MINUTES December 18, 2013

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Wednesday, December 18, 2013
Location: Mid-Dakota Rural Water System, Inc.
608 W 14th Street, Miller SD (Conference Room)
1 p.m. (CST), Noon (MST)

Roll Call:

Enforcement Panel Members in attendance:  Erin Hayes; Dan Kaiser; Bleau LaFave; Doug Larson; Kurt Pfeifle. Also attending: Legal Counsel, Kristen Edwards; Executive Director, Larry Janes.

Other attendees:
Dennis Hammond, Heavy Constructors, Inc. ; Bob Scull, RCS Construction; Wade Jutila, Montana-Dakota Utilities Co; Ms. Silicia Boutchee, MidAmerican Energy Company.

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.

OC13-027     In the Matter of the Complaint Filed by Crooks Municipal Utilities (Crooks), Crooks, South Dakota, Against Mitchell Construction (Mitchell), Colton, South Dakota, for an Incident Occurring on October 11, 2013, at 25778 Dawson Ave. , Sioux Falls, S.D. 

On October 21, 2013 Crooks filed a complaint against Mitchell alleging that Mitchell damaged a 60 psi gas line while excavating under a locate ticket obtained by Haug Steel Construction, which is a violation of 49-7A-5. Mitchell did not respond to the Complaint. No previous complaints have been filed against Mitchell Construction.

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

Dan Kaiser made a motion that probable cause exists that a violation of SDCL 49-7A-5 occurred. Bleau LaFave seconded the motion. Motion carried unanimously upon a roll call vote.

Dan Kaiser made a motion stating the violation was intentional. Kurt Pfeifle mentioned that there was no response to the Complaint by Mitchell Construction, so he agreed. Doug Larson seconded the motion. Motion carried unanimously upon a roll call vote.

The Executive Director stated that per SDCL 49-7A-26 the four factors which must be taken into consideration in determining the amount of penalty 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.

Dan Kaiser made a motion to assess a penalty in the amount of $1,000 and suspend $750, with the following requirements:  Mitchell Construction must not be found guilty of a One Call violation within the 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, Mitchell Construction must attend a Spring Excavator meeting. And Mitchell construction must conduct an in-house safety meeting to discuss South Dakota One Call laws. The meeting shall be held within 30 days of the Board Order. Detail of the discussion material, date and length of the meeting, along with the printed and signed names of attendees will be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order. If any of these conditions are not met, the entire amount will be immediately due and owing. Doug Larson seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-028     In the Matter of the Complaint Filed by MidAmerican Energy Company (MidAmerican), Urbandale, Iowa, Against Stone Hill Construction, Inc. (Stone Hill), Sioux Falls, South Dakota, for an Incident Occurring on August 6, 2013, at 304 W. 3rd St. . , Worthing, S.D.

On November 4, 2013, MidAmerican filed a complaint against Stone alleging that Stone Hill damaged a 48 psi gas line on August 6, 2013, while excavating under a locate ticket that had expired on July 29, 2013. Stone did not respond to the Complaint. No previous complaints have been filed against Stone Hill Construction.

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

Kurt Pfeifle made a motion stating that probable cause exists that Stone Hill Construction violated SDCL 49-7A-5. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

Doug Larson made a motion stating that this was an intentional violation. Dan Kaiser seconded the motion. Kurt Pfeifle stated that he thought this was unintentional. Dan Kaiser stated that Stone Hill did not take the time to respond to the allegation. Bleau LaFave said that the Panel should use the evidence provided. Kurt Pfeifle agreed and stated that without that response the Panel should look to MidAmerican’s Complaint, which stated this was an unintentional violation. Dan Kaiser suggested that ignorance of the law is not an excuse to violate it. Doug Larson felt that by not responding Stone Hill was admitting intent. Bleau LaFave suggested that circumstances can dictate intent, but with no response it is difficult to determine. Kurt Pfeifle suggested that looking at the complaint MidAmerican stated this was unintentional and the Panel should use this statement. Erin Hayes agreed. Kurt then said with a lack of evidence from Stone Hill, the Panel needs to go back to the complaint to determine intent. A roll call vote to the motion that this violation was intentional was then taken. Voting in favor were Doug Larson and Dan Kaiser. Voting against were Erin Hayes, Bleau LaFave, and Kurt Pfeifle. Motion failed upon a roll call vote.  Bleau Lafave then made a motion stating that this was an unintentional violation. Erin Hayes seconded. Voting in favor were Erin Hayes, Bleau LaFave, and Kurt Pfeifle. Voting against were Doug Larson and Dan Kaiser. Motion carried upon a roll call vote.

