# LOS ANGELES WATER & POWER — Notice of Probable Violation

- **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:** Not available
- **summary:** CLOSED notice of probable violation citing 199.101(a), 199.109(d), 199.202.
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- **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.

Official case documents:

52022037NOPV_Closure Letter_01052023_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Closure%20Letter_01052023_(22-236002).pdf

52022037NOPV_Closure Letter_01052023_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Closure%20Letter_01052023_(22-236002)_text.pdf

52022037NOPV_Final Order_09302022_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Final%20Order_09302022_(22-236002).pdf

52022037NOPV_Final Order_09302022_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_Final%20Order_09302022_(22-236002)_text.pdf

52022037NOPV_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

52022037NOPV_PCP PCO_04272022_(22-236002).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_PCP%20PCO_04272022_(22-236002).pdf

52022037NOPV_PCP PCO_04272022_(22-236002)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022037NOPV/52022037NOPV_PCP%20PCO_04272022_(22-236002)_text.pdf

52022037NOPV_Final Order_09302022_(22-236002)_text.pdf

September 30, 2022
VIA ELECTRONIC MAIL TO: CommissionerMcClain-Hill@ladwp.com
Ms. Cynthia McClain-Hill
President of the Board of Water and Power Commissioners
Los Angeles Department of Water and Power
111 N. Hope Street
Los Angeles, CA 90012
Re: CPF No. 5-2022-037-NOPV
Dear Ms. McClain-Hill:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation, assesses a civil penalty of $38,000, and specifies actions that need to be taken by the
Los Angeles Department of Water and Power to comply with the pipeline safety regulations. The
penalty payment terms are set forth in the Final Order. When the civil penalty has been paid and
the terms of the compliance order completed, as determined by the Director, Western Region, this
enforcement action will be closed. Service of the Final Order by e-mail is effective upon the date
of transmission and acknowledgement of receipt as provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Alan K. Mayberry
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Dustin Hubbard, Director, Western Region, Office of Pipeline Safety, PHMSA
Mr. Martin Adams, General Manager, LADWP, martin.adams@ladwp.com
Ms. Susan Olenchuk, Counsel for LADWP, Van Ness Feldman, LLP, sam@vnf.com
CONFIRMATION OF RECEIPT REQUESTED



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
)
In the Matter of )
)
Los Angeles Department of ) CPF No. 5-2022-037-NOPV
Water and Power, )
)
Respondent. )
____________________________________)
FINAL ORDER
From January 3, 2022, to March 10, 2022, pursuant to 49 U.S.C. § 60117, representatives of the
Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety
(OPS), conducted a virtual inspection of the Los Angeles Department of Water and Power’s
(LADWP or Respondent) Drug and Alcohol (D&A) Program. LADWP is a municipally-owned
utility that provides water and electricity services to over four million customers in Los Angeles,
California. LADWP owns and operates the Harbor Generating Station, a gas-fired electricity
generating facility that supplies electrical power to the LADWP system.
As a result of the inspection, the Director, Western Region, OPS (Director), issued to
Respondent, by letter dated April 27, 2022, a Notice of Probable Violation, Proposed Civil
Penalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the
Notice proposed finding that LADWP had violated 49 C.F.R. part 199 and proposed assessing a
civil penalty of $38,000 for the alleged violations. The Notice also proposed ordering
Respondent to take certain measures to correct the alleged violations.
LADWP responded to the Notice on May 9, 2022, requesting the exhibits associated with the
case, the civil penalty calculation worksheet, and a 60-day extension of time to respond.
PHMSA provided these documents and granted an extension of time on May 11, 2022.
LADWP, by letter dated June 9, 2022, provided a written response to the allegations set forth in
the Notice (Response). Respondent contested several of the allegations and requested that the
Proposed Civil Penalty be reduced, but did not contest the Proposed Compliance Order. In
response to the August 2, 2022 Recommendation of the Western Region Director, LADWP, on
August 12, 2022, submitted additional arguments contesting the allegations raised in the Notice
(Reply). Respondent did not request a hearing and therefore has waived its right to one.



FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 199, as follows:
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 199.101(a), which states:
§ 199.101 Anti-drug plan.
(a) Each operator shall maintain and follow a written anti-drug plan that
conforms to the requirements of this part and the DOT Procedures. The plan
must contain –
(1) Methods and procedures for compliance with all the requirements of
this part, including the employee assistance program;
(2) The name and address of each laboratory that analyzes the specimens
collected for drug testing;
(3) The name and address of the operator’s Medical Review Officer, and
Substance Abuse Professional; and
(4) Procedures for notifying employees of the coverage and provisions
of the plan.
The Notice alleged that Respondent violated 49 C.F.R. § 199.101(a) by failing to maintain and
follow a written anti-drug plan that conformed with the requirements of part 199 and DOT
Procedures. Specifically, the Notice alleged that Respondent, when asked for its written anti-
drug plan, provided documents that failed to contain the required methods and procedures
necessary for compliance and did not contain the name and address of the Medical Review
Officer (MRO) or the Substance Abuse Professional.
In its Response, LADWP argued that PHMSA did not meet its burden of proof to show that
LADWP failed to follow regulatory requirements and DOT procedures. In its August 12, 2022
Reply, LADWP argued that failure to maintain a compliant written anti-drug plan does not mean
it cannot and did not comply with part 199 and DOT procedures. This argument, even if true,
does not absolve the operator of the violation of the regulation because Respondent did not
maintain a written drug plan. Respondent did not argue that it maintained a compliant anti-drug
plan in its Response or in its Reply. The regulatory text clearly requires operators to both
maintain and to follow a written plan. The evidence in the case file shows that when asked for
its anti-drug plan by PHMSA inspectors, Respondent was unable to produce a written plan that
contained the required elements in § 199.101(a)(1)-(4) and conformed to part 199 as well as
DOT Procedures. Instead, Respondent returned four different administrative manuals, employee
handbooks, and supervisor guides. This evidence clearly demonstrates that LADWP did not
maintain a written anti-drug plan compliant with part 199 and DOT Procedures. The operator is,
therefore, in violation of the regulations.
Accordingly, after considering all of the evidence and the legal issues presented, I find
that Respondent violated 49 C.F.R. § 199.101(a) by failing to maintain and follow a written anti-
drug plan that conformed with the requirements of part 199 and DOT Procedures.



Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 199.109(d), which states:
§ 199.109 Review of drug testing results.
(a) ….
(d) MRO reports. The MRO must report all drug test results to the
operator in accordance with DOT Procedures.
The Notice alleged that Respondent violated 49 C.F.R. § 199.109(d) because the MRO did not
report all drug test results to the operator in accordance with DOT Procedures. Specifically, the
Notice alleged the MRO who received laboratory results of a positive random DOT drug test
conducted on an LADWP covered employee on February 23, 2020, did not report the drug test
results to LADWP in accordance with DOT Procedures.
In its Response and its Reply, LADWP did not contest this allegation of violation. Accordingly,
after considering all of the evidence, I find that Respondent violated 49 C.F.R. § 199.109(d)
where the MRO did not report all drug test results to LADWP in accordance with DOT
Procedures.
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 199.202, which states:
§ 199.202 Alcohol misuse plan.
Each operator must maintain and follow a written alcohol misuse plan
that conforms to the requirements of this part and DOT Procedures
concerning alcohol testing programs. The plan shall contain methods and
procedures for compliance with all the requirements of this subpart,
including required testing, recordkeeping, reporting, education and training
elements.
The Notice alleged that Respondent violated 49 C.F.R. § 199.202 by failing to maintain and
follow a written alcohol misuse plan that conformed to the requirements of part 199 and the DOT
Procedures concerning alcohol testing programs. Specifically, the Notice alleged that
Respondent, when asked for its written alcohol misuse plan, failed to provide a plan that
included the required methods and procedures necessary for compliance with the regulations.
When PHMSA inspectors requested documentation of Respondent’s alcohol misuse plan,
LADWP submitted to the same four documents it submitted for its written anti-drug plan.
In its Response, LADWP argued that PHMSA did not meet its burden of proof to show that
LADWP failed to follow regulatory requirements and DOT procedures for alcohol testing. In its
Response and its Reply, LADWP argued that failure to maintain a compliant written alcohol
misuse plan does not mean LADWP cannot and did not comply with part 199 and DOT
procedures. As discussed in Item 1 above, this argument, even if true, does not absolve the
operator of the violation of the regulation because Respondent did not maintain a written alcohol
misuse plan. The regulatory text requires operators to both maintain and to follow a written
alcohol misuse plan. Respondent did not argue that it maintained a compliant alcohol misuse
plan in its Response or its Reply. The evidence in the case file shows that when asked for its
alcohol misuse plan by PHMSA inspectors, Respondent was unable to produce a written plan



