Duke Energy appeals Bloomington fines over use of right-of-way during power line upgrade project

The city of Bloomington has fined Duke Energy a total of $4,200 in connection with one of the power company’s new transmission line towers along South Rogers Street.

But Duke has appealed at least some of the fine amounts.

Duke’s appeal appears on the Tuesday meeting agenda for the city’s three-member board of public works.

The site of the infraction is on the east side of Rogers Street near The Warehouse and the Community Kitchen, which are just north of the Switchyard Park pavilion.

The new tower stands just north of the spot where a trail segment, running northward from the park along the creek, joins the northbound sidewalk.

It’s one of several new towers that are part of a transmission line upgrade that Duke calls the Reliability Project. The project includes the installation of about two miles of new power transmission lines, between the Rogers Street substation and the 11th Street substation at the corner of 11th and Rogers streets.

An early-year news release from Duke said the Reliability Project would “improve the resiliency of the local electric grid to reduce potential for power outages and speed restoration when they do occur. ”

At the location where the new tower was installed, the sidewalk was obstructed by backfill gravel that was piled around the base of the tower. The city acted on a complaint from a wheelchair user, according to the staff memo in the board of public works meeting information packet.

The fine was imposed not because the sidewalk was obstructed per se, but rather because Duke failed to provide proper signage for a sidewalk closure, which is spelled out in its maintenance of traffic (MOT) plan.

A standard MOT plan includes the kinds of signage for closure and detours that will be used, which have to be consistent with the Manual on Uniform Traffic Control Devices (MUTCD).

Duke’s MOT plan was approved by the board of public works earlier this year at its Jan. 31 meeting—as part of Duke’s requested use of the right-of-way for the project.

The six fines arise from just two basic kinds of infraction—one related to the MOT and the other related to the backfill that was piled around the base of the tower.

But Bloomington’s local law makes each day that such infractions persist a separate offense, subject to an escalating fine schedule that doubles with each subsequent offense.

That means the $500 fine for failure to adhere to the MOT was doubled to $1,000 on the second day and doubled again to $2,000 on the third day for a total of $3,500.

The $100 fine related to cleaning up the backfill material was doubled to $200 on the second day and doubled again to $400 for a total of $700.

According to the staff memo, the engineering staff is supportive of the appeal on the third-day $400 fine for the backfill—because it had been cleaned up by the time engineering staff inspected the site on the third day.

Duke is not contesting the initial $500 fine for failing to mark the sidewalk as closed. But Duke is contesting the fines for the subsequent days. The city imposed those subsequent fines, because only the north side of the sidewalk obstruction was marked with signage. The approach from the south was not marked.

Duke contends that on the second day, the closure signage on the north side was adequate, because the sidewalk ends just to the south of the tower location, and it would not have been possible to do the sidewalk repair, if both sides of the obstruction had been marked.

Duke’s appeal put it like this: “Despite this closure, the City fined DEI on that date because the sidewalk was not closed on both sides even though the sidewalk ends, and [a] small portion of that end was being worked on. It would not have been possible to engage in the sidewalk repair had a sign been put up on both sides.”

Bloomington engineering field specialist Alex Gray does not appear to buy Duke’s argument that because the sidewalk ends just south of the pole, no signage marking the sidewalk closure was necessary. Gray’s memo points to the fact that pedestrians can approach the area from the segment of trail that runs out of Switchyard Park up to the tower location.

Gray’s memo reads in part: “The City recognizes that the sidewalk does not extend further south along S Rogers St, however there is a pedestrian facility (trail) which extends from the B-Line Trail through Switchyard Park to connect with this section of sidewalk and therefore was required to be properly closed.”

In addition to the issue of the fines, the city’s engineering department objects to the way that Duke has poured a semi-circular addition to widen the sidewalk at the point where the tower base itself obstructs the sidewalk. The engineering department wants Duke to demolish the work it has already done, and replace it with a design approved by the city.

From the city’s memo, here’s what the city expects from Duke:

1. Submit a design plan for the sidewalk repair to the City of Bloomington Engineering Department by June 23rd, 2023.
a. If the design plan requires revisions as discussed by the City of Bloomington Engineering Department, the revisions shall be sent within three (3) business days to the City of Bloomington Engineering Department for further review and approval.
2. Upon the City of Bloomington Engineering Department approval of the design plan, the sidewalk shall be demolished and replaced according to the approved design plan and City of Bloomington standards and specifications within ten (10) business days of receiving approval.

Duke’s appeal will be heard by the three-member board of public works at its Tuesday meeting, which starts at 5:30 p.m. in city council chambers. Members of the board are: Kyla Cox-Deckard, Elizabeth Karon, and Jennifer Lloyd.

The board typically holds a noon work session on the Monday before a Tuesday meeting, to get briefed on the next day’s agenda. Sometimes, questions from board members during a work session give some insight into the way they’re thinking about an issue. But this week’s Monday work session was canceled.

In the recent past, the board has upheld appeals for fines that were imposed due to a failure to adhere to a maintenance of traffic (MOT) plan. In early 2022, the board upheld $25,000 worth of fines imposed on Landmark’s 1000-bed student-oriented housing development a few blocks south of Indiana University’s football stadium.

Bloomington’s city council took action in late 2020 to beef up its ordinance on maintaining pedestrian ways  during construction projects. It’s that strengthened ordinance that city engineering staff are now using to enforce compliance with MOT plans.

Map: Vicinity of Duke transmission line tower subject to fines

[Updated on July 19, 2023: At the July 18 board of public works meeting, the board voted to uphold the fines for June 7 and June 8, but to grant Duke Energy’s appeal for the fines imposed for June 9.]