October 19, 2015
In November 2010, while digging up a street to repair water and sewer pipes in Boston’s Hyde Park neighborhood, DeFelice Corporation damaged a gas line. The resulting explosion destroyed a single family home on Danny Road. Today the Appeals Court upheld the decision of the Department of Public Utilities (DPU) to fine the company for violating the Dig Safe law, chapter 82, sections 40–40E.
DeFelice had appealed the DPU decision on the basis that it told the Dig Safe call center that it would be digging at “all intersections” around Danny Road. But under the terms of the statute that was not accurate enough, the Appeals Court held. Originally the law required only that an excavator describe the location “reasonably accurately.” But when the Legislature amended the law in 1998, it deleted the word “reasonably.” That deletion, reasoned the court, meant that “excavators became legally required to identify excavation locations with precision.”
Students of legislative drafting take note: Sometimes what matters is not the words that the legislature uses, but the words it loses.