MINUTES June 26, 2014

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Thursday, June 26, 2014   
Location: Mid-Dakota Rural Water System, Inc.
608 W. 14th St., Miller, S.D. (Conference Room)
2 p.m. (CST), 1 p.m. (MST)

Roll Call:

Enforcement Panel Members in attendance: John Ward; Kurt Pfeifle; Todd Chambers. Also attending: Executive Director, Larry Janes

Other attendees:
Wade Jutilla, Montana-Dakota Utilities Co.; Jay Wright, First Rate Excavate; Silicia Boutchee, MidAmerican Energy; Al Sutton, Sutton Electric

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

OC14-005     In the Matter of the Complaint Filed by Montana-Dakota Utilities Co. (MDU), Rapid City, South Dakota, Against Al Sutton Electric (Sutton), Rapid City, South Dakota, for an Incident Occurring on February 25, 2014, at 2017 E. Hwy 44, Rapid City, S.D.

On April 9, 2014, MDU filed a complaint alleging that Sutton dug without a locate request and damaged a 40 psi gas line.

Sutton responded to the Complaint on June 24, 2014 by stating that locates were not requested due to not being aware that locates were required on private property for your own work. He went on to state that locates will be obtained for all digging in the future.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Al Sutton Electric 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 this was a violation of SDCL 49-7A-5. Todd Chambers seconded the motion. Todd mentioned that he was surprised to see that Sutton electric was unaware that it is a law that locate tickets are required. As a professional electrician he should know. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
John Ward made a motion stating that to be consistent with previous complaints he moved that this be considered an intentional violation. Todd Chambers seconded the motion. Motion carried unanimously upon a roll call vote.

PENALTY DISCUSSION:  
Todd Chambers  stated that an intentional violation could carry up to a $5,000 penalty.  John Ward made a motion that this being a first time violation that a $750 penalty should be assessed with $500 suspended with the following requirements:  Sutton 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, Sutton must attend a Spring Excavator meeting in 2015, and Sutton 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. Todd Chambers seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-009     In the Matter of the Complaint Filed by South Dakota Network dba SDN Communications (SDN), Sioux Falls, South Dakota, Against First Rate Excavate (First Rate), Sioux Falls, South Dakota, for an Incident Occurring on September 12, 2013, at 2800 W. 41st St., Sioux Falls, S.D.
 
On May 14, 2014, SDN filed a complaint alleging that First Rate damaged a fiber optic line on September 12, 2013, while working underneath an exposed duct work.

First Rate disputed SDN’s claim on May 19, 2014, by stating that the line was mismarked, and that First Rate’s excavator was working above the line, not underneath it when it was damaged.

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

PROBABLE CAUSE DISCUSSION:  
Larry Janes stated this complaint was filed beyond 90 days of discovery. Todd Chambers made a motion to dismiss the complaint.  Kurt Pfeifle seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-010     In the Matter of the Complaint Filed by MidAmerican Energy Company (MidAmerican), Urbandale, Iowa, Against Hodkinson Construction (Hodkinson), Sioux Falls, South Dakota, for an Incident Occurring on April 25, 2014, at 511 and 515 S. Second Ave., Sioux Falls, S.D.

On June 3, 2014, MidAmerican filed a complaint alleging that Hodkinson intentionally cut gas services on April 25, 2014, coiled them up, removed the gas meters, put vise grips on one service to attempt to stop the flow of gas, and then buried the services.

Hodkinson responded on June 16, 2014 by stating that a request had been made to MidAmerican to terminate and cap the gas lines on all of the unoccupied houses on the block, which were to be razed.

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

PROBABLE CAUSE DISCUSSION:
Todd Chambers stated that Hodkinson disputes the allegation in the complaint, however there was obvious damage, and it’s not clear who is at fault. John Ward asked how someone could cap lines, then bury them. Even if MidAmerican wouldn’t do the requested work, they had to know it was wrong and dangerous. Todd Chambers stated that they admitted to exposing the lines. It looks like they peeled  back the dirt.

Kurt Pfeifle made a motion that there is probable cause that Hodkinson violated SDCL 49-7A-12. Todd Chambers seconded the motion. Contacting MidAmerican to cap lines does not authorize Hodkinson to cut off the lines, peel back, then conceal the damage. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
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:  
Kurt Pfeifle asked if this was a first violation by Hodkinson.  Larry Janes stated that it was the first. Todd Chambers asked to review the factors, which are to be considered in determining the amount of penalty. Larry Janes read from 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.

Todd Chambers suggested there might be two offenses here. Kurt Pfeifle suggested that the Panel not go back, but they should be reflected in the penalty amounts. John Ward stated that even when a company says they’re not going to complete a request, it is not a green light to proceed.

Kurt Pfeilfe made a motion to assess a $2,000 penalty (one per each incident) and suspend $1,000 providing Hodkinson meet the following requirements:  Hodkinson 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, Hodkinson must attend a Spring Excavator meeting in 2015, and Hodkinson 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. Todd Chambers seconded the motion.   Motion carried unanimously upon a roll call vote.

There being no further business, Larry Janes asked for a motion to adjourn.  John Ward so moved. Todd Chambers 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