January 26, 2015 (Final Approved Circulated 03/09/15)

Approved Minutes 

SOUTH DAKOTA ONE CALL NOTIFICATION BOARD MEETING
Janaury 26, 2015,  8 a.m.  CST
Watertown Municipal Utilities, 901 Fourth Ave. SW, Watertown, S.D. 

1.   Chairman Erin Hayes opened the meeting with a Call to Order and Roll Call at 8a.m., Central Time.

Members in attendance: Chairman, Erin Hayes, Representing Community Antenna Television Systems, Chairman; Vice Chairman, Dan Kaiser, Representing Telecommunication Companies Offering Local Exchange Service to More Than 50,000 Customers; Fay Jandreau, Representing Telecommunication Companies Offering Local Exchange Service to Less Than 50, 000 Customers; John Ward, Representing Excavation Contractors; Kurt Pfeifle, Representing Rural Water Systems; Todd Chambers, Representing Municipalities; Bleau LaFave, Representing Investor-Owned Natural Gas Utilities; Doug Larson, Representing Interstate Carriers of Gas or Petroleum; Eugene Solseth, Representing Excavation Contractors; Kevin Kouba, Representing Investor-Owned Electric Utilities. Also in attendance: Kristen Edwards, Legal Counsel; Larry Janes, Executive Director.

Board members unable to attend: Ed Anderson, Representing Rural Electric Cooperatives.

In attendance by conference call: Margo Northrup, Representing South Dakota Association of Rural Water; Brett Koenecke, Representing MidAmerican Energy; Steve Willard, South Dakota Electric Utility Association; Pam Bonerud, NorthWestern Energy; Alicia Berger, Xcel Energy; Mary Zanter, South Dakota Office of Pipeline Safety; Rich Coit, South Dakota Telephone Association.

2.   Chairman Hayes asked for a motion to approve the minutes of the November 6, 2014, Board meeting. Todd Chambers made the motion to approve the minutes. Dan Kaiser seconded. Motion carried unanimously upon a roll call vote.

3.   Chairman Hayes stated the reason for the call today was to review SB 72. There have been questions raised as to why responding to an emergency situation before all Emergency locates have been completed will not be considered excavation. This was not part of the agreement with the Board in August. Also it was thought that this language would be an addition to 49-7A-1 (4) excavation exceptions, but it sounds like this is going to be a separate entry in the law. We were not made aware  of this change until yesterday. The executive director was then asked to read SB 72. Currently the bill states:

FOR AN ACT ENTITLED, An Act to provide an exemption from certain excavation requirements in an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

Section 1. For the purposes of chapter 49-7A, a response to an emergency, by an operator, involving damage to any facility that necessitates the immediate repair of the facilities to prevent loss of life, health, property, or essential public services, is not considered excavation. This exemption does not exempt the operator from first giving notice to the one-call notification center pursuant to § 49-7A-5 or providing notice of damage pursuant to § 49-7A-12. Once the emergency response is complete, subsequent excavation involving the facility is subject to the requirements of § 49-7A-5.

Dan Kaiser asked that once this is enacted, if a gas line is cut and a dig-up begins prior to locates being completed what are the liabilities? Brett Koenecke stated there would not be any responsibility to One Call, but there would be to other utilites that might be damaged. Kurt Pfeifle asked why this was pulled out of subsection 4 and who made the decision. It was stated that the decision was made by Amanda Reiss and Doug Decker from the Legislative Research Council. Kevin Kouba also questioned why the Board agreement presented to the LRC came out in the form of SB 72. Steve Willard said we don’t need to assign purpose or reasons.  Kristen Edwards stated that for civil liability purposes we can’t rely on 49-7A-1 for civil damages. Rich Coit questioned the intent of this legislation. Kristen Edwards stated that the reason was so a gas company could dig up a gas line in the event of an emergency without breaking the law. Rich Coit then stated that the language needs to be tightened up. It creates a loop hole which undermines One Call law. Bleau LaFave agreed by stating that “is not considered excavation” takes away from One Call law intent. Brett Koenecke asked if the bill should be changed or pulled.  Kevin Kouba suggested that we work through the issues. Margo Northrup stated the general concept makes sense.  She had researched similar language from other states. Steve Willard suggested that this could be passed in the Senate its current form, but changes could be made in the House. After further discussion, Kristen Edwards suggested that we recess at this time and reconvene at 4 p.m. Central Time.

