Appendix — Trans Alaska Pipeline Rate Cases

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— Supreme Court, U.S, |

FILED

* - ) JAN 107°

Vol. Il -

Pages 596a to 789a MICHAEL RODAK, JR., CLEPE |

In The

Supreme Court of the United States

OCTOBER TERM, 1977

Nos. 77-452, 77-457, 77-551, 77-602

Mosr ALasKa Preetove Company, Exxon Pirg.ine

Company, BP Preziives Inc. and ARCO Pire Live

CoMPANY,

Petitioners,

—against—

Unrrep States or America, THE INTERSTATE

Commence Commission, et al.,

, Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIROUIT

—EE SS i

PETITIONS FOR WRITS OF CERTIORARI

FILED SEPTEMBER 22, OCTOBER 12, OCTOBER 25, 1977

CERTIORARI GRANTED NOVEMBER 28, 1977

INDEX TO APPENDIX

VOLUME I

; PAGE

Relevant Docket Entries:

Court of Appeals iv

Interstate Commerce Commission:

No. 36611 viii

No. I & S 9164 xiii

=? me To TAPS Owners Requesting Tariff Data, June 2, :

a

ICC Supplemental Notice of Protest Schedule, June 13, 1977 ...... 2a

Protest of the State of Alaska Seeking Suspension and Investiga-

tion of Initial Rates and Tariffs Via the Trans Alaska —

System (TAPS), June 15, 1977 4a

Preliminary Statement of Special Counsel, Alaska Pipeline Com.

mission in Response to Request of the State of Alaska, June

15, 1977 83a

Protest and Petition for Suspension by United States Department

of Justice re TAPS, June 15, 1977 88a

Protest of the Arctic Slope Regional Corporation for Suspension

of Rates and Rules over TAPS, June 15, 1977 110a

Protest of the Bureau of Investigations and Enforcement (ICC)

for Suspension and Investigation, June 15, 1977 133a

Order of ICC Instituting Investigation of Rules Tariffs re TAPS,

June 17, 1977 216a

Response of Sohio Pipe Line Co. to Request for Tariff Data, June

15, 1977 2188

Response of Union Alaska Pipeline Co. to Request for Tariff

Data, June 15, 1977 228a

Response of BP Pipelines, Inc. to Request for Tariff Data, June

17, 1977 231a

Protest Reply of Mobil Alaska Pipeline Co., June 22, 1977 .......... 251a

Protest Reply of Exxon Pipeline Co., June 22, 1977 312a

Protest Reply of BP Pipelines, Inc., June 22, 1977 38la

Protest Reply of ARCO Pipe Line Co., (Omitting Appendices B

and G), June 22, 1977 396a

: PAGE

Protest Reply of Union Alaska, June 22, 1977 517a

Second Supplement to Protest by Arctic — Regional Corpo-

ration, June 23, 1977 538a

Protest Reply of Sohio Pipe Line Co., June 22, 1977 545a

Petition for Reconsideration, Exxon Pipeline Company, July 8,

GG wceccsssrscceeresrienssinesictessnecnicnsatnniniiiteiniatataiiuaiintlinasaiied . 578a

ICC Order of July 11, 1977 Setting Case for Hearing 594a

VOLUME II

Verified Petition of Mobil Alaska Pipeline Company to Annul,

Set Aside and Enjoin Enforcement of An Order of the Inter-

state Commerce Commission, July 6, 1977 596a

Order of the Interstate Commerce Commission, June 28, 1977,

with Corrections as Reissued July 11, 1977 623a

Affidavit of Charles R. Thompson, Mobil Alaska Pipeline Com-

ee, SURG G, BEG cecccccnsecnsceseenessicarntoneanneninesnininiaiaintanitipiniaatiasiaets 647a

