MINUTES November 8, 2013

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Friday, September 27, 2013
Location: Midcontinent Communications
410 S. Phillips Ave., Sioux Falls, SD (South Conference Room) 

2 p.m. (CST), 1 p.m. (MST)

Roll Call:

Enforcement Panel Members in attendance Erin Hayes; Dan Kaiser; Fay Jandreau; John Ward; Kurt Pfeifle

Also attending:  Legal Counsel, Kristen Edwards; Executive Director, Larry Janes

Other attendees:
Jim Wilcox, Xcel Energy; Tim Moke, Xcel Energy; Alicia Berger, Xcel Energy; Silicia Botchee, MidAmerican Energy; Rebecca Wek, First Dakota Horticulture

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. Additional requirements may apply to a penalty assessment.

In The Matter Before The South Dakota One Call Notification Board Enforcement Panel

OC13-021 – In the Matter of the Complaint Filed by Landscape Garden Centers (Landscape), Sioux Falls, South Dakota, Against Xcel Energy (Xcel)Sioux Falls, South Dakota for an Incident Occurring on September 30, 2013, at 6505 and 6509 S. Vintage Place, Sioux Falls, S.D.

On October 2, 2013, Landscape Garden Centers filed a complaint against Xcel Energy alleging that Xcel had installed a power service line in an irrigation sleeve on September 30, 2013. Xcel responded on October 22, 2013, and stated that it disputes that its use of a pipe allegedly “intended for irrigation” violates any SD One Call statute or rule and that Xcel Energy’s facilities were properly marked.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Xcel Energy 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 stating that based on the complaint that no One Call law or statute was violated. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-022 – In the Matter of the Complaint Filed by Crooks Municipal Utilities (Crooks), Crooks, South Dakota, Against Thomas Powers (Powers)Renner, South Dakota for an Incident Occurring on September 30, 2013, at 47467 258th St., Renner, S.D.

On October 2, 2013, Crooks filed a complaint against Powers alleging that Powers placed a mail box post without requesting locates. Powers responded on October 17, 2013, admitting that he was told by the Crooks City Office to call for locates.

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

Erin Hayes made a motion that there is probable cause that 49-7A-5, Notification of Proposed Excavation, was violated. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote.

Dan Kaiser made a motion that this was an intentional violation. Motion carried unanimously upon a roll call vote.

Dan Kaiser made a motion to assess a penalty of $500, with $500 suspended, providing there is no violation of SD One Call law within the next 12 months. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote. 

OC13-023 – In the Matter of the Complaint Filed byNorthern Natural Gas Company (Northern), Omaha, Nebraska, AgainstR&R Concrete (R&R)Hartford, South Dakota, for an Incident Occurring on September 30, 2013, at Western Ave., Sioux Falls, S.D. 

On October 3, 2013, Northern filed a complaint against R&R alleging that R&R had excavated on September 30, 2013, without requesting locates. R&R disputed the allegation on October 22, 2013, by stating that the work being done was to clean sediment from the top of a concrete fore bay.

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

Erin Hayes stated that she understands why, when driving up to a site, there may have been concern about no locates being requested and why a complaint was filed.

Dan Kaiser made a motion that, based on the picture provided by Northern, probable cause exists that a violation of 49-7A-5 did occur. Kurt Pfeifle stated this would not be excavation, if sediment was just being pulled out of the fore bay. Dan Kaiser then withdrew his motion.

Fay Jandreau made a motion that probable cause that a violation of SD One Call law does not exist. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-024 – In the Matter of the Complaint Filed by MidAmerican Energy Company (MidAmerican), Urbandale, Iowa, Against Ankeny Construction (Ankeny), Yankton, South Dakota, for an Incident Occurring on July 12, 2013, at 3702 Staci Lane, Yankton, S.D. 

On October 10, 2013, MidAmerican filed a complaint against Ankeny alleging that Ankeny hit 1/2″ plastic gas line on July 12, 2013, with a re-rod stake while installing forms for a concrete parking pad without requesting locates. Ankeny responded by stating there was no excavation, that a stake was driven into the ground.

