MINUTES April 30, 2013

April 30, 2013, 9:00 AM Central Time, 8:00 AM Mountain Time

Roll Call:

Enforcement Panel Members in attendance: Erin Hayes; Fay Jandreau; Gene Solseth; John Ward; Todd Chambers; Legal Counsel, Kristen Edwards; Executive Director, Larry Janes.

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

OC13-001 – In the Matter of the Complaint Filed by NorthWestern Energy, Mitchell, South Dakota, Against Menning Backhoe, LLC, Mitchell, South Dakota, for an Incident occurring on March 28, 2013, at Dakota Sales and Rental on Industrial Road in Corsica, South Dakota.

On March 28, 2013, NorthWestern Energy filed a complaint against Menning Backhoe, LLC alleging that Menning Backhoe dug without a locate ticket, exposing a service wire. NorthWestern believes the wire was exposed with equipment within 18″ of the electric service. No damage occurred. Menning Backhoe, LLC responded on April 10, 2013. Menning Backhoe did not dispute the complaint. A locate ticket number  was provided with a start  date and time of 1/09/2013 at 9:00 am. A copy of the actual ticket was not provided. Mr. Menning stated that in the future Menning Backhoe plans to stay on top of getting re-spots for expired tickets. No previous South Dakota One Call complaints have been filed against Menning Backhoe, LLC.

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

Probable Cause discussion and motion: 
Erin Hayes stated that although no locate ticket was included for the Panel to review in the response, a locate ticket number with a January 9, 2013 start date was provided.  This ticket would have been expired at the time of the incident in March. Therefore there was no locate ticket.   John Ward agreed.

Todd Chambers made a motion that there is probable cause that a violation of 49-7A-5 did occur. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:
Erin Hayes made a motion that this was an unintentional violation. Fay Jandreau seconded the motion.  Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:
Todd Chambers mentioned the four factors which must be taken into consideration in determining the amount of penalty per SDCL 49-7A-26, which are:

  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.

After previous penalty amounts for similar violations were reviewed, Todd Chambers made a motion to assess a penalty of $500 and suspend $250 with the following conditions:

  • Menning Backhoe must attend a Spring One Call meeting in 2014.
  • A documented safety meeting to review SD One Call laws must be held.   The meeting shall be held within 30 days of the final One Call Order.  Documentation shall include the printed and signed names of meeting participants, details of the material discussed, and the date and length of the meeting. Documentation shall be submitted to the Executive Director of South Dakota One Call.
  • If any of the conditions are not met, the entire Five Hundred Dollar Penalty ($500) will be immediately due and owing.

There being no further business Larry Janes asked for a motion to adjourn.  Fay Jandreau so moved. Erin Hayes seconded the motion. Motion carried unanimously upon a Roll Call vote.

Meeting Adjourned.

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