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Colonial Colonial UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Epsilon Trading, LLC, Chevron Products Company, Docket Nos. ORl8-7-002 and Valero Marketing and Supply Company V. Colonial Pipeline Company BP Products North America, Inc., Trafigura Trading ORl8—12—0O2 LLC, and TCPU, Inc. V. Colonial Pipeline Company TransMontaigne Product Services LLC ORl8-17-002 v. Colonial Pipeline Company CITGO Petroleum Corporation OR 1 8-2 l-002 V. Colonial Pipeline Company Southwest Airlines Co. and United Aviation Fuels ORI9-1-001 Corporation v.. Colonial Pipeline Company Phillips 66 Company ORl9-4-001 V. Colonial Pipeline Company American Airlines, Inc. OR19- 16-001 ColonialPipeline Company Metroplex Energy, Inc. ORI9-20-000 ColonialPipeline Company Gunvor USA LLC ORl9-27-000 V. Colonial Pipeline Company Docket No. ORl8—7-002, et al. — 2 - Pilot Travel Centers, LLC ORl9-36-000 v. Colonial Pipeline Company Inc. Sheetz, OR20_7_000 Colonial Pipeline Company OR20-9-000 Apex Oil Company, Inc. and FutureFuel Chemical (Consolidated) Company v. Colonial Pipeline Company ORDER OF PRESIDING JUDGE DENYING IN PART AND GRANTING IN PART RECONSIDERATION, GRANTING MOTION FOR CLARIFICATION, AND WAIVING ANSWER PERIOD (Issued September 8, 2020) 1. Pursuant to Rule 202 of the Rules of Practice and Procedure (Rules) of the Federal Energy Regulatory Commission (Commission) the active participants‘ led an unopposed motion on September 4, 2020, requesting reconsideration of a September 1 Order requiring the conformance of testimony and exhibits to joint stipulations,’ clarication of certain hearing procedures, and waiver of the answer period.3 1 The undersigned participants are: Colonial Pipeline Company, CITGO Petroleum Corporation, TransMontaigne Product Services LLC, Gunvor USA LLC, Pilot Travel Centers LLC, Sheetz, Inc., Apex Oil Company, Inc., FutureFuel Chemical Company, 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., Tragura Trading LLC, Valero Marketing and Supply Company, and Commission Trial Staff (collectively, participants). 2 To the extent the September 4 Motion styled certain of the requests as requests for “clarication,” this Order responds instead, where appropriate, by referencing to requests for “reconsideration” of the September 1 Order. 3 See Jointly Submitted September 4, 2020 Unopposed Motion for Clarication of the Hearing Procedures and to Waiver the Answer Period (September 4 Motion). Docket No. ORl8—7-002, et al. - 3 — 2. As set forth below, this Order DENIES IN PART AND GRANTS IN PART the participants’ request for reconsideration of the September 1 Order, GRANTS the participants’ requested clarification, and WAIVES the answer period to the September 4 ' Motion. Background 3. On August 31, 2020, the participants led fourteen (14) stipulations, narrowing 4 the number of issues set for hearing. The August 31 stipulations were accepted in the September 1 Order with four (4) conditions, the last of which is “that the stipulating conform participants all pre-filed testimony and any related exhibits to the stipulations (as may be necessary) prior to the admission of that testimony and related exhibits into evidence.”5 4. Also on September 1, 2020, a technology tutorial was held to familiarize participants with the virtual hearing process and the SharePoint hearing site.‘ During that informal the were informed meeting, participants that the presiding judge may sequester witnesses during the virtual hearing. September 4 Motion 5. In the September 4 Motion, referencing the August 31 stipulations and the burden of the effort to conform testimony and exhibits so close to the commencement of the virtual hearing, the participants request that the requirement to conform testimony and exhibits be reconsidered.7 Instead, the participants offer to brief the issues in conformance with the 31 and August stipulations, file prepared tables that they say will summarize the myriad differences in the testimony and exhibits resulting from the stipulations.“ 4 See Jointly Submitted August 31, 2020 Unopposed Motion for Expedited Consideration and for an Order Adopting Proposed Stipulations (August 31 Motion). 5 Order of Presiding Judge Accepting Stipulations Subject to Conditions and Shortening of Answer Period, Docket No. ORl8—7-002, et al. at P 7 (Sept. 1, 2020). 6 Order of Presiding Judge Scheduling Technology Tutorials in Preparation for the Remote Hearing, Docket No. OR18-7-002, et al. (Aug. 26, 2020). 7 September 4 Motion at 4. 3 Id. To the extent that the September 4 Motion suggested multiple tables, that Docket No. ORl8-7-002, et al. — 4 — 6. In the September 4 Motion, participants also request clarication regarding the presiding judge’s possible witness sequestering during the virtual hearing.9 Specically, the participants request the ability to confer with witnesses during breaks and on evenings/weekends.” Discussion A. Conforming of testimony and exhibits to stipulations 7. The participants argue they should not be required to conform testimony so close to the virtual hearing due to other pressing matters in hearing preparation, and offer to submit prepared tables of changes to testimony and exhibits that are affected by the stipulations and that can be used during the virtual hearing.