{"operation":"document","citation":"CPF 12023045WL","title":"DANVILLE, CITY OF — Warning Letter","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2023-05-25","effective_on":null,"summary":"CLOSED warning letter citing 199.105(c)(1), 199.105(e).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-12023045wl.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-12023045wl.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-12023045wl","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/12023045WL","body":"Warning Letter involving DANVILLE, CITY OF. PHMSA's enforcement data identifies the cited regulations as 199.105(c)(1),  199.105(e). The case was opened on 2023-05-25 and is reported as closed as of 2023-05-25. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n12023045WL_Warning Letter_05252023_(22-239033).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12023045WL/12023045WL_Warning%20Letter_05252023_(22-239033).pdf\n\n12023045WL_Warning Letter_05252023_(22-239033)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/12023045WL/12023045WL_Warning%20Letter_05252023_(22-239033)_text.pdf\n\n12023045WL_Warning Letter_05252023_(22-239033)_text.pdf\n\nWARNING LETTER\nOVERNIGHT EXPRESS DELIVERY\nMay 25, 2023\nMr. Jason Grey\nDirector of Utilities\nCity of Danville\n1040 Monument Street\nDanville, Virginia 24540\nCPF 1-2023-045-WL\nDear Mr. Grey:\nFrom November 15, 2021, to February 28, 2022, an inspector from the Virginia State Corporation\nCommission, Division of Pipeline Safety (VA SCC), acting as Agent for the Pipeline and\nHazardous Materials Safety Administration (PHMSA), pursuant to Chapter 601 of 49 United\nStates Code (U.S.C.) inspected City of Danville’s (City) drug and alcohol program.\nAs a result of the inspection, it is alleged that you have committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations (CFR). The items inspected\nand the probable violations are:\n1. § 199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the\npresence of a prohibited drug:\n(a) …\n(c) Random Testing.\n(1) Except as provided in paragraphs (c)(2) through (4) of this\nsection, the minimum annual percentage rate for random drug testing\nshall be 50 percent of covered employees.\nThe City failed to conduct random drug tests for the presence of a prohibited drug. Specifically,\nthe City failed to conduct the minimum annual per percentage rate for random drug testing of 50\npercent of covered employees, as required by §199.105(c)(1).\n\n\n\nThe City filed PHMSA’s 2019 MIS report on February 5, 5020, as required per §199.119(b). The\nCity’s 2019 PHMSA/OPS Drug and Alcohol Testing Management Information System (Drug\nTesting) record identified 8 Pre-Employment tests, 11 Random tests, and 34 Total Number of\nEmployees. Therefore, the City performed random drug testing on 32 percent (11 out of 34) of\ncovered employees.\nThe City used a computer-based system to select employees to be randomly drug tested. The\ncomputer-based system is set to randomly select 50 percent. However, the minimum of 50 percent\nwas not met. To prevent recurrence, the City took immediate action and established a review of\nthe sampling rate to ensure at least 50 percent of covered employees are tested each year.\nHowever, the City failed to conduct random drug testing at the minimum annual percentage rate\nof 50 percent of covered employees, in 2019, as required by §199.105(c)(1).\nPHSMA encourages self-reporting of code violations. The City's transparency and corrective\nmeasure was taken into consideration during the selection of administrative enforcement actions.\n2. § 199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the\npresence of a prohibited drug:\n(a) …\n(e) Return-to-duty testing. A covered employee who refuses to take\nor has a positive drug test may not return to duty in the covered\nfunction until the covered employee has complied with applicable\nprovisions of DOT Procedures concerning substance abuse\nprofessionals and the return-to-duty process.\nThe City failed to conduct return-to-duty test for the presence of a prohibited drug. Specifically,\nthe City failed to perform a return-to-duty drug test before allowing a covered employee to resume\nperforming covered functions after previously failing a random drug test.\nDuring the inspection, the Virginia SCC inspector reviewed drug testing records for a covered\nemployee performing covered function (Employee X). On June 10, 2020, Employee X conducted\na random drug test. On July 19, 2020, the City received confirmation that Employee X’s random\ndrug test result was positive. On July 22, 2020, Employee X returned to work. The return-to-\nwork drug test performed on July 21, 2020 did not comply with DOT Procedures.\nSpecifically, the return-to-work test did not document the urine collection using the Federal Drug\nTesting Custody and Control Form, as required per § 40.45 (a) and (b)1\n.\n1 § 40.45 What form is used to document a DOT urine collection?\n(a) The Federal Drug Testing Custody and Control Form (CCF) must be used to document every urine collection required by\nthe DOT drug testing program. You may view this form on the Department’s Web site (http://www.transportation.gov/odapc) or\nthe HHS Web site (https://www.samhsa.gov/workplace/forms-guidelines).\n(b) You must not use a non-Federal form or an expired CCF to conduct a DOT urine collection. As a laboratory, C/TPA or other\nparty that provides CCFs to employers, collection sites, or other customers, you must not provide copies of an expired CCF to\nthese participants. You must also affirmatively notify these participants that they must not use an expired CCF.\n\n\n\nTherefore, the Company failed to conduct return-to-duty test for the presence of a prohibited drug,\nprior to allowing a covered employee to return to duty in the covered function, as required by\n§199.105(e).\nUnder 49 U.S.C. § 60122 and 49 CFR § 190.223, you are subject to a civil penalty not to exceed\n$257,664 per violation per day the violation persists, up to a maximum of $2,576,627 for a related\nseries of violations. For violation occurring on or after March 21, 2022, and before January 6,\n2023, the maximum penalty may not exceed $239,142 per violation per day the violation persists,\nup to a maximum of $2,391,142 for a related series of violations. For violation occurring on or\nafter May 3, 2021, and before March 21, 2022, the maximum penalty may not exceed $225,134\nper violation per day the violation persists, up to a maximum of $2,251,334 for a related series of\nviolations. For violation occurring on or after January 11, 2021, and before May 3, 2021, the\nmaximum penalty may not exceed $222,504 per violation per day the violation persists, up to a\nmaximum of $2,225,034 for a related series of violations. For violation occurring on or after July\n31, 2019, and before January 11, 2021, the maximum penalty may not exceed $218,647 per\nviolation per day the violation persists, up to a maximum of $2,186,465 for a related series of\nviolations. For violation occurring on or after November 27, 2018, and before July 31, 2019, the\nmaximum penalty may not exceed $213,268 per violation per day, with a maximum penalty not to\nexceed $2,132,679. For violation occurring on or after November 2, 2015, and before November\n27, 2018, the maximum penalty may not exceed $209,002 per violation per day, with a maximum\npenalty not to exceed $2,090,022.\nWe have reviewed the circumstances and supporting documents involved in this case, and have\ndecided not to conduct additional enforcement action or penalty assessment proceedings at this\ntime. We advise you to correct the items identified in this letter. Failure to do so will result in\nCity of Danville being subject to additional enforcement action.\nNo reply to this letter is required. If you choose to reply, in your correspondence please refer to\nCPF 1-2023-045-WL. Be advised that all material you submit in response to this enforcement\naction is subject to being made publicly available. If you believe that any portion of your\nresponsive material qualifies for confidential treatment under 5 U.S.C. § 552(b), along with the\ncomplete original document you must provide a second copy of the document with the portions\nyou believe qualify for confidential treatment redacted and an explanation of why you believe the\nredacted information qualifies for confidential treatment under 5 U.S.C. § 552(b).\nSincerely,\nRobert Burrough\nDirector, Eastern Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration","truncated":false,"body_characters":8149}