UNITED STATES OF AMERICA
`FEDERAL ENERGY REGULATORY COMMISSION
`
`Epsilon Trading, LLC, Chevron Products Company, and
`Valero Marketing and Supply Company
`v.
`Colonial Pipeline Company
`
`BP Products North America, Inc., Trafigura Trading
`LLC, and TCPU, Inc.
`v.
`Colonial Pipeline Company
`
`TransMontaigne Product Services LLC
`v.
`Colonial Pipeline Company
`
`CITGO Petroleum Corporation
`v.
`Colonial Pipeline Company
`
`Southwest Airlines Co., and
`United Aviation Fuels Corporation
`v.
`Colonial Pipeline Company
`
`Phillips 66 Company
`v.
`Colonial Pipeline Company
`
`American Airlines, Inc.
`v.
`Colonial Pipeline Company
`
`Metroplex Energy, Inc.
`v.
`Colonial Pipeline Company
`
`Gunvor USA LLC
`v.
`
`Docket Nos. OR18-7-002
`
`OR18-12-002
`
`OR18-17-002
`
`OR18-21-002
`
`OR19-1-001
`
`OR19-4-001
`
`OR19-16-001
`
`OR19-20-000
`
`OR19-27-000
`
`

`

`Docket No. OR18-7-002, et al.
`
`- 2 -
`
`Colonial Pipeline Company
`
`Pilot Travel Centers, LLC
`v.
`Colonial Pipeline Company
`
`Sheetz, Inc.
`v.
`Colonial Pipeline Company
`
`Apex Oil Company, Inc. and FutureFuel Chemical
`Company
`v.
`Colonial Pipeline Company
`
`OR19-36-000
`
`OR20-7-000
`
`OR20-9-000
`(consolidated)
`
`ORDER OF CHIEF JUDGE EXTENDING PROCEDURAL TIME STANDARDS AND
`ORDERING REPORTS
`
`(Issued June 5, 2020)
`
`On May 21, 2020, certain parties in the above captioned proceeding1 (Movants)
`1.
`filed a Joint Motion of Moving Parties to Modify the Procedural Schedule and Request
`for Shortened Answer Time and Expedited Decision (Motion). On May 22, 2020, the
`Motion’s answer period was shortened to conclude on May 29, 2020.2 During this
`period, answers to the Motion were filed by Commission Trial Staff and Joint Shippers.3
`
`1 These parties are: American Airlines, Inc., Epsilon Trading, LLC, Southwest
`Airlines Co., United Aviation Fuels Corporation, BP Products North America, Inc.,
`Chevron Products Company, Metroplex Energy, Inc., Phillips 66 Company, TCPU Inc.,
`Trafigura Trading LLC, Valero Marketing and Supply Company, CITGO Petroleum
`Corporation, and Colonial Pipeline Company.
`
`2 Order of Chief Judge Shortening Answer Period (May 22, 2020).
`
`3 Answer of Joint Shippers to Joint Motion to Modify Procedural Schedule (May
`27, 2020) (identifying the Joint Shippers as: TransMontaigne Product Services LLC,
`Gunvor USA LLC, and Pilot Travel Centers LLC) (Joint Shippers Answer); Answer of
`Commission Trial Staff Not Opposing Joint Motion to Modify the Procedural Schedule
`(May 26, 2020) (Staff Answer).
`
`

`

`Docket No. OR18-7-002, et al.
`
`- 3 -
`
`On June 4, 2020, an en banc oral argument was held before the Chief Judge and
`Presiding Judge. For the reasons described below, the Motion is hereby GRANTED
`contingent on the participants’ reducing the number of issues in this proceeding and
`complying with the requirements set forth below.
`
`Movants request to move the hearing commencement date from June 16, 2020, to
`2.
`September 15, 2020, in order to “materially increase the likelihood” that an in-person
`hearing can occur and “avoid the inevitable difficulties that would attend the remote
`hearing currently contemplated to begin on June 16.”4 These difficulties stem from this
`proceeding’s unique legal, procedural, and technological complexities, according to
`Movants.5 Movants also expressed concern that the remote proceeding may harm
`participants’ health and safety by compelling “teams trying the cases . . . to be co-located
`in order to function effectively” during the COVID-19 pandemic.6
`
`Joint Shippers generally agree with the Motion, except and to the extent an
`3.
`extension conflicts with any procedural schedule that may be set in Docket No. OR14-6-
`002.7 Commission Trial Staff does not oppose the Motion, given the broad support for
`it,8 but does not agree with assertions that this proceeding “would present due process
`infirmities or information technology impediments, based on its experience in a current
`remote hearing.”9
`
`At the June 4 oral argument on the Motion, participants admitted that they had, to
`4.
`this point, failed to substantially utilize this proceeding’s assigned dispute resolution
`specialist (DRS).10 The participants argued that, with more time before hearing, they
`
`4 Motion at 3-4. Movants also request an extension of the initial decision deadline
`“by a commensurate period of time (or until such date as is consistent with Judge
`French’s other commitments).” Id. at 7.
`
`5 Id. at 2-3, 5-6.
`
`6 Id. at 6.
`
`7 See Joint Shippers Answer at 2 (“The Joint Shippers agree with the Moving
`Parties that valid grounds exist” for granting the Motion; “[h]owever, the . . . proposal . . .
`creates a conflict” with potential conflicts in Docket No. OR14-6-002).
`
`8 Staff Answer at 1.
`
`9 Id. at 3.
`
`10 See Order of Chief Judge Designating Dispute Resolution Specialist (Apr. 29,
`
`

