Minutes July 30, 2013

Minutes
South Dakota One Call Notification Board
Enforcement Panel Conference Call
Tuesday, July 30, 2013
1:00 PM Central Time, 12:00 PM Mountain Time

Roll Call:

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

Other attendees:
Aaron Myers, Swiftec, Inc.
Melissa Baruth, NorthWestern Energy

The Enforcement Panel of the South Dakota One Call Board will meet to consider the following South Dakota One Call Complaints:   

OC13-008 – In the Matter of the Complaint filed by Southeastern Electric Cooperative, Inc. (Southeastern), Alcester, South Dakota against Empire Construction (Empire), Sioux Falls, South Dakota, for an incident occurring on March 21, 2013 at 4604 S. Tribbey Trail, Sioux FalIs, South Dakota.  

On June 12, 2013 Southeastern filed a complaint against Empire, alleging that Empire dug within 18” of a marked line and damaged a 7200 V power line and has not paid for damages.  Empire did not respond to the Complaint.  A complaint was previously filed in 2008 by Southeastern against Empire.  On July 19, 2013 Southeastern Electric Cooperative, Inc. requested that Complaint Docket OC13-008 be withdrawn.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board accept Southeastern’s request to withdraw Complaint Docket OC13-008, or Today, Shall the Enforcement Panel find that there is probable cause that Empire Construction violated any statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Discussion to accept withdrawal:  Erin Hayes stated that the Enforcement Panel is not a group to be used to collect damages.  Southeastern should not have requested a withdrawal of this complaint.  What lesson does an excavator learn from this?  John Ward stated that payment of the damage is not the issue here.  Fay Jandreau felt this was a good point.  The Panel is being used as leverage.  It’s not the Panel’s role.   Fay Jandreau made a motion to accept the request to withdraw the complaint, Erin Hayes seconded the motion.   Motion carried unanimously upon a roll call vote. 

OC13-009 – In the Matter of the Complaint filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota against Teupel Construction (Teupel), Spearfish, South Dakota , for an incident occurring on May 11, 2013 at 410 Belleview Court, Spearfish, South Dakota.  

On June 27, 2013 MDU filed a complaint against Teupel alleging that Teupel damaged a 35 psi gas line when digging without a locate ticket.  MDU provided a map and photo of the work area.  Teupel responded to the complaint on July 19, 2013, stating that the mark was still visible from a prior locate, and that hand digging was not used.  There have been no previous complaints filed against Teupel.

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

Discussion of Probable Cause:  Erin Hayes stated that it’s clear there was no current locate requested and made a motion stating that there is probable cause that Teupel violated 49-7A-5.  John Ward seconded the motion.  Fay Jandreau stated there were locates from an earlier date, but not a current locate as required.  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.  John Ward stated that a ticket must be called in, even if old marks are there.   Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:  Erin Hayes stated that every precaution should be made, especially when working around gas.  Erin made a motion to assess a $500 penalty, with $500 suspended under the following conditions:  Teupel must not be found guilty of a One Call violation within 12 months of the final Board Order, must make the penalty payment within 30 days of the issuance of the final Board Order, must attend a 2014 Spring Excavator Meeting, and must conduct an in-house One Call law safety meeting within 30 days of the final Board Order.  The detail of the discussion material, the date and length of the meeting, along with the signed and printed names of the attendees shall be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order.  If any of the conditions are not met, the entire amount will be immediately due and owing.

OC13-010 – In the Matter of the Complaint filed by NorthWestern Energy (NorthWestern), Huron, South Dakota against CenturyLink, Sioux Falls, South Dakota , for an incident occurring on June 27, 2013 at 1310 W 2nd St., Redfield, South Dakota.  

On June 28, 2013 NorthWestern filed a complaint against CenturyLink alleging that CenturyLink did not locate within the time period required in South Dakota Law.  CenturyLink responded on July 22, 2013 by stating there have been staffing issues with its locating vendor which have caused late locates.  Previous complaints have been filed against CenturyLink (Qwest), one in 2013 which was subsequently withdrawn,  one in 2011 which was dismissed for lack of probable cause, and one in 2005 for an inaccurate locate, in which it was determined that probable cause existed that a violation did occur.

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

Discussion of Probable Cause:  Erin Hayes stated that she was glad to see that NorthWestern Energy had previously taken steps to resolve this issue.  Erin Hayes made a motion stating that there is probable cause that CenturyLink violated 49-7A-8.  John Ward seconded the motion.  Fay Jandreau stated that even though this is a locating company issue, by law the complaint must be made against the operator. Motion carried unanimously upon a roll call vote. 

