MINUTES December 16, 2011

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT COMMITTEE CONFERENCE CALL
December 16, 2011, 1 PM CENTRAL TIME 

Roll Call:

Enforcement Panel Members in attendance: Gene Solseth; Terry Larson; Dan Kaiser; Fay Jandreau; Legal Counsel, Kara Semmler; Executive Director, Larry Janes. Also in attendance: Wilbert Plienis; Mike Garry and Marshall Drexler, Northern Natural Gas Co.

Order of Business:

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. The determination of probable cause will only be made after consideration of the written documentation provided in the complaint and by the rebuttal information received from the defendant. Both parties will be provided the Panel’s recommendation in writing. If either party disagrees with the recommendation of the Panel, they will be given the opportunity to request a hearing before the full South Dakota One Call Notification Board.

In the matter before the South Dakota One Call Notification Board Enforcement Panel
 
OC11-011    In the Matter of the Complaint Filed by Northern Natural Gas Company, Harrisburg, South Dakota, Against Wilbert Plienis, Colton, South Dakota
Northern Natural Gas Company (NNG) filed a South Dakota One Call Complaint on October 31, 2011 alleging that Wilbert Plienis used a trencher to install a new gas service line to his residence without requesting a One Call Ticket. NNG stated it informed Wilbert Pleinis one was needed, and he still did not make the call. Wilbert Plienis replied on November 6, 2011 that because of a gas smell and leak he was told to replace the gas line. Mr. Plienis contacted his son and son-in-law to help. Mr. Plienis states that he forgot to call 811. He explains further that he called Mr. Drexler from NNG, who told him he would come out by 8 am on Saturday, October 29th, but not to start until he got there. Mr. Drexler flagged everything and stayed until approximately 16 feet was dug by hand. Mr. Plienis apologized in his statement for not calling 811. Mr. Plienis also provided a map of the route of the flagged NNG line and the route of the line that was placed. There have been no previous complaints filed against Wilbert Plienis.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Wilbert Plienis violated SDCL 49-7A-5 or any other statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Enforcement Panel Discussion:
Dan Kaiser began the discussion with a question about the smell of gas and if it was detected. Fay Jandreau mentioned that it appeared there was no damage to the gas line. Kara Semmler stated that Mr. Plienis admitted that he failed to call into the One Call Center for a locate request. Dan Kaiser made a motion stating that there is probable cause that a violation of One Call law occurred. Terry Larson seconded. Motion carried unanimously upon a roll call vote.

Regarding intent, discussion by the Panel found that the violation was unintentional.
Dan Kaiser made a motion to assess a penalty of $500 to Mr. Plienis, with the entire $500 suspended if no further violations occur within the next twelve months. Gene Solseth seconded the motion. Motion carried unanimously upon a roll call vote.  

OC11-012    In the Matter of the Complaint Filed by the City of Aurora, Aurora, South Dakota, Against Eagle West, Maple Grove, Minnesota 
Andy Studer of the City of Aurora filed a South Dakota One Call Complaint on November 14, 2011 alleging that Eagle West completed work on November 13, 2011 at 101 S Broadway St. , Aurora SD, prior to the completion of all locates and prior to the start date on a ticket. Eagle West did not respond the complaint notification. There have been no previous complaints filed against Eagle West.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Eagle West violated any statute or rule under the jurisdiction of the Board, and if so shall a penalty be assessed?

Enforcement Panel Discussion:
Kara Semmler stated that because Eagle West did not respond to the complaint, they had admitted a violation of One Call law had occurred and had begun digging prior to all located being completed and prior to the start date on the locate ticket. She also stated that because of the manner in which the complaint was written, the Panel would have difficulty in determining a penalty. A locate ticket number was provided by the complainant, but a copy of the ticket was not provided with the complaint. Kara Semmler stated that nothing in the complaint suggested the potential severity of the action, but it would be important to remain consistent with previous findings. After review of previous One Call complaint dockets, it was determined that no other complaints have been brought forth in this manner. Gene Solseth made a motion that probable cause exists that there was a violation of One Call law. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.  

