October 13, 2011 Minutes (Draft Circulated 10/26/11)

DRAFT/UNAPPROVED MINUTES

SOUTH DAKOTA ONE CALL NOTIFICATION BOARD MEETING
OCTOBER 13, 2011, 8 AM CENTRAL TIME 

Chairman Kurt Pfeifle opened the South Dakota One Call Notification Board Meeting with the Call to Order and Roll Call at 8:00 AM, Central Daylight Savings Time at the Ft. Pierre Holiday Inn Express.

Board Members in attendance: Kurt Pfeifle, Mid-Dakota Rural Water System, Chairman; Erin Hayes, Midcontinent Communications, Vice Chairman; Bleau LaFave, NorthWestern Energy; Dan Kaiser, CenturyLink; Fay Jandreau, Midstate Communications; Kevin Kouba, Otter Tail Power Co; Terry Larson, Heavy Constructors; Todd Chambers, Watertown Municipal Utilities; Kara Semmler, Legal Counsel; Larry Janes, Executive Director.  Board Members unavailable were: Doug Larson, Northern Border Pipeline; Ed Anderson, SD Rural Electric Association; Eugene Solseth, Hills Septic Service.

Other attendees included: Lee Marrs, Texas811; Mike Losawyer, Texas811 and PUC Legal Counsel Ryan Soye.

A motion was made by Dan Kaiser and seconded by Fay Jandreau to approve the One Call Notification Board Minutes from the June 28, 2011 One Call Board Conference Call.  Motion carried by unanimous vote.

The Financial Summary including June 2011 through September expenditure details were reviewed. Kevin Kouba made a motion to approve the financial report.  Fay Jandreau seconded the motion.  Motion carried by unanimous vote.  

Discussion of the Budget was tabled pending firm costs of Errors and Omissions insurance for the Executive Director.

KorPartners Call Volume Trends and Performance Results were reviewed.  Even though call volumes were down January through April 2011, there has been an 11% increase in locate requests year-to-date over 2010 and a 20% increase in outgoing tickets year-to-date over 2010.  The average Speed of Service is well within contract requirements.

Executive Director Report Items:

OC10-009  – In the Matter of the Complaint filed by Otter Tail Power Company against Robert Kohl Construction.  On February 16, 2011 the One Call Board accepted the Recommendation of the Enforcement Panel to assess a $1,000 penalty with $500 suspended, if paid within 30 days of issuance of the Order.  Payment was not made.  At the May 18, 2011 One Call Board meeting, the Board unanimously requested the Public Utilities Commission to bring an action in the name of the State of South Dakota for recovery of the penalty.  On June 17, 2011 the South Dakota Public Utilities Commission ordered that an action be brought in the name of the State of South Dakota to recover the One Call penalty. Once civil action began Mr. Kohl contacted the Executive Director to ask if a payment arrangement could be worked out.  Mr. Kohl was told, if a payment would be made along with a letter stating his schedule of regular payments, that a request would be made on his behalf to the Board to accept such an arrangement.  One payment of $150 was made on August 30, 2011, however no payment schedule was included and no further payment was made.  Discussion was held today concerning the Board’s willingness to make these types of arrangements.  Dan Kaiser made a motion that the Executive Director send Robert Kohl a certified letter stating that the Board would accept two $100 monthly payments and one $50 monthly final payment.  If payment was not received, then the Board would seek collection of the full $1,000.  Fay Jandreau seconded.  Motion failed upon a roll call vote with Bleau LaFave, Fay Jandreau, Terry Larson, and Dan Kaiser voting in favor of the motion and Kurt Pfeilfe, Erin Hayes, Todd Chambers, and Kevin Kouba voting against the motion.  Motion failed for lack of majority.  After further discussion Kevin Kouba made a motion that the Executive Director send a certified letter to Robert Kohl Construction stating that the remainder of the $500 penalty is now due.  If it is not received within 10 days, collection activity for the full amount of $1,000 will resume.  Todd Chambers seconded.  Motion carried by unanimous vote.

OC10-006OC10-007, and OC10-008 – In the Matter of the Complaints filed by NorthWestern Energy against Scott Olson Digging, Inc.  The One Call Board previously accepted the Enforcement Panel Recommendations in each of these complaints on February 16, 2011.  No payments were received.  The penalty amounts along with the suspended portions now amount to $11,000.  On May 18, 2011 the Board unanimously requested the Public Utilities Commission to bring an action in the name of the State of South Dakota for recovery of the penalty.  On June 17, 2011 the South Dakota Public Utilities Commission ordered that an action be brought in the name of the State of South Dakota to recover the One Call penalty in each of these Dockets.  Subsequently Scott Olson Digging, Inc. filed for bankruptcy and collection activity has ceased.  Kara Semmler stated that she has been in contact with the attorney for Scott Olson and has listed the South Dakota One Call Notification as a creditor.  Dan Kaiser made a motion that Kara Semmler represent South Dakota One Call in bankruptcy court.  Terry Larson seconded.  Motion carried by unanimous vote.

OC10-010 – In the Matter of the Complaint filed by Watertown Municipal Utilities against Stromseth Construction.  On February 16, 2011 The One Call Board accepted the Enforcement Panel Recommendation of $1,000 penalty with $0 suspended and $1,000 with $0 suspended because of two alleged violations of SD One Call laws.  No payment was received.  At the May 18, 2011 One Call Board meeting, the Board unanimously requested the Public Utilities Commission to bring an action in the name of the State of South Dakota for recovery of the penalty.  On June 17, 2011 the South Dakota Public Utilities Commission ordered that an action be brought in the name of the State of South Dakota to recover the One Call penalty. Once civil action began a payment of $2,000 was made by Stromseth Construction.  This Docket has been closed.