Bleau LaFave made a motion to assess a penalty of $750 with $500 suspended, with the following requirements:  Stone Hill must not be found guilty of a One Call violation within the 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, Stone Hill must attend a Spring Excavator meeting. And Stone Hill must conduct an in-house safety meeting to discuss South Dakota One Call laws. The meeting shall be held within 30 days of the Board Order. Detail of the discussion material, date and length of the meeting, along with the printed and signed names of attendees will be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order. If any of these conditions are not met, the entire amount will be immediately due and owing. Doug Larson seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-029     In the Matter of the Complaint Filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota, Against RCS Construction, Inc. (RCS), Rapid City, South Dakota, for an Incident Occurring on October 24, 2013, at 1111 Zinc St. , Rapid City, S.D. 

On November 13, 2013 MDU filed a complaint against RCS Construction, Inc. (RCS) alleging that RCS damaged a 30 psi gas line with a post hole auger while working without a locate request. RCS responded on December 2, 2013 by stating that they did have a locate request, but it had expired on September 26, 2013. The damage was due to a communication error between the Superintendent and the crew. One previous complaint was filed against RCS Construction, Inc. on May 16, 2012.

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

Bleau LaFave made a motion stating that there is probable cause that a violation of SDCL 49-7A-5 occurred. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

Kurt Pfeifle made a motion stating that the violation of SDCL 49-7A-5 was intentional. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote.

Bleau LaFave asked about the previous violation by RCS. Kurt Pfeifle mentioned that it was similar, but was over a year ago. Kurt Pfeifle then made a motion to assess a penalty of $1,000 and suspend $0 and include the normal requirements. Bleau LaFave said he would prefer a $1,000 penalty with some dollars suspended. Kurt Pfeifle agreed and amended the original motion to assess a $1,000 and suspend $250 with the following requirements:  RCS must not be found guilty of a One Call violation within the 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, RCS must attend a Spring Excavator meeting. And RCS must conduct an in-house safety meeting to discuss South Dakota One Call laws. The meeting shall be held within 30 days of the Board Order. Detail of the discussion material, date and length of the meeting, along with the printed and signed names of attendees will be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order. If any of these conditions are not met, the entire amount will be immediately due and owing. Doug Larson seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-030     In the Matter of the Complaint Filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota, Against Heavy Constructors, Inc. (Heavy), Rapid City, South Dakota, for an Incident Occurring on October 23, 2013, at 2125 Jackson Blvd. , Rapid City, S.D. 

On November 19, 2013 MDU filed a complaint against Heavy alleging that Heavy struck a 4 inch, 34 psi gas line. The complaint stated there was a locate ticket requested by Heavy on October, 17, 2013 to install water, but did not provide a locate ticket with the complaint. Heavy responded on December 6, 2013 stating they had no need or reason to locate the pipe due to excavation depth needed to remove the soft spot in the grade. Heavy went on to state there was a valid ticket for water line installation but not for grading operations. Also, there were not markings for the gas line. No locate ticket was provided as evidence. No previous complaints have been filed against Heavy Constructors, Inc.

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

Bleau LaFave asked what does the law state about digging for road work. Kristen Edwards stated that no locate request is necessary, if road work does not extend below eighteen inches of the original road grade. Erin Hayes stated that the pictures make it look shallow, and that a measuring stick would have been helpful. Doug Larson stated that the depth did not appear to be 36 inches deep as stated in the complaint. There was some discussion about the length of the spade and the location of it in the picture. Bleau LaFave stated that from a practical standpoint the pipe may have been there for may years and road work may have occurred over time, rendering the pipe shallow. Kurt Pfeilfe made a motion stating that there is probable cause that a violation of SDCL 49-7A-5 occurred. Doug Larson stated that Heavy did not dispute that. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

Doug Larson stated that Heavy’s response to the question of disputing intent was no. Kurt Pfeifle mentioned that Heavy then went on to dispute that in their response. Bleau LaFave said that he was split on this. Doug Larson made a motion stating that this was an intentional violation based on MDU’s complaint and the response from Heavy. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

Erin Hayes restated that there have been no previous complaints against Heavy. Dan Kaiser stated that Heavy is good excavator and is busy everywhere. It was then stated that we have to look at the evidence. Kurt Pfeifle made a motion to assess a $750 penalty and suspend $500 with the following conditions:  Heavy must not be found guilty of a One Call violation within the 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, Heavy must attend a Spring Excavator meeting. And Heavy must conduct an in-house safety meeting to discuss South Dakota One Call laws. The meeting shall be held within 30 days of the Board Order. Detail of the discussion material, date and length of the meeting, along with the printed and signed names of attendees will be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order. If any of these conditions are not met, the entire amount will be immediately due and owing. Bleau LaFave 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.

Larry L. Janes
Executive Director
South Dakota One Call
exedir@sdonecall.com
(605) 339-0529