MINUTES AUGUST 30, 2011

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT COMMITTEE CONFERENCE CALL
AUGUST 30, 2011, 1 PM CENTRAL DAYLIGHT SAVINGS TIME

Enforcement Panel Members in attendance: Kurt Pfeifle; Fay Jandreau; Bleau LaFave; Gene Solseth; Todd Chambers; Terry Larson; Legal Counsel, Kara Semmler; Executive Director, Larry Janes.  Also in attendance: Dori Quam, NorthWestern Energy; Donna Patrick, Nustar Energy.

Larry Janes provided a brief description of the Enforcement Panel process, including that this is a legal proceeding, no comments will be taken by either party during the call, and that the determination will be made only after consideration of written documentation provided in the complaint and by the rebuttal information received from the company the complaint was filed against.

OC11-003 – In the Matter of the Complaint Filed by NorthWestern Energy, Huron, South Dakota, Against Split Rock Contracting, Inc., Huron, South Dakota

Northwestern Energy filed a complaint with the South Dakota One Call Notification Board on July 11, 2011 alleging that Split Rock Contracting, Inc. began work on McDonald Drive, 13th Street to 14th Street, Huron, SD on June 1, 2011 prior to the start date on the locate ticket.  Locate ticket 111510134 provided by NorthWestern Energy provided as evidence shows the ticket was prepared on May 31, 2011 with a start date of June 2, 2011 at 9:15 am.  The facility involved was a 29 psi gas main.  There was no damage reported.

NorthWestern Energy previously filed complaints against Scott Olson Digging, Inc. in Dockets OC10-006, OC10-007, and OC10-008 and believes that Scott Olson and Lori Olson operate both Scott Olson Digging, Inc. and Split Rock Contracting, Inc.  Sara Greff Dannen, NorthWestern Energy, provided an affidavit and Annual Report Domestic filed with the South Dakota Secretary of State on November 24, 2010, as evidence that Scott Olson and Lori Olson are principal officers in both Scott Olson Digging, Inc. and Split Rock Contracting, Inc.

Scott Olson’s, Split Rock Contracting, Inc., response was received on August 2, 2011.  In it Mr. Olson stated that Split Rock Contracting, Inc. called in an original ticket 111180343 on April 28, 2011.  A relocate ticket 11151014 was called in on May 31, 2011. (The ticket number provided was an incorrect locate number). He further stated that he met with the City of Huron and Dennis Lynd of NorthWestern Energy to make sure where the location of the utilities were before digging.  All marks were present from the first locate.

Larry Janes stated there have been no previous complaints brought before the South Dakota One Call Notification Board Enforcement Panel against Split Rock Contracting, Inc.

Fay Jandreau stated that he felt a violation occurred.  Kurt Pfeifle agreed and stated that, because of  the date, the April ticket was not relevant to this docket.  Gene Solseth mentioned that a violation occurred, but only because he began the work before the start date.

Kara Semmler stated the Panel needed to consider if the violation was intentional or unintentional.  Fay Jandreau made a motion that the Enforcement Panel consider this to be an unintentional violation of SD One Call law.  Kurt Pfeifle seconded the motion.  Todd Chambers disagreed because of the history of violations.  Kurt Pfeifle stated that he felt that Scott Olson had tried to cover the bases by calling in a locate request and then meeting with the City of Huron and NorthWestern Energy.  Gene Solseth stated his thoughts that this was an intentional violation, but that Scott Olson knows now to not begin digging before the due date on a locate ticket.  He also noted that in the response that Scott Olson had not agreed to future compliance of One Call laws.  Fay Jandreau asked if previous penalties had been paid by Scott Olson.  Kara Semmler stated that there are $11,000 in unpaid penalties that are being sought from Scott Olson Digging, Inc. through a civil court proceeding.  Being no further discussion a roll call vote was called.  Motion carried on a roll call vote.  Bleau LaFave abstained from all discussion of this docket and the vote due to a conflict of interest.

Kara Semmler stated that up to $5,000 penalty may be assessed for an intentional violation and up to $1,000 penalty may be assessed for an unintentional violation of South Dakota One Call laws.  Ms. Semmler also noted:

49-7A-26 Factors in determining amount of penalty

  1. Amount of damage, degree of threat to the public safety, and inconvenience caused;
  2. The respondent’s plans and procedures to insure future compliance with statute and rules;
  3. Any history of previous violations
  4. Other matters as justice requires

Todd Chambers made a motion to assess a penalty of $1,000 and suspend $500, if 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.

Terry Larson seconded the motion.  Motion carried three to two on a roll call vote.  Kurt Pfeifle, Todd Chambers, and Terry Larson voted in favor.  Gene Solseth and Fay Jandreau voted against. Bleau LaFave abstained from all discussion of this docket and the vote due to a conflict of interest.