Affidavit of Dale A. Lucas of BP Pipelines, Inc., July 11, 1977 ...... 650a

Affidavit of Richard M. Voripaieff of Exxon Pipeline Company,

/ 2 § , see

Affidavit of Ernest C. Terry as Filed with Interstate Commerce

Commission on June 22, 1977, July 12, 1977—Exxon Pipeline 657a

Letter of ICC Chairman George M. Stafford to Congressman

William L. Hungate with Corrected Schedules, Dated March 22,

1976, July 12, 1977—Exzon Pipeline . 684a

Excerpts From Verified Statement of Raymond B. Gary in ICC

Docket Ex Parte 308, July 12, 1977—Exxzon Pwpeline ................ 691a

Excerpts From Verified Statement of Ezra Solomon in Ex Parte

308, Filed with Court of Appeals July 12, 1977—Ezxzxon Pipeline 694a

Affidavit of Albert H. Fitzgerald, Chairman of the Suspension

and Fourth Section Board of the ICC, July 11, 1977—Mobil

Alaska 712a

Motion of State of Alaska for Leave to Appear as Party, July 12,

1977—-Mobil Alaska

-” PAGE

Excerpts From Memorandum of State of Alaska in Opposition to

Applications for Interlocutory Injunctions and Temporary

Restraining Order, July 13, 1977—Mobil Alaska 721a

Affidavit of J. D. Wessling of ARCO —— Line Co., July 14,

1977 723a

Motion of the United States of America to Consolidate and Dis-

enien, Gar Te, Ben OOO 726a

Excerpts From Arctic Slope Regional Corporation, Memorandum

in Opposition to Application for Interlocutory Judgment and

Temporary Restraining Order in 5th Circuit, July 14, 1977—

Mobil Alaska .. 728a

Decision and Order of the Court of aii Mobil Alaska Pipe-

line Co. v. United States, 557 F.2d 775, July 29, 1977—all cases 746a

Judgment of the Court of Appeals, entered July 29, 1977, Issued

as Mandate September 8, 1977—all cases ...2..........1c-.ceseceeeeeeeeeo-e--- 772a

Order of the Court of Appeals Denying Motions for Stay of Man-

date and Stay of ICC Order, September 8, 1977—Exzon Pipeline 773a

Order of the Court of Appeals Denying Petition for Rehearing,

September 8, 1977—BP Pipelines . . TT4a

ICC Order of September 27, 1977, Denying Petitions for Recon-

sideration, ete.

Order of the Supreme Court Granting paernemnitg for Stay of

ICC Order, October 20, 1977 . 784a

Order of the Supreme Court Further Effectuating Stay of ICC

Ef, REE aes Ser NAS se 785a

Order of the Supreme Court Granting the Petitions for Writs of

SSI, SON TD ST ciretiisieccecinentirenncecentiinetndecintnicnsmicicnaalenmsi 789a

