{"operation":"document","citation":"CPF 52022037NOPV","title":"LOS ANGELES WATER & POWER — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-04-27","effective_on":null,"summary":"CLOSED notice of probable violation citing 199.101(a), 199.109(d), 199.202.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022037nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022037nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022037nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/52022037NOPV","body":"Notice of Probable Violation involving LOS ANGELES WATER & POWER. PHMSA's enforcement data identifies the cited regulations as 199.101(a),  199.109(d),  199.202. The case was opened on 2022-04-27 and is reported as closed as of 2023-01-05. Proposed civil penalty: $38,000. Assessed civil penalty: $38,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n52022037NOPV_Closure Letter_01052023_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Closure%20Letter_01052023_(22-236002).pdf\n\n52022037NOPV_Closure Letter_01052023_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Closure%20Letter_01052023_(22-236002)_text.pdf\n\n52022037NOPV_Final Order_09302022_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Final%20Order_09302022_(22-236002).pdf\n\n52022037NOPV_Final Order_09302022_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Final%20Order_09302022_(22-236002)_text.pdf\n\n52022037NOPV_Operator Response to Notice_06092022_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Operator%20Response%20to%20Notice_06092022_(22-236002).pdf\n\n52022037NOPV_PCP PCO_04272022_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_PCP%20PCO_04272022_(22-236002).pdf\n\n52022037NOPV_PCP PCO_04272022_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_PCP%20PCO_04272022_(22-236002)_text.pdf\n\n52022037NOPV_Final Order_09302022_(22-236002)_text.pdf\n\nSeptember 30, 2022\nVIA ELECTRONIC MAIL TO: CommissionerMcClain-Hill@ladwp.com\nMs. Cynthia McClain-Hill\nPresident of the Board of Water and Power Commissioners\nLos Angeles Department of Water and Power\n111 N. Hope Street\nLos Angeles, CA 90012\nRe: CPF No. 5-2022-037-NOPV\nDear Ms. McClain-Hill:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $38,000, and specifies actions that need to be taken by the\nLos Angeles Department of Water and Power to comply with the pipeline safety regulations. The\npenalty payment terms are set forth in the Final Order. When the civil penalty has been paid and\nthe terms of the compliance order completed, as determined by the Director, Western Region, this\nenforcement action will be closed. Service of the Final Order by e-mail is effective upon the date\nof transmission and acknowledgement of receipt as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Dustin Hubbard, Director, Western Region, Office of Pipeline Safety, PHMSA\nMr. Martin Adams, General Manager, LADWP, martin.adams@ladwp.com\nMs. Susan Olenchuk, Counsel for LADWP, Van Ness Feldman, LLP, sam@vnf.com\nCONFIRMATION OF RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nLos Angeles Department of ) CPF No. 5-2022-037-NOPV\nWater and Power, )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom January 3, 2022, to March 10, 2022, pursuant to 49 U.S.C. § 60117, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted a virtual inspection of the Los Angeles Department of Water and Power’s\n(LADWP or Respondent) Drug and Alcohol (D&A) Program. LADWP is a municipally-owned\nutility that provides water and electricity services to over four million customers in Los Angeles,\nCalifornia. LADWP owns and operates the Harbor Generating Station, a gas-fired electricity\ngenerating facility that supplies electrical power to the LADWP system.\nAs a result of the inspection, the Director, Western Region, OPS (Director), issued to\nRespondent, by letter dated April 27, 2022, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that LADWP had violated 49 C.F.R. part 199 and proposed assessing a\ncivil penalty of $38,000 for the alleged violations. The Notice also proposed ordering\nRespondent to take certain measures to correct the alleged violations.\nLADWP responded to the Notice on May 9, 2022, requesting the exhibits associated with the\ncase, the civil penalty calculation worksheet, and a 60-day extension of time to respond.\nPHMSA provided these documents and granted an extension of time on May 11, 2022.