{"operation":"document","citation":"CPF 52022048WL","title":"HECO - HAWAIIAN ELECTRIC COMPANY, INC. — Warning Letter","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-08-25","effective_on":null,"summary":"CLOSED warning letter citing 199.105(c)(7), 199.105(f).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022048wl.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022048wl.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-52022048wl","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/52022048WL","body":"Warning Letter involving HECO - HAWAIIAN ELECTRIC COMPANY, INC.. PHMSA's enforcement data identifies the cited regulations as 199.105(c)(7),  199.105(f). The case was opened on 2022-08-25 and is reported as closed as of 2022-08-25. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n52022048WL_Warning Letter_08252022_(22-240197).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022048WL/52022048WL_Warning%20Letter_08252022_(22-240197).pdf\n\n52022048WL_Warning Letter_08252022_(22-240197)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52022048WL/52022048WL_Warning%20Letter_08252022_(22-240197)_text.pdf\n\n52022048WL_Warning Letter_08252022_(22-240197)_text.pdf\n\nWARNING LETTER\nVIA E-MAIL TO MR. SCOTT SEU\nAugust 25, 2022\nMr. Scott Seu\nPresident\nHawaiian Electric Company, Inc.\n1001 Bishop Street\nHonolulu, HI 96813\nCPF 5-2022-048-WL\nDear Mr. Seu:\nFrom March 20, 2022, to June 2, 2022, representatives of the Pipeline and Hazardous Materials\nSafety Administration (PHMSA), pursuant to Chapter 601 of 49 United States Code (U.S.C.),\ninspected the Hawaiian Electric Company, Inc. (HECO) PHMSA Drug and Alcohol (D&A)\nprogram virtually, by internet, and by other electronic means.\nAs a result of the inspection, it is alleged that HECO has committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations (CFR). The items inspected\nand the probable violations are as follows:\n1. § 199.105 Drug tests required.\n…\n(c)\n(7) Each operator shall ensure that random drug tests conducted under this subpart\nare unannounced and that the dates for administering random tests are spread\nreasonably throughout the calendar year.\nHECO did not ensure that the dates for administering the random tests were spread reasonably\nthroughout the calendar year.\n\n\n\nPHMSA’s inspection of the HECO PHMSA random drug test program revealed that the dates for\nadministering the random drug tests were not spread reasonably throughout calendar year 2021.\nHECO administered a total of 177 random drug tests, of which 8 were administered in a period\nof six months and the remaining 169 were conducted in the other six months.\n2. § 199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the presence of a prohibited\ndrug:\n…\n(f) Follow-up testing.\nA covered employee who refuses to take or has a positive drug test shall be subject\nto unannounced follow-up drug tests administered by the operator following the\ncovered employee's return to duty. The number and frequency of such follow-up\ntesting shall be determined by a substance abuse professional (SAP) but shall consist\nof at least six tests in the first 12 months following the covered employee's return to\nduty. In addition, follow-up testing may include testing for alcohol as directed by the\nsubstance abuse professional, to be performed in accordance with 49 CFR part 401\n.\nHECO had several covered employees who refused to take or had a positive drug test which\nsubjected them to unannounced follow-up drug tests to be administered by HECO following the\ncovered employee's return to duty. The number and frequency of the follow-up drug testing was\ndetermined by a substance abuse professional (SAP) and consisted of at least 6 drug tests in the\nfirst 12 months following the covered employees' return to duty. In addition, the SAP specified\nfollow-up alcohol testing. HECO failed to conduct both drug and alcohol follow-up testing in\naccordance with the SAP’s recommendations.\nIn reviewing HECO's D&A program records for the follow-up testing plans, PHMSA inspectors\nidentified three employees who failed previous random drug tests. HECO failed to carry out the\nscheduled follow-up testing prescribed by the SAP on three of these employees. Specifically,\ntwo employees were prescribed drug and alcohol tests, and one was required to take drug tests as\npart of their SAP required follow-up testing plan.\nThe documentation provided by HECO included the employees' SAP prescribed follow-up\ntesting plans and the spreadsheets with the entries for the dates and frequencies of the prescribed\ntesting. All the plans had missing entries, some of the missing entries had remarks for the\nreasons for not completing the tests while others had no remarks. The missing tests ranged from\nFebruary 2019 through February 2022. When questioning HECO about the required tests,\nHECO provided several explanations, such as issues during the pandemic, employees' leave,\nproblems with testing sites, availability, and the lack of enough staff to administer the plans.\nUnder 49 U.S.C. § 60122 and 49 CFR § 190.223, HECO is subject to a civil penalty not to\nexceed $239,142 per violation per day the violation persists, up to a maximum of $2,391,142 for\na related series of violations. For violations occurring on or after May 3, 2021, and before March\n1 § 40.309 (a)As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to\ncontinue to perform safety-sensitive functions unless follow-up testing is conducted as directed by the SAP.\n\n\n\n21, 2022, the maximum penalty may not exceed $225,134 per violation per day the violation\npersists, up to a maximum of $2,251,334 for a related series of violations. For violations\noccurring on or after January 11, 2021, and before May 3, 2021, the maximum penalty may not\nexceed $222,504 per violation per day the violation persists, up to a maximum of $2,225,034 for\na related series of violations. For violations occurring on or after July 31, 2019, and before\nJanuary 11, 2021, the maximum penalty may not exceed $218,647 per violation per day the\nviolation persists, up to a maximum of $2,186,465 for a related series of violations. For\nviolations occurring on or after November 27, 2018, and before July 31, 2019, the maximum\npenalty may not exceed $213,268 per violation per day, with a maximum penalty not to exceed\n$2,132,679. For violations occurring on or after November 2, 2015, and before November 27,\n2018, 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\nHECO 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 5-2022-048-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,\nDustin Hubbard\nDirector, Western Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: PHP-60 Compliance Registry","truncated":false,"body_characters":7335}