{"operation":"document","citation":"CPF 32023035WL","title":"CITY OF DULUTH PUBLIC WORKS & UTILITIES — Warning Letter","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2023-12-28","effective_on":null,"summary":"CLOSED warning letter citing 199.101(a)(1), 199.119(f).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32023035wl.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32023035wl.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32023035wl","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32023035WL","body":"Warning Letter involving CITY OF DULUTH PUBLIC WORKS & UTILITIES. PHMSA's enforcement data identifies the cited regulations as 199.101(a)(1),  199.119(f). The case was opened on 2023-12-28 and is reported as closed as of 2023-12-28. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32023035WL_Warning Letter_12282023_(23-280788).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32023035WL/32023035WL_Warning%20Letter_12282023_(23-280788).pdf\n\n32023035WL_Warning Letter_12282023_(23-280788)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32023035WL/32023035WL_Warning%20Letter_12282023_(23-280788)_text.pdf\n\n32023035WL_Warning Letter_12282023_(23-280788)_text.pdf\n\nWARNING LETTER\nVIA ELECTRONIC MAIL TO: jbenning@duluthmn.gov; eshaffer@duluthmn.gov;\njgerard@duluthmn.gov\nDecember 28, 2023\nJim Benning\nDirector of Public Works & Utilities\nCity of Duluth Public Works & Utilities\n411 West First Street, RM 240\nDuluth, MN 55802\nCPF 3-2023-035-WL\nDear Mr. Benning:\nFrom May 14, 2023, to June 25, 2023, a representative of the Pipeline and Hazardous Materials\nSafety Administration (PHMSA) pursuant to Chapter 601 of 49 United States Code (U.S.C.)\ninspected the City of Duluth Public Works & Utilities (City of Duluth) PHMSA drug and alcohol\n(D&A) program in Duluth, Minnesota.\nAs a result of the inspection, it is alleged that City of Duluth has committed probable violations\nof the Pipeline Safety Regulations, Title 49, Code of Federal Regulations (CFR). The items\ninspected and the probable violations are:\n1. § 199.101 Anti-drug plan.\n(a) Each operator shall maintain and follow a written anti-drug plan that conforms to\nthe requirements of this part and the DOT Procedures. The plan must contain—\n(1) Methods and procedures for compliance with all the requirements of this part,\nincluding the employee assistance program.\nThe City of Duluth did not maintain and follow a written anti-drug plan that met the\nrequirements of part 199 and the DOT procedures.\nThe City of Duluth submitted an anti-drug plan to PHMSA inspectors, but the plan was not\nmaintained in that it contained outdated and misleading information and it lacked methods and\nprocedures to meet all the drug testing regulations in part 199 and in the DOT Procedures.\n\n\n\n2. § 199.119 Reporting of anti-drug testing results.\n(a) . . . .\n(f) A service agent (e.g., Consortia/Third Party Administrator as defined in 49 CFR\npart 40) may prepare the MIS report on behalf of an operator. However, each\nreport shall be certified by the operator's anti-drug manager or designated\nrepresentative for accuracy and completeness.\nThe City of Duluth submitted an annual Management Information System (MIS) report to\nPHMSA of its anti-drug testing for calendar year 2022 but failed to properly certify that MIS\nreport for accuracy and completeness because the report was both inaccurate and incomplete.\nThe City of Duluth submitted its certified calendar year 2022 MIS report to PHMSA on March\n15, 2023. The report indicated 169 covered employees for calendar year 2022. But the MIS\nreport was inaccurate because the 2022 drug testing data provided to PHMSA during the\ninspection by Hanco, a City of Duluth contractor, showed that 40 of the 169 employees were\ntested under FMCSA regulations, not PHMSA regulations. Employees tested under FMCSA\nmust be reported to FMCSA and not to PHMSA.\nAdditionally, the certified calendar year 2022 MIS report the City of Duluth submitted to\nPHMSA on March 15, 2023 was incomplete. The drug testing data provided to PHMSA by the\nCity of Duluth during the inspection showed that the City of Duluth conducted 21 pre-\nemployment drug tests in calendar year 2022; yet, the calendar year 2022 MIS report certified by\nthe City of Duluth shows no pre-employment drug test were completed.\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\nrelated series of violations. For violation occurring on or after March 21, 2022 and before\nJanuary 6, 2023, the maximum penalty may not exceed $239,142 per violation per day the\nviolation persists, up to a maximum of $2,391,142 for a related series of violations. For violation\noccurring on or after May 3, 2021 and before March 21, 2022, the maximum penalty may not\nexceed $225,134 per violation per day the violation persists, up to a maximum of $2,251,334 for\na related series of violations. For violation occurring on or after January 11, 2021 and before\nMay 3, 2021, the maximum penalty may not exceed $222,504 per violation per day the violation\npersists, up to a maximum of $2,225,034 for a related series of violations. For violation\noccurring on or after July 31, 2019 and before January 11, 2021, the maximum penalty may not\nexceed $218,647 per violation per day the violation persists, up to a maximum of $2,186,465 for\na related series of violations. For violation occurring on or after November 27, 2018 and before\nJuly 31, 2019, the maximum penalty may not exceed $213,268 per violation per day, with a\nmaximum penalty not to exceed $2,132,679. For violation occurring on or after November 2,\n2015 and before November 27, 2018, the maximum penalty may not exceed $209,002 per\nviolation per day, with a maximum penalty 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\nthe City of Duluth Public Works & Utilities being subject to additional enforcement action.\n\n\n\nNo reply to this letter is required. If you choose to reply, in your correspondence please refer to\nCPF 3-2023-004-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\nthe redacted information qualifies for confidential treatment under 5 U.S.C. § 552(b).\nSincerely,\nGregory A. Ochs\nDirector, Central Region, OPS\nPipeline and Hazardous Materials Safety Administration\ncc: Eric Shaffer, DOT Compliance (eshaffer@duluthmn.gov)\nJoe Gerard, DOT Compliance Assistant (jgerard@duluthmn.gov)","truncated":false,"body_characters":6657}