MINUTES June 18, 2012

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT COMMITTEE CONFERENCE CALL
June 18, 2012, 10 a.m. CDT, 9 a.m. MDT

Roll Call:

Enforcement Panel Members in attendance:  John WardErin Hayes; Todd Chambers; Dan Kaiser; Doug Larson; Legal Counsel, Kara Semmler; Executive Director, Larry Janes.

Also in attendance:
Bob Scull, RCS Construction
Ron Blum, Montana-Dakota Utilities Co.

Order of Business:
Larry Janes provided a brief description of the Enforcement Panel process, including that this is a legal proceeding and that no comments by either party may be taken during this call. The determination of whether probable cause exists that a violation of South Dakota One Call laws may have, or may not have, occurred 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. Each party will be given the opportunity to request a hearing before the full South Dakota One Call Notification Board, if either disagrees with the recommendation of the Panel. The request must be received within 20 days of issuance of the recommendation. If a hearing is not requested, the Enforcement Panel recommendation will be presented to the South Dakota One Call Board of Directors for acceptance at the next Board Meeting. A final Order will then be mailed to each party. If a penalty amount is assessed, payment must be made within 30 days of the issuance of the Order.

In the matter before the South Dakota One Call Notification Board Enforcement Panel

OC12-006     In the Matter of the Complaint filed by the City of Pierre, SD against Sharpe Enterprises, Inc. 
On May 3, 2012 the City of Pierre, SD (herein “Pierre”) filed a South Dakota One Call Complaint alleging that Sharpe Enterprises, Inc. (herein “Sharpe”) started work on May 2, 2012 at 8 a.m. at 3800 Airport Road prior to the start date on the locate ticket. The complaint also alleges that all utilities had not been located and that work was being done using old marks under an expired ticket.   Sharpe responded to the Complaint on June 6, 2012, after the Enforcement Panel Agenda was posted. In its response Sharpe stated Mr. Diez, Sharpe foreman, showed Mr. Patton, Pierre, where facilities had to be pot holed on-site. Sharpe provided pictures of
as-built drawings with their response, as well as the water line that was being lowered, and stated the Pierre did not discuss a probable violation with them. Pierre provided a locate ticket number in the Complaint, however neither party produced a copy of a locate ticket as evidence.

Larry Janes stated there have been no South Dakota One Call Complaints filed against Sharpe within the last twelve months. The only previous complaint was filed in 2009.

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

Dan Kaiser asked if the previous Complaint filed against Sharpe was between SDN Communications and Sharpe. Larry Janes stated it was, but it was settled between the parties. Dan Kaiser mentioned that the response from Sharpe did not arrive by the required date and asked if we had to accept the response. Kara Semmler mentioned that the Panel could refuse to accept the response, but it would then be setting precedent for future Enforcement Panels. She went on to state accepting or rejecting the response is up to Panel discretion. Erin Hayes stated there was no damage according to the Complaint. Todd Chambers mentioned the Complaint stated that work was being done using old marks on an expired ticket. Erin Hayes questioned if there was enough evidence provided in the Complaint to find probable cause.

Dan Kaiser made a motion to not accept Sharpe’s response due to it being received late. Erin Hayes seconded the motion. A roll call vote was taken. Erin Hayes and Dan Kaiser voted in favor to not accept the response. John Ward, Todd Chambers, and Doug Larson voted against the motion. Motion failed upon a roll call vote. 

Todd Chambers then made a motion to dismiss Complaint OC12-006 due to a lack of evidence. Doug Larson seconded the motion. John Ward, Erin Hayes, Todd Chambers, and Doug Larson voted in favor of the motion. Dan Kaiser voted against the motion. Motion carried upon a roll call vote. 

OC12-007     In the Matter of the Complaint filed by Montana-Dakota Utilities Co., against RCS Construction
On May 16, 2012, Montana-Dakota Utilities Co. (herein “MDU”) filed a South Dakota One Call Complaint alleging that RCS Construction (herein “RCS”) did not have valid locates at 3936 Canyon Lake Drive, Rapid City, SD, when working on March 25, 2012. RCS responded on June 4, 2012 that the line had been previously marked and the marks were still visible. RCS also provided a copy of locate request 120830288 prepared at 13:32 on March 23, 2012 and stated it had not been cleared before digging commenced on March 24, 2012. RCS further stated that it appeared they pinched an unknown service line placed between the time of the original mark and the new ones and was 12″ deep. A picture indicating the route of the old steel main and the new service line was provided.   The MDU bill has been paid.

Larry Janes stated there have been no previous South Dakota One Call Complaints filed against RCS.

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

Dan Kaiser mentioned the RCS stated in its response that a locate ticket was prepared on March 23rd, and that digging commenced on March 24, 2012, and that marks from a previous ticket were still visible. Dan stated he felt that RCS jumped the gun by digging before the new locate ticket was cleared. Todd Chambers stated it was not made clear if a previous locate ticket had actually been made or by whom.

Dan Kaiser made a motion that there is probable cause that a violation of SDCL 49-7A-5 occurred. Todd Chambers seconded the motion. Motion carried unanimously upon a roll call vote. 

Discussion moved to intent. John Ward felt that curb was being removed and that this was an unintentional violation. He then made a motion stating the same. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote. 

Discussion then moved to the penalty phase. Kara Semmler stated the factors noted in SDCL 49-7A-26 which must be taken into consideration in determining the amount of penalty shall be:
1.  The amount of damage, degree of threat to 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.

Kara Semmler went on to say that per SDCL 49-7A-18, a penalty amount of up to $1,000 may be assessed for a first violation.

Erin Hayes stated that even placing 18″ stakes when placing new curb can cause damage and injury. Todd Chambers stated that it appeared RCS was using good placing techniques by hand digging, but that a ticket should have been called in. Todd Chambers made a motion that a penalty be assessed to RCS of $1,000, with $750 suspended, if there are no further violations within the next twelve months, if the penalty is paid within 30 days of the final Order, and if a representative attends a South Dakota One Call Spring Meeting. Doug Larson seconded. There was no further discussion.  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.

Erin Hayes so moved. Todd Chambers seconded. Motion carried unanimously on a Roll Call vote.

Meeting Adjourned

Minutes of this meeting were prepared by Larry Janes, Executive Director, South Dakota One Call Notification Board.