{"operation":"document","citation":"CPF 520050018","title":"BRIDGEMARK CORP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-10-17","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.809(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-520050018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-520050018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-520050018","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/520050018","body":"Notice of Probable Violation involving BRIDGEMARK CORP. PHMSA's enforcement data identifies the cited regulation as 192.809(a). The case was opened on 2005-10-17 and is reported as closed as of 2009-09-03. Proposed civil penalty: $5,000. Assessed civil penalty: $5,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n520050018_Decision onPetitionforReconsideration_07282009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520050018/520050018_Decision%20onPetitionforReconsideration_07282009.pdf\n\n520050018_Decision onPetitionforReconsideration_07282009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520050018/520050018_Decision%20onPetitionforReconsideration_07282009_text.pdf\n\n520050018_FinalOrder_03312008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520050018/520050018_FinalOrder_03312008.pdf\n\n520050018_finalorder_03312008_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520050018/520050018_finalorder_03312008_text.pdf\n\n520050018_Petition for Reconsideration_04182008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520050018/520050018_Petition%20for%20Reconsideration_04182008.pdf\n\n520050018_finalorder_03312008_text.pdf\n\nU S Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Ave, S E\nWashington DC 20590\nMr. Kevin Mugavero\nVice President of Operations\nBridgemark Corporation\n17671 Irvme Blvd\nSuite 217\nTustin, CA 92780-3129\nRe: CPF No. 5-2005-001S\nDear Mr. Mugavero:\nEnclosed is the Final Order issued in the above-referenced case. It makes findings of violation\nand assesses a civil penalty of $5, 000. The penalty payment terms are set forth in the Final\nOrder. This enforcement action closes automatically upon payment Your receipt of the Final\nOrder constitutes service of that document under 49 C. F. R. ) 190, 5,\nThank you for your cooperation in this matter.\nSincerely,\ntr, ~~ &5z~-\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc. Chris Hoidal, P. E.\n,\nDirector Western Region, PHMSA\nCERTIFIED MAIL — RETURN RECEIPT RE UESTED\n\n\n\nU. S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D. C. 20590\nIn the Matter of\nBridgemark Corporation,\nRespondent\nCPF No. 5-2005-0018\nFINAL ORDER\nOn May 11, 2004, pursuant to 49 U. S. C. $ 60117, a representative of the Pipeline and Hazardous\nMaterials Safety Administration's (PHMSA's)', Office of Pipeline Safety conducted an\ninspection of Respondent's Operator Qualification of Pipeline Personnel (OQ) Program in\nPlacentia, CA. As a result of the mspection, the Director, Western Region, PHMSA, issued to\nRespondent, by letter dated October 17, 2005, 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 Respondent had violated 49 C. F. R. ) 192, 809(a) and proposed\nassessing a civil penalty of $5, 000 for the alleged violation. The Notice also proposed ordering\nRespondent to take certain measures to correct the alleged violation.\nRespondent responded to the Notice by letter dated November 1, 2005 (Response). Respondent\ndid not contest the allegations of violation but stated that it was no longer operating a\nDepartment of Transportation-regulated gas pipeline. It stated that it began using 100% of the\nnatural gas generated from its own field on June 1, 2005 and, as a result, requested that the\nproposed civil penalty be eliminated. Respondent did not request a hearing and therefore has\nwaived its right to one.\nFINDING OF VIOLATION\nIn its Response, Respondent did not contest the allegation in the Notice that it violated 49 C. F. R.\nPart 192, as follows:\n' Effective February 20, 2005, the Pipehne and Hazardous Matenals Safety Admmistration (PHMSA) succeeded\nResearch and Special Programs Admimstration as the agency responsible for regulatmg safety in pipeline\ntransportation and hazardous materials transportation See, section 108 of the Norman Y Mmeta Research and\nSpecial Programs Improvement Act (Public Law 108-426, 118 Stat 2423-2429 (November 30, 2004)). See also, 70\nFed Reg 8299 (February 18, 2005) redelegating the pipeline safety authonties and functions to the PHMSA\nAdmimstrator\n\n\n\nItem 1. Subpart N — Qualification of Pipeline Personnel\n49 C. F. R. g 192. 