MINUTES JANUARY 10, 2011

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT COMMITTEE CONFERENCE CALL
JANUARY 10, 2011, 2 PM CENTRAL TIME

OC10-009 Otter Tail Power Company vs. Robert Kohl Construction
OC10-010 Watertown Municipal Utilities vs. Stromseth Construction

Enforcement Committee Members in attendance: Dan Kaiser; Erin Hayes; Terry Larson; Fay Jandreau; Gene Solseth; Kurt Pfeifle; Legal Counsel, Kara Semmler; Executive Director, Larry Janes.

Also in attendance: Scott Fritz, Otter Tail Power Company;  Steve Lehner, Watertown Municipal Utilities.

Larry Janes provided a description of the Enforcement Committee process.  He explained it is a legal proceeding at which no comments will be taken by either party.  The determination is based solely on consideration of documents provided by the complainant and defendant.

OC10-009 Otter Tail Power Company vs. Robert Kohl Construction

  • The complaint alleges Robert Kohl Construction damaged a secondary electrical line at 509 Old Agency St., Sisseton, S.D. on September 29, 2010 at 2:15 pm.  The total cost of the repair was $512.04, and it affected 3 customers.  The complaint alleges that digging occurred without a locate request.
  1. A Notice of Complaint with a Deadline for Answer of December 20, 2010 was sent to Robert Kohl Construction on November 30, 2010.  There has been no response from Robert Kohl Construction.

Kurt Pfeifle suggested that because the complainant alleges a locate ticket was not requested by the defendant, and Robert Kohl Construction did not reply to the Complaint, that probable cause does exist that a violation occurred.  Dan Kaiser agreed.

Kara Semmler, Legal Counsel, reminded the Committee that there are four factors to consider in determining the amount of penalty:

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

There was some discussion regarding that the lack of response by Robert Kohl Construction indicates his lack of knowledge of SD One Call laws and a lack of wanting to learn.

Gene Solseth made a motion to access a penalty in the amount of $1,000.  His motion further stated $500 should be suspended only if:

( i.)   no complaints are filed against the Defendant within 12 months following the Final Order on this matter; and,
( ii.)  the non-suspended portion of the  penalty is paid within 30 days following the Final Order on this matter.

Dan Kaiser seconded the motion.  MOTION CARRIED UNANIMOUSLY ON A ROLL CALL VOTE.

OC10-010 Watertown Municipal Utilities vs. Stromseth Construction

  • The complaint alleges that Stromseth Construction – Mark Stromseth damaged a 60 PSI gas line and 120 v, 240 v, and 7200 v electrical lines on November 19, 2010 at 7711 – 2nd Avenue SW in Watertown, SD.  The locators arrived to locate on 11/22/2010 and found that the work was complete including additional excavation that was not on the locate tickets.  The start date on the ticket was 11/23/2010 at 1:45 PM. A homeowner called Watertown Municipal Utilities on 11/22/2010 to let them know a street light was not working at that address.  The wire to the light was damaged and another had been damaged, but was still energized creating a dangerous situation.  The Complaint alleges the excavator dug prior to the start date on the ticket, a violation of 49-7A-5, and did not notify the operator of damages in at least two locations, a violation of 49-7A-12.  The excavation at issue was above wires and a high pressure gas main and services.  Moisture was seen boiling and steaming from an energized scraped bare wire.  As the enforcement committee discussed the facts, it was clear it believed the excavator created a situation with a high threat to public safety.
    • The amount of damage is estimated to be $500.
    • Although not pertinent to the one all violation the Complaint provided information to show the utilities will have to be lowered at a cost of approximately $2,000.
    • The complaint also states there have been two previous violations, Albin Stromseth, Stromseth Construction, OC07-001, digging without a ticket and prior to start date, and OC06-002 no advance notice to One Call under the name of Mark Stromseth DBA Eagle Excavating.
  • Stromseth Construction did not reply to the Notice of Complaint/Deadline for Answer.  It was  mailed on December 6, 2010.

Kara Semmler, Legal Counsel, stated that per 49-7A-18 the committee can access a penalty up to $1,000.  A penalty up to $5,000 can be assessed for each subsequent violation that occurs within a 12 month period.  The previous violations committed by this defendant were not within the past 12 months.  The elevated penalty is not, therefore relevant in this situation.  Each violation does, however, constitute a separate offense pursuant to 49-7A-20 so long as facts are sufficient to find probable cause.

Gene Solseth asked Kara to again explain the four factors to consider in determining the amount of penalty which are:

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

Dan Kaiser made a motion based on 49-7A-5 to assess a penalty of $1,000 with $0 suspended due to a combination of the severity of the damage, the lack of response by Stromseth Construction, and a history of offenses.  Terry Larson seconded the motion.  The motion passed unanimously based on a roll call vote.

Terry Larson made a motion based on 49-7A-12, to assess a penalty of $1,000 with $0 suspended due to a combination of the severity of the damage, the lack of response by Stromseth Construction, and a history of offenses.  Gene Solseth seconded the motion.  The motion passed unanimously on a roll call vote.

Meeting adjourned.