OC11-002  – In the Matter of the Complaint filed by Ottertail Power Company against Carlson Excavating.  The Enforcement Panel met on July 13, 2011 and determined that probable cause exists that a violation of SD One Call law occurred. Based on the evidence and rebuttal information presented, The Panel recommended a $500 penalty, with $500 suspended.  If future violations of any One Call statue or rule occur within the next twelve months Carlson Excavating may be subject to additional penalties up to a maximum of $5,000.  Bleau Lafave made a motion to accept the Enforcement Panel Recommendation.  Terry Larson seconded.  Motion carried by unanimous vote.

OC11-003 – In the Matter of the Complaint filed by NorthWestern Energy against Split Rock Contracting, Inc.  The Enforcement Panel met on August 30, 2011 and determined that probable cause exists that a violation of SD One Call law occurred.  The Panel recommended a penalty assessment of $1,000 with $500 suspended provided there are no further violations within 12 months of the date of the final Order, and if the penalty is paid within 30 days of notification.  Dan Kaiser made a motion to accept the Enforcement Panel Recommendation.  Kevin Kouba seconded.  Motion carried by unanimous vote.

OC11-004 – In the Matter of the Complaint filed by Nustar Pipeline against Oaklane Colony.  The Enforcement Panel met on August 30, 2011 and determined that probable cause exists that a violation of SD One Call law occurred.  The Panel recommended a penalty assessment of $500 with $500 suspended provided there are no further violations within 12 months of the date of the final Order, if the penalty is paid within 30 days of notification and if a representative of Oaklane Colony attend a Spring Excavator Meeting in 2012 to further their education of SD One Call laws.  Fay Jandreau made a motion to accept the Enforcement Panel Recommendation.  Erin Hayes seconded.  Motion carried by unanimous vote.

OC11-005 – In the Matter of the Complaint filed by Watertown Municipal Utilities against Dakota Excavating.  The Enforcement Panel met on August 30, 2011 and determined that probable cause exists that a violation of SD One Call law occurred.  The Panel recommended a penalty assessment of $750 with $500 suspended provided there are no further violations within 12 months of the date of the final Order, if the penalty is paid within 30 days of notification and if a representative of Dakota Excavating attend a Spring Excavator Meeting in 2012 to further their education of SD One Call laws.  Dan Kaiser made a motion to accept the Enforcement Panel Recommendation.  Kevin Kouba seconded.  Motion carried by unanimous vote.

OC11-006 – In the Matter of the Complaint filed by Dr. Nathan Kadlec against Montana-Dakota Utilities.  The Enforcement Panel met on September 19, 2011 and did not find that probable cause exists that a violation of SD One Call law occurred and that the complaint should be dismissed.  Bleau LaFave made a motion to accept the Enforcement Panel Recommendation.  Dan Kaiser seconded.  Motion carried by unanimous vote.

General discussion was held about various issues facing the Enforcement Panel.  It was decided that time will be devoted at the next Board meeting for Kara Semmler to provide additional information and guidelines to assist the Board and Enforcement Panel members in setting parameters and maintaining consistency.

Policy Document.  Discussion was held about recent changes to the document made on the June 28, 2011 Board Conference Call and whether or not the Board could approve the Board Policy document at this meeting. Kara Semmler stated that since those changes were noticed and approved, the document could now be approved.  Bleau LaFave made a motion to accept the”South Dakota One Call Process and Procedures” document.  Dan Kaiser seconded.  Motion carried by unanimous vote.

Insurance Requirements.  The Executive Director stated that the cost of a $100,000 Fidelity Bond insurance policy for himself is $500  annually.  The exact cost of Errors and Omissions insurance for the Executive Director is continuing to be researched.  At this time it is estimated to be $2,500 to $3,500 annually, with a $2500 deductible.  Dan Kaiser made a motion to authorize payment of the $500 Fidelity Bond and up to $2,700 for payment of E & O insurance.  Kurt Pfeilfe seconded.  Motion carried by unanimous vote.

Requests to extend response times for Complaints.  Requests have been made to the Executive Director to extend response timeframes in Complaint Dockets to obtain evidence.  Usually this occurs when an attorney has been retained to represent a defendant  It was mentioned that we wish to allow for discovery, but to limit the delays caused by moving from attorney to attorney.  Fay Jandreau made a motion to allow the Executive Director to grant a one-time extension of up to 20 days for a defendant to respond to a Complaint.  Dan Kaiser seconded.  Motion carried by unanimous vote.  The Executive Director was asked to place this one-time extension in the Board Policy document.

Enforcement Panel questioning.  The Board was asked if it was interested in introducing legislation to allow the Enforcement Panel to ask questions of either party to a Complaint during the Panel Meetings.  No action was taken at this time.

PS10-002  – In the Matter of the Filing by Commission Pipeline Safety Staff Regarding Damage Prevention Programs.  The Executive Director stated that he had conversation with Nathan Solem of the PUC Office of Pipeline Safety to discuss the results of the survey of SD One Call Members and Excavators operating in South Dakota.  The PUC Staff recommends that mandatory damage reporting legislation be introduced, but that the preference was that the One Call Board introduce that legislation.  Damage information could be submitted to the Common Ground Alliance DIRT website.  Nathan had been invited to attend this meeting, but he wanted to give the Board an opportunity to discuss this.  He would be willing to attend a later meeting.  The Executive Director was asked to invite Nathan Solem to attend the next Board Meeting to provide a detailed description of the survey results.

There being no further business Kevin Kouba made a motion to adjourn.  Erin Hayes seconded.  Motion carried by unanimous vote.

Materials presented at this meeting are available by contacting the Executive Director in writing at exedir@sdonecall.com or by calling (605) 339-0529.