MINUTES April 10, 2014

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Thursday, April 10, 2014 
Location: Mid-Dakota Rural Water System, Inc.
608 W 14th Street, Miller SD (Conference Room)
2 p.m. (CST), 1 p.m. (MST)

Roll Call:

Enforcement Panel Members in attendance: Erin Hayes; Kurt Pfeifle; John Ward; Fay Jandreau ; Kevin Kouba. Also attending: Legal Counsel, Kristen Edwards; Executive Director, Larry Janes

Other attendees:
Wade Jutila; and Bruce Jensen

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.

OC14-001 – In the Matter of the Complaint Filed by Montana-Dakota Utilities Company, Rapid City, South Dakota, Against Chad Zandstra Construction, LLC, Rapid City, South Dakota for an Incident occurring on January 10, 2014 at 3714 Padre Drive, Rapid City, S.D.

On February 27, 2014 Wade Jutila, Montana-Dakota Utilities Co. filed a complaint alleging that Chad Zandstra Construction damaged a 50 psi gas line when digging without a locate request.

Chad Zandstra responded to the complaint on March 25, 2014 by stating that his company always calls in for locates prior to excavation, does not dig until locates are completed, and will continue to do so. In this case Mr. Zandstra’s staff began the project without his authority or knowledge, and that he takes full responsibility.

Larry Janes stated there have been no previous South Dakota One Call complaints filed against Chad Zandstra Construction, LLC.

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

PROBABLE CAUSE DISCUSSION:  Fay Jandreau made a motion that there is probable cause that a violation of 49-7A-5 occurred. John Ward seconded the motion. There was no further discussion. Motion carried unanimously on a roll call vote.

DISCUSSION OF INTENT:  John Ward made a motion stating this was an intentional violation. Erin Hayes seconded the motion. There was no further discussion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  John Ward made a motion to assess a penalty of $750, with $500 suspended, with the following requirements:  Chad Zandstra Construction, LLC must not be found guilty of a One Call violation within 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, Chad Zandstra Construction, LLC must attend a Spring Excavator meeting,  And Chad Zandstra Construction, LLC 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. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-002 – In the Matter of the Complaint Filed by Montana-Dakota Utilities Company, Rapid City, South Dakota, Against B&B Excavating, Inc. , Rapid City, South Dakota for an Incident occurring on February 14, 2014 at Lot 6, Duckhorn Drive, Rapid City, S.D.

On February 27, 2014 Wade Jutila, Montana-Dakota Utilities Co. filed a complaint alleging that B&B Excavating  damaged a 50 psi gas line when digging without a locate request.

Tony Bolton responded on behalf of B&B Excavating on March 25, 2014 by stating that a customer corrected a lot number and insisted that B&B not wait for locates. Mr. Bolton went on to state that this matter has been addressed and that it will never happen again.

Larry Janes stated there have been no previous South Dakota One Call complaints filed against B&B Excavating.

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

PROBABLE CAUSE DISCUSSION:  Kurt Pfeifle made a motion that there was probable cause that a violation of 49-7A-5 occurred. Kevin Kouba seconded. There was no further discussion. Motion carried unanimously upon a roll call vote. 
DISCUSSION OF INTENT:  Kevin Kouba made a motion that this was an intentional violation. John Ward seconded. There was no further discussion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  Kurt Pfeifle made a motion to assess a penalty of $750, with $500 suspended, with the following requirements:  B&B Excavating, Inc. must not be found guilty of a One Call violation within 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, B&B Excavating, Inc. must attend a Spring Excavator meeting, and B&B Excavating, Inc. 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. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-003 – In the Matter of the Complaint Filed by Montana-Dakota Utilities Company, Rapid City, South Dakota, Against Rapid Construction LLC. , Rapid City, South Dakota for an Incident occurring on February 20, 2014 at Far West end of Cobalt Drive, Rapid City, S.D.

On February 27, 2014 Wade Jutila, Montana-Dakota Utilities Co. filed a complaint alleging that Rapid Construction, LLC. damaged a 45 psi gas line when digging without a locate request.

Bruce Jensen responded on March 24, 2014 by stating that a locate ticket had been obtained and that locates were cleared. Mr. Jensen provided locate tickets and went on to state that plans would be made to track locates and relocates and to expand proximity for hand locating utilities.

Larry Janes stated there have been no previous South Dakota One Call complaints filed against Rapid Construction Co.

