Order 15580 - Mike's Lawn & Garden: Probable Dig Safe Law Violation

 

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

DIVISION OF PUBLIC UTILITIES AND CARRIERS

100 ORANGE STREET

PROVIDENCE, RHODE ISLAND

REPORT AND ORDER

On March 20, 1998, the Division held a hearing at 100 Orange Street, Providence, Rhode Island to determine if Mike's Lawn and Garden violated Section 39-1.2-10 of the Dig Safe Law, relating to excavation activities on Young Drive, Portsmouth, Rhode Island.

APPEARANCES:

ELIZABETH KELLEHER, ESQ., for the Advocacy Section of the Division

MICHAEL ROCHA, Pro Se, for Mike's Lawn and Garden

Chester E. Carr, Jr., a crew leader in the Construction and Maintenance Department of Providence Gas Company testified that on July 28, 1997 he received a report that a gas main was hit on Young Drive in Portsmouth. He said when he arrived at the scene there was an open hole with gas escaping. Mr. Carr presented photos that showed the markings by the Gas Company line walker to indicate to the company planting trees that there was a gas main beneath the surface of the ground.

Examination by Mr. Rocha:

Q. Did you recall telling me that where the pipe was hit that these markings were off?

A. Well, if you look at the pictures, I mean, they are not dead on as far as, you know a straight line right on top, but they're in the general area.

Examination by Mr. Stevenson:

Q. How far off would you say they are, two feet, three feet?

A. No. I would say within 12 inches. It's just a rough estimate.

Examination by Ms. Kelleher:

Q. Just to go through this again, about how far do you believe the yellow lines were from the actual pipe?

A. The yellow line that was there, I would say, within a foot, maybe a little over a foot, I really didn't measure it. I really didn't think to measure it.

Q. Was it more than a foot and a half?

A. Like I said, I can't be sure.

Further examination by Mr. Stevenson:

Q. You don't know if it was a foot and one half or more?

A. I'd say it was about a foot or so.

Q. You didn't measure it?

A. I didn't measure it.

Mr. Rocha testified and presented his own photos. He said the markings were more than a foot and one half off the center line.

CONCLUSION

The Providence Gas Company had the burden of proof to establish a violation of Section 39-1.2-10 of the Dig Safe Law, which requires a person to exercise reasonable care while excavating in close proximity to the underground facility of any public utility. Under 39-1.2-1 (definitions) it states "Appropriate location of underground facilities" shall be a strip of land extending not more than one and one half (1 1/2) feet on either side of the underground facility.

Testimony by Chester E. Carr, Jr., Providence Gas crew leader, indicates that he was unsure of the exact distance of the markings by the line walker and that he did not take any measurements that would have shown the correctness of the markings. Providence Gas presented no clear evidence that Mr. Rocha was in violation of the Dig Safe Law.

FINDINGS

The Division finds that Mike's Lawn and Garden did not violate section 39-1.2-10 of the Dig Safe Law.

(15580) ORDERED

DATED AND EFFECTIVE AT PROVIDENCE, RHODE ISLAND THIS 7TH DAY OF APRIL, 1998.