\nLADWP, by letter dated June 9, 2022, provided a written response to the allegations set forth in\nthe Notice (Response). Respondent contested several of the allegations and requested that the\nProposed Civil Penalty be reduced, but did not contest the Proposed Compliance Order. In\nresponse to the August 2, 2022 Recommendation of the Western Region Director, LADWP, on\nAugust 12, 2022, submitted additional arguments contesting the allegations raised in the Notice\n(Reply). Respondent did not request a hearing and therefore has waived its right to one.\n\n\n\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 199, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 199.101(a), which states:\n§ 199.101 Anti-drug plan.\n(a) Each operator shall maintain and follow a written anti-drug plan that\nconforms to the requirements of this part and the DOT Procedures. The plan\nmust contain –\n(1) Methods and procedures for compliance with all the requirements of\nthis part, including the employee assistance program;\n(2) The name and address of each laboratory that analyzes the specimens\ncollected for drug testing;\n(3) The name and address of the operator’s Medical Review Officer, and\nSubstance Abuse Professional; and\n(4) Procedures for notifying employees of the coverage and provisions\nof the plan.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.101(a) by failing to maintain and\nfollow a written anti-drug plan that conformed with the requirements of part 199 and DOT\nProcedures. Specifically, the Notice alleged that Respondent, when asked for its written anti-\ndrug plan, provided documents that failed to contain the required methods and procedures\nnecessary for compliance and did not contain the name and address of the Medical Review\nOfficer (MRO) or the Substance Abuse Professional.\nIn its Response, LADWP argued that PHMSA did not meet its burden of proof to show that\nLADWP failed to follow regulatory requirements and DOT procedures. In its August 12, 2022\nReply, LADWP argued that failure to maintain a compliant written anti-drug plan does not mean\nit cannot and did not comply with part 199 and DOT procedures. This argument, even if true,\ndoes not absolve the operator of the violation of the regulation because Respondent did not\nmaintain a written drug plan. Respondent did not argue that it maintained a compliant anti-drug\nplan in its Response or in its Reply. The regulatory text clearly requires operators to both\nmaintain and to follow a written plan. The evidence in the case file shows that when asked for\nits anti-drug plan by PHMSA inspectors, Respondent was unable to produce a written plan that\ncontained the required elements in § 199.101(a)(1)-(4) and conformed to part 199 as well as\nDOT Procedures. Instead, Respondent returned four different administrative manuals, employee\nhandbooks, and supervisor guides. This evidence clearly demonstrates that LADWP did not\nmaintain a written anti-drug plan compliant with part 199 and DOT Procedures. The operator is,\ntherefore, in violation of the regulations.\nAccordingly, after considering all of the evidence and the legal issues presented, I find\nthat Respondent violated 49 C.F.R. § 199.101(a) by failing to maintain and follow a written anti-\ndrug plan that conformed with the requirements of part 199 and DOT Procedures.\n\n\n\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 199.109(d), which states:\n§ 199.109 Review of drug testing results.\n(a) ….\n(d) MRO reports. The MRO must report all drug test results to the\noperator in accordance with DOT Procedures.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.109(d) because the MRO did not\nreport all drug test results to the operator in accordance with DOT Procedures. Specifically, the\nNotice alleged the MRO who received laboratory results of a positive random DOT drug test\nconducted on an LADWP covered employee on February 23, 2020, did not report the drug test\nresults to LADWP in accordance with DOT Procedures.\nIn its Response and its Reply, LADWP did not contest this allegation of violation. Accordingly,\nafter considering all of the evidence, I find that Respondent violated 49 C.F.R. § 199.109(d)\nwhere the MRO did not report all drug test results to LADWP in accordance with DOT\nProcedures.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 199.202, which states:\n§ 199.202 Alcohol misuse plan.\nEach operator must maintain and follow a written alcohol misuse plan\nthat conforms to the requirements of this part and DOT Procedures\nconcerning alcohol testing programs. The plan shall contain methods and\nprocedures for compliance with all the requirements of this subpart,\nincluding required testing, recordkeeping, reporting, education and training\nelements.