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

PROBABLE CAUSE DISCUSSION:  John Ward stated there is a list of problems with this complaint. The defendant started that the work began before the start date and time on the locate ticket, and the locate request stated that sewer and water were not to be located. Fay asked if this is allowed. Larry Janes stated that an excavator can request a specific operator to be notified on a Verification request, but this should  not be done on a Routine request. John Ward made a motion stating there is probable cause that a violation of 49-7A-5 occurred. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  John Ward stated that every professional excavator knows they must request locate tickets, manage tickets, and know the start date and time. John Ward made a motion stating this was an intentional violation. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  John Ward made a motion to assess a penalty of $750, with $500 suspended, with the following requirements:  Rapid Construction, LLC. must not be found guilty of a One Call violation within 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, Rapid Construction, LLC  must attend a Spring Excavator meeting, and Rapid Construction, LLC  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. Kevin Kouba seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-004 – In the Matter of the Complaint Filed by City of Big Stone City, Big Stone City, South Dakota, Against CenturyLink, Sioux Falls, South Dakota for an Incident occurring on January 31, 2014 at 808 4th Ave. , Big Stone City, S.D.

On March 13, 2014 Robert L. Athey, City of Big Stone City,  filed a complaint alleging that CenturyLink failed to respond to a locate request in the allocated time required by South Dakota one call law.

Jason Topp responded on behalf of CenturyLink on April 2, 2014 by stating that due to the locator’s location he could not safely arrive within the two hour window. Mr. Topp went on to state that USIC has added staff to respond to emergency locates as well as utilizing CenturyLink employees to assist.

Larry Janes stated there were 4 complaints filed in 2013 against CenturyLink for not meeting locating time requirements.

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?

PROBABLE CAUSE DISCUSSION:  Kurt Pfeifle made a motion that there is probable cause that CenturyLink violated Administrative Rule 20:25:03:10 by not locating within the required time. Erin Hayes seconded the motion. Fay Jandreau stated the locator should have been able to contact someone at the City of Big Stone. He also asked if response time was defined. Larry Janes referred to Administrative Rule 20:20:03:10, which states: (1)  The operator shall respond as soon as possible but not longer than two hours from the notification time during the business day and not longer than four hours from the notification time outside of the business day or by the start time on the ticket, whichever is later. John Ward stated someone should have been available at the contact number at Big Stone City. Fay Jandreau asked if responding is legally defined. Kristen Edwards stated that this hasn’t specifically been defined, so it becomes a judgment call. Kurt Pfeifle suggested the Panel be careful regarding allowing telephone calls as responding. The locator did not show up until 6:00. There being no further discussion, a roll call vote was taken. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  Kevin Kouba stated that CenturyLink has added staff to alleviate this type of situation. Erin Hayes agreed. Kevin Kouba made a motion stating this was an intentional violation. Erin Hayes seconded the motion. Fay Jandreau stated that using MapQuest the drive from Huron to Big Stone City is a 2 ½ hour drive, so the locator could not have made the drive within 2 hours. Erin Hayes stated that companies are responsible to staff properly to support their areas or make calls to request extensions.

PENALTY DISCUSSION:  Larry Janes stated that per SDCL49-7A-19 penalties may be assessed up to $5,000 for the first violation and up to $10,000 for each subsequent violation, if the violation is considered intentional and if it occurs within 12 months of the initial violation. Kevin Kouba stated that safety can be an issue in winter weather conditions, although CenturyLink has had prior  complaints filed against it. Fay Jandreau stated that significant effort was made to respond. It’s not like they ignored the request. John Ward stated this is a challenge for CenturyLink no matter the weather. Kevin Kouba agreed there has been considerable effort and CenturyLink has made steps to improve coverage. Kevin Kouba made a motion to assess a penalty of $2,000 with $0 suspended. Kristen Edwards stated that without a suspended amount there is no incentive to meet conditions. Kevin Kouba withdrew the motion. Fay Jandreau asked if the contract locating company could be required to attend a Spring Meeting in 2015. John Ward said it’s probably in the contract. Kurt Pfeifle stated he was wrestling with the dollar amount to assess. Because of the complaints filed in 2013 against CenturyLink and the penalties assessed, Kurt Pfeifle then made a motion to assess a penalty of $5,000 with $3,000 suspended with the following requirements:  CenturyLink must not be found guilty of a One Call violation within 12 months of the final Board Order, the penalty payment must be made within 30 days of the final Board Order, CenturyLink and the contract locating company, USIC,  must attend a Spring Excavator meeting, and CenturyLink 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. John Ward seconded the motion. A question was made regarding whether or not the Panel could require USIC to attend a Spring Meeting in 2015. Larry Janes stated that with the complaints 2013 against CenturyLink, USIC paid the penalty assessments. The $3,000 suspended portion in this motion should be an incentive for USIC to attend the meeting. Motion carried unanimously upon a roll call vote

There being no further business, Larry Janes asked for a motion to adjourn. Kevin Kouba so moved. Erin Hayes seconded. Motion carried unanimously upon a roll call vote.

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