MINUTES March 27, 2015

MINUTES
South Dakota One Call Notification Board
Enforcement Panel Conference Call
Friday, March 27, 2015
Location:  Midcontinent Communications
3901 N. Louise Ave., Sioux Falls S.D.
1 p.m. CST, Noon MST

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

Other attendees:
Silicia Boutchee, MidAmerican Energy; T.J. Rutledge, Nebraska Public Power District; Doug Blatchford, Nebraska Public Power District; Kris Anderson, Nebraska Public Power District; Rollie Hoeke, City of Brandon.

Order of Business:
The Enforcement Panel of the South Dakota One Call Board met to consider the following South Dakota One Call Complaint:

OC15-001 – In the Matter of the Complaint Filed by Doug O’Bryan Contracting, Inc. (O’Bryan), Martin, South Dakota against Nebraska Public Power District (NPPD) , Chadron, Nebraska for an Incident occurring on October 31, 2014 at 43 01 38.58N. 102 31 05.49W. Pine Ridge, S.D.

On January 13, 2015 O’Bryan filed a complaint against NPPD, alleging that NPPD failed to locate facilities resulting in a damaged power line.

NPPD responded on January 26, 2015 stating they did not receive the locate request.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that NPPD 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 a violation of 49-7A-8 and 49-7A-9 occurred.  John Ward seconded.  Motion carried unanimously on a roll call vote.

DISCUSSION OF INTENT:  
John Ward stated that NPPD had not received the locate request, and stated he thought this was an unintentional violation.  Kurt Pfeifle made a motion stating this was unintentional.  Erin Hayes seconded the motion.  Motion carried unanimously on a roll call vote.

PENALTY DISCUSSION:  
John Ward made a motion stating a $750 penalty should be assessed with $500 suspended with the following requirements:  NPPD 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, NPPD must attend a Damage Prevention meeting in 2016, and NPPD 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 on a roll call vote.

OC15-002 – In the Matter of the Compliant filed by City of Brandon (Brandon), Brandon, South Dakota against Krueger Excavating (Krueger), Sioux Falls, South Dakota for an incident occurring on January 16, 2015 at 120 E. Ponderosa Circle, Brandon, S.D.

On January 20, 2015 Brandon filed a complaint against Krueger, alleging that Krueger began work before the start date and time on a locate request.

Krueger did not respond to the Notice of Complaint.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Krueger 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 stating that there is probable cause that a violation of 49-7A-5 did occur.  Fay Jandreau seconded the motion.  Motion carried unanimously on a roll call vote.

DISCUSSION OF INTENT:  
John Ward made a motion that this was an intentional violation.  Fay Jandreau seconded the motion.  Motion carried unanimously on a roll call vote.

PENALTY DISCUSSION:  
Fay Jandreau stated that Krueger did not respond to the complaint.  A response would have assisted the Panel in making a decision.  He then stated that this was now a second violation within 12 months between the same two parties.   The determination that this was an intentional violation is justified. The dynamics of the fight seemingly wasn’t resolved with the previous complaint.  John Ward stated that Krueger is just refusing to do the work right, by not looking out for utilities.  Kurt Pfeifle said there is animosity between the two parties, but not with the Board.  Krueger was notified, but chose not to respond to the Complaint Notice.  A question was asked about Krueger’s previous penalty amount.  It was $1,000 with $750 suspended, with the usual requirements attached.  John Ward made a motion to assess a penalty amount of $1,500 with $500 suspended with the following requirements:  Krueger 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, Krueger must attend a Damage Prevention meeting in 2016, and Krueger 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.    Ed Anderson seconded the motion.  Motion carried unanimously on a roll call vote

OC15-003 – In the Matter of the Complaint filed by MidAmerican Energy Company (MEC), Urbandale, Iowa against Daniels Construction Company (Daniels), Tea, South Dakota for an incident occurring on November 11, 2014 at 2129 S. Duluth Ave., Sioux Falls, S.D.

On January 22, 2015 MEC filed a complaint against alleging Daniels damaged a 10 psi gas line when augering post holes without a locate request.

Daniels did not respond to the Notice of Complaint.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Daniels 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.  Kurt Pfeifle seconded the motion.  Motion carried unanimously on a roll call vote.