`

`Docket No. OR18-7-002, et al.
`
`- 4 -
`
`would be able to utilize the DRS. They also may be able to stipulate to several issues,
`narrow issues for hearing, and shorten the hearing’s length, according to participants.
`They also argued that each could use the added time to incorporate recent Commission
`return on equity (ROE) pronouncements into their respective cases, as appropriate.11
`
`While neither complexity-based remote hearing difficulties, nor speculation about
`5.
`reconstituting in-person hearings, compel finding for Movants,12 it is nonetheless found
`that Movants establish good cause for the requested extension, for separate reasons. The
`extension will promote the narrowing, or settlement, of issues for hearing. It will also
`allow participants to better address the new Commission ROE policy statement.
`
`For good cause shown, pursuant to sections 554, 556, and 55713 of the
`6.
`Administrative Procedure Act and authority duly delegated by the Chairman of the
`Commission, the Motion is granted.14 Accordingly, the hearing commencement and
`initial decision deadlines are hereby extended as requested15 to September 15, 2020, and
`May 28, 2021 respectively.16 The Presiding Judge shall adopt a procedural schedule
`
`
`2020).
`
`11 See Policy Statement on Determining Return on Equity for Natural Gas and Oil
`Pipelines, 171 FERC ¶ 61,155 (May 21, 2020) (ROE Policy Statement).
`
`12 See Notice to the Public: Notice of Remote Hearings, Docket No. AD20-12-000
`(Apr. 23, 2020); Notice to the Public: Remote Hearing Guidance for Participants, Docket
`No. AD20-12-000 (June 4, 2020); see also Staff Answer (arguing that this proceeding is
`suited for remote hearing, disagreeing with opposing contentions). And neither these
`Notices nor this Order require the co-location of individuals, as certain Movants feel that
`they must do to represent their clients. See Motion at 6. Further, any conflicts that this
`Order may cause with the proceeding in Docket No. OR14-6-002 are speculative and will
`be addressed if or when appropriate.
`
`13 Administrative Procedure Act, 5 U.S.C. §§ 554, 556, and 557 (2012).
`
`14 18 C.F.R. § 375.304(b)(1) (2020).
`
`15 See supra P 2.
`
`16 This date assumes more than two months of hearing (September 15-November
`30, 2020 and 30 days for briefs and 15 days for reply briefs).
`
`

`

`Docket No. OR18-7-002, et al.
`
`- 5 -
`
`consistent with this Order and may thereafter adjust any procedural dates, except the
`hearing commencement and initial decision deadlines, consistent with this Order.
`
`However, the granting of this Motion is contingent on the participants making
`7.
`sufficient weekly progress on reducing the number of issues in this proceeding. The
`Chief Judge reserves the right to modify this Order and change the hearing date to a date
`prior to September 15, 2020.
`
`Pursuant to Section 304(a),17 on or before June 12, 2020, participants shall jointly
`8.
`file a schedule that provides specific dates for the following:
`
`(1) filing of revised exhibits and/or testimony in light of the ROE Policy
`Statement;
`
`(2) meetings to discuss the narrowing of issues set for hearing, joint stipulations,
`ways of shortening the hearing and ways to improve the virtual hearing process,18
`with all participants in attendance;
`
`(3) filing revised exhibits to comply with the Presiding Judge’s previous order to
`reduce the amount of protected materials in the pre-filed and cross examination
`exhibits;19
`
`(4) dates for additional IT tutorials with FERC IT personnel for those experiencing
`technical difficulties or would like additional practice with the virtual hearing
`platforms along with your participants’ IT personnel;20 and
`
`
`17 18 C.F.R. § 375.304(a) (“The Commission authorizes the Chief Administrative
`Law Judge … to exercise the power granted to a Presiding Officer by part 385 …” ); 18
`C.F.R. § 385.504(a)(5)(b)(1),(20).
`
`18 This includes ways to improve participation in virtual hearings from
`participants’ homes.
`
`19 Order of Presiding Judge on the Management and Control of Protected
`Materials During the Virtual Hearing, at P 5 (May 15, 2020).
`
`20 Before submitting the joint schedule, the participants do not need to confirm that
`the proposed dates and times comport with FERC IT’s schedule. The judge team and
`FERC IT team reserve the right to modify, cancel, postpone, or move selected “office
`hour” times, as needed, in light of other IT needs or scheduling complications that may
`arise. However, the judge team will endeavor to see that you are provided notice of any
`
`

`

`Docket No. OR18-7-002, et al.
`
`- 6 -
`
`(5) meetings to complete joint witness lists, resolve issues regarding outstanding
`motions to compel, and/or engage-in any other pre-hearing work items that
`participants find appropriate or that the Presiding Judge has or hereafter orders.
`
`All participants are further ordered to schedule regular meetings with the DRS
`9.
`specialist, starting June 15, 2020. Additionally, participants are ordered to file status
`reports with the Chief Judge and the Presiding Judge on the DRS progress and the
`progress relative to all the other requirements listed above, and do so every fourteen (14)
`calendar days thereafter.
`
`Upon participants submitting the joint schedule ordered herein, the Presiding
`10.
`Judge may modify it, at her discretion, and shall adopt a revised procedural schedule by
`order.
`
`SO ORDERED.
`
`Carmen A. Cintron
`Chief Administrative Law Judge
`
`
`such modification.
`
`