OC11-004 – In the Matter of the Complaint Filed by Nustar Pipeline Operating Partnership, L.P. dba Nustar Energy, Wichita, Kansas, Against Oaklane Colony, Alexandria, South Dakota

Nustar Pipeline Operating Partnership, L.P. DBA Nustar Energy filed a complaint with the South Dakota One Call Notification Board on July 11, 2011.  The complaint alleges that Oaklane Colony – Martin Wipf & Mark Wipf violated the South Dakota One Call Notification System Act (Section 19-7A-8) on May 4, 2011 at 268th Street, nearest intersection was 423rd Avenue.  The locator was checking a locate ticket on May 5, 2011 at 3 PM and found that work was already underway.  Nustar’s locator learned that the excavation had started before they called One Call to request tickets.  The facility allegedly involved is a refined products and nitrous oxide pipeline.  The soil was undisturbed above the line with 29 inches of cover remaining.

Nustar Energy provided a copy of a letter it sent to Mr. Martin Wipf, Oaklane Colony, describing the events it found on May 4, 2011 and a Google map of the area described as pipeline encroachment.

Mr. Martin Wipf responded to the complaint on August 23, 2011 stating that he had nothing to do with the excavation and was not aware that it was being done.  He stated that the ditches were cleaned out by Jake Wipf during the last week in April.  Once Jake Wipf noticed the NuStar marker he stopped and notified Martin Wipf of his actions.  The following day Martin Wipf made the 811 call to make this right.  When Jay Thorsness arrived they drove to the site.  Martin Wipf explained what had occurred.

Larry Janes stated there have been no previous complaints brought before the South Dakota One Call Notification Board Enforcement Panel against Oaklane Colony.

Kara Semmler mentioned that this docket was filed against Oaklane Colony, Martin Wipf, and Mark Wipf and that each could be held liable, if it was determined a violation had occurred.  Discussion ensued on how to make the determination of which one to hold accountable, if it is determined that  a violation occurred.    Fay suggested that according to the response, Martin Wipf had nothing to do with the digging incident.  Kurt Pfeifle stated that Oaklane Colony is the entity that the Panel must consider and not Martin Wipf or Mark Wipf.

Kurt Pfeifle stated that he felt that this was an unintentional violation.  Jake Wipf was unaware of calling for locate requests until noticing the Nustar marker, and that work was stopped once Martin Wipf was made aware of the situation.  Martin Wipf then called 811 to make this right.

Bleau LaFave made a motion that the Enforcement Panel consider this to be an unintentional violation of SD One Call law.  Kurt Pfeifle seconded.  There was no further discussion.  Motion Carried unanimously by Roll Call vote. 

Terry Larson made a motion to assess a penalty of $500 with $500 suspended, if 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..  Motion Carried unanimously by Roll Call vote.  Todd Chambers abstained from all discussion of this docket and the voting process in order to not exceed the allowable number of Panel members participating in an Enforcement Panel proceeding.

OC11-005 – In the Matter of the Complaint Filed by Watertown Municipal Utilities, Watertown, South Dakota, Against Dakota Excavating, Watertown, South Dakota

Watertown Municipal Utilities filed a complaint with the South Dakota One Call Notification Board on August 1, 2011 against Dakota Excavating/Dale Lindner, alleging the excavator had dug a hole without a locate request on July, 26, 2011 at 274 North Lake Drive, Watertown, SD.  The facility involved was a 60 psi natural gas service line at a depth of 12 to 16”.  There was no damage to the gas line.  A locate ticket was requested by the landowner on July 27, 2011 to replace a sand point and was attached to the complaint.  This ticket shows a start date of July 29, 2011.

Mr. Lindner’s response to the complaint was received on August 23, 2011.  In it he states that he was pulling out a sand point and did not believe it would be of any consequence.  Mr. Lindner stated this is a learning experience.

Larry Janes stated there have been no previous complaints brought before the South Dakota One Call Notification Board Enforcement Panel against Dakota Excavating.

Kurt Pfeifle made a motion that the Enforcement Panel consider this to be an unintentional violation of SD One Call law.  The motion died to lack of a second.  Gene Solseth mentioned that Mr. Lindner stated in his response that he had been in business for 20 plus years.  He felt he should know that he needs to call before doing any excavation.  The fact the gas meter was 20 feet away should have reinforced that.

After further discussion Bleau LaFave made a motion that the Enforcement Panel consider this to be an unintentional violation of SD One Call law.  Terry Larson seconded the motion.   Motion carried by a four  to one Roll Call Vote.  Kurt Pfeifle, Bleau LaFave, Fay Jandreau, and Terry Larson voted in favor. Gene Solseth voted against.

Bleau LaFave then made a motion to assess a penalty of $750 with $500 suspended , if 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 attends a Spring Excavator meeting in 2012 to further their education of SD One Call laws.  Terry Larson seconded.  Motion carried unanimously upon a Roll Call vote.  Todd Chambers abstained from all discussion of this docket and the vote due to a conflict of interest.

There being no further business, Gene Solseth made a motion to adjourn.   Kurt Pfeifle seconded.  Motion passed unanimously.