EXHIBITS TO APPENDIX

Transcript of Oral Argument before Interstate Commerce Com-

mission, June 27, 1977

Exhibits in Aid of Oral Argument of the Bureau of Investigations

and Enforcement, June 27, 1977

Exhibits in Aid of Oral Argument of the State of Alaska, June 27,

1977

DaTE

7/ 6/77

7/6/77

7/ 6/77

7/ 6/77

7/ 8/77

7/11/77

7/11/77

7/11/77

7/11/77

7/11/77

7/12/77

7/12/77

7/12/77

iv

RELEVANT DOCKET ENTRIES

COURT OF APPEALS

Fitincs/PRocEEDINGS

Petition for Review of Order of ICC—Mobil Alaska

Flg. Petitioner’s Application for Temporary Restraining

Order—Mobil Alaska

Fig. Petitioner’s Application for Interlocutory Injunc-

tion—Mobil Alaska

F lg. Petitioner’s Memorandum in Support of their Appli-

cations for Interlocutory Injunction and Temporary

Restraining Order—Mobil Alaska

Petition for Review of Order of ICC—BP Pipelines

Motion to Intervene of Sohio Pipe Line Co.—Mobil Alaska

F'lg. Memorandum of Sohio Pipe Line Co. in Support of

Petitioner’s Application for Temporary Restraining

Order—Mobil Alaska

Petition for Review of Order of ICC—Ezzon Pipeline

Fig. Petitioner’s Motion to Stay, Restrain and Suspend

Order of 1.C.C.—BP Pipelines

F lg. Petitioner’s Memorandum in Support of Their Motion

to Stay, Restrain and Suspend Order of I.C.C._—BP Pipe-

lines

F lg. Motion of Exxon Pipeline Co. for Expedited Consider-

ation or, in the Alternative, for a Stay Pending Review,

a Memorandum in Support and Appendices to Memoran-

dum in Support—Ezzon Pipeline

Fig. Motion of State of Alaska for Leave to Appear as

Party Pursuant to 28 U.S.C. § 2323, and § 2348, and Rule

15 of FRAP—Mobil Alaska

Fig. Reply of L.C.C. in Opposition to Petitioner’s Applica-

tions for Interlocutory Injunction and Temporary Re-

straining Order—Mobil Alaska

Date

7/13/77

7/13/77

7/13/77

7/13/77

7/13/77

7/14/77

7/14/77

7/14/77

7/14/77

7/14/77

7/14/77

7/14/77

Petition for Review of Order of ICC—ARCO Pipe Line

Fig. Reply of Respondent, I.C.C., in Opposition to Peti-

tioner’s Motion to Stay, Restrain and Suspend Order of

1.C.C.—BP Pipelines

.Fig. Memorandum in Support of Motion of Respondent,

U.S.A., to Dismiss Appeal—Mobil Alaska

Fig. Memorandum of U.S.A. in Opposition to Applications

for Temporary Restraining Order and Interlocutory

Injunction—Mobil Alaska

Fig. Memorandum of State of Alaska in Opposition to

Applications for Interlocutory Injunction and Temporary

Restraining Order—Mobil Alaska

Motion to Intervene of Arctic Slope Regional Corp.—Mobil

Alaska

Flg. Memorandum of Arctic Slope Regional Corp. in Opposi-

tion to Application for Interlocutory Judgment and Tem-

porary Restraining Order—Mobil Alaska

Motion for Injunction [with Memorandum in Support] of

ARCO Pipe Line Co.—ARCO Pipe Line

Fig. Motion of Respondent, U.S.A., for Consolidation of

Nos. 77-2412, 77-2421 and 77-2437 and to Dismiss Petitions

—all cases

Fig. Telegram Confirmation of Interstate Commerce Com-

mission as Requested by the Ct. with respect to earliest

date projected for arrival of oil through pipeline

Valdez—Mobil Alaska .

Fig. Telegram Confirmation of Mobil Alaska Pipeline Co.

as Requested by Ct. with respect to earliest date pro-

jected for arrival of oil through pipeline to Valdez—Mobil

Alaska

Fig. Telegram Confirmation of Exxon Pipeline Co. as Re-

quested by Ct. with respect to earliest date projected for

arrival of oil through pipeline to Valdez—Ezxxon Pipeline

DaTE

7/14/77

7/15/77

7/18/77

7/18/77

7/18/77

7/19/77

7/19/77

7/19/77

Fig. Telegram Confirmation of ARCO Pipe Line Co. as

Requested by Ct. with respect to earliest date projected

for arrival of oil through pipeline to Valdez—ARCO Pipe

Line

Flg. Memorandum of U.S. in Support of Their Motion to

Dismiss, also fid. in Nos. 77-2412, 77-2421, and 77-2437—

all cases

Fig. Mobil Alaska’s Reply Memorandum in Support of

Application for Temporary Restraining Order and Inter-

locutory Injunction and Response to Motion to Dismiss.

(Copies were mailed directly to Judges’ home stations.)—

Mobil Alaska

Flg. Motion of Amerada Hess for Entry of Appearance as

a Party—Mobil Alaska

F lg. Exxon’s Reply to Motion of USA for Consolidation and

Motion to Dismiss (Copies sent directly to Judges’ home

stations.) —Exzxon Pipeline

F lg. Reply of ICC in Opposition to ARCO’s Application for

Interlocutory Injunction, and Exxon’s Motion for Expe-

dited Consideration (Copies sent directly to judges’ home

stations.)—ARCO Pipe Line and Exxon Pipeline

Flg. State of Alaska’s Supplemental Memorandum in Op-

position to Application for TRO and Interlocutory Injunc-

tion and in Support of Motion to Dismiss filed by Respon-

dent U.S. (Copies sent directly to home stations.)—all

cases

Minute Entry: Oral arguments were held in Houston, Texas

today on Cases 77-2392, 77-2412, 77-2421 and 77-2437 on

the motion to dismiss, temporary restraining order and

injunctive relief. The Court granted from the bench the

motion to consolidate these cases as well as the motions

of all parties to intervene. The motion to dismiss and

temporary restraining order and injunctive relief motions

were taken with the case. The Panel consisted of Judges

Brown, Godbold and Roney. Arguing for Petitioners

were: 1) Andrew J. Kilecarr (Mobil Alaska); 2) Richard

Date

7/22/77

7/25/77

7/29/77

8/15/77

8/17/77

8/19/77

8/19/77

8/25/77

8/29/77

9/ 1/77

9/ 8/77

9/ 8/77

J. Flynn (Exxon); 3) Marvin Schwartz (BP) and 4)

Robert Jordan who handled the rebuttal (for ARCO).

Arguing for Respondents were: 1) Charles H. White, Jr.

