I. INTRODUCTION
In this Order we dispose of the application for rehearing of Decision
(D.) 07-07-004 ("Decision") filed by Equilon Enterprises LLC, dba Shell Oil Products US ("Equilon"), and Shell Trading (US) Company ("Shell"). In D.07-07-040, we resolved a complaint filed by Chevron Products Company ("Chevron") against Equilon and Shell. Equilon owns and operates a 265 mile-long crude oil pipeline which runs from the San Joaquin Valley to the Bay Area ("the Pipeline"). Shell is engaged in the business of buying and selling crude oil. A portion of the crude oil Shell purchases is for use by Equilon in the Shell Martinez refinery. In addition, non-affiliate third party producers enter contracts with Shell known as buy/sell agreements (also known as exchange agreements) for the use of capacity in the Pipeline. Under those agreements, Shell purchases crude oil from producers in the San Joaquin Valley and takes title to that oil while it is in the Pipeline. Shell then resells an equivalent amount of crude oil to the third party in the Bay Area for use at various refineries.
Chevron's complaint alleged that Equilon and Shell (collectively "Shell") operate the Pipeline as a public utility which should be subject to Commission regulation. In D.07-07-040, we agreed, and granted Chevron's motion for summary adjudication.
Shell filed a timely application for rehearing challenging the Decision on the grounds that the Commission: (1) improperly granted summary judgment where there were disputed facts; (2) failed to apply res judicata as a bar to Chevron's complaint; (3) ignored the doctrine of judicial estoppel; (4) issued a decision that conflicts with California Supreme Court precedent; (5) disregarded the law regarding dedication to public use; (6) improperly changed policy in an adjudicatory proceeding; (7) failed to provide the required findings of fact and conclusions of law; (8) did not make findings supported by the record; (9) did not have authority to regulate the purchase and sale of crude oil; (10) violated Shell's due process rights; (11) made a determination that resulted in an improper taking of property; and (12) abused its discretion. In addition, Shell requests oral argument in accordance with Rule 16.3 of the Commission's Rules of Practice and Procedure.
A timely response to the application was filed by Tesoro Refining and Marketing Company ("Tesoro").1 Two weeks after the date for filing a timely response, we received Chevron's response and associated motion to file certain confidential information under seal.2 Although the documents reflect the correct date for filing, it is unclear why the Commission did not actually receive these documents until two weeks later. However, even if the documents were late-filed, we believe there is no harm or prejudice in accepting Chevron's response in this instance. Accordingly, we accept and have considered Chevron's filing. Consistent with the treatment afforded certain other documents in this proceeding, we also grant Chevron's motion to file certain confidential information under seal.
We have carefully considered the arguments raised in the application for rehearing and are of the opinion that modifications, as described herein, are warranted to: (1) clarify our basis for not applying the doctrines of res judicata and judicial estoppel; (2) eliminate language that suggests the Decision asserts jurisdiction over crude oil companies who are not parties to this proceeding; (3) clarify the basis for finding that Associated Pipe Line v. Railroad Commission ("Assoc. Pipe Line") (1917) 176 Cal. 518 is not controlling; (4) clarify certain findings of fact; and (5) add an ordering paragraph directing Shell to file tariffs for its third party contracts. Rehearing of D.07-07-040, as modified, is denied. In addition, we deny the request for oral argument.
1 Tesoro filed a petition to intervene and join Chevron's complaint. (Petition of Tesoro Refining and Marketing Company to Intervene and Become a Party In the Complaint Proceeding Brought By Chevron Products Company Against Equilon Enterprises LLC, Doing Business as Shell Oil Products U.S. and Shell Trading (U.S.) Company, dated December 12, 2005.)
2 See Rule 16.1(d) of the Commission's Rules of Practice and Procedure, Cal Code of Regs., tit. 20, § 16.1, subd. (d) providing that responses to an application for rehearing should be filed and served no later than 15 days after the date the application for rehearing was filed. Pursuant to Rule 16.1 the deadline for filing a response was September 14, 2007. Chevron's response was received October 2, 2007.