Kevin Kouba made a motion to reconvene at 4 p.m. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote.  (Time of Recess, approximately 8:45 AM Central Time).

At 4 p.m. Chairman Erin Hayes, reconvened the meeting. Roll call was taken.

Members in attendance:  Chairman, Erin Hayes, Representing Community Antenna Television Systems, Chairman; Vice Chairman, Dan Kaiser, Representing Telecommunication Companies Offering Local Exchange Service to More Than 50,000 Customers; Fay Jandreau, Representing Telecommunication Companies Offering Local Exchange  Service to Less Than 50, 000 Customers; John Ward, Representing Excavation Contractors; Todd Chambers, Representing Municipalities; Bleau LaFave, Representing Investor-Owned Natural Gas Utilities; Doug Larson, Representing Interstate Carriers of Gas or Petroleum; Eugene Solseth, Representing Excavation Contractors; Kevin Kouba, Representing Investor-Owned Electric Utilities.  Also in attendance: Kristen Edwards, Legal Counsel; Larry Janes, Executive Director.

Board members unable to attend:  Kurt Pfeifle, Representing Rural Water Systems; Ed Anderson, Representing Rural Electric Cooperatives.

Also in attendance by conference call:  Margo Northrup, Representing South Dakota Association of Rural Water; Steve Willard, South Dakota Electric Utility Association; Pam Bonerud, NorthWestern Energy; Alicia Berger, Xcel Energy; Mary Zanter, South Dakota Office of Pipeline Safety; Rich Coit, South Dakota Telephone Association; Greg Dean, South Dakota Telephone Association; Suzan Stewart, MidAmerican Energy.

A revised version of the language for SB 72 was introduced. It states:  “Any requirement to wait shall not apply to an excavation deemed necessary to address an emergency condition performed by the operator. In such event, the operator shall give notification in substantial compliance with Section 49-7A-5 prior to the excavation undertaken by the operator to address the emergency condition. Upon being notified that an emergency condition exists, each operator shall provide all reasonably available location information to the excavating operator as soon as possible, but the excavating operator need not wait for such location information prior to excavation or continuing excavation. However, every person who shall engage in such excavation shall take all necessary and reasonable precautions to avoid or minimize damage to existing underground facilities. In addition, in the event the excavation results in damage to any underground facility, the excavator shall immediately notify the affected owner or operator and the One Call Notification Center of the location and the extent of the damage.

For purposes of this Section, an emergency condition exists when an imminent danger to life, health, property, or public safety exists and there is substantial likelihood that loss of life, health, or property will result before the procedures set forth in 49-7A-5 and 49-7A-8 can be fully complied with.”

Discussion continued regarding this new language, which was adopted from Nebraska One Call. Several items (highlighted above) were pointed out that are in conflict with current South Dakota One call laws and changes were suggested:

Delete the term “substantial” in the portion of the latest document, where it states, “the operator shall give notification in substantial compliance with Section 49-7A-5 prior to the excavation.”  49 7A-5 clearly states “No excavator may begin any excavation without first notifying the one-call notification center.”

Delete “shall provide all reasonably available location information” and replace with “shall provide precise location information”.  Administrative Rule 20:25:03 (08) discusses “precise description of the specific excavation area.”

Where it is stated: “shall immediately notify the affected owner or operator and the One Call Notification Center” delete “and” and replace it with “or” in the document.  49-7A-12 currently states “the excavator shall immediately notify the operator of the facility, or, if unknown the one-call notification center of such damage…”

After further discussion Bleau LaFave made a motion that the changes be made and that the Board be given the opportunity to revisit this if there is disagreement by any Board member. Erin Hayes seconded the motion. Motion carried upon a roll call vote with one Gene Solseth voting against.

Dan Kaiser asked Kevin Kouba if he would send out the latest version of the bill to all the Board members, once it is re-worked.  Kevin agreed to do so.

There being no further business, Dan Kaiser made a motion to adjourn.  Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.  

Minutes of this meeting were prepared by Larry Janes, Executive Director, South Dakota One Call Notification Board. For information about South Dakota One Call/South Dakota 811, please visit http://onecall.sd.gov.

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