By Rodney Ames
In theory, the Massachusetts Dig Safe law is comprised of straightforward regulations to promote safe excavation on construction projects in the commonwealth. In practice, however, many construction projects pose challenges to navigating the Dig Safe law without consequence. The most often disputed and fact-intensive violation is for excavation work that “was not performed with precaution” and resulted in damage to an underground utility service.
Discussed below are five considerations to help you comply with the Dig Safe law and how to best protect your company if an alleged violation occurs as a result of your work.
Do not begin work until the utility company has premarked the underground facilities
As a preliminary matter, do not work on your project until the utility companies have premarked the locations of their respective underground utility services. The Dig Safe law requires that you premark utility services in the area of the work and that you provide notice of the excavation to Dig Safe at least 72 hours before beginning. If premarking does not occur and a utility service is damaged, then there is a strong likelihood that your company will have to pay a fine regardless of how the service was impaired and the amount of damage.
Photograph the damage and scene of the incident
If a utility service is damaged during your excavation work, the utility company responsible for that service will complete a Dig Safe Violation Report and submit it to the Massachusetts Department of Public Utilities’ Pipeline Engineering and Safety Division (DPU). Along with their report, the utility company will likely submit photographs of the damage and a description of how it occurred. More often than not, the utility company’s description of events and photographs do not favor the excavation contractor. Therefore, it is important to take your own photographs of the damaged service and give greater context to the scene where it occurred. To that end, your photographs should show where the underground facility markings were located in relation to the work. They should also show the depth of the service. At least one photograph should be taken from a distance to provide the context of the work area. This information will be helpful for a third party to properly assess your defenses to the allegations and if you dispute the violation with the DPU down the road.
If a claim is asserted against you, be sure to protect your rights
The claim against your company begins when the DPU sends you a Notice of Probable Violation. You have the option to dispute the allegations in writing or to appear at an informal conference to present your evidence to a DPU investigator charged with determining whether to pursue a claim against your company. Importantly, the DPU’s attorney is usually at this hearing as well. If you choose to attend without your own counsel, then it is important to understand that the DPU’s attorney is collecting evidence to use against you during future administrative litigation. Speaking with an experienced attorney as soon as you receive the Notice of Probable Violation will help you to determine if you should dispute the DPU’s claim and protect your rights and interests at the informal conference.
Presenting your case at the DPU’s informal conference
At the informal conference, the DPU’s investigator and attorney will consider whether your company employed reasonable precautions to avoid damage to any underground services as required by G.L. c. 82, § 40C. Under G.L. c. 82, § 40C, when excavating in close proximity to the underground services, the law requires that “the excavator shall employ, as necessary, non-mechanical means to avoid damage in locating such facilities.”
In other words, the law provides that when an excavator is digging within 18 inches on each side of the premarked “center line” (indicating where the service is located), then the contractor must use “non-mechanical means” to locate the service. This approximately 36-inch area is referred to as the “safety zone.” If mechanical means, such as a backhoe, are used within the safety zone and a service is damaged, then the DPU is likely to pursue its claim. Unfortunately, the DPU does not typically take into consideration whether the service was at an appropriate or safe depth. That is, at the informal conference stage, the DPU is focused mainly on where the service was contacted in relation to the safety zone and whether mechanical means were utilized.
This is why it is important to document the incident so that you or your attorney can present an organized presentation of the evidence in your defense. If you can prove that that service was actually contacted outside of the safety zone or by a nonmechanical piece of equipment (e.g., a shovel), then the chances of the DPU dropping its claim will increase.
Contesting or paying the fine
A company found to violate any provisions of the Dig Safe law will be fined $1,000 for a first offense within a 12-month period. If a subsequent offense occurs within that same 12-month period, then the company faces a fine of not less than $5,000 and no more than $10,000 (depending on several factors, including the conduct of the contractor and the company’s history of Dig Safe violations). After 12 months elapse without a violation, the clock resets, and the next fine levied against you will be reduced to the lowest amount.
Companies are often faced with a practical business consideration as to whether to dispute the DPU’s claim. If after the informal conference the DPU decides to pursue its claim, then you have the right to request an adjudicatory hearing with a DPU hearing officer. The adjudicatory hearing process includes submitting prefiled testimony, exchanging discovery, and filing briefs following the hearing itself. You should consult an attorney experienced with Dig Safe claims and the DPU’s procedure before deciding whether to pay the fine or contest its validity.
Rodney W. Ames Jr. is an attorney at Kenney & Sams, P.C. representing general contractors, subcontractors, and owners in commercial and residential construction litigation.