“ The request is facially reasonable. However, whether to reconsider the September 1 Order for this reason is balanced against the overarching obligation of the presiding judge to ensure a clear, complete and concise hearing record.” 8. In the September 1 Order, in an effort to ensure that the participants are able to prepare for the virtual hearing but also conform the testimony and exhibits for a clear, complete and concise hearing record before the close of record, the participants were required to conform “all pre-led testimony and any related exhibits to the stipulations (as may be necessary) prior to the admission of that testimony and related exhibits into evidence.”‘3 In the September 4 Motion, the participants do not propose to conform their testimony and exhibits, and this failure is not consistent with the need to ensure a clear, complete and concise hearing record. 9. The hearing procedure set forth in the September 1 Order does not actually require participants to take time from hearing preparation; it enables participants to marshal the necessary resources and take up until the last day of the virtual hearing to conform the testimony and related exhibits, to share them with the other participants, and to move for request is denied, and the participants are ordered to jointly prepare and le one (1) table. 9 See September 4 Motion at 3, 6. 10 See id. 1‘ See September 4 Motion at 4. 12 See generally 18 C.F.R. § 385.504 (2020). 13 September 1 Order at 3 (emphasis supplied). Docket No. ORl8-7-002, et al. - 5 — their admission into the record.” The September 1 Order both protects the participants’ ability to prepare for hearings and ensures the development of a clear, complete and concise hearing record. In this regard, therefore, the participants’ reconsideration request is DENIED IN PART. B. Submittal of iointlv-prepared table of changes resulting from stipulations 10. During the virtual hearing, if a witness’ testimony is not yet conformed and admitted, the participants may use and rely on the jointly-filed table of changes,” which will hereafter be identified as Bench Exhibit (BE) — 0001.16 A jointly-prepared table of changes (Ex. BE-0001) will ensure that hearing testimony can be followed, and therefore, in this regard, the participants’ reconsideration request is GRANTED IN PART. 11. Given the breadth of this proceeding, the complexity of the issues, and the immense size of the expected hearing record, all admitted exhibits will conform to the participants’ joint stipulations in order to ensure the development of a clear, complete and concise hearing record. C. Witness communications during hearing 12. With regard to the participants’ request for clarication regarding witness sequestration, the remote hearing guidance published by the Ofce of Administrative Law Judges leaves open the decision about witness sequestration and communications during the hearing." 13. For the purposes of the hearing commencing Tuesday September 15, 2020, communications during the hearing breaks, during nights and weekends, and in-between 14 See id. To the extent that a participant has completed the process of conforming testimony and related exhibits at the time of the introduction of the exhibit (and no other participant objects to the manner of conformance), such party or participant may introduce the conformed testimony and related exhibits through the sponsoring witness and proceed with seeking its admission in due course. 15 See September 4 Motion at 5-6, noting that the participants suggested “the tables,” but instead, one (1) jointly-prepared table is required by this Order. 1‘ Ex. BE-0001 will be entered into the record on the morning of the first day of hearing, Tuesday September 15, 2020. 17 Notice to the Public Remote Hearing Guide for Participants, Docket No. AD20- l2-000 (Sept. 1, 2020) at ll. Docket No. OR18-7-O02, et al. — 6 — hearing days, whether between and among witnesses, counsel and/or other participants and relating to the sworn testimony being given and any portion of the examination thereof, is permitted. 14. While on the virtual record under examination, however, a sworn and previously sworn witness must not confer or otherwise communicate in any manner whatsoever with any other person nor refer to or receive any information other than information entered or identified in the record, and such witness must affirm that the information they provide on the hearing record is given honestly, independently, upon their own judgment, and without assistance from anyone else. Clarication on this point is GRANTED. D. Waiver of answer period 15. Pursuant to Rule 213(d)(l), motions are subject to a fifteen (15)-day answer period, running from its respective ling date “unless otherwise ordered.”‘8 16.
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