Commonwealth of Massachusetts Department of Public Utilities

Transcription

1 Commonwealth of Massachusetts Department of Public Utilities Pipeline Engineering and Safety Division One South Station Boston, MA Christopher Bourne, Director Bill Stevens, Assistant General Counsel Robert Hayden, Esq., Enforcement Officer Elizabeth Jackson, Enforcement Officer

2 WORKING TOGETHER FOR EFFECTIVE DIG SAFE ENFORCEMENT ACTIONS

3 We Need Help The Department needs operators assistance in order to successfully conclude Dig Safe enforcement actions against those excavators who damage gas facilities by not exercising reasonable precaution.

4 DIG SAFE REPORTS REQUIRED Every gas, electric and telephone company, municipal gas or electric department, natural gas pipeline company, petroleum or petroleum products pipeline company, private water company and cable television company shall report all suspected violations of the Dig Safe Law to the Department of Public Utilities (Department) within 30 days of learning of the circumstances constituting the suspected violation.

5 Common issues with Dig Safe Reports Incomplete name and address of excavator. Conflicting information utility mismarked and contractor at fault. No dig safe ticket but reporting utility lists Dig Safe Ticket. No photos included.

6 Enforcement Action Process The Dig Safe Enforcement Officers review Dig Safe Reports and determine whether there are sufficient facts to issue a notice of probable violation. Excavator can respond in writing to a NOPV, or appear at informal conference. Pipeline Division Issues Informal Review Decision. Excavator can appeal the decision to the Commission.

7 Adjudicatory Hearings Upon appeal of a Pipeline Division Informal Review Decision, the Commission hears the case and issues an order. The Commission does not consider the Pipeline Division Informal Review Decision. The adjudicatory proceeding is De Novo. The excavator can appeal the Commission Order to the Supreme Judicial Court.

8 SJC Review of a DPU Decision The SJC will overturn a DPU decision if it is: (1) unsupported by substantial evidence, (2) based on error of law, or (3) arbitrary, capricious, or an abuse of discretion. All enforcement actions, even Pipeline Division consent orders, must meet this standard.

9 The Dig Safe Law Reasonable Precaution When 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. any further excavation shall be performed employing reasonable precautions to avoid damage to any underground facilities including, but not limited to, any substantial weakening of structural or lateral support of such facilities, penetration or destruction of any pipe, main, wire or conduit or the protective coating thereof, or damage to any pipe, main, wire or conduit.

10 Reasonable Precaution "Reasonable precautions" is not defined in the statute or the Department's regulations, nor do regulations specify approved conduct. In some cases, using a machine to expose utilities, rather than hand digging, constitutes a failure to exercise reasonable precautions.

11 Department Cases Adequate support or evidence must accompany an allegation of failure to exercise reasonable precaution. The mere fact that a facility was damaged during an excavation does not by itself constitute a violation of the statute. In specific instances where there has been an allegation of failure to exercise reasonable precautions without demonstrating any precautions the excavator could or should have taken, the Department has found that the mere fact of damage will not be sufficient to constitute a violation of the statute.

12 Evidence Substantial Evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs For Department adjudicatory decisions, all unsworn statements appearing in the record shall not be considered as evidence on which a decision may be based.

13 Department Rules For an adjudicatory hearing, prepared written testimony and discovery responses must be authenticated by an affidavit of the witness at the time of filing. At an adjudicatory hearing, the hearing officer may allow prepared direct testimony or discovery responses of any witnesses and omit oral presentation of the testimony.

14 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF PUBLIC UTILITIES AFFIDAVIT OF NAME I, NAME, do attest and swear that the following is true and correct to the best of my knowledge, information and belief: I am employed as the TITLE at NAME OF COMPANY, and I have been in this position for approximately XXX years. In that capacity, I am responsible for DESCRIBE RESPONSIBILITIES. I am familiar with the NAME OF DOCUMENT. I have reviewed the NAME OF DOCUMENT hereto and found that the representations made therein are accurate and truthful. Signed under the penalties of perjury. Date NAME

15 Hearsay Evidence Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. A line is damaged. The investigator for the operator reports The excavator I saw told me that Bob Hayden Excavating hit the line an hour earlier.

16 Business Records Exception to the Hearsay Rule The record must be made in good faith, in the regular course of business, and it was the regular course of business to make such record at the time of the events noted in the record, or within a reasonable time thereafter. The lack of a record can prove that an action or event had not taken place, if it was the regular practice of the business to record such events if they had actually occurred.

17 Examples of Business Records Dig Safe Ticket Mark Out Records and Photographs taken at the time of markout Dig Safe Violation Reports some parts of them might be a business record (photos by investigator) other parts hearsay. Records and Forms required by Operator O&M plans, filled out at the time the action was taken by a person with a duty to fill out such form.

18 Helpful Evidence Detailed written statements from company employees that have personally investigated the damaged facility. The statement must explain why the excavator was not excavating using reasonable precaution. Other witness statements corroborating the investigator statements are very useful. Include documentation company records that the operator properly marked this facility when and who marked it.

19 PHOTOGRAPHIC EVIDENCE Photographs should demonstrate that utilities are properly marked. Photograph damage to the pipe and equipment that damaged it if possible. The photo itself should include the date of photograph, the location of the excavation, reference markers for distances and depth Include the name of the person responsible for the photo.

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23 Descriptions of Photos If there are no visible location markers and dates in a photo, a detailed statement about the photo is necessary. Example The Pipeline Division Pre Filed Testimony of Santi in DeFelice, D.P.U. 11 DS 1 (Como Road, Hyde Park) and DeFelice, D.P.U. 11 DS 2 (Danny Road, Hyde Park).

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27 WE NEED TO WORK TOGETHER TO PREVENT EXCAVATION DAMAGE

28 Any Questions or Comments?