MINUTES December 6, 2010

South Dakota One Call Notification Board
Enforcement Committee Conference Call
December 6, 2010, 1 PM Central Time

OC10-008 – NorthWestern Energy vs. Scott Olson Digging, Inc.

Enforcement Committee Members in attendance: Erin Hayes, Midcontinent Communications; Terry Larson, Heavy Construction; Todd Chambers, Watertown Municipal Utilities; Kara Semmler, Legal Counsel; Larry Janes, Executive Director. Members unavailable: Dan Kaiser, Qwest Communications; Gene Solseth, Hills Septic. Also in attendance: Melissa Baruth, NorthWestern Energy.

Larry Janes provided a description of the previous Enforcement Committee meeting on October 28, 2010 to discuss OC10-008, NorthWestern Energy vs. Scott Olson Digging, Inc. At that meeting the Enforcement Committee informally determined that there was not enough evidence to make a ruling of probable cause and requested additional information from both parties. Subsequent to that meeting Kara Semmler noted that 49-7A-25 Complaint, answer to be sole basis for probable cause states “A determination of probable cause shall be made by the panel solely on these submissions, and no other evidence shall be considered.”

Legal Counsel at this meeting also provided a definition of probable cause in the Black’s Law Dictionary as “a reasonable ground to suspect that a person has committed or is committing a crime, under the Fourth Amendment, probable cause-which amounts to more than a bare suspicion but less than evidence that would justify a conviction… .”

Todd Chambers asked if the ticket number on the complaint form is available. Larry Janes responded that because of the transition of the SD One Call vendor on August 31, 2010 from One Call Systems to KorPartners, locate tickets previous to August 31, 2010 are not readily available. Todd then asked if we could use the ticket number to make a determination. Larry Janes stated that the start date on the ticket could not be determined from the ticket number.

After further discussion of the complaint and the pictures provided with the complaint, Terry Larson stated that he felt there is enough evidence to reconsider, and that probable cause does exist that Scott Olson Digging, Inc. did dig prior to the start date on Ticket 102380290 as stated on Complaint OC10-008. Erin Hayes stated that the previous ticket must have expired, so to dig, even if the locate marks were visible was a violation.

Erin Hayes made a motion to recommend the One Call Board issue an Order assessing a penalty of $5,000 with $2,500 suspended, on the following conditions:

1.      Scott Olson Digging, Inc. fully complies with SDCL 49-7A and article 20:25 for twelve months following the date of the Board Order.

2.      Scott Olson Digging, Inc. should be aware that any future violation of SDCL 49-7A and article 20:25 within twelve months from the date of the Board Order are subject to additional penalties up to a maximum of $5,000 under SDCL 49-7A-18.

3.      Scott Olson Digging, Inc. must make payment within 30 days of issuance of the Board Order.

Terry Larson seconded. Motion carried unanimously by roll call vote.

There being no further discussion the meeting adjourned.