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

Larry Janes mentioned that SDCL 49-7A-21 states “A complaint alleging a violation of any statute, except § 49-7A-12, or alleging a violation of any rule of the Statewide One-Call Notification Board shall be brought not later than ninety days after the discovery of the alleged violation, but in no case may the complaint be brought more than one year after the date of the alleged violation. This complaint was filed 90 days, 1 hour, 58 minutes after discovery. Dan Kaiser stated we need to adhere to this definition.

Kurt Pfeifle agreed and made a motion to dismiss this complaint for failure to file within the specified time. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-025 – In the Matter of the Complaint Filed by MidAmerican Energy Company (MidAmerican), Urbandale, Iowa, Against First Dakota Horticulture (First Dakota), Sioux Falls, South Dakota, for an Incident Occurring on August 13, 2013, at 221 S. Sixth Ave., Brandon, S.D.

On October 11, 2013, MidAmerican filed a complaint against First Dakota alleging that First Dakota hand dug a hole on August 13, 2013, without requesting locates to replace a tree and while doing so, hit a gas service line. First Dakota responded on October 21, 2013, and admitted that no locates were requested, violating their company policy. The company has since discussed the issue and reminded all other crew leaders of the policy to call before every dig.

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

Dan Kaiser stated that there is probable cause that a violation of 49-7A-5 occurred,  Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

Dan Kaiser made a motion stating that this violation was intentional. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

Dan Kaiser asked if First Dakota had any previous complaints filed against it. Larry Janes stated there had been none filed. Erin Hayes stated that based on the response, the crews had been covered on the need to contact SD One Call before digging.

Kurt Pfeifle made a motion to assess a penalty of $1,000 with $500 suspended, for the violation of 49-7A-5, with the following requirements:  Payment of the penalty must be made within 30 days of the Order, First Dakota must not be found guilty of a One Call violation within the next 12 months, a safety meeting must be held within 30 days of the Board Order to discuss One Call laws. Detail of the discussion material, date and length of the meeting, along with the printed and signed names of attendees, must be sent to the Executive Director of South Dakota One Call within that 30 day period. And First Dakota must attend a Spring Excavator Meeting in 2014. If any of the conditions are not met, the entire penalty amount will be immediately due and owing. Fay Jandreau stated that he thought the suspended amount should be $750. Kurt Pfeifle agreed to amend his motion to a $1,000 penalty assessment with $750 suspended, and with all the requirements mentioned above. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

OC13-026 – In the Matter of the Complaint Filed byMidAmerican Energy Company (MidAmerican), Urbandale, Iowa, AgainstAaron George (George), Tea, South Dakota, for an Incident Occurring on July 24, 2013, at 313 N. Minnesota Ave., Sioux Falls, S.D.

On October 11, 2013, MidAmerican filed a complaint against George alleging that George pulled a gas service out of a gas main with a skid loader without requesting locates. Robert Meadors responded on behalf of George stating the gas line was no more than 6 inches below the surface and that one of MidAmerican’s employees had stated the gas line was not on any records and could not be located.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Aaron George 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 there is probable cause that a violation of 49-7A-5 occurred. Dan Kaiser seconded the motion. Fay Jandreau asked if the line was deeper than 6 inches. Kurt Pfeifle stated that this work was not tilling of soil. Dan Kaiser agreed, and stated that if you’re using a skid loader you’re not gardening. Motion carried unanimously upon a roll call vote.

Fay Jandreau made a motion that this was an unintentional violation. Dan Kaiser seconded the motion. Dan Kaiser stated that just because a discussion may have been held with a MidAmerican employee, doesn’t excuse someone from calling in for a locate request. Erin Hayes stated that if a request for a locate had been made, George would have known the gas line was present. A roll call vote was taken. Motion carried three to two, with Erin Hayes and John Ward voting against this being an unintentional violation.

Fay Jandreau made a motion that a $500 penalty be assessed, with $250 suspended, if paid within 30 days of the Board Order and if there are no further violations of SD One Call laws within 12 months of that Order. 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.  Dan Kaiser 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