MINUTES October 9, 2014

MINUTES

South Dakota One Call Notification Board
Enforcement Panel Conference Call
Thursday, October 9, 2014   
Location: NorthWestern Energy Company
3010 W. 69th St.

Sioux Falls, SD 57108
9 a
.m. (CST), 8 a.m. (MST)

Roll Call:

Enforcement Panel Members in attendance: Erin Hayes; Bleau LaFave; Fay Jandreau; John Ward; Ed Anderson; Dan Kaiser. Also attending: Kristen Edwards, Legal Counsel; Executive Director, Larry Janes.

Other attendees:
Others in attendance: Kim Kontz, Q3 Contracting; Mark Meier, Watertown Municipal Utilities; Steve Lehner, Watertown Municipal Utilities; Derek Larsen, Spearfish Forest Products.

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. In addition to any penalty payments, there may also be other requirements to be met.

(NOTE: For the purpose of continuity, these minutes are not necessarily in chronological order.)

At this time the Panel moved directly into OC14-020 to accommodate Dan Kaiser’s schedule. Bleau LaFave recused himself from this particular complaint docket due to a conflict of interest.

OC14-020 – In the Matter of the Complaint Filed by NorthWestern Energy (NorthWestern), Brookings, South Dakota, Against Kerry’s Landscaping & Irrigation (Kerry), Brookings, South Dakota, for an Incident Occurring on September 9, 2014, at 933 Crystal Ridge Rd., Brookings, S.D.

On September 9, 2014, NorthWestern filed a complaint alleging that Kerry’s damaged a natural gas line while installing a sprinkler system without a locate request.

Kerry’s responded on September 30, 2014 by stating it believed that anything shallower than 12″ did not require a locate.  Kerry’s went on to state that going forward locates will be done prior to all lawn irrigation projects being initiated. Kerry’s also apologized for the inconvenience involved for all parties in this particular situation.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Kerry’s 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 there is probable cause that Kerry’s violated SDCL 49-7A-5. John Ward seconded the motion. Motion carried unanimously upon a roll call vote by Erin Hayes, Fay Jandreau, John Ward, Ed Anderson, and Dan Kaiser.

DISCUSSION OF INTENT:  
Dan Kaiser made a motion that this was an unintentional violation.  Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote by Erin Hayes, Fay Jandreau, John Ward, Ed Anderson, and Dan Kaiser.

PENALTY DISCUSSION:  
Dan Kaiser stated that doing business as a landscaping company does not exempt it from using the One Call system. He also stated that Kerry’s showed remorse in its response and that it will notify the 811 Center in the future before excavating.

Dan Kaiser then made a motion that a $1,000 penalty be assessed with $750 suspended. After further discussion he amended the motion stating that a $500 penalty be assessed with $250 suspended with the following requirements:  Kerry’s  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, Kerry’s must attend a Damage Prevention meeting in 2015, and Kerry’s must conduct an in-house safety meeting to discuss South Dakota One Call laws. 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. Erin Hayes seconded the motion. Motion carried unanimously upon a roll call vote by Erin Hayes, Fay Jandreau, John Ward, Ed Anderson, and Dan Kaiser.

At this time, Dan Kaiser excused himself from the Panel and the meeting. The remaining Panel members continued with the meeting.

OC14-017 – In the Matter of the Complaint Filed by Montana-Dakota Utilities Co., Rapid City, South Dakota, Against Lance Wellman, Hill City, South Dakota, for an Incident Occurring on April 16, 2014, at 2451 Emerson Ln., Rapid City, S.D. 

On July 14, 2014, Montana-Dakota Utilities Co. (MDU) filed a complaint alleging that Lance Wellman (Wellman)  severed a gas line while digging without a locate request.

On July 23, 2014, a Notice of Complaint was sent to Wellman by Priority mail.  On August 8, 2014 the letter was returned by the US Post Office.  MDU has been unable to provide a current forwarding address for Wellman.

Today shall the Enforcement Panel of the South Dakota One Call Notification Board dismiss the complaint against Wellman or shall the complaint remain open until a future date, when MDU can locate Wellman?

DISCUSSION:  
John Ward asked if this complaint can be left open. Fay Jandreau asked about locating Wellman, if an accurate address is not available. Kristen Edwards said a notice could be placed in the newspaper. Fay Jandreau asked about MDU’s obligation in locating Mr. Wellman. Kristen Edwards stated that it is MDU’s responsibility as the complainant to find an address. Fay Jandreau asked if we could hear the complaint in this instance. Kristen Edwards stated that we cannot hear it today, because Wellman has not been served with the complaint. Fay Jandreau then asked if we should close the docket. Kristen Edwards stated that the Panel could vote to defer the complaint to a future date or it could make the decision to close the docket for failure to notice. John Ward asked who would be responsible to place the ad in the newspaper.  Kristen Edwards said that it would be MDU’s responsibility.

Fay Jandreau then made a motion to defer this complaint to the next Panel meeting and to make MDU aware of this decision. Erin Hayes seconded the motion. Motion unanimously upon a roll call vote. 

OC14-018 – In the Matter of the Complaint Filed by South Dakota Network dba SDN Communications, Sioux Falls, South Dakota, Against Q3 Contracting, Inc., Sioux Falls, South Dakota, for an Incident Occurring on May 30, 2014, at North side of A Ave. & Blackhawk, Sioux Falls, S.D.

On August 29, 2014, South Dakota Network dba SDN Communications (SDN) filed a complaint against Q3 Contracting, Inc. (Q3) alleging that Q3 damaged 2 fiber optic cables when boring without a locate request.