(ICC); 2) Donald A. Kaplan (D. of Justice); 3) Avrum

Gross (Atty. Gen., Alaska) and 3) Yale Lewis (Arctic

Slope)—Mobi Alaska

Fig. Suppl. Memorandum of State of Alaska in Opposition

to Memorandum in Support of Petition fid. by Intervenor,

Amerada Hess Pipeline Corp.—all cases

Fig. Motion of Union Alaska Pipeline Company to Appear

as a Party—Mobil Alaska and Exxon Pipeline

Opinion of Court of Appeals dismissing cases: all motions

to intervene granted; all motions for stay, suspension,

injunction, ete. denied—all cases

Petition for Rehearing En Banc—BP Pipelines

Received certified list of all documents submitted to ICC—

all cases

Fig. Petitioner’s Motion for Stay of Mandate Pending

Application for Certiorari—Ezxon Pipeline

Fig. Petitioner’s Motion for Stay of Order of Interstate

Commerce Commission pending application for certiorari

—Ezxzxon Pipeline

Fig. Response of Respondent, I.C.C., in Opposition to Mo-

tion for Stay of Order of LC.C. pending application for

certiorari—Exxon Pipeline

Fig. Memorandum of Respondent, U.S.A., in Opposition to

Motion for Stay—E-xzxon Pipeline

Fig. Response of State of Alaska in Opposition to Motions

of Exxon Pipeline Co. for Stay of Mandate and Stay of

Order of I.C.C.—Exaxon Pipeline

Fig. Order Denying Exxon’s Motion for Stay of Mandate

and Denying Exxon’s Motion for Stay of ICC’s order.

(JRB/PHR)—Ezaon Pipeline

Fig. Order Denying BP’s Petition for Rehearing and Deny-

ing Petition for Rehearing en banc. (JRB/PHR)—BP

Pipelines

DaTE

9/ 8/77

9/26/77

10/17/77

10/26/77

1/1/77

12/ 2/77

6/2/77

6/8/77

6/13/77

Judgment Issued as Mandate—all cases

Notice of Flg. of Cert. Pet. on 9-22-77—Mobil Alaska and

Exxon Pipeline

Notice of Flg. of Cert. Pet. on 10-12-77—BP Pipelines

Fig. Copy of Supreme Ct. Order staying order of L.C.C.

pending final disposition of petition for certiorari in

Supreme Ct.—Mobil Alaska

Notice of Flg. of Cert. Pet. on 10-25-77—ARCO Pipe Line

Order of S.C. granted [certiorari] 11-28-77—all cases

INTERSTATE COMMERCE COMMISSION

1.

2.

3.

Docket 36611

Title/Substance of Document

Notice: To Trans-Alaska Pipeline System owners.

Requesting prompt filing of data concerning proposed

rate levels and each company is asked to send a copy

of its data submittal simultaneously to the State of

Alaska.

[By] Rosert L. Oswaxp, Secretary (1 p.)

Notice: Requesting that any protests to the tariffs be

filed by 6/13/77, and that replies to protests be sub-

mitted by 6/15/77.

[By] Roserr L. Oswaxp, Secretary (2 pp.)

SuprpLEMENTAL Notice: Advising the effective dates of

tariffs filed by Sohio Pipe Line Company, BP Pipe-

lines, Inc., and Mobil Alaska Pipeline Company have

been postponed from 6/20/77 to 6/30/77, in view of

these postponements, the filing dates set forth in the

notice in item next above are modified, and that notice

should be disregarded and requesting that protests to

all of the tariffs now on file be submitted 6/15/77, and

replies by 6/22/77. Parties desiring to participate in

6/14/77

6/15/77

6/15/77

6/15/77

6/15/77

6/15/77

6/15/77

6/15/77

10.

11.

oral argument shall comply with rule 98 of the Com-

mission’s General Rules of Practice, by submitting a

request for an allotment of time on or before 6/17/77.

[By] H. G. Homne, Jr., Acting Secretary (2 pp.)

Petition: In aid of ICC Jurisdiction.

[By] Srate or ALasKa

(by J. M. Cleary) (6 pp.)

Repty: To the petition in item next above.

[By] Sono Prre Linz Company (4 pp.)

Protest/CoMPLAINT

[By] Srate or ALasKa

(by J. M. Cleary) (99 pp.)

Protest: And Petition for Suspension and Investiga-

tion.

[By] Burzeav or Investications anp ENFORCEMENT,

L.C.C.

(by E. D. Greenberg) (104 pp.)

PRELIMINARY STATEMENT

[By] Terry F. Lenzner (representing Alaska Pipe-

line Commission) (267 pp.)

Petition: Anp Compiarnt for suspension of initial

rates and rules for transportation of petroleum via the

Trans Alaska Pipeline System (TAPS) from Prudhoe

Bay, Alaska, to Valdez, Alaska, and for an investiga-

tion thereof.

[By] Arctic Store RecionaL, Corporation

(by W. W. Becker) (30 pp.)

Protest: And Petition for suspension.

[By] Unrrep States DepaRTMENT OF JUSTICE

(by P. J. Tomao) (29 pp.)

