MINUTES October 28, 2011

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT COMMITTEE CONFERENCE CALL
October 28, 2011, 2 PM CENTRAL DAYLIGHT SAVINGS TIME

Enforcement Panel Members in attendance: Bleau LaFave; Kevin Kouba; Fay Jandreau; Terry Larson; Gene Solseth; Legal Counsel, Kara Semmler; Executive Director, Larry Janes.  Also in attendance:  Dan Kaiser, CenturyLink; Steve Kolbeck, CenturyLink; Todd Chambers, Watertown Municipal Utilities; Roger Sudbeck, Legal Counsel for Don Runge.

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.  By law, only the written information provided by the complainant and the defendant can be considered by the Panel.  Based on that information the Panel will determine if there is probable cause that a violation of SD One Call Law occurred, and if so, was the violation intentional or unintentional.   The Panel will then determine what penalty amount to assess.  If probable cause is not found, the Complaint will be dismissed.  In either case both parties will be provided the Panel’s recommendation in writing and will be given the opportunity to request a hearing before the full South Dakota One Call Notification Board.

In the matters before the South Dakota One Call Notification Board Enforcement Panel:
 
OC11-007  In the Matter of the Complaint filed by Southeastern Electric Cooperative, Inc. against Don Runge
Southeastern Electric filed a complaint on August 23, 2011 alleging that Don Runge (i) improperly  dug within 18 inches of a flagged locate, by the Medical Court 100 feet west on 69th Street in Sioux Falls, SD,  and (ii) failed to properly and adequately request a utility locate.  Southeastern claims the alleged violations, resulted in damage to underground facilities and loss of service to 174 customers on May 31, 2011.  Roger Sudbeck replied on behalf of Mr. Runge on October 11, 2011 stating that the cable was hit due to inaccurate information provided by Southeastern Electric Cooperative, Inc. at the preconstruction meeting held on May 20, 2011.  

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Don Runge violated SDCL 49-7A-5, Administrative Rule 20:25:03:05:03 or any other statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Enforcement Panel discussion:  Kevin Kouba mentioned that the locate ticket was inaccurate for the site of damage indicated on the map and mechanical equipment had been used within 18″ of the buried facilities.  Fay Jandreau mentioned that it was located, but Mr. Runge dug because he was told verbally at a meeting that the line was four to five feet deep.

Motion:
Bleau LaFave made a motion that probable cause exists that Don Runge violated SDCL 49-7A-5 by digging without a proper locate ticket.  Kevin Kouba seconded the motion.  Motion carried with the majority of the panel voting in the affirmative on a roll call vote.  Fay Jandreau voted against.

Motion:
Fay Jandreau made a motion that Mr. Runge violated 49-7A-8 by digging within 18″ of a buried facility with mechanical equipment.  Bleau LaFave seconded.  Motion carried unanimously upon a Roll Call Vote.

Gene Solseth compared the pre-construction meeting minutes to Mr. Runge’s response and felt that based on the conversation held with Southeastern Electric , the damage caused was unintentional.  Terry Larson, Kevin Kouba, and Fay Jandreau also thought the damage was unintentional.  Kevin Kouba stated that Mr. Runge presumed too much from the Pre-construction meeting and that he would have continued digging, had he not been stopped by removal of the keys from his equipment by the Southeastern Electric foreman.

Motion:
Gene Solseth made a motion that the statutory violations were unintentional.  Terry Larson seconded the motion.  During the discussion it was mentioned that Mr. Runge needs to understand that a conversation with a facility foreman stating cable depth does not allow him to bypass South Dakota One Call laws and dig without a locate or dig within 18″ of a buried facility with mechanical equipment.

Penalty amounts were discussed.   The amount must be based on the factors noted in SDCL 49-7A-26 which are as follows:

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

Per SDCL 49-7A-18 a penalty amount up to $1,000 may be assessed for the first violation.

Penalty Motion:
Terry Larson made a motion to assess a penalty of $1,000 with $500 suspended for violating 49-7A-5 and a penalty of $1,000, with $500 suspended, for violating 49-7A-8, if paid within 30 days of the Final One Call Board Order, and if there are no subsequent violations within twelve months of the receipt of the Final One Call Board Order.  Kevin Kouba seconded the motion.  Motion carried unanimously upon a Roll Call Vote.

OC11-008  In the Matter of the Complaint filed by Southeastern Electric Cooperative, Inc.  against Don Runge
Southeastern Electric filed a complaint on August 23, 2011 alleging that Don Runge dug without a locate request just west of Tallgrass Avenue on 69th Street, Sioux Falls, SD, which resulted in damage to underground facilities on June 13, 2011.  Roger Sudbeck replied on behalf of Mr. Runge on October 11, 2011 stating that the cable was hit due to inaccurate information provided by Southeastern Electric Cooperative, Inc. at the preconstruction meeting held on May 20, 2011. 

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Don Runge violated SDCL 49-7A-5, Administrative Rule 20:25:03:05:03 or any other statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Enforcement Panel discussion:
Bleau LaFave stated the locate request was to mark the intersection, meaning that facilities were to be marked in the Right of Way.  The damage occurred on private property.

