[HISTORY: Adopted by the City Council of the City of Fitchburg as indicated in article histories. Amendments noted where applicable.]
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:
- DEPARTMENT OF PUBLIC SAFETY or DPS
- 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.
- PERMITTING AUTHORITY
- The departments or divisions of the City of Fitchburg designated under this chapter, § 73-2, to issue trench permits.
- PUBLIC AGENCY
- 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.
- PUBLIC LAND
- 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.
- UNATTENDED TRENCH
- A trench where neither the permit holder, excavator, nor any of the people who work in or at the trench are present.
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.
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.
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.
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.
Editor's Note: See MGL § 81A-1 et seq.
The permitting authority has no duty under this article to inspect the work site or make any determination other than the receipt of the items described in this subsection.
Contents of permit applications. All permit applications must contain the following information:
Digsafe number, where applicable;
Full name and contact information of permit holder;
Full name and contact information of the excavator;
Name(s) and contact information of the "competent person(s)" as defined in 520 CMR 14.02;
Name of person(s) performing the trench excavation;
Massachusetts hoisting license number, license grade and expiration date of the person(s) performing the trench excavation, where applicable;
Permit expiration date (if applicable);
Specific location of the trench;
Name and contact information of insurer;
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):
"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."
"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]
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.
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.
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.
The permitting authority may, after a hearing held in accordance with MGL c. 30A 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. The permitting authority may also refer the matter to the DPS.
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]
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.
The application fee for issuing a permit if the excavator proceeds to excavate a trench without a permit shall be $150.
Violations and penalties.
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.
Any unattended trench not otherwise made safe under 520 CMR 14.00 is hereby declared to constitute a nuisance.
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.
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.