Letter: Transmitting data, they believe, that the rate

of earnings estimates will be produced by their initial

tariff will not exceed any lawful criterion of the reason-

ableness of such earnings.

[By] Sono Pree Love Company

(by J. T. Boltacz) (8 pp.)

Date

6/15/77

6/16/77

6/17/77

6/17/77

6/17/77

6/20/77

6/21/77

6/22/77

12.

13.

14.

15.

21.

22.

Lerrer: Transmitting the basis for the computation of

their tariff rate issued on 6/15/77.

[By] Union Auaska Piretine CoMPANY

(by D. M. Schwartz) (4 pp.)

SuppLeEMENTAL Petition: And Comp.arnt to the peti-

tion and complaint in item #13 above.

[By] Arctic Store RecionaL CorPoRaTION

(by W. W. Becker) (4 pp.)

Orpver: That the petition in item #4 above is denied.

[By] Tse Commission (Commissioners Murphy,

Hardin, and Christian not participating) (1 p.)

Orver: That an investigation is instituted; that the

investigation in this proceeding shall include all

matters and issues with respect to the lawfulness of

the said schedules under the IC Act; and that the car-

riers parties to the schedules are made respondents to

this proceeding.

[By] Tse Commission

Hardin, and Christian not participating)

[Requests for oral argument time omitted}

Response to the notice in item #1 above.

[By] BP Prire.uvgs, Inc.

(by D. A. Lucas) (23 pp.)

Protest: And Petition for suspension and investiga-

tion.

[By] Bureau or InvesricaTions aND ENFORCEMENT

(by E. D. Greenberg) (3 pp.)

Letrer: Transmitting a computation of the elements

making up the determination of their proposed rate

level.

[By] Amerapa Hess Pipeline Corporation

(by A. S. Tabor, Jr.) (10 pp.)

Notice: Advising time allotments for Pipeline Com-

panies and the protestants.

[By] H. G..Homme, Jz., Acting Secretary

(Commissioners Murphy,

(2 pp.)

(2 pp.)

Date

6/22/77

6/22/77

6/22/77

6/22/77

6/22/77

6/22/77

6/23/77

6/23/77

6/23/77

6/23/77

26.

27.

31.

32.

xi

Repty: To the protests in item #’s 6, 7, 9, 10 and 13

above.

[By] Mosm Axaska Preetine Company

(by . J. Kilearr) (67 pp.)

Repty: To the protests in item #’s 6, 9 and 10 above.

[By] Exxon Piretine Company

(by R. J. Flynn) (219 pp.)

Repty: To the protests in item #’s 6, 7, 9 and 10 above.

[By] Union Ataska Preetine Company

(by D. M. Schwartz) (25 pp.)

Repty: To the protests in item #’s 6, 7,9 and 10 above.

[By] Pumurs AtasKa Prretine Corporation

(by R. M. Shibley) (11 pp.)

Repty: To the protests in item #’s 6,7, 9 and 10 above.

[By] Sonto Pire Line Company

(by C. J. Lansdale) (34 pp.)

Repiy: To the protests in item #’s 6, 7,9 and 10 above.

[By] Amerapa Hess Prretine CorPoraTion

(by R. Moody, Jr.) (25 pp.)

Repty: To the protests in item #’s 6,7, 9 and 10 above.

[By] BP Preetuss, Inc.

(by J. Vickrey) (21 pp.)

Seconp Suprrement: To petition and complaint in

item #’s 9 and 13 above.

[By] Arctic Store Recionat Corporation

(by W. W. Becker) (8 pp.)

STaTEMENT |

[By] Axaska Piretive System

(by B. E. Benjamin) (13 pp.)

Repty: To the protests in item #’s 6, 7, 9 and 10 above.

[By] ARCO Prretove Company

(by R. E. Jordan, IIT) (198 pp.)

Date

6/27/77

6/27/77

6/27/77

6/27/77

6/27/77

6/27/77

6/27/77

6/27/77

7/1/77

7/5/77

37.

38.

39.

41.

45.

46.

Lerrer: Addressed to Douglas Baldwin, requesting

the Commission to reconsider its decision to close the

special meeting scheduled for 6/28/77.

[By] Unrrep Press INTERNATIONAL

(by G. Dillman) (2 pp.)

Letter: Addressed to H. Gordon Homme, request-

[By] Diane B. Conn (on behalf of Edward K.

DeLong, U.P.L.) (2 pp.)

Letrer: Addressed to A. Daniel O’Neal, requesting. .. .

[By] Common Cause

(by D. Cohen) (1 p.)

OraL ArcuMENT: For testimony adduced at the oral

argument held 6/27/77, see Volume 2 on page 9 herein.

