UNITED STATES OF AMERICA 64 FERC 61,213 FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A. Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa, Jr. Chevron Pipe Line Company ) Docket Nos. IS93-29-000 ) and OR93-4-000 ORDER DENYING COMPLAINT AND MOTION FOR EMERGENCY ACTION, CONSOLIDATION AND EXCEPTIONS TO THE ORDER OF THE OIL PIPELINE BOARD (Issued August 5, 1993) On April 5, 1993, as supplemented on April 16, 1993, Chevron Pipe Line Company (CPL) filed FERC Tariff No. 311, a local and proportional tariff applying to the transportation and gathering of crude petroleum from points in Louisiana to points in Louisiana and Mississippi. CPL stated that the filing was made to suspend receipt of crude oil from barges at its Empire Terminal to allow it to evaluate repairs necessary to continue the operation of the barge dock. CPL has two docks at the Empire Terminal. The barge dock, the facility in question, has been used exclusively for barge deliveries and receipts. The ship dock has historically been used for tanker deliveries and receipts. CPL stated that an annual survey performed by its affiliate, Chevron Shipping Company, strongly recommended that CPL consider condemning or totally overhauling the barge dock. According to CPL, the report recommended that, at a minimum, an engineering inspection/analysis of the structure and machinery should be made. CPL determined that it was necessary to suspend all operations at the barge dock until it could evaluate the nature and extent of necessary repairs, determine the technical and economic feasibility of repairs, and complete the repairs if proven feasible. CPL stated that it carefully reviewed the situation to determine how it could best serve its shippers with the minimum of disruption of services offered at the Empire Terminal. CPL determined that a temporary suspension of all operations at the barge dock pending completion of the study would be the best alternative and would minimize disruption of services at the Empire Terminal. 1/ CPL expects to complete this evaluation by 1/ CPL stated that, although it can deliver crude to barges at the Ship Dock, it does not have the (continued...) Docket Nos. IS93-29-000 and OR93-4-000 - 2 - September 1, 1993. CPL stated that it so notified its shippers by letter dated March 31, 1993, and by filing its FERC Tariff No. 311. On April 27, 1993, Croydon Resources, Inc. (CRI), a user of the barge dock at the Empire Terminal, filed a motion to intervene, protest, complaint and request for investigation in Docket Nos. IS93-29-000 and OR93-4-000. On May 7, 1993, the Oil Pipeline Board issued its order in Docket No. IS92-29-000 accepting CPL's tariff and supplement for filing without suspension, and denying protests of CRI, Coastal States Trading, Inc. (Coastal States) and Petroleum Networks, Inc. 2/ On May 14, 1993, CRI filed a motion for emergency action, consolidation and exceptions to the order of the Oil Pipeline Board. CRI repeated its allegations contained in its complaint of April 27 that CPL was closing the barge dock "in an effort to put independent oil companies, which rely on the use of that barge dock, out of business." (Motion, p.6). CRI argues that the safety concerns raised by CPL have not been "proven," and that absent objective "proof," the Commission should suspend the effectiveness of CPL's Tariff No. 311 for a full seven months and require CPL to submit its internal safety report to the Commission. On May 18, 1993, notice of CRI's motion of May 14 appeared in the Federal Register. 3/ Coastal States filed in support of the motion. On June 18, 1993, CPL filed its answer in opposition to CRI's motion. On May 28, 1993, notice of CRI's original complaint was published in the Federal Register, and CPL was directed to respond to the allegations in the complaint. CPL's response in opposition to the complaint was filed June 7, 1993. In its response, CPL explained again its reasons for temporarily suspending operations of the barge dock, namely, to evaluate the safety of the facility, and denied the allegations in the complaint of CRI. 1/(...continued) facilities necessary to receive crude from barges at the Ship Dock. 2/ In that order, the Board rightly observed that it did not have the authority to act on complaints, and therefore deferred to the Commission for whatever action it deemed appropriate. 