MINUTES July 30, 2014

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Wednesday, July 30, 2014   
Location: Otter Tail Power Company
404 S. 2nd St.; P. O. Box 392

Milbank, SD 57252
1 p.m. (CST), Noon (MST)

Roll Call:

Enforcement Panel Members in attendance Dan Kaiser; Fay Jandreau; Kevin Kouba; Bleau LaFave; Kurt Pfeifle.  Also attending:  Kristen Edwards, Legal Counsel; Executive Director, Larry Janes.

Other attendees:
Wade Jutilla, Montana-Dakota Utilities Co.; Silicia Boutchee, MidAmerican Energy; Denny Van Ruler, MidAmercian Energy;Tom Hutchins, MidAmerican Energy; Terry Fox, MidAmerican Energy; Mark Wilson, Santel Communications; Merlin Smith, 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. A probable cause determination will be made based only on the written documentation received from both parties in the complaint. Both parties 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.

OC14-011 – In the Matter of the Complaint Filed by Mitchell Telecom, Mitchell, S.D., Against Schoenfelder Construction, Mitchell, S.D., for an incident occurring on June 10, 2014, at North Montana and West 8th Ave., Mitchell, S.D.

On June 12, 2014, Mitchell Telecom filed a complaint alleging that Schoenfelder Construction cut a fiber optic cable and innerduct and did not notify South Dakota 811 of the damage.

Schoenfelder Construction responded on July 3, 2014, stating that the Developer told Mitchell Telecom that he was not allowing (Mitchell Telecom) lines to be installed until Schoenfelder Construction completed its work. Larry Janes stated there have been no previous complaints filed against Schoenfelder Construction.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Schoenfelder Construction violated any statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?
  
PROBABLE CAUSE DISCUSSION:  
Dan Kaiser made a motion that there is probable cause that Schoenfelder Construction violated 49-7A-5. Bleau LaFave seconded the motion. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
Fay Jandreau made a motion stating the violation was intentional. Kevin Kouba seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  
Dan Kaiser made a motion to assess a penalty against Schoenfelder Construction in the amount of $750 with $500 suspended with the following requirements:  Schoenfelder  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, Schoenfelder must attend a Spring Excavator meeting in 2015, and Schoenfelder 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. Bleau LaFave seconded the motion. Kurt Pfeifle asked to clarify the two separate locate tickets. Motion carried unanimously upon a roll call vote.

OC14-012     In the Matter of the Complaint Filed by May Construction, Sioux Falls, S.D., Against MidAmerican Energy Company (MEC), Sioux Falls, S.D. for an incident occurring on June 10, 2014, at State Ave. and E. 9th St., Dell Rapids, S.D.

On June 19, 2014, May Construction filed a complaint alleging that a gas line was struck due to no locate markings by MidAmerican Energy Company as requested and required, which resulted in a 4″ gas line being damaged, and according to media reports, a 78 year old male suffered burns.

MEC responded to the complaint on July 10, 2014. It did not dispute the allegation. MEC provided future corrective action. Larry Janes stated there have been no previous complaints filed against MEC.

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

Note: Per SDCL 49-7A-22, three or five Board Members are to serve on the Panel.  For this Complaint Fay Jandreau had asked to recuse himself and Bleau LaFave abstained in order for the Panel to have three members serve on this Complaint Docket.

PROBABLE CAUSE DISCUSSION:  
Kurt Pfeifle made a motion stating there is probable cause that MEC violated 49-7A-8. Kevin Kouba seconded the motion. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
Kurt Pfeifle made a motion stating this was not an intentional violation. Kevin Kouba seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION: 
Kurt Pfeifle stated that although this was unintentional, it was serious.

Dan Kaiser made a motion to assess a penalty in the amount of $1,000 and suspend $250 with the following requirements:  MEC  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, MEC must attend a Spring Excavator meeting in 2015, and MEC 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.

OC14-013 – In the Matter of the Complaint Filed by Mitchell Telecom, Mitchell, S.D., Against Schoenfelder Construction, Mitchell, S.D., for an Incident Occurring on June 10, 2014, at North Iowa Ave and West 8th Ave., Mitchell, S.D. 

On June 25, 2014, Mitchell Telecom filed a complaint alleging that Schoenfelder Construction (Schoenfelder) cut a fiber optic cable and innerduct without having requested a One Call ticket.

Schoenfelder responded on July 17, 2014, by stating that Mitchell Telecom placed their facilities prior to authorization to do so.  Larry Janes stated there was a previous complaint filed against Schoenfelder Construction on June 12, 2014.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Schoenfelder Construction 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 asked if this was complaint was the same as in OC14-011, or if it was a different address. Kevin Kouba stated this appeared to be on different sides of the street. Kurt Pfeifle also questioned if this was the second filing for the same complaint.  Bleau LaFave stated that if both were hit during the same action, then these should have been combined into one complaint, but if they were two separate addresses, then we should move forward. Kevin Kouba stated that based on the locate tickets, these were two separate addresses.

Kevin Kouba made a motion stating there is probable cause that Schoenfelder violated 49-7A-8 by not maintaining 18″ clearance between a marked facility and the cutting edge of mechanical equipment. Bleau LaFave seconded the motion. Kristen Edwards was asked if the 18″ rule could be used in this case.  She stated this was in the Complaint, so it could be considered. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
Fay Jandreau made a motion stating this was an intentional violation.  Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  
Fay Jandreau asked if OC14-011 and OC14-013 were the same location. Kevin Kouba stated they were two separate locations.