[By] Tae Commission (208 pp.)

Motion: For leave to file memorandum in reply to the

responses of the carriers.

[By] Tae DepartTMENT or JUSTICE

(by D. A. Kaplan) (9 pp.)

OraL ARGUMENT EXxuHibiTs

[By] Srate or ALasKa

(by J. M. Cleary) (10 pp.)

OraL ARGUMENT EXHIBITS

[By] Bureau or InNvestTIGATIONS AND ENFORCEMENT

(by E. D. Greenberg) (14 pp.)

TransorniptT oF OraL ArGuMENT: No Exnuiusrrs In

EvImENCE

(By Tue Commission ) (206 pp.)

Tuirp SuPPLEMENTAL Petition: And CoMPLAINT.

[By] Arctic Store RecionaL CorPoRaTIon

(by J. T. French) . (4 pp.)

ConFErENCE: For testimony adduced at the conference

held 7/5/77, see Volume 2 on page 9 herein.

(By Tue Commission ) (19 pp.)

Date

7/12/77 47. Prorest/Compiarst: Seeking suspension and investi-

gation.

[By] State or ALasKa

(by J. M. Cleary) (10 pp.)

[End of Docket Entries in No. 36611 certified by the

Secretary]

INTERSTATE COMMERCE COMMISSION

Docket I & S 9164

6/28/77 1. Orper: That the operation of specified schedules is

suspended, that the use thereof in interstate or foreign

commerce be deferred from 6/30/77, and to and includ-

ing 1/29/78, except as to LC.C. 2, published by

Amerada Hess, which bears a July 1 effective date and

the operation of which is suspended to 1/31/78, unless

ordered by this Commission; that an investigation is

instituted into and concerning the lawfulness of the

rates contained in the suspended schedules, as well as

the interim schedules authorized to be filed, pursuant

to section 15(1) and section 15(7), with a view to mak-

ing such findings and orders in the premises as the

facts and circumstances shall warrant; that the investi-

gation in this proceeding shall include all matters and

issues with respect to the lawfulness of the said rates

under the IC Act; that the named carriers are author-

ized to file, upon not less than one day’s notice, interim

rates not exceeding specified amounts subject, how-

ever, to specified conditions; and that the said carriers

are made respondents to this proceeding. (This order

also embraces No. 36611).

By Tae Commission (Commissioner Brown approves

the order except insofar as it denied the motion of the

Department of Justice for leave to file a response to

the carrier’s responses) (21 pp.)

7/8/77 3. Pertrrion: For Reconsideration.

[By] Exxon Prretivne Company

(by R. J. Flynn) (20 pp.)

Date

7/15/77

7/15/77

7/19/77

7/26/77

xiv

8. Notice: A court action was instituted on or about

7/6/77, involving these proceedings before the U.S.

Court of Appeals for the Fifth Circuit.

[By] H. G. Homme, Jr., Acting Secretary (1 p.)

9. Notice: A court action... on or about 7/8/77. ...

10. Notice: A court action... on or about 7/11/77. ...

11. Notice: A court action ... on or about 7/13/77....

[End of Docket Entries in No. I & S 9164 certified by

Secretary]

VOLUME II

596a

Verified Petition To Annul, Set Aside And Enjoin

Enforcement Of An Order Of The Interstate Commerce

Commission, July 6, 1977.

UNITED STATES COURT OF APPEALS

For Tse Fiera Circuir

Case No. 77-2392

Mosrm Anaska Prretine Company,

Petitioner,

Vv.

Unttep States or AMERICA;

Tue Interstate Commerce CoMMIssION ; and

A. Dantet O’Nzat, Chairman

Cuarwes L. Capp, Vice Chairman

Rupert L. Murpuy, Commissioner

Viretnta Mak Brown, Commissioner

Grorce M. Starrorp, Commissioner

Date W. Harpry, Commissioner

Rosert C. Gresham, Commissioner

Aurrep T. MacFartanp, Commissioner

Betty Jo Curist1an, Commissioner

Respondents.