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.202 by failing to maintain and\nfollow a written alcohol misuse plan that conformed to the requirements of part 199 and the DOT\nProcedures concerning alcohol testing programs. Specifically, the Notice alleged that\nRespondent, when asked for its written alcohol misuse plan, failed to provide a plan that\nincluded the required methods and procedures necessary for compliance with the regulations.\nWhen PHMSA inspectors requested documentation of Respondent’s alcohol misuse plan,\nLADWP submitted to the same four documents it submitted for its written anti-drug plan.\nIn its Response, LADWP argued that PHMSA did not meet its burden of proof to show that\nLADWP failed to follow regulatory requirements and DOT procedures for alcohol testing. In its\nResponse and its Reply, LADWP argued that failure to maintain a compliant written alcohol\nmisuse plan does not mean LADWP cannot and did not comply with part 199 and DOT\nprocedures. As discussed in Item 1 above, this argument, even if true, does not absolve the\noperator of the violation of the regulation because Respondent did not maintain a written alcohol\nmisuse plan. The regulatory text requires operators to both maintain and to follow a written\nalcohol misuse plan. Respondent did not argue that it maintained a compliant alcohol misuse\nplan in its Response or its Reply. The evidence in the case file shows that when asked for its\nalcohol misuse plan by PHMSA inspectors, Respondent was unable to produce a written plan\n\n\n\nthat reflected the requirements contained in Part 199, subpart C. Instead, Respondent returned\nportions of four different administrative manuals, employee handbooks, and supervisor guides,\nthe same documents submitted when asked for its anti-drug plan. Because Respondent was\nunable to produce a written alcohol misuse plan that contained methods and procedures for\ncompliance with all the requirements of Part 199, subpart C, LADWP did not meet the\nrequirements of § 199.202.\nAccordingly, after considering all of the evidence and the legal issues presented, I find\nthat Respondent violated 49 C.F.R. § 199.202 by not maintaining and following a written alcohol\nmisuse plan that conformed to the requirements of part 199 and the DOT Procedures concerning\nalcohol testing programs.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.1\nItem 1: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 199.101(a), for failing to maintain and follow a written anti-drug plan that conformed with the\nrequirements of part 199 and DOT Procedures. In its Response and its Reply, Respondent\nrequested that PHMSA withdraw the allegation that it did not “follow” part 199 requirements\nand DOT Procedures, and “reduce the amount of the civil penalty to reflect the withdrawn\nallegation.” Respondent did not present argument for a reduction of the civil penalty absent a\nwithdrawal of the underlying allegation of violation. For the reasons stated in the Findings of\nViolation section above, I find there is no basis to withdraw the underlying allegation of\nviolation. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $19,000 for violation of 49 C.F.R. § 199.101(a).\nItem 2: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 199.109(d) where the MRO who received the laboratory results of a positive random DOT\ndrug test conducted on an LADWP covered employee on February 23, 2020, did not report the\ndrug test results to LADWP in accordance with DOT Procedures. In its Response and its Reply,\nRespondent did not contest the proposed civil penalty for this Item. Accordingly, having\nreviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of\n$19,000 for violation of 49 C.F.R. § 199.109(d).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $38,000.\nPayment of the civil penalty must be made within 20 days after receipt of this Final Order.\n1 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n\n\n\nFederal regulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer\nthrough the Federal Reserve Communications System (Fedwire), to the account of the U.S.\nTreasury. Detailed instructions are contained in the enclosure. Questions concerning wire\ntransfers should be directed to: Financial Operations Division (AMK-325), Federal Aviation\nAdministration, Mike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City,\nOklahoma 79169. The Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $38,000 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1 and 3 in the Notice for\nviolations of 49 C.F.R. §§ 199.101(a) and § 199.202, respectively. In its Response and its Reply,\nRespondent did not contest the Proposed Compliance Order for these Items. Under 49 U.S.C.