MAY 6, 2011, 1 p.m. CDT

OC11-001 – Watertown Municipal Utilities against Belair Excavating

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

Also in attendance: Todd Chambers, Watertown Municipal Utilities; John Stenglein and Tom Ludwig, Belair Excavating.

Larry Janes provided a 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 the documentation provided in the complaint and by the rebuttal information received from the company the complaint was filed against.

OC11-001 Watertown Municipal Utilities against Belair Excavating

  • Mr. Todd Chambers, Watertown Municipal Utilities, in the complaint alleges that Belair Excavating failed to notify Watertown Municipal Utilities of damage to an underground facility as required by SDCL 49-7A-12 at approximately 4 areas of the 16000 block of 454th Avenue, Watertown, South Dakota on June 1, 2010.  Discovery of the damage was on September 9, 2010 when responding to a locate request.  49-7A, 49-7A-10, 49-7A-12, 49-7A-19, and 20:25:03:05.03 were stated as statutes or rules that were violated.
  • Mr. John Stenglein, Belair Excavating, responded to the complaint by explaining that Belair Excavating accepts liability of the incident and provided their subsequent course of action.  Mr. Stenglein also apologized for the incident.  He explained that as a result of this the operator was terminated and the General Superintendant was issued a citation.  Belair Excavating has begun requiring all daily checklists to be scanned and emailed to the Minnesota office before work begins by the on-site foreman.  Weekly visits by the National Safety Director or his designee will be made to all jobsites.  In addition, the Belair Excavating Employee Safety Manual, which includes the Safety Policy, Safety Plans and Programs, and Procedures for a Safe Workplace, as well as Project Forms Packet were provided.
  • Larry Janes stated there have been no previous complaints brought before the South Dakota One Call Enforcement Panel against Belair Excavating.

Kurt Pfeifle mentioned that this damage was egregious, but that he was encouraged by Belair Excavating accepting responsibility and in terminating the employee involved in the incident.  Erin Hayes agreed, stating the promptness and professionalism in which Belair acted with this incident.  She also mentioned that she was impressed with Belair’s commitment to safety.

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; and
  4. Other matters as justice requires.

Kurt Pfeifle asked if intentional or unintentional violations are distinguishable under the law between an employee vs. company.  Kara stated that the law does not make that distinction.  Kurt then stated that although the damage was concealed, therefore intentional, he did not feel that it is systematic of the company.

Kurt Pfeiffle made a motion to assess a penalty of five thousand dollars ($5,000) with four thousand dollars ($4,000) suspended, 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.

Erin Hayes seconded the motion.  The motion passed unanimously on a roll call vote.

There being no further business, meeting adjourned.