Mobil Alaska Pipeline Company (“Mobil Alaska”)

hereby petitions this Court to annul, set aside and enjoin

enforcement of an order of the Interstate Commerce Com-

mission (“Commission”) which (1) suspends for seven

months the effective date of the tariff rates filed by the

owners of the Trans Alaska Pipeline System (“TAPS”)

including the rate filed by Mobil Alaska pending investiga-

tion and hearing by the Commission, and (2) which pre-

scribes substantially lower rates to be applied by the TAPS

597a

Verified Petition of Mobil Alaska To Annmul [CC Order.

owners during the seven-month suspension period, on the

grounds that the said order of the Commission (1) unlaw-

fully exceeds its authority under the Interstate Commerce

Act, 49 U.S.C. § §1 et seqg.; (2) violates petitioner’s consti-

tutional right to due process of law; and (3) constitutes

gross abuse of discretion. TAPS is a newly-constructed

petroleum pipeline presently scheduled to commence com-

mon carrier operations on or about July 18, 1977, and the

relief sought by petitioner would permit it to conduct oper-

ations at the originally-filed and presumptively lawful

rates during the period of Commission investigation,

rather than at the reduced rate prescribed by the Commis-

sion. Petitioner alleges as follows:

Parties

1. Petitioner Mobil Alaska Pipeline Company is a cor-

poration organized and existing under the laws of the

State of Delaware with its principal office at 1201 Elm

Street, Dallas, Texas. Mobil Alaska’s sole business activity

consists of its ownership of a five (5) percent undivided

interest in the Trans Alaska Pipeline System. It has no

present or planned common carrier operations other than

those described in this petition.

2. Respondent, the United States of America is a

proper respondent in this action pursuant to 28 U.S.C.

§§ 2322, 2344.

3. Respondent Interstate Commerce Commission is an

agency of the United States organized and existing under

the provisions of the Interstate Commerce Act, 49 U.S.C.

§§ 1 et seq., as amended (“Act”).

4. Respondents David O’Neal, Chairman, Charles L.

Clapp, Vice Chairman, Rupert L. Murphy, Virginia Mae

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Verified Petition of Mobil Alaska To Annul ICC Order.

Brown, George M. Stafford, Dale W. Hardin, Robert C.

Gresham, Alfred T. MacFarland and Betty Jo Christian

are Commissioners of the Interstate Commerce Commis-

sion and in that capacity have been delegated certain

powers and duties pursuant to the Act. These respondents

are named herein in their official capacities and subsequent

references to “Commission” are intended, unless the con-

text otherwise indicates, to include both the Commission

and its Commissioners.

Jurisdiction and Venue

5. This action arises under the Interstate Commerce

Act, 49 U.S.C. § § 1 et seg. and the Fifth Amendment to the

Constitution of the United States.

6. The jurisdiction of this Court is invoked pursuant to

5 U.S.C. § § 702, 705 and 28 U.S.C. § § 2321(a), 2342(5) and

9349. Under 28 U.S.C. § § 2321(a) and 2342(5) the courts

of appeals of the United States are vested with exclusive

jurisdiction of proceedings to enjoin, set aside, suspend or

determine the validity of orders of the Interstate Commerce

Commission. Relief is requested pursuant to 28 U.S.C.

§ 2349, as well as 28 U.S.C. §1651(a) which authorize all

courts established by Act of Congress to “issue all writs

necessary or appropriate in aid of their respective jurisdic-

tions and agreeable to the usages and principles of law.”

7. Venue in this action is properly laid in the Fifth

Circuit Court of Appeals. Pursuant to 28 U.S.C. § 2343,

petitions to enjoin or set aside orders of the Commission

may be brought in the judicial circuit in which the peti-

tioner maintains its principal office.

8. Petitioner has exhausted all administrative remedies

available for the protection of its rights and has no prompt,

adequate or effective remedy of law.

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Verified Petition of Mobil Alaska To Annul ICC Order.

BACKGROUND

9. In 1968 the discovery of a very large deposit of oil

in the Prudhoe Bay area on the North Slope of the State of

Alaska generated immediate and substantial exploration

interest in that area on the part of the major oil companies

of the world. Bids were submitted to the State of Alaska

at its invitation for exploration and development rights on

the North Slope and the successful bidders were announced

on September 10, 1969, this sale contributing more than

$900 million to the State’s treasury.

10. Shortly after the Prudhoe Bay discovery, plans were

announced to construct a pipeline to transport the crude

oil approximately 800 miles south to the Port of Valdez

where it would be transshipped by tankers to domestic

markets. In 1970, seven oil companies (another company

joined the group later) agreed to jointly construct the pipe-

line through an agent corporation to be known as Alyeska

Pipeline Service Company. Alyeska means “the great

land” in the Aleut Language.

11. Research and planning for this complex project were

underway by 1971 and application to the Department of

Interior for right of way permits through federal lands

was made. However, the commencement of actual con-

struction was delayed from 1971 to 1974 by litigation over

the environmental consequences of the project.

12. The delay caused by the judicial and administrative

disputes over whether and how the pipeline should be con-

structed was ended by enactment on November 16, 1973, of

the Trans-Alaska Pipeline Authorization Act, 43 U.S.C.