Intentional or unintentional discussion and motion:  Fay Jandreau made a motion that this is an unintentional violation.  John Ward seconded.  Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:   Fay Jandreau stated this would be considered a first violation and made a motion to assess a penalty amount of $500, with $250 suspended, with no requirements.  After some discussion he amended the motion to state that a representative of the locate company must attend a Spring Excavator Meeting.  The motion failed for a lack of a second.  John Ward made a motion to assess a penalty of $500, with $250 suspended, with the requirements that payment of the unsuspended amount will be paid within 30 days of the final Board Order, a CenturyLink representative shall attend a Spring Excavator Meeting in Huron, South Dakota in the spring of 2014, CenturyLink shall conduct an in-house safety meeting with its subcontractor to review the One Call laws.  The meeting shall be held within 30 days of the final One Call Order, unless such meeting has occurred prior to the issuance of the Order, but subsequent to the violation.  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 within that 30 day period, and CenturyLink must not be found guilty of a One Call violation within the next 12 months, excluding currently pending violations.  Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-011 – In the Matter of the Complaint filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota against Swiftec,  Rapid City, South Dakota , for an incident occurring on June 24, 2013 at 4811 St. Martins Dr., Rapid City, South Dakota.  

On July 3, 2013 MDU filed a complaint against Swiftec alleging that Swiftec dug outside the locate area on a ticket and damaged a 30 psi gas line.  MDU provided a locate ticket and pictures of the work area.  Swiftec responded by stating that they did not deny striking the gas line, however they did not dig outside the located area.  There have been no previous complaints filed against Swiftec.

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

Discussion of Probable Cause:  Erin Hayes stated that Swiftec was working within the work area, but damaged the line.  Fay Jandreau wondered why there was disciplinary action stated in the response, if Swiftec was not in the wrong.   Fay Jandreau made a motion that there was probable cause that a violation of 49-7A-5 had occurred.  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.  John Ward seconded.  Fay Jandreau stated that whether or not it was intentional, the damage was caused by negligence.  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, with the following conditions:  Swiftec must not be found guilty of a One Call violation within 12 months of the final Board Order, must make the penalty payment within 30 days of the issuance of the final Board Order, must attend a 2014 Spring Excavator Meeting, and must conduct an in-house One Call law safety meeting within 30 days of the final Board Order.  The detail of the discussion material, the date and length of the meeting, along with the signed and printed names of the attendees shall be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order.  If any of the conditions are not met, the entire amount will be immediately due and owing.  Fay Jandreau seconded the motion.  Motion carried unanimously upon a roll call vote.

 OC13-012 – In the Matter of the Complaint filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota against Swiftec, Rapid City, South Dakota , for an incident occurring on June 25, 2013 at 4811 St. Martins Dr., Rapid City, South Dakota.  

On July 3, 2013 MDU filed a complaint against Swiftec alleging that Swiftec dug outside the locate area on a ticket and damaged a 30 psi gas line.  MDU provided a locate ticket and pictures of the work area.  Swiftec did not respond to this complaint.   There has been one previous complaint filed against Swiftec.

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

Discussion of Probable Cause:  Erin Hayes stated there was probable cause that a violation of 49-7A-5 had occurred.  Fay Jandreau seconded the motion.  Motion carried unanimously upon a roll call vote.

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

Penalty Assessment discussion and motion:  Erin stated this was a similar complaint as the last, so the penalty should be similar.  Fay Jandreau agreed that there was the same level of confusion.  Erin stated that she was glad to see that they’ve taken action to improve.  Everyone is busy, so clarity on locate tickets is important.  John Ward made a motion to assess a penalty of $500, with $250 suspended, with the following conditions:  Swiftec must not be found guilty of a One Call violation within 12 months of the final Board Order, must make the penalty payment within 30 days of the issuance of the final Board Order, must attend a 2014 Spring Excavator Meeting, and must conduct an in-house One Call law safety meeting within 30 days of the final Board Order.  The detail of the discussion material, the date and length of the meeting, along with the signed and printed names of the attendees shall be submitted to the Executive Director of South Dakota One Call within 30 days of the final Board Order.  If any of the conditions are not met, the entire amount will be immediately due and owing.  Fay Jandreau seconded the motion.   Motion carried unanimously upon a roll call vote.

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.

Only the written information provided by the Complainants and the written responses from the defendants were considered per SDCL 49-7A-25.  No comments from either party involved in the complaints were taken during this call.

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