Motion:
Bleau Lafave made a motion that probable cause exists that a violation of 49-7A-5 occurred by digging without a locate ticket.  Terry Larson seconded.   Motion carried unanimously upon a Roll Call Vote.

Bleau LaFave made a motion that Mr. Runge intentionally violated 49-7A-5 by digging without a locate request.  Gene Solseth seconded the motion.  There was discussion that Mr. Runge used the same excuse for not obtaining a locate ticket as in OC11-007.  After less than two weeks since the previous damage, he should have been aware of facilities in the area.  Motion carried unanimously upon a Roll Call Vote.

Kara Semmler mentioned that up to $5,000 could be assessed for an intentional violation.  Kevin Kouba stated that Mr. Runge should have been aware of the serious nature of digging near a hospital without a locate request.

Penalty Motion:
Terry Larson made a motion to assess a penalty of $2,500 with zero dollars suspended.  Fay Jandreau seconded.    Motion carried unanimously upon a Roll Call Vote.

OC11-009  In the Matter of the Complaint filed by Watertown Municipal Utilities against Hobart Construction/Wyatt Keever
Watertown Municipal filed a complaint on September 12, 2011 alleging that Hobart Construction did not request a locate for work at Angus Palm 315 Airport Drive, Watertown, SD on August 24, 2011.  As a result Hobart Construction hit an abandoned gas line, and continued to dig after being instructed by Watertown to call in a locate request.  Mr. Keever responded on October 2. 2011 that he was aware of the abandoned gas line when excavating.  He assumed a locate request had been made and continued excavating.

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

Enforcement Panel discussion:
No discussion.

Motion:
Kevin Kouba made a motion stating there is probable cause that a violation of 49-7A-5 occurred by Hobart Construction.  Fay Jandreau seconded.  .  Motion carried unanimously upon a Roll Call Vote.

Kevin Kouba mentioned that the excavator had to ask if a locate was done, so obviously no locate had been requested.  He continued to dig even after being told to request a locate ticket.

Motion:
Kevin Kouba stated that this violation was intentional.  Bleau LaFave seconded.  Motion carried unanimously upon a Roll Call Vote.

Bleau LaFave stated that Hobart Construction knew that facilities were abandoned, however there was no locate ticket requested.  The response was that there was no damage.  A penalty should be assessed, but it should be a smaller amount.   Gene Solseth agreed.

Penalty Motion:
Bleau LaFave made a motion to assess a $1,000 penalty with $750 suspended, if no further violations occur within twelve months of the Final One Call Board Order, if it fails to make payment of the unsuspended amount within 30 days of the Final Order, and if a representative of Hobart Construction attend a 2012 Spring Excavator Meeting to further their education of SD One Call Laws.
Motion carried unanimously upon a Roll Call Vote.

OC11-010 In the Matter of the Amended Complaint filed by Carl V. Carlson Company against CenturyLink dba Qwest Communications
Carl V. Carlson Company filed a complaint on September 20, 2011 alleging that Qwest provided incomplete and haphazard locates at 2020 W. 10th, Sioux Falls, SD on August 12, 2011.  He states that the 18″ locate window on each side of a utility should be decreased to 5″ and that the repair bill from Qwest was exorbitant.  Steve Kolbeck responded on October 13, 2011 on behalf of Qwest requesting the complaint be dismissed.  He states Administrative Rule 20:25:03:05.04, Operator Responsibilities when marking underground facilities, was followed.  He also stated that Administrative Rule 20:25:03:04(6) allows an excavator to request off-set markings to maintain an accurate record of the facility locations, and that SDCL 49-7A-10 mandates an excavator be held liable for damage to facilities.  He also cites SDCL 49-7A-12 “No excavator may conceal or attempt to conceal damage…”  He states that Mr. Carlson ignored Administrative Rule 20:25:03:05.03, Excavator responsibilities when excavating.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that CenturyLink dba Qwest Communications violated any statute or rule under the jurisdiction of the Board for failure to provide adequate markings and if so, shall a civil penalty be assessed?

Enforcement Panel discussion: 
Bleau LaFave mentioned there were no “before” pictures to compare those provided with the complaint.  Terry Larson stated there were no damage areas shown.  Kevin Kouba stated that it’s the contractor’s responsibility to protect markings.  Terry Larson mentioned there was not enough information provided with the pictures to make a determination of what occurred.  Gene Solseth said it was difficult to understand the pictures and that the Panel should have been provided with more information.  Fay Jandreau agreed and stated he couldn’t tell by the information provided in the complaint if the locates were adequate or not.

Motion:
Kevin Kouba made a motion to dismiss due to lack of probable cause.  Terry Larson seconded.  Motion carried unanimously upon a Roll Call Vote.

Motion to adjourn:
There being no further business, Kevin Kouba made a motion to adjourn.  Terry Larson seconded.  Motion carried unanimously upon a Roll Call Vote.

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