§ § 1651 et seqg., which declared that “[t]he earliest possible

construction of a trans-Alaska oil pipeline . . . will best

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Verified Petition of Mobil Alaska To Annul ICC Order.

serve the national interest.” That Act further declared,

“The early development and delivery of oil and gas from

Alaska’s North Slope to domestic markets is in the national

interest because of growing domestic shortages and increas-

ing dependence upon insecure foreign sources.” 43 U.S.C.

§ 1651 (Supp. 1977).

13. Construction of the pipeline system began officially

in April, 1974 with work on the 360 mile-long haul road

north of the Yukon River. The haul road, completed in

only five months, made possible the first overland, all-

weather route from the Yukon to Prudhoe.

14. In addition to the haul road, fifteen permanent

access roads were built to link the main road with pump

station sites and with the three permanent airfields and

eight temporary airfields also built as part of the project.

A two lane bridge over the Yukon River at a point where it

is one-half mile wide was built as part of the pipeline route.

15. The project encountered numerous challenges.

TAPS crosses some of the most rugged terrain in North

America, varying from flood plains and river crossings to

high mountain passes with hostile climactic conditions.

Unusual design problems were caused by the permafrost, a

permanently frozen marsh, through which the line was to

be constructed. The heat caused by construction and actual

transportation of crude oil risked permanent damage to this

ecologically fragile environment without innovative design

techniques. The possibility of earthquakes further compli-

cated design and construction.

16. Response to these problems resulted in building 423

miles of pipeline above ground on cross beams supported

by vertical support members (“VSM”). A VSM is an 18-

inch pipe, specially designed and made for TAPS. The

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Verified Petition of Mobil Alaska To Annul ICC Order.

mounted pipe is fully insulated with four inches of resin-

impregnated fiberglass covered with a galvanized steel

jacket while the assemblies are covered with molded fiber-

glass and polyurethane foam. This insulation is to keep

the oil from chilling to below the pour point. To keep the

permafrost from warming, seventy percent of the 80,000

VSM’s have selfsupporting heat pipes enclosing systems

which take heat from the ground and transfer it to the air.

Some underground pipe is surrounded by insulation and

cooling units to protect the permafrost.

17. Thirty-one construction camps along the pipeline

route, each typically costing approximately 7-10 million dol-

lars, were built.

18. The Valdez marine terminal, built at a cost in excess

of $1 billion, is one of the most technologically advanced

marine facilities in the world; it includes ballast treatment

facilities, oil storage tanks and berths capable of handling

supertankers of 195 thousand deadweight tons. The TAPS

project as a whole is reputed to be the largest private con-

struction project in recent history. .

19. On June 20, 1977 the construction of the 800-mile

TAPS pipeline was completed at a cost exceeding $9 bil-

lion dollars, including over $1.2 billion dollars in interest

costs to date. A map illustrating TAPS’ route from the

Arctic Ocean to the Gulf of Alaska is attached as Exhibit

A. At the same time, the pipeline owners began to fill the

line with North Slope oil in preparation for the commence-

ment of common carrier transportation operations when

the oil arrives in the Port of Valdez. It is estimated that

the line-fill will not be completed until on or about July 18,

1977, since meticulous monitoring of the entire pipeline is

being employed to assure satisfactory performance.

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Verified Petition of Mobil Alaska To Annul ICC Order.

NATURE OF THE CONTROVERSY

20. Mobil Alaska and seven other companies own un-

divided interests in TAPS. Under the undivided interest

form of ownership, each owner holds its percentage share

of the system as its exclusive separate property, is required

to contribute its corresponding share of the total costs of

the system, and has the right and obligation to utilize its

percentage share of the capacity of the system as a com-

mon carrier to transport oil for any shipper without dis-

crimination. Each owner must separately publish tariffs

and receive tenders for shipments through its portion of

the capacity of TAPS. TAPS owners and their percentage

ownership interests are:

Sohio Pipe Line Co. ...............------------- 33.34%

Arco Pipe Line Co. 21%

Exxon Pipeline Co. ..............-.-c---+--+0++- 20%

ge, 3 15.84%

Mobil Alaska Pipeline Co. .................. 5%

Phillips Alaska Pipeline Corp. ........ 1.66%

Union Alaska Pipeline Co. ................ 1.66%

Amerada Hess Pipeline Corp. ........ 1.50%

21. Upon filling of the pipeline in mid July, 1977, crude

oil will be available for delivery at the TAPS Marine

Terminal at Valdez. At that time Mobil Alaska would be

able to operate as a common carrier subject to the provisions

of the Interstate Commerce Act, 49 U.