3/ 58 FR 21,023. Docket Nos. IS93-29-000 and OR93-4-000 - 3 - Arguments of the Parties In its complaint filed April 27, 1993, CRI charges that CPL has violated its common carrier duty by closing the barge dock on short notice, thereby violating sections 1 and 3 of the Interstate Commerce Act (ICA). 4/ CRI asserts that CPL, by closing the barge dock, has expressed an undue preference for customers who deliver crude oil to the Empire Terminal by methods other than barge. CRI further alleges that CPL has denied it the ability to ship crude from barges over the ship dock into the terminal, while delivering crude out of the terminal over the ship dock into barges for other shippers. It seeks to have the Commission order CPL to accept deliveries over the ship dock from barges. CRI alleges that CPL is motivated in its closure of the barge dock by a desire of its parent, Chevron USA, Inc., to increase the value of its crude oil by restricting the availability of marketing facilities for crude. In its May 14 motion, CRI argues that the Commission should require CPL to produce its in-house safety report and periodic reports before ruling on CPL's tariff. It also repeats its argument that there are no viable alternatives to the Empire Terminal barge dock for CRI's business. It continues to dispute CPL's claim that it cannot use the ship dock to accept deliveries. CPL responds to the complaint of CRI and to CRI's motion of May 14 that, in essence, CRI is asking the Commission to order a new service by requiring it to receive barge deliveries over the ship dock. CPL notes that, while it can deliver crude to barges from the ship dock, it does not have the facilities necessary to receive deliveries from barges at the ship dock. CPL argues that, based on an analogous situation in ARCO Pipe Line Co., 5/ the Commission does not have jurisdiction to issue such an order. CPL argues that if the Commission were to grant CRI's request for suspension of the tariff, it would be ordering CPL to operate a facility which CPL has concluded may be unsafe. CPL also contends that it has not discriminated against any user of the barge dock in that all deliveries to the barge dock have been suspended, thereby treating all shippers alike. CPL denies the CRI allegation concerning increasing the price of crude through temporary suspension of operations at the barge dock. Discussion As the Oil Pipeline Board noted in its May 7, 1993 order, "It is Chevron's responsibility to operate its facility in a safe 4/ 49 App. U.S.C.  1 and 3 (1988). 5/ 55 FERC  61,420 (1991). Docket Nos. IS93-29-000 and OR93-4-000 - 4 - manner." (Order, p. 3) Nothing in the allegations of CRI, joined by Coastal States, contained in any of the pleadings refutes this obvious conclusion. No evidence has been presented by any party which would lead to the conclusion that CPL's concern about the safety of its operations is ill-founded. Moreover, as CPL correctly points out, the Commission does not have jurisdiction over CPL's ability to suspend operations at the barge dock under the Interstate Commerce Act, 6/ or to order CPL to provide a new service through the receipt of barge deliveries over the ship dock. To do so would be an assertion of jurisdiction to require CPL to install facilities, which the Commission does not have under the Interstate Commerce Act. 7/ Surely, if CPL is free to discontinue the service at the barge dock altogether, it should be able to suspend its operations to evaluate the safety of continued operations. CRI's allegations concerning CPL's attempts to manipulate the price of crude for the benefit of CPL's parent, Chevron USA, are unsubstantiated. Absent a showing that CPL has been unduly influenced by its parent, Chevron USA, and motivated to suspend operations at the barge dock to provide an advantage to Chevron USA, the Commission will take no further action on this unsupported allegation. The Commission orders: The complaint of April 27, 1993, and motion for emergency action, consolidation and exceptions to the order of the Oil Pipeline Board of May 14, 1993, of CRI and the supporting pleadings of Coastal States, are hereby denied. By the Commission. ( S E A L ) Linwood A. Watson, Jr., Acting Secretary. 6/ Id. 7/ If CRI has evidence that Chevron has received deliveries over the ship dock from barges, it has not presented such evidence. CRI's bare assertion that this was done (Motion, p.4) is disputed by Chevron. (Answer of June 18, p. 4)