809 General.\n(a) Operators must have a written qualification program by April 27,\n2001. The program must be available for review by the Administrator or by\na state agency participating under 49 U, S. C. Chapter 601 if the program is\nunder the authority of that state agency.\nThe Notice alleged that Respondent did not have a written program for qualifying its pipeline\npersonnel as of the date of the PHMSA inspection on May 11, 2004. Accordingly, I find that\nRespondent violated 49 C. F. R. $ 192. 809(a) by failing to have a written OQ program by\nApril 27, 2001.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U. S. C. $ 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100, 000 per violation for each day of the violation up to a maximum of $1, 000, 000 for any\nrelated series of violations.\n49 U. S. C. ) 60122 and 49 C. F. R. $ 190. 225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation;\ndegree of Respondent's culpability; history of Respondent's prior offenses; Respondent's ability\nto pay the penalty; good faith by Respondent in attempting to achieve compliance; the effect on\nRespondent's ability to continue in business; and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $5, 000 for violation of 49 C. F. R. )192. 809(a).\nThe Notice proposed that Respondent be assessed a civil penalty of $5, 000 for violating 49\nC. F. R. $ 192. 809(a) by failing to have a written OQ program available for inspection on May 11,\n2004. In its Response, Respondent stated that it was no longer operating the pipeline at issue,\nthat it was a small business, and requested that the penalty be waived. Respondent, however,\npresented no other information that would justify why it should not be held liable for the alleged\nviolation, that it was unable to pay the proposed penalty, or that would otherwise warrant a\nreduction in the penalty amount. Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $5, 000.\nPayment of the civil penalty must be made within 20 days of service. Payment may be made by\nsending a certified check or money order (containing the CPF Number for this case) payable to\n\"U. S. Department of Transportation\" to the Federal Aviation Admmistration, Mike Monroney\n\n\n\nAeronautical Center, Financial Operations Division (AMZ-341), P. O Box 25082, Oklahoma\nCity, OK 73125.\nFederal regulations (49 C. F. R. $ 89. 21(b)(3)) also permit this payment to be made by wire\ntransfer, through the Federal Reserve Communications System (Fedwire), to the account of the\nU. S. Treasury. Detailed instructions are contained in the enclosure. Questions concerning wire\ntransfers should be directed to; Financial Operations Division (AMZ-341), Federal Aviation\nAdministration, Mike Monroney Aeronautical Center, P. O. Box 25082, Oklahoma City, OK\n73125; (405) 954-8893.\nFailure to pay the $5, 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 United\nStates District Court.\nCOMPLIANCE ORDER\nThe Notice proposed a Compliance Order with respect to item 1 in the Notice for the violation of\n49 C. F. R. $ 192. 809(a). Under 49 U. S. C. ( 60118(a), each person who engages in the\ntransportation of gas or hazardous liquids or who owns or operates a pipeline facility is required\nto comply with the applicable safety standards established under chapter 601. The Director,\nWestern Region, PHMSA has indicated that Respondent is no longer operating a DOT-regulated\nfacility as of April 11, 2006, and that the pipeline at issue has been disconnected and put in\ninactive mode,\nAccordingly, since compliance is no longer required with respect to this item, the compliance\nterms are not included in this Order.\nUnder 49 C. F. R. ) 190. 215, Respondent has a right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be received within 20 days of Respondent's receipt of this\nFinal Order and must contain a brief statement of the issues. The filing of the petition\nautomatically stays the payment of any civil penalty assessed. However if Respondent submits\npayment for the civil penalty, the Final Order becomes the final administrative decision and the\nright to petition for reconsideration is waived. The terms and conditions of this Final Order shall\nbe effective upon receipt.