MINUTES June 4, 2013

MINUTES
SOUTH DAKOTA ONE CALL NOTIFICATION BOARD
ENFORCEMENT PANEL CONFERENCE CALL
June 4, 2013, 1 p.m. CST, Noon MST

Roll Call:

Enforcement Panel Members in attendance: Erin Hayes; Fay Jandreau; Gene Solseth; Ed Anderson; Bleau LaFave; Executive Director, Larry Janes.  Legal Counsel, Kristen Edwards, was unable to attend.

Other attendees:
Dan Kaiser, CenturyLink
Mr. Ron Blum, Montana-Dakota Utilities Co.
Mr. Doy Ousley, CenturyLink

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

OC13-002 – In the Matter of the Complaint filed by Montana-Dakota Utilities Company (MDU), Rapid City, South Dakota against Summit Construction (Summit), Rapid City, South Dakota for an incident occurring on March 6, 2013 at 342 Westberry Ct., Rapid City, South Dakota

On April 10, 2013 MDU filed a complaint against Summit alleging that Summit dug without locates and damaged a 2″ plastic gas main. Subsequently a locate ticket was called in, but digging continued into the following day before the 48 hour time start date on the ticket. Summit responded on April 29th and did not dispute the allegation. Summit stated that in the future they will call in for locates before, and if needed, will call in an Emergency locate. There have been no previous South Dakota One Call Complaints filed against Summit.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Summit Construction 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 made a motion that Summit Construction violated SDCL 49-7A-5 by not requesting a locate. Fay Jandreau seconded the motion. No further discussion took place. Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:
Erin Hayes stated that from MDU’s perspective this was an intentional violation, but that there had been no previous complaints filed against Summit Construction. Summit had stated they would call in the future.  Fay Jandreau made a motion that Summit Construction intentionally violated SDCL 49-7A-5. Ed Anderson seconded the motion and stated that as a professional excavator Summit should know it has  an obligation to call for locate requests. Gene Solseth agreed. 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.

Fay Jandreau made a motion to assess a penalty amount of $750 with $500 suspended, if the payment is made within 30 days of the final order, if Summit Construction is not found guilty of a One Call violation within 12 months of the final Order, if Summit sends a representative to a spring excavator meeting in 2014, if Summit holds a documented safety meeting discussion One Call laws. The meeting shall be held within 30 days of the final Order and will include the detail of the discussion material, date and length of the meeting, along with the printed and signed names of the attendees and will be submitted to the Executive Director of South Dakota One Call within 30 days of the final order. If any of the conditions are not met, the entire amount will be immediately due and owing. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-003 – In the Matter of the Complaint filed by Engbarth Directional Drilling, Inc. (Engbarth), Canistota, South Dakota against CenturyLink, Seattle, Washington , for an incident occurring on February 19, 2013 at 909 E St. Patrick St., Rapid City, South Dakota

On April 15, 2013, Engbarth filed a complaint against CenturyLink alleging that CenturyLink was unaware of a duct run, and because of that the facility was not marked.  Subsequently it was damaged by Engbarth.  CenturyLink responded on April 29, 2013 that the marks were correct, and the damage occurred at that location.  CenturyLink (Qwest) previously had a complaint filed against it in 2011, which was dismissed for lack of probable cause on October 28, 2011. On May 24, 2013, Engbarth requested that it’s complaint against CenturyLink be withdrawn.

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?  Or Today, shall the Enforcement Panel accept Engbarths’s request to withdraw Complaint Docket OC13-003?

Probable Cause discussion and motion: 
Erin Hayes asked if there would be a reason that the Panel would not accept the request to withdraw the complaint. Ed Anderson stated that if the Panel felt the complaint was filed for an egregious violation, and later withdrawn, the Panel could deny the withdrawal. It would then go through the normal process to find if there was probable cause that a violation had occurred.

