DeFelice Corporation v. Department of Public Utilities (Lawyers Weekly No. 11-164-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   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 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, § 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 […]

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