As you know, the Massachusetts Department of Public Utilities (“DPU”) oversees investor-owned electric power, natural gas, and water companies in Massachusetts as well as the safety of natural gas pipelines. As the DPU continues to pursue enforcement actions, we thought it was an appropriate time to pause to highlight a few general practice tips to keep in mind when it comes to DPU compliance matters.

As always, it is imperative for contractors to comply with applicable laws, regulations, and other requirements. Depending on the facts of a given situation, more than one set of governing laws, regulations, and other requirements might apply. DPU regulations are set forth at Title 220 of the Code of Massachusetts Regulations (and include Dig Safe Regulations implementing the Dig Safe Law, M.G.L. c. 82, §§ 40-40E). In certain circumstances, federal laws and regulations may also be alleged or implicated, such as the Federal Damage Prevention Code. Compliance is critical, as contractors in violation can face significant adverse consequences, including civil fines and penalties. For example, violations of the Dig Safe Law relating to natural gas lines can give rise to civil penalties as high as $200,000. For other underground facilities, “the civil penalties range from $1,000 for a first offense to as high as $10,000 for any subsequent offense within 12 consecutive months.” Additional information (such as regulations, policies, and other administrative services) is available at DPU’s website. DPU also maintains a separate website for its Pipeline Safety Division (i.e., DPU’s “enforcement arm”).

Contractors should take advantage of training opportunities to facilitate an understanding of applicable requirements and provide regular training for their personnel. Contractors should implement and administer policies to promote compliance with applicable requirements and enforce discipline among employees that fail to comply. Steps should be taken to help ensure that applicable company policies and procedures – including health and safety plans – are being followed. As always, contractors should maintain detailed records when it comes to training, policy administration, and employee discipline.

When working on jobs, contractors should consider memorializing existing conditions with photos and/or video logs prior to commencing performance. All existing markings should be reviewed and documented. If any markings are unclear, consider requesting re-markings as appropriate. Also, if there is a possibility that markings may be concealed (such as by parked vehicles or other obstructions), be sure to arrange for the obstructions to be cleared so that you can review all areas that could be marked. When taking photos, note that the photos alone may not be sufficient to identify markings without further notes detailing other relevant information, such as the precise location of the marking and a date/time stamp. While you might recognize a given marking in a photo when you take it, it often becomes harder to identify a given marking in a photo if the photo is not accompanied by other information helpful to identify the marking and its location. Consider putting together a binder of all markings, complete with photos and notes for easy reference if and when questions later arise with respect to a given marking. This would also be a useful resource in instances of improper markings, missing markings, or mismarked utilities.

Of course, in the event that a contractor encounters an incident and strikes a utility, the contractor should be sure to promptly notify the appropriate authorities (including 911 if applicable). Contractors should also carefully document the incident, with a narrative as well as photos and videos if possible to ensure an accurate and contemporaneous record. Where applicable, contractors must also be sure to prepare and timely file incident reports within the applicable timeframes; we have seen instances in which contractors have not complied with incident reporting requirements.

A question that often arises when an incident occurs is whether the contractor acted reasonably under the circumstances. This can be tricky, because reasonableness often presents a question of fact: what might be reasonable in one situation might not be viewed as reasonable in another. Contractors should consult with competent counsel to assist with preparedness as well as to help navigate issues when they arise. Similarly, in the event of a notice of probable violation or other enforcement action, contractors should consider engaging legal counsel to analyze the situation, assist with strategy, and otherwise represent the contractor’s interests in an effort to help mitigate against adverse consequences. In this regard, counsel can help assist with written documentation and submissions, as well as with respect to informal conferences.