Ed Anderson went on to make a motion that the Panel accept the withdrawal of Complaint OC13-003. Bleau LaFave seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-004 – In the Matter of the Complaint filed by CenturyLink, Rapid City, South Dakota against Professional Excavating (Professional), Rapid City, South Dakota , for an incident occurring on April 5, 2013 at 406 East North Street, Rapid City, South Dakota

On April 17, 2013 CenturyLink filed a complaint against Professional alleging that Professional dug directly above located facilities with a track hoe and cut two cables.  Professional responded after the Deadline for Answer, but stated the wires were not located. There have been no previous complaints filed against Professional.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Professional 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 moved that there is probable cause that Professional Excavating violated 49-7A-8 by digging with mechanical equipment within 18″ of a marked line. Gene Solseth seconded the motion. Fay Jandreau mentioned that in looking at the evidence provided, it appeared that 17 days elapsed between locating and excavation.  It also appeared that a locate mark had been washed away. He then asked what the responsibilities of the excavator are to maintain the marks.  The executive director mentioned that  Administrative Rule 20:25:03:05.02 states that it is the excavator’s responsibility for protecting and preserving the marks until no longer required for proper and safe excavation work at or near the excavation site. A roll call vote was then taken on the motion. Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:
Fay Jandreau made a motion stating the marks had washed away, therefore the violation was unintentional. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:
Fay Jandreau moved that a $500 penalty be assessed with $500 suspended with the following conditions.  Professional Excavating must not be found guilty of a One Call violation within 12 months of the final Order, it must send a representative to a spring excavator meeting in 2014, and must hold a documented safety meeting discussion covering South Dakota One Call laws. The meeting shall be held within 30 days of the final Order and will include the detail of the discussion material, date and length of the meeting, along with the printed and signed names of the attendees and will be submitted to the Executive Director of South Dakota One Call within 30 days of the final order. If any of the conditions are not met, the entire amount will be immediately due and owing.

OC13-005 – 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 April 25, 2013 at the intersection of Sturgis Rd. and Niche Rd., Summerset, South Dakota

On May 6, 2013 MDU filed a complaint against Highmark alleging that Highmark directional drilled without potholing to determine depth and damaged a 45 psi gas line. Highmark responded on May 23, 2013, stating that it located the depth of the gas line on both sides of the road and accepts responsibility for the damage. There have been no previous complaints filed against Highmark.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Highmark Inc. 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: 
Bleau LaFave made a motion stating that there is probable cause that Highmark Inc. violated SDCL 49-7A-8.  Ed Anderson seconded the motion. Motion carried unanimously upon a roll call vote.

Intentional or unintentional discussion and motion:
Ed Anderson appreciated that Highmark responded quickly and accepted responsibility for its actions.  Bleau LaFave agreed, but stated that Highmark is non-compliant with the law.

Ed Anderson made a motion stating the violation was intentional. Bleau LaFave seconded the motion. Motion carried unanimously upon a roll call vote.

Penalty Assessment discussion and motion:
Ed Anderson made a motion to assess a $750 penalty, with $500 suspended if the following requirements are met:  Highmark Inc. must not be found guilty of a One Call violation within 12 months of the final Order, must send a representative to a spring excavator meeting in 2014, and must hold a documented safety meeting discussion covering One Call laws. The meeting shall be held within 30 days of the final Order and will include the detail of the discussion material, date and length of the meeting, along with the printed and signed names of the attendees and must be submitted to the Executive Director of South Dakota One Call within 30 days of the final order. If any of the 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.

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. OR shall the Enforcement Panel defer action on this complaint

On May 14, 2013 MDU filed a complaint against Highmark alleging that Highmark dug without a locate ticket and damaged a 35 psi gas line. Highmark 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 one previous complaint filed against Highmark.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Highmark Inc. 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: 
The executive director stated that legal counsel had mentioned that the Panel could defer this complaint, due to the defendant stating that this complaint should have been filed against him and not his business.

Gene Solseth made a motion to defer action on this complaint for this reason.  Bleau LaFave seconded the motion. Motion carried unanimously upon a roll call vote. Fay Jandreau stated that opting to defer this complaint does not constitute approval to not call in locate requests.

There being no further business Larry Janes asked for a motion to adjourn. Ed Anderson so moved. Fay Jandreau 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.