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

PENALTY DISCUSSION:  
John Ward made a motion to assess a penalty amount of $750, with $500 suspended with the following requirements:  Daniels 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, Daniels must attend a Damage Prevention meeting in 2016, and Daniels 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.    Fay Jandreau seconded the motion.  Motion carried unanimously on a roll call vote
 
OC15-004 – In the Matter of the Complaint filed by MidAmerican Energy Company (MEC), Urbandale, Iowa against Earthscapes, Inc. (Earthscapes), Brandon, South Dakota for an incident occurring on November 3, 2014 at 8705 Torchwood Ln., Brandon S.D.
On January 22, 2015 MEC filed a complaint alleging that Earthscapes damaged a 48 psi gas line when installing a retaining wall without a locate request.

Earthscapes responded on January 29, 2015 by stating they did not request a locate for this work and will implement every other Monday safety meetings to remind everyone to have locate requests before digging occurs.

Today, shall the Enforcement Panel of the South Dakota One Call Notification Board find that there is probable cause that Earthscapes 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 stating that there is probable cause that a violation of 49-7A-5 did occur.  Erin Hayes seconded the motion.  Motion carried unanimously on a roll call vote.

DISCUSSION OF INTENT:  
John Ward made a motion that this was an intentional violation.  Erin Hayes seconded the motion.  Fay Jandreau then stated that the owner was out of town and the foreman made a decision to install the retaining wall.  Motion carried unanimously on a roll call vote.

PENALTY DISCUSSION:  
Kurt Pfeifle made a motion to assess a penalty amount of $750 with $500 suspended with the following requirements:  Earthscapes 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, Earthscapes must attend a Damage Prevention meeting in 2016, and Earthscapes 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.  Fay Jandreau seconded the motion.  Motion carried unanimously on a roll call vote

OC15-005 – In the Matter of the Complaint filed by Nebraska Public Power District (NPPD), Chadron, Nebraska, against Doug O’Bryan Contracting, Inc. (O’Bryan), Martin, South Dakota, for an incident occurring on October 31, 2014 at Two Miles East of Pine Ridge on Highway 18, North Side of Highway, Pine Ridge, S.D.

On January 22, 2015, NPPD filed a complaint alleging that O’Bryan damaged a 7200 V primary power line while digging on an expired locate ticket.

O’Bryan responded on February 16, 2015 by stating that NPPD did not locate the buried facility.

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

PROBABLE CAUSE DISCUSSION:
Ed Anderson made a motion that there was probable cause that a violation of 49-7A-5 occurred.  John Ward seconded the motion.  Kurt Pfeifle mentioned Administrative Rule 20:25:03:05 was included in the complaint.  John Ward asked why the missing utility was not called when the marks were not found.  There were only three utilities on the ticket and all of this could have been avoided.  An excavator always has to look around to see what’s in the area and to see what’s missing.  Motion carried unanimously on a roll call vote.

DISCUSSION OF INTENT:  
John Ward made a motion that this was an unintentional violation.  Kurt Pfeifle seconded the motion.  Fay Jandreau stated there was no need to refresh the marks, because the utilities were clearly marked.  He felt this was intentional.  Kurt Pfeifle, stated that when looking at the complaint, NPPD stated they felt this was not intentional.  Motion carried on a roll call vote, with Fay Jandreau voting nay.

PENALTY DISCUSSION:  
John Ward made a motion to assess a penalty amount of $750 with $500 suspended with the following requirements:  O’Bryan 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, O’Bryan must attend a Damage Prevention meeting in 2016, and O’Bryan 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.  Fay Jandreau seconded the motion.  Motion carried unanimously on a roll call vote

OC15-006 – In the Matter of the Complaint filed by TrioTel Communications (TrioTel), Salem, South Dakota, against Twedt Construction (Twedt), Montrose, South Dakota, for an incident occurring on March 5, 2015, 2015 at 630 E. Essex Ave., Salem, S.D.

OC15-006 was deferred to the next Panel Call due to an error in the posting of the meeting.

There being no further business, Larry Janes asked for a motion to adjourn.  Fay Jandreau made the motion.  John Ward 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