making of an excavation" without proper

notice constitutes prima facie evidence that any resulting

damage was caused by the excavator's negligence. See note 5,

supra. Because DeFelice failed to give notice that it would be

excavating farther down Danny Road than just "street to property

line" at the intersection with Reynold Road, and admittedly

damaged the natural gas service line at 17 Danny Road, there was

prima facie evidence of DeFelice's negligence.

The department was well entitled to conclude in its

discretion that DeFelice's reliance on NSTAR's markings did not

refute the prima facie evidence against DeFelice. DeFelice

could not assume that markings made outside the dig safe system

were complete and accurate, and acted at its peril in proceeding

to work in an unmarked area using mechanical means of
 13

excavation.8 In these circumstances, the department rationally

could conclude that DeFelice was in violation of the dig safe

law by failing to take reasonable precautions in excavating on

Danny Road.

4. Fines. The Legislature has authorized the department

to impose a civil fine against any "person or company" found,

after a hearing, "to have violated any provision" of the dig

safe law (emphasis supplied). G. L. c. 82, § 40E. For a

"first" offense, the offender shall be fined $1,000, and for

"any subsequent" violation within twelve months, the offender

shall be fined "not less than $5,000 nor more than $10,000."

G. L. 82, § 40E, as amended by St. 2004, c. 149, §§ 133, 134.

DeFelice takes the position that all violations stemming

from its October 1, 2010, notification should be viewed as a

single offense, subject to a single fine. However, pursuant to

the plain language of § 40A, a violation of that section arises

when the excavator "make[s] an excavation" without complying

with notice requirements. See G. L. c. 82, § 40A ("No excavator

. . . shall, except in an emergency, make an excavation . . .

unless . . . such excavator has . . . given an initial notice to

8
There was no requirement that NSTAR mark the area at
issue. As explained in the department's decision, in order to
ensure the effectiveness of the dig safe system, the department
takes the position that utility representatives should not mark
sites without proper notice.
 14

the system"). In other words, the failure to give accurate

notice ripens into a violation when the excavation begins.9 A

subsequent violation of G. L. c. 82, § 40C (e.g., by using

mechanical means to excavate in proximity to natural gas

facilities), will then subject the violator to an additional

fine.

Here, there is substantial evidence to support the

department's finding that four separate, consecutive violations

occurred. DeFelice undertook excavation outside of the area

described to the call center in two different locations, on two

separate dates. Thereafter, DeFelice failed to take reasonable

precautions at each site -- using a jackhammer (at Como Road)

and a backhoe (at Danny Road) in close proximity to natural gas

facilities.

A court will not disturb the sound exercise of discretion

by an agency of the Commonwealth duly authorized to impose a

civil penalty or fine except in the most "extraordinary of

circumstances." Levy v. Board of Registration & Discipline in

Med., 378 Mass. 519, 529 (1979). This case is not extraordinary

or exceptional. The department correctly ruled that each

9
DeFelice's reading of the statute would lead to
nonsensical results. The excavator would be unable to cure an
improper notification and could become subject to a fine even if
digging never took place; or the excavator could notify the call
center of intended work at a single location, dig outside the
location on multiple occasions, but still be subject only to a
single fine.
 15

offense committed by DeFelice was subject to a separate civil

penalty under G. L. c. 82, § 40E.

Decision and order of
Department of Public
Utilities affirmed.