On September 22, 2014, Q3 responded by stating they did have a locate request for the work area.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Q3 violated any statute or rule under the jurisdiction of the Board, and if so shall a civil penalty be assessed?

Kristen Edwards stated that this complaint was filed 91 days after discovery.

Fay Jandreau made a motion to dismiss this docket per SDCL 49-7A-21, complaint brought later than 90 days of discovery. Bleau LaFave seconded the motion. Motion unanimously upon a roll call vote.

OC14-019 – In the Matter of the Complaint Filed by Watertown Municipal Utilities, Watertown, South Dakota, Against Clausen Construction Inc., Watertown, South Dakota, for an Incident Occurring on September 5, 2014, at 2600 14th Ave. NE, Watertown, S.D.
  
On September 9, 2014, Watertown Municipal Utilities (Watertown) filed a complaint alleging that Clausen Construction Inc. (Clausen) damaged an electrical line when excavating without a locate request.

At this time Clausen has not responded to the complaint.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Clausen 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 made a motion that motion stating that there is probable cause that Clausen violated SDCL 49-7A-5. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

DISCUSSION OF INTENT:  
John Ward made a motion stating this was an intentional violation. Erin Hayes seconded the motion. Motion unanimously upon a roll call vote.

PENALTY DISCUSSION:
Erin Hayes made  a motion to assess a penalty amount of $1,000 and suspend $250 with the following requirements:  Clausen 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, Clausen must attend a Damage Prevention meeting in 2015, and Clausen must conduct an in-house safety meeting to discuss South Dakota One Call laws. 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. Motion carried unanimously upon a roll call vote.

OC14-021 – In the Matter of the Complaint Filed by CenturyLink, Rapid City, South Dakota,Against Spearfish Forest Products LLC (Forest Products), Spearfish, South Dakota, for an Incident Occurring on September 16, 2014, at Tinton Road, 1 Mile North of Beaver Creek Road, Spearfish, S.D.

On September 16, 2014, CenturyLink filed a complaint alleging that Spearfish Forest Products LLC cut a 50 pair telecommunications cable while building a road without a locate request.

Forest Products responded to the complaint on September 30, 2014, by stating it was performing pre-use surface maintenance on a pre existing road template less than 1 foot below the original ground line while working on National Forest land.

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

PROBABLE CAUSE DISCUSSION:  
Erin Hayes stated that this should fall under the exception in SDCL 49-7A-1 (4) (D). Bleau LaFave asked if this was in a right of way or would it be considered private property. John Ward said this complaint should be dismissed. Fay Jandreau said this is the type of situation where CenturyLink may never be notified for work of this nature. Larry Janes made the statement that this can be a dangerous issue because of pipelines placed in forest service land also. Bleau LaFave stated again that if this is considered private property does this fall into the exemption of SDCL 49-7A-1. Fay Jandreau stated that there is a difference between liability and a One Call violation. John Ward then stated that placing in the Black Hills is much different than in other areas of the state, that oftentimes facilities are placed at a shallow depth to avoid breaking rock. Also, from the complaint and the response, we don’t know if this was an existing road.

Fay Jandreau made a motion to dismiss this complaint because of the exemption for road work in SDCL 49-7A-1. John Ward seconded the motion. Motion carried unanimously upon a roll call vote.

OC14-029 – In the Matter of the Complaint Filed by Crooks Municipal Utilities (Crooks), Crooks, South Dakota, Against Emily Maras (Maras), Crooks, South Dakota, for an Incident Occurring on September 20, 2014, at 813 Executive Ave., Crooks, S.D.

On September 24, 2014, Crooks filed a complaint alleging that Maras was erecting a wood fence without obtaining locates.

Maras responded to the complaint on September 27, 2014, by stating that she didn’t think they were digging holes past six inches and will call before they do any more digging.

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

PROBABLE CAUSE DISCUSSION:  
Erin Hayes made a motion stating that there is probable cause that Clausen violated SDCL 49-7A-5. Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

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

PENALTY DISCUSSION:  
Larry Janes stated that in previous complaints against homeowners the following penalty assessments have been made:  In 2013 a homeowner was found guilty of violating SDCL 49-7A-5 and was assessed a penalty amount of $500 with $500 suspended with the condition that they must not be found guilty of a One Call violation within the next 12 months. This was a situation where a mail box post had been placed next to a high pressure gas main. Also in 2013 a homeowner was assessed a penalty of $500 with $250 suspended for landscaping work without an 811 notification. The same condition was applied. John Ward said this is an education issue for the homeowner. Fay Jandreau asked if a requirement should be added for the homeowner to attend a Damage Prevention meeting. He then retracted that. Bleau LaFave asked if the City of Crooks sent information to the homeowner about notifying  811 before digging. Larry Janes stated that several years ago the City of Crooks had a home explosion due to a digging incident, and since then the City requires 811 notification when obtaining digging permits, and it provides this information in a letter to all new gas customers. The City of Crooks also requires that One Call Complaints be filed when a violation is discovered. He went on to mention that last fall a City of Crooks resident refused to call for locates and came within inches, probably less, of hitting a 2″, 60 psi gas line with a post hole digger, which certainly could have killed him, if it had been hit.

Bleau LaFave made a motion to assess a $250 penalty with $250 suspended with the requirement that Maras not be found guilty of a One Call violation within 12 months of the final Board Order and that a “Guidelines for Homeowners” pamphlet be sent to Maras.  Fay Jandreau seconded the motion. Motion carried unanimously upon a roll call vote.

Being no further business Larry Janes asked for a motion to adjourn.  Fay Jandreau made the motion.  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