that reflected the requirements contained in Part 199, subpart C. Instead, Respondent returned
portions of four different administrative manuals, employee handbooks, and supervisor guides,
the same documents submitted when asked for its anti-drug plan. Because Respondent was
unable to produce a written alcohol misuse plan that contained methods and procedures for
compliance with all the requirements of Part 199, subpart C, LADWP did not meet the
requirements of § 199.202.
Accordingly, after considering all of the evidence and the legal issues presented, I find
that Respondent violated 49 C.F.R. § 199.202 by not maintaining and following a written alcohol
misuse plan that conformed to the requirements of part 199 and the DOT Procedures concerning
alcohol testing programs.
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any
related series of violations.1
Item 1: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.
§ 199.101(a), for failing to maintain and follow a written anti-drug plan that conformed with the
requirements of part 199 and DOT Procedures. In its Response and its Reply, Respondent
requested that PHMSA withdraw the allegation that it did not “follow” part 199 requirements
and DOT Procedures, and “reduce the amount of the civil penalty to reflect the withdrawn
allegation.” Respondent did not present argument for a reduction of the civil penalty absent a
withdrawal of the underlying allegation of violation. For the reasons stated in the Findings of
Violation section above, I find there is no basis to withdraw the underlying allegation of
violation. Accordingly, having reviewed the record and considered the assessment criteria, I
assess Respondent a civil penalty of $19,000 for violation of 49 C.F.R. § 199.101(a).
Item 2: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.
§ 199.109(d) where the MRO who received the laboratory results of a positive random DOT
drug test conducted on an LADWP covered employee on February 23, 2020, did not report the
drug test results to LADWP in accordance with DOT Procedures. In its Response and its Reply,
Respondent did not contest the proposed civil penalty for this Item. Accordingly, having
reviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of
$19,000 for violation of 49 C.F.R. § 199.109(d).
In summary, having reviewed the record and considered the assessment criteria for each of the
Items cited above, I assess Respondent a total civil penalty of $38,000.
Payment of the civil penalty must be made within 20 days after receipt of this Final Order.
1 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.