Fay Jandreau then made a motion to assess a $750 penalty with $500 suspended with the following requirements:  Schoenfelder  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, and Schoenfelder must attend a Spring Excavator meeting in 2015. If any of these conditions are not met, the entire amount will be immediately due and owing. Dan Kaiser seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-014     In the Matter of the Complaint filed by CenturyLink, Sioux Falls, S.D., Against Action Electric, Sioux Falls, S.D., for an Incident Occurring on June 3, 2014, at 41st St. and Sertoma Ave., Sioux Falls, S.D.

On June 30, 2014, CenturyLink filed a complaint alleging that Action Electric dug before a re-spot ticket was valid and damaged a 900 pair and an 1800 pair cable.

Action Electric disputed the complaint on July 25, 2014, by stating there was no marking outside of  the pavement  which was stated in Centurylink’s complaint as what was removed. Larry Janes stated the last Complaint filed against Action Electric was on January 31, 2005.

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

Note: Per SDCL 49-7A-22, three or five Board Members are to serve on the Panel.  For this Complaint Dan Kaiser had asked to recuse himself and Bleau LaFave abstained in order for the Panel to have three members serve on this Complaint Docket.

PROBABLE CAUSE DISCUSSION:  
Fay Jandreau made a motion stating there is probable cause that Action Electric violated 49-7A-5. Kevin Kouba seconded the motion. Kurt Pfeifle mentioned that a Re-spot ticket becomes valid after 24 hours. Larry Janes stated the locate request was actually an Update ticket, which has a 48 hour wait time. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
Kevin Kouba made a motion that this was not an intentional violation. Kurt Pfeifle seconded the motion. Kurt Pfeifle stated that this violation was due to not understanding the waiting period and the confusion when working in a busy construction area with other excavators.  Kevin Kouba said that Action probably thought the locate was re-marked, but the locate was requested in order to follow their protocol. Kevin Kouba and Kurt Pfeifle voted in favor of the motion. Fay Jandreau voted against. Motion carried upon a roll call vote.

PENALTY DISCUSSION:  
Fay Jandreau asked if this would be considered a first complaint against Action Electric. Kurt Pfeifle stated that this was essentially correct, since the previous complaint was in 2005.

Kevin Kouba made a motion to assess a $500 penalty with $250 suspended with the following requirements: Action Electric 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, Action Electric must attend a Spring Excavator meeting in 2015, and Action Electric 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. Bleau LaFave seconded the motion. Kurt Pfeifle asked to clarify the two separate locate tickets. Motion carried unanimously upon a roll call vote.

OC14-015     In the Matter of the Complaint Filed by Montana-Dakota Utilities Co., Rapid City, South Dakota, Against RL Construction and Design, Hill City, South Dakota, for an Incident Occurring on April 16, 2014, at 2451 Emerson Ln., Rapid City, S.D.

On July 2, 2014, Montana-Dakota Utilities Co., filed a complaint alleging that RL Construction and Design damaged a 45 psi gas line without having a current locate ticket. On July 9, 2014 Montana-Dakota Utilities Co., filed a request to withdraw Docket OC14-015 after discovering a subcontractor working for RL Construction and Design had allegedly damaged the gas line. Montana-Dakota Utilities Co. will re-submit a complaint when mailing information is obtained for Lance Wellman (subcontractor of RL Construction).

RL Construction and Design did not respond to the complaint. Larry Janes stated there have been no previous complaints filed against RL Construction and Design.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board accept Montana-Dakota Utilities Co.’s request to withdraw Complaint Docket OC14-015, or Today, Shall the Enforcement Panel find that there is probable cause that RL Construction and Design 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 stated that MDU has filed a subsequent complaint OC14-017 against the subcontractor. Dan Kaiser made a motion to accept the dismissal request by MDU. Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-016     In the Matter of the Complaint Filed by Montana-Dakota Utilities Co., Rapid City, South Dakota, Against Hardeneye Concrete, Inc., Rapid City, South Dakota, for an Incident Occurring on April 23, 2014, at 22956 Candlelight Dr., Rapid City, S.D.

On July 2, 2014, Montana-Dakota Utilities Co., filed a complaint alleging that Hardeneye Concrete, Inc. damaged a 50 psi gas line without obtaining a locate ticket.   Montana-Dakota Utilities Co. is requesting that a $5,000 fine be assessed.

Hardeneye Concrete, Inc. responded on July 8, 2014, and did not dispute the allegation. Larry Janes stated there have been no previous complaints filed against Hardeneye Concrete, Inc.

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

PROBABLE CAUSE DISCUSSION:  
Dan Kaiser made a motion stating that Hardeneye Concrete, Inc was in violation of 49-7A-5. Kevin Kouba seconded the motion.  Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
Dan Kaiser made a motion that this was an intentional violation.  Kevin Kouba seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  
Dan Kaiser asked about MDU’s request to assess penalty of $5,000. Kurt Pfeifle stated that MDU has reached out to Hardeneye, who apparently has been unresponsive. Fay Jandreau stated that a ¾ inch pipe was damaged, but this was a first time complaint with no injuries or fatalities and only one customer was affected for one hour, although this was done in defiance of MDU’s outreach.

Dan Kaiser agreed with Fay and made a motion to assess a penalty in the amount of $1,000 with $500 suspended with the following requirements:  Hardeneye Concrete, 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, Hardeneye Concrete, Inc must attend a Spring Excavator meeting in 2015, and Hardeneye Concrete, 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. Bleau LaFave seconded the motion. Kurt Pfeifle asked to clarify the two separate locate tickets. 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