\n§ 60118(a), each person who engages in the transportation of gas or who owns or operates a\npipeline facility is required to comply with the applicable safety standards established under\nchapter 601. Pursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217,\nRespondent is ordered to take the following actions to ensure compliance with the pipeline safety\nregulations applicable to its operations:\nA. With respect to the violation of § 199.101(a) (Item 1), Respondent must develop a\nwritten anti-drug plan that contains the specific methods and procedures it will use to\ncomply with all the requirements of 49 C.F.R. part 199 and part 40 and must submit\nthe plan to PHMSA for review within 90 days of receipt of the Final Order.\nB. With respect to the violation of § 199.202 (Item 3), Respondent must develop an\nalcohol misuse plan that contains the specific methods and procedures it will use to\ncomply with all the requirements of 49 C.F.R part 199 and part 40 and must submit\nthe plan to PHMSA for review within 90 days of receipt of the Final Order.\nC. In lieu of A and B above, Respondent may develop a combined anti-drug and\nalcohol misuse plan that contains the specific methods and procedures it will use to\ncomply with all the requirements of 49 C.F.R. part 199 and the DOT Procedures in 49\nC.F.R. part 40, and must submit the plan to PHMSA for review within 90 days of\nreceipt of the Final Order.\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nPHMSA requests that Respondent maintain documentation of the safety improvement costs\n\n\n\nassociated with fulfilling this Compliance Order and submit the total to the Director. It is\nrequested that these costs be reported in two categories: (1) total cost associated with\npreparation/revision of plans, procedures, studies and analyses; and (2) total cost associated with\nreplacements, additions and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address. The written petition must be received no later than\n20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a\nstatement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a\npetition automatically stays the payment of any civil penalty assessed. The other terms of the\norder, including corrective action, remain in effect unless the Associate Administrator, upon\nrequest, grants a stay.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nSeptember 30, 2022\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n52022037NOPV_Closure Letter_01052023_(22-236002)_text.pdf\n\nVIA E-MAIL TO: CommissionerMcClain-Hill@ladwp.com\nJanuary 5, 2022\nMs. Cynthia McClain-Hill\nPresident of the Board of Water and Power Commissioners\nLos Angeles Department of Water and Power\n111 N. Hope Street\nLos Angeles, CA 90012\nCPF 5-2022-037-NOPV\nClosure Letter\nDear Ms. McClain-Hill:\nOn September 30, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Los Angeles Department of Water and Power (LADWP) a Final Order in the above-\nreferenced case. This Order included a Civil Penalty and a Compliance Order which required\nLADWP to develop a written anti-drug plan and a written alcohol misuse plan or a combined\nanti-drug and alcohol misuse plan that contains the specific methods and procedures LADWP\nuses to comply with the PHMSA drug and alcohol (D&A) regulations in 49 CFR Part 199 and\nthe DOT Procedures in 49 CFR Part 40.\nThe PHMSA Western Region received and reviewed LADWP’s Anti-drug and Alcohol Misuse\nPlan dated December 2022, and we have confirmed that LADWP has paid the civil penalty. This\nletter is to inform you that LADWP has complied with the terms of the Final Order and that no\nfurther actions are necessary. This case is now closed.\nPlease be advised that this letter refers only to the Final Order (CPF 5-2022-037-NOPV) and not\nto other PHMSA pending cases, if any. Also be advised that nothing herein states or implies that\nthe above-described written D&A plan meets the requirements of the federal pipeline safety\nregulations or that the LADWP written D&A plan is approved. The LADWP D&A Program\n\n\n\nremains subject to inspection by the California Public Utilities Commissions or PHMSA.\nSincerely,\nDustin Hubbard\nDirector, Western Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: PHP-60 Compliance Registry","truncated":false,"body_characters":20786}