\nMAR 3 1 200S\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nDate Issued\n\n520050018_Decision onPetitionforReconsideration_07282009_text.pdf\n\nJUL 28 2009\nMr. Kevin Mugavero\nVice President of Operations\nBridgemark Corporation\n17671 Irvine Boulevard\nSuite 217\nTustin, CA 92780-3129\nRe: CPF No. 5-2005-0018\nDear Mr. Mugavero:\nEnclosed is the decision on the Petition for Reconsideration filed by Bridgemark Corporation on\nApril 18, 2008, in the above-referenced enforcement case. For the reasons discussed in the\ndecision, I have denied your petition. Payment of the $5,000 civil penalty shall be made in\naccordance with the terms of the Final Order. Your receipt of the decision constitutes service\nunder 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Chris Hoidal, Director, Western Region, PHMSA\nJohn J. Harris, Esq.,\nMeyers, Nave, Riback, Silver & Wilson, PLC\n333 South Grand Avenue, Suite 1670, Los Angeles, California 90071\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 0390 0005 6162 5029]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, DC 20590\n____________________________________\n)\nIn the Matter of )\n)\nBridgemark Corporation, ) CPF No. 5-2005-0018\n)\nPetitioner. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nBackground\nOn March 31, 2008, pursuant to chapter 601, title 49 United States Code, the Associate\nAdministrator for Pipeline Safety (Associate Administrator) issued a Final Order in this case\nagainst Bridgemark Corporation (Bridgemark or Petitioner), finding that Petitioner had\ncommitted one violation of the Gas Pipeline Safety Regulations, codified at 49 C.F.R. Part 192,\nand assessing a civil penalty of $5,000. Bridgemark is a crude oil production company based in\nTustin, California. Specifically, PHMSA found that Petitioner violated 49 C.F.R. § 192.809(a)\nby failing to have a written Operator Qualification (OQ) program in place by the regulatory\ndeadline of April 27, 2001. Generally, pipeline operators must have OQ programs in place to\nensure that individuals performing covered tasks on their pipeline facilities are qualified.1\nOn April 18, 2008, Petitioner filed a Petition for Reconsideration (Petition) of the Final Order.\nBridgemark sought withdrawal of the finding of violation in the Final Order and elimination or\nreduction of the associated civil penalty. Bridgemark made several arguments in support of its\nPetition. First, it argued that its pipeline is a gathering line not subject to PHMSA jurisdiction or\nregulation under Part 192. Second, it contended that the Final Order is time-barred under the\ngeneral statute of limitations and PHMSA regulations. Third, it argued that no violation\noccurred because Petitioner was not operating the gathering line at the time the Notice of\nProbable Violation (Notice) was issued. In the alternative, it argued that the finding of violation\nshould not be considered a prior offense in any subsequent enforcement action and that the civil\npenalty be reduced or the Final Order withdrawn.\n1 49 C.F.R. Part 192, Subpart N – Qualification of Pipeline Personnel.\n\n\n\n2\nIn addition to these defenses, the company claimed that it did not waive its right to contest the\nallegation in the Notice and its right to a hearing and that its Petition met the procedural\nrequirements of 49 C.F.R. § 190.215.\nOPS first became aware that Bridgemark operated a gas pipeline during a February 26, 2002\ninspection of a nearby gas gathering system operated by another company.2 To determine\nwhether Bridgemark’s pipeline was subject to Part 192, OPS sent Bridgemark a Request for\nSpecific Information on May 27, 2003, seeking a written description of the company’s gas\npipeline operations. Bridgemark responded by letter on July 15, 2003. Bridgemark’s letter\nincluded a written description of its pipeline facility, a diagram, a map, and certain pipe\nspecifications. On the basis of Bridgemark’s response, OPS inspected the company’s facility on\nMay 11, 2004. It is undisputed that at the time of the inspection, Bridgemark was operating a\ngas gathering pipeline in Placentia, California.3\nDiscussion\nA. Procedure\nUnder 49 C.F.R. § 190.215, a respondent may file a petition for reconsideration of a final order\nissued pursuant to § 190.213, requesting that PHMSA reconsider its decision. Although PHMSA\ndoes not consider repetitious information, arguments or petitions, a respondent may request\nconsideration of additional facts or arguments, provided that there is a valid reason why they\nallow a petitioner to present information or arguments that were unavailable or unknown prior to\nbut not to provide the operator with an appeal or a de novo review.