Gene Solseth made a motion to assess a penalty of $500, with $250 suspended, if no further violations occur within the next twelve months. Dan Kaiser seconded the motion. Gene Solseth then stated he thought this was an intentional violation. Terry Larson expressed concern regarding the lack of information provided by the City of Aurora. At this time Kara Semmler suggested the motion be tabled until further discussion of intent was completed. Gene Solseth agreed and asked that his motion be tabled. Gene Solseth mentioned that if the Panel does not show this to be intentional, other excavators may not wait for the start date on a ticket to begin excavation. Terry Larson felt this would not occur, due to the exposure an excavator would find himself in when digging prior to the start date on a ticket. Gene Solseth then made a motion stating that this was an unintentional violation. Terry Larson seconded. A roll call vote was taken. Gene Solseth and Terry Larson voted in favor of the motion. Dan Kaiser and Fay Jandreau voted nay. Motion failed upon a roll call vote.

Dan Kaiser suggested that if Eagle West admitted guilt by not responding to the complaint, this showed they also intended to violate the law. Fay Jandreau agreed and stated that even with limited facts the excavator had to be aware of the start date on the locate ticket, therefore the violation was intentional. Discussion ensued regarding what would occur if the panel could not come to a resolution. Kara Semmler stated the Panel would need to reconvene when five members were present in order to break a tie vote. A question came up asking if the Panel could request additional information from the parties to assist in making a decision. Kara Semmler reminded the Panel that current law does not allow a request for more information or clarification. Gene Solseth said that if the Panel lets Eagle West go without a penalty, then others will also not respond to complaints. Terry Larson stated that he was not in the frame of mind to make it tougher on an excavator, that the Panel should have more information to make an informed decision. There was some discussion to ask the Board to consider legislation to allow the Panel to request additional information in cases like these. Also brought up, was the thought that the complaint form should be revised to include direction to provide information whether the complainant believed the violation to be intentional. Kara Semmler stated that a complainant need not even use the form to file a complaint. A letter would suffice. Gene Solseth then made a motion stating that this was an unintentional violation. Terry Larson seconded. Gene Solseth, Terry Larson, and Dan Kaiser voted in favor. Fay Jandreau voted nay. Motion carried by majority upon a roll call vote.

Gene Solseth resumed his previous motion to assess a penalty of $500, with $250 suspended, if no further violations occur within the next twelve months. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote. 

OC11-013    In the Matter of the Complaint Filed by the City of Aurora, Aurora, South Dakota, Against Eagle West, Maple Grove, Minnesota
Andy Studer of the City of Aurora filed a South Dakota One Call Complaint on November 14, 2011 alleging that Eagle West started and completed a project prior to the 48 hour waiting period on November 13, 2011 at 201 Redmond Rd. , Aurora, SD. Eagle West did not respond the complaint notification. There have been no previous complaints filed against Eagle West.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Eagle West violated any statute or rule under the jurisdiction of the Board, and if so shall a penalty be assessed?

Enforcement Panel Discussion:
It was mentioned this complaint was essentially the same as OC11-012, other than excavation occurred at a different address. Fay Jandreau made a motion that a violation occurred due to commencing excavation prior to the 48 hour waiting period. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote.

Gene Solseth made a motion stating this was an unintentional violation. Terry Larson seconded the motion. Gene Solseth, Terry Larson, and Dan Kaiser voted in favor. Fay Jandreau voted nay. Motion carried by majority upon a roll call vote.

Fay Jandreau asked if the previous complaint now made this complaint a second violation, which could change the outcome of the penalty assessed to this complaint. Kara Semmler stated that because both complaints were filed the same day, and Eagle West did not have an opportunity to make a correction, this would be considered the same as a first time complaint. Terry Larson made a motion to assess a penalty of $500 with $250 suspended, if no further violations occur within the next twelve months. Gene Solseth seconded the motion. Motion carried unanimously upon a roll call vote.

Larry Janes asked if there was any further discussion. Upon being none, he asked for a motion to adjourn. Dan Kaiser so moved. Gene Solseth seconded. Motion carried unanimously on a Roll Call vote.

Meeting Adjourned

Minutes prepared by Larry Janes, Executive Director, South Dakota One Call Notification Board