Federal regulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer
through the Federal Reserve Communications System (Fedwire), to the account of the U.S.
Treasury. Detailed instructions are contained in the enclosure. Questions concerning wire
transfers should be directed to: Financial Operations Division (AMK-325), Federal Aviation
Administration, Mike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City,
Oklahoma 79169. The Financial Operations Division telephone number is (405) 954-8845.
Failure to pay the $38,000 civil penalty will result in accrual of interest at the current annual rate
in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to
those same authorities, a late penalty charge of six percent (6%) per annum will be charged if
payment is not made within 110 days of service. Furthermore, failure to pay the civil penalty
may result in referral of the matter to the Attorney General for appropriate action in a district
court of the United States.
COMPLIANCE ORDER
The Notice proposed a compliance order with respect to Items 1 and 3 in the Notice for
violations of 49 C.F.R. §§ 199.101(a) and § 199.202, respectively. In its Response and its Reply,
Respondent did not contest the Proposed Compliance Order for these Items. Under 49 U.S.C.
§ 60118(a), each person who engages in the transportation of gas or who owns or operates a
pipeline facility is required to comply with the applicable safety standards established under
chapter 601. Pursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217,
Respondent is ordered to take the following actions to ensure compliance with the pipeline safety
regulations applicable to its operations:
A. With respect to the violation of § 199.101(a) (Item 1), Respondent must develop a
written anti-drug plan that contains the specific methods and procedures it will use to
comply with all the requirements of 49 C.F.R. part 199 and part 40 and must submit
the plan to PHMSA for review within 90 days of receipt of the Final Order.
B. With respect to the violation of § 199.202 (Item 3), Respondent must develop an
alcohol misuse plan that contains the specific methods and procedures it will use to
comply with all the requirements of 49 C.F.R part 199 and part 40 and must submit
the plan to PHMSA for review within 90 days of receipt of the Final Order.
C. In lieu of A and B above, Respondent may develop a combined anti-drug and
alcohol misuse plan that contains the specific methods and procedures it will use to
comply with all the requirements of 49 C.F.R. part 199 and the DOT Procedures in 49
C.F.R. part 40, and must submit the plan to PHMSA for review within 90 days of
receipt of the Final Order.
The Director may grant an extension of time to comply with any of the required items upon a
written request timely submitted by the Respondent and demonstrating good cause for an
extension.
PHMSA requests that Respondent maintain documentation of the safety improvement costs



associated with fulfilling this Compliance Order and submit the total to the Director. It is
requested that these costs be reported in two categories: (1) total cost associated with
preparation/revision of plans, procedures, studies and analyses; and (2) total cost associated with
replacements, additions and other changes to pipeline infrastructure.
Failure to comply with this Order may result in the administrative assessment of civil penalties
not to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for
each day the violation continues or in referral to the Attorney General for appropriate relief in a
district court of the United States.
Under 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final
Order to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey
Avenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of
Chief Counsel, PHMSA, at the same address. The written petition must be received no later than
20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a
statement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a
petition automatically stays the payment of any civil penalty assessed. The other terms of the
order, including corrective action, remain in effect unless the Associate Administrator, upon
request, grants a stay.
The terms and conditions of this Final Order are effective upon service in accordance with 49
C.F.R. § 190.5.
September 30, 2022
___________________________________ __________________________
Alan K. Mayberry Date Issued
Associate Administrator
for Pipeline Safety

52022037NOPV_Closure Letter_01052023_(22-236002)_text.pdf

VIA E-MAIL TO: CommissionerMcClain-Hill@ladwp.com
January 5, 2022
Ms. Cynthia McClain-Hill
President of the Board of Water and Power Commissioners
Los Angeles Department of Water and Power
111 N. Hope Street
Los Angeles, CA 90012
CPF 5-2022-037-NOPV
Closure Letter
Dear Ms. McClain-Hill:
On September 30, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)
issued to Los Angeles Department of Water and Power (LADWP) a Final Order in the above-
referenced case. This Order included a Civil Penalty and a Compliance Order which required
LADWP to develop a written anti-drug plan and a written alcohol misuse plan or a combined
anti-drug and alcohol misuse plan that contains the specific methods and procedures LADWP
uses to comply with the PHMSA drug and alcohol (D&A) regulations in 49 CFR Part 199 and
the DOT Procedures in 49 CFR Part 40.
The PHMSA Western Region received and reviewed LADWP’s Anti-drug and Alcohol Misuse
Plan dated December 2022, and we have confirmed that LADWP has paid the civil penalty. This
letter is to inform you that LADWP has complied with the terms of the Final Order and that no
further actions are necessary. This case is now closed.
Please be advised that this letter refers only to the Final Order (CPF 5-2022-037-NOPV) and not
to other PHMSA pending cases, if any. Also be advised that nothing herein states or implies that
the above-described written D&A plan meets the requirements of the federal pipeline safety
regulations or that the LADWP written D&A plan is approved. The LADWP D&A Program



remains subject to inspection by the California Public Utilities Commissions or PHMSA.
Sincerely,
Dustin Hubbard
Director, Western Region, Office of Pipeline Safety
Pipeline and Hazardous Materials Safety Administration
cc: PHP-60 Compliance Registry
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