\nwere not presented prior to issuance of the final order.4 The purpose of reconsideration is to\nissuance of the final order, as well as to allow the agency to correct any error in the final order,\nBridgemark’s Petition presents many facts and arguments for the first time. Petitioner argues\nthat it did not present these facts and arguments earlier because “it reasonably believed that\n[OPS] was not going to assert jurisdiction over Bridgemark’s facility.”5 Petitioner explains that\nit contacted OPS after receiving the Notice and was informed it should “simply write a letter\nexplaining that the line was out of service.”6\nThe record contains no documentation of this\nexchange, nor is there any indication that OPS indicated to Bridgemark that the company would\nnot be responsible for past violations simply because it had taken its facility out of service.\n2 PHMSA Request for Specific Information at 1 (May 27, 2003).\n3 Petition at 12.\n4 49 C.F.R. § 190.215(b) & (c).\n5 Petition at 5.\n6 Id. at 9.\n\n\n\n3\nIn its cursory response to the Notice, Bridgemark stated that it no longer operated a jurisdictional\nline as of June 2005 and requested waiver of the proposed penalty. Bridgemark did not request a\nhearing or address the allegation that it failed to have an OQ program in place at the time of the\n2004 inspection.\nIn its Petition, Bridgemark fails to present any valid reason why the facts and legal arguments\npresented in the Petition could not have been presented prior to issuance of the Final Order.\nAccordingly, based upon Petitioner’s failure to comply with the procedural requirements of 49\nC.F.R. § 190.215(b) and (c), I hereby deny the Petition for Reconsideration.\nNotwithstanding the foregoing, I have reviewed the record in this case, including the Request for\nSpecific Information and Bridgemark’s response, in order to ensure that no error has occurred.\nBased upon such review, I also deny the Petition for the reasons discussed below.\nB. Jurisdiction\nPetitioner asserts that from 2001 until mid-2005, it operated a 1,250-foot gathering line in\nPlacentia, California.7 Petitioner argues that PHMSA never had jurisdiction over this line\nbecause it is a gathering line that PHMSA lacks the authority to regulate.8\nPetitioner is incorrect. PHMSA has clear statutory jurisdiction over gas pipeline facilities and\nthe transportation of gas.9 The term “transporting gas” means “the gathering, transmission, or\ndistribution of gas by pipeline, or the storage of gas, in interstate or foreign commerce,” except\nfor certain rural gas gathering lines.10 The regulations in place during the time period relevant to\nthis case (i.e., from the adoption of the regulation imposing the April 27, 2001 OQ deadline\nthrough the May 11, 2004 inspection of Bridgemark’s facility) describe the types of rural\ngathering lines that are exempt from Part 192.11 Petitioner’s gathering line is not located in one\nof these areas.\n7 Id. at 12.\n8 Id. at 6.\n9 49 U.S.C. § 60102(a) and 49 C.F.R. § 192.1(a).\n10 49 U.S.C. § 60101(a)(21)(A).\n11 49 C.F.R. § 192.1(b)(4) (2004). The regulation provided that Part 192 did not apply to “(4) Onshore gathering of\ngas outside of the following areas: (i) An area within the limits of any incorporated or unincorporated city, town or\nvillage. (ii) Any designated residential or commercial area such as a subdivision, business or shopping center, or\ncommunity development.” In its Petition, Bridgemark cited the gathering line exemption in place at the time of the\nPetition, not the earlier version of the regulation that was in place during the relevant time period.\n\n\n\n4\nWith limited exceptions that are not relevant here, “each operator of a gathering line must\nhas submitted no evidence that its gathering line is not subject to Part 192. I therefore find that\nduring the relevant time period, Petitioner operated a gathering line that was subject to PHMSA\njurisdiction over natural gas pipelines, and specifically to the operator qualification regulations at\nissue in the Final Order.\ncomply with the requirements of this [Part 192] applicable to transmission lines.”12 Petitioner\nAccordingly, I find that Petitioner’s jurisdictional arguments do not warrant withdrawal of the\nfinding of violation or the civil penalty assessed in the Final Order.\nC. Timeliness of the Final Order\nPetitioner argues that the Final Order is time-barred by both the federal statute of limitations set\nforth in 28 U.S.C. § 2462 and by PHMSA regulations.13 Petitioner first asserts that because this\ncase has not been concluded within five years of accrual of the claim, PHMSA is now barred by\nthe state of limitations from making a finding of violation. Petitioner is incorrect. Section 2462\nprovides, in relevant part, that “an action, suit or proceeding for the enforcement of any civil\nfine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced\nwithin five years from the date when the claim first accrued...” [Emphasis added]14 The plain\nlanguage of the statute requires only that enforcement actions be commenced, not concluded,\nwithin five years. OPS commenced this action by issuing the Notice on October 17, 2005, four\nand a half years from the earliest possible date the cause of action could have accrued, on April\n28, 2001.15\nPetitioner also argues that the Final Order is time barred because it was not issued within a\nunpersuasive. The regulation does not impose a legal requirement that final orders be issued\nbasis per se for withdrawing either.\nreasonable period of time as provided in 49 C.F.R. 190.213(e).16 within a certain timeframe. Rather, the regulation describes PHMSA’s general policy of issuing\nfinal orders as expeditiously as possible. Although the agency strives to issue orders promptly, a\ndelay between the date a notice is issued and the date a final order is entered does not constitute a\nPetitioner’s argument is\n12 49 C.F.R. § 192.9.\n13 49 C.F.R. § 190. 213(e).\n14 28 U.S.C. § 2462.\n15 The regulations set out a continuing obligation to establish and follow an OQ program. Although the Final Order\nfound that Bridgemark violated § 192.809(a) by failing to have a program in place by April 27, 2001, a cause of\naction could have accrued at any time between the regulatory deadline and the 2004 inspection.\n16 Petition at 8. Section 190.213(e) provides: “(e) It is the policy of the Associate administrator, OPS to issue a final\norder under this section expeditiously. In cases where a substantial delay is expected, notice of that fact and the date\nby which it is expected that action will be taken is provided to the respondent upon request and whenever\npracticable.”\n\n\n\n5\nPetitioner has incurred no hardship during the pendency of this case due to delay. Bridgemark\nwas fully aware of the allegations and the proposed remedies and was not compelled to pay the\npenalty or take any other action until the Final Order was issued.\nAccordingly, I find that Petitioner’s timeliness arguments do not warrant withdrawal of the\nfinding of violation or the civil penalty assessed in the Final Order.\nD. Bridgemark’s Operating Status at the Time of the Notice.\nPetitioner also argues that a finding of violation is not appropriate in this case because\nBridgemark was not actually operating the gathering line at the time the Notice was issued.17\nPetitioner argues that because the Bridgemark line was taken out of service in June 2005, “there\nwas no reason at that point for an OQ program, nor a factual basis for finding it in violation” of\nthe OQ regulations.18\nI find this argument unpersuasive. The finding of violation and penalty in the Final Order\nconcerned Petitioner’s conduct at the time when it was operating the gathering line, not at the\ntime of issuance of the Notice. PHMSA may begin an enforcement proceeding against any\n“person” who has committed a probable violation of the Pipeline Safety Laws or any regulation\nor order issued thereunder.19 It is irrelevant whether such person is still operating the pipeline\nfacility at the time a notice of probable violation is issued.\nAccordingly, I find that Petitioner’s operating status argument does not warrant withdrawal of\nthe finding of violation or the civil penalty assessed in the Final Order.\nE. Prior Offense & Reduction of the Penalty.\nPetitioner argues, in the alternative, that because any violation was not ongoing, then “any\ntechnical violation should not be considered a ‘prior offense,’” and requests that the Final Order\nbe modified to delete that finding.20 Bridgemark also argues that its Petition contains “sufficient\nrejected Petitioner’s other arguments, I find no evidence or legal reason to warrant modification\nof the Final Order or reduction of the penalty.\nfactual and legal basis for reducing the penalty substantially.”21 Having reviewed the record and\n17 Petition at 8-9.\n18 Id. at 9.\n19 49 C.F.R. § 190.207(a).\n20 Petition at 10.\n21 Id.\n\n\n\n6\nRelief Denied\nI have fully considered Petitioner’s request for reconsideration and its arguments, as discussed\nabove. On the basis of the foregoing, the Petition for Reconsideration is denied. This decision is\nthe final administrative action in this proceeding.\n_______________________________ ________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":23516}