[HISTORY: Adopted by the City Council of the City of Fitchburg
as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Litter and handbills — See Ch. 128.
[Adopted 3-17-2009 by Ord. No. 065-09]
As used in this article, the following terms shall have the
meanings indicated:
The Massachusetts Department of Public Safety.
Any person or entity, including, but not limited to, an individual,
a partnership, a joint venture, a trust, a corporation, an association,
a public utility, a company or public agency which performs excavation
operations, including the excavation of trenches.
The departments or divisions of the City of Fitchburg designated under this chapter, § 73-2, to issue trench permits.
A department, agency, board, commission, authority, or other
instrumentality of the commonwealth or political subdivision of the
commonwealth or two or more subdivisions thereof, including the City
of Fitchburg.
Real property owned by any public agency or in which the
public agency has a real property interest, including an easement,
or real estate over which a public agency has control.
An excavation which is narrow in relation to its length,
made below the surface ground in excess of three feet below grade
and the depth of which is, in general, greater than the width, but
the width of the trench, as measured at the bottom, is no greater
than 15 feet.
A trench where neither the permit holder, excavator, nor
any of the people who work in or at the trench are present.
A.
The DPS requires municipalities to designate a municipal official
as permitting authority to issue permits to those persons required
to obtain permits under the DPS regulations promulgated at 520 CMR
14.00 et seq.
B.
The City of Fitchburg hereby designates the Engineering Division
of the Department of Public Works as the permitting authority with
the responsibility for issuing trench permits to those persons required
by 520 CMR 14.03 for all projects involving excavation in a public
or private way or on public land.
C.
The City of Fitchburg hereby designates the Building Division of
the Department of Community Development as the permitting authority
with the responsibility for issuing trench permits to those persons
required by 520 CMR 14.03 for all projects involving excavation on
private property.
A.
OSHA regulation summary. When issuing a permit under this section,
the permitting authority shall attach a summary of OSHA Regulation
1926 Subpart P-Excavations and a summary of any regulation promulgated
by the Department of Public Safety in conjunction with the Division
of Occupational Safety in accordance with MGL c. 82A.[1]
[1]
Editor's Note: See MGL § 81A-1 et seq.
B.
C.
Contents of permit applications. All permit applications must contain
the following information:
(1)
Digsafe number, where applicable;
(2)
Full name and contact information of permit holder;
(3)
Full name and contact information of the excavator;
(4)
Name(s) and contact information of the "competent person(s)" as defined
in 520 CMR 14.02;
(5)
Name of person(s) performing the trench excavation;
(6)
Massachusetts hoisting license number, license grade and expiration
date of the person(s) performing the trench excavation, where applicable;
(7)
Permit expiration date (if applicable);
(8)
Specific location of the trench;
(9)
Name and contact information of insurer;
(10)
All permit applications shall also include the following statements
pursuant to MGL c. 82A, §§ 3(3), 3(5), 3(5)(i) and
3(5)(ii):
(a)
"Persons engaging in any trenching operation shall familiarize
themselves with the federal safety standards promulgated by the Occupational
Safety and Health Administration on excavations: 29 CFR 1926.650 et
seq., entitled Subpart P Excavations."
(b)
"By applying for, accepting and signing this permit, the applicant
attests to the following: (i) that he or she has read and understood
the regulations promulgated by the Department of Public Safety with
regard to trench safety; (ii) that he or she has read and understood
the federal safety standards promulgated by the Occupational Safety
and Health Administration on excavations: 29 CFR 1926.650 et seq.,
entitled Subpart P Excavations."
[Amended 6-3-2014 by Ord.
No. 100-2014]
D.
Posting. All permits issued pursuant to this article must be posted
in plain view on the site of the trench. All permits shall be made
available to the permitting authority, any investigator from the Division
of Occupational Safety, any inspector of the Department of Public
Safety, or any other appropriate public agency.
E.
Blanket permits.
(1)
In large projects during which the excavator will be excavating multiple trenches, the permitting authority may, in its sole discretion, issue a blanket permit for multiple trenches. When granting a blanket permit, the permitting authority may require any of the information or documents referred to in this § 7-3. Instead of a fee of $75, the permitting authority shall impose a fee of $35 for each additional trench.
(2)
This blanket permit will be valid for all of the trenches excavated
during that one project, but only if the permit holder gives written
notice of the exact location of each trench and any supplemental information
required by the permitting authority before each trench is created.
Failure to provide the required notice or information before the trench
is created is sufficient grounds to revoke the permit.
A.
The permitting authority may, after a hearing held in accordance
with MGL c. 30A[1] and 801 CMR 1.02, suspend or revoke a trench permit in
accordance with 520 CMR 14.00 et seq. The permitting authority cannot
suspend or revoke a permit in a manner which directly, substantially
or specifically regulates the occupational safety or health of any
employee engaged in employment covered by the Federal Occupational
Safety and Health Act.[2] The permitting authority may also refer the matter to
the DPS.
B.
Whenever the permitting authority deems a condition at a trench site
to be an immediate threat to public safety he or she may order that
the area around the trench be made safe for the general public and
may also order the permit holder to shut down the site until the condition
has been corrected to the permitting authority's satisfaction.
[Amended 6-3-2014 by Ord.
No. 100-2014]
C.
In lieu of suspension or termination, the permitting authority may
refer the matter to the DPS. for all purposes. The permitting authority
has no duty imposed by this article to inspect any site where trenches
exist or for which it has issued a trench permit.
A.
The application fee for issuing a permit if the excavator proceeds
to excavate a trench without a permit shall be $150.
B.
Violations and penalties.
(1)
Any violation of this article which creates, or as a result of which
there is created, an accumulation of solid waste, trash, refuse, filth,
or recyclable materials, either inside or outside any dwelling, or
on vacant land, is hereby declared to constitute a nuisance.
(2)
Any unattended trench not otherwise made safe under 520 CMR 14.00
is hereby declared to constitute a nuisance.
(3)
Whoever violates any provision of this article whereby any act or
thing is enjoined or prohibited or required shall be penalized by
a fine of $300 for each offense. Each day any violation of this article
continues constitute a separate offense. Any person who violates this
article, and those persons acting in concert with him, including an
employer or employee, agent or servant and all other persons participating
in the violation, will be penalized by a fine of $300 for each offense
to the fullest extent permitted by law.
(4)
As an alternative to criminal prosecution, the appointing authority
may issue citations with specific penalties pursuant to the noncriminal
disposition procedure set forth in MGL c. 40, § 21D. The
civil penalty for the first violation shall be $150; for the second
violation shall be $200; and for the third violation shall be $250.