MINUTES July 2, 2013

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT PANEL CONFERENCE CALL
July 2, 2013, 10:00 AM Central Time, 9:00 AM Mountain Time

 Roll Call:

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

Other attendees:
Dan Kaiser

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

OC13-006 – In the Matter of the Complaint filed by Montana-Dakota Utilities Company (MDU), Rapid City, South Dakota against Highmark Inc. (Highmark), Black Hawk, South Dakota , for an incident occurring on May 6, 2013 at 14667 139th Place, Piedmont, South Dakota.  This Complaint was Amended by MDU on June 5, 2013 to be filed against Dale Schuelke individually in place of Highmark Inc.

On May 14, 2013 MDU filed a complaint against Highmark (amended to Dale Schuelke) alleging that Dale Schuelke dug without a locate ticket and damaged a 35 psi gas line.  Mr. Schuelke responded on May 23, 2013 by stating that the work was not associated with his business.  He was planting trees in his yard for himself, and that a locate request was not made.  There has been no previous complaint filed against Mr. Schuelke.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board accept the Amendment to OC13-006 naming Dale Schuelke as the defendant, and today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Dale Schuelke violated any statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Fay Jandreau made a motion to accept the complaint as amended.  Erin Hayes seconded.   Motion carried unanimously upon a roll call vote. 

Discussion of Probable Cause:

Fay Jandreau made a motion that there was probable cause that a violation of 49-7A-5 had occurred.  Bleau LaFave seconded the motion.   Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:

John Ward asked if complaints against individuals had previously occurred.  The Executive Director cited a case involving an individual, which occurred in 2011.  Todd Chambers stated that Mr. Schuelke should be aware of One Call laws, because of his business, but did the work because he thought he knew where the buried services were.   Fay Jandreau stated that, based on the complaint and the reply, the damage was unintentional, but the violation was intentional.  John Ward stated that in a motion.  Fay Jandreau seconded.   Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:
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.

Todd Chambers said he wasn’t sure if the damage was to Mr. Schuelke’s line.  John Ward stated that it appeared that only Mr. Schuelke’s residence was affected by the damage.  He also stated that it appeared in Mr. Schuelke’s response that his only concern was removing the company name from the complaint.  Bleau LaFave suggested that a penalty amount of $500 could be assessed, with $250 suspended.  Todd Chambers thought $1,000, with $750 might be more appropriate.  Bleau LaFave went on to say that considering the extent of damage, that the lower amount might be better.  John ward agreed.  Bleau LaFave made a motion to assess a penalty of $500, conditionally suspending $250, if the following conditions were met:  Mr. Schuelke must not be found guilty of a SD One Call violation within 12 months of the Board Order, the penalty payment must be made within 30 days of the Board Order, and he must attend a Spring Excavator meeting in 2014.  Failure to meet any of the requirements will result in the suspended penalty amount immediately due and owing.  Todd Chambers seconded the motion.   Motion carried unanimously upon a roll call vote.

OC13-007 – In the Matter of the Complaint filed by THE City of Volga, South Dakota (Volga), Volga, South Dakota against Meyer Drainage and Excavating (Meyer), Volga, South Dakota for an incident occurring on May 16, 2013 at 404 Leeann, Volga South Dakota.

On May 17, 2013 Volga filed a complaint against Meyer alleging that Meyer damaged a high voltage cable with a backhoe and that locate marks were visible on the outer edges of the work site.  Volga provided a locate ticket number, but did not submit a copy of the ticket as evidence.   Meyer did not respond to the Complaint.  There have been no previous complaints filed against Meyer.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Meyer Drainage and Excavating 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 the complaint was not well written, and that it was confusing.  There was discussion on the sequence of events, the date of the locate ticket, the alleged damage, and the filing of the Complaint.  John Ward stated that the Complaint stated that damage occurred the day before the Complaint was filed.  Todd Chambers stated that he assumed damage had occurred.  John Ward went on to say that digging within 18” of a locate mark with mechanical equipment, 49-7A-8 was the issue, that it was located properly and damaged.  Fay Jandreau made a motion that there was probable cause that a violation of 49-7A-8 had occurred.  Todd Chambers seconded.  Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:

John Ward made a motion that this was an unintentional violation.  Todd Chambers seconded.  Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:

John Ward made a motion to assess a penalty of $500 with $250 suspended, if the following conditions were met:  Meyer Drainage must not be found guilty of a SD One Call violation within 12 months of the Board Order, the penalty payment must be made within 30 days of the Board Order, a representative must attend a Spring Excavator meeting in 2014, and Meyer must conduct an in-house safety meeting 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 the attendees will be submitted to the Executive Director of South Dakota One Call within 30 days of the Board Order.  Failure to meet any of the requirements will result in the suspended penalty amount immediately due and owing.   Erin Hayes seconded the motion.  Motion carried unanimously upon a roll call vote.

There being no further business Larry Janes asked for a motion to adjourn.   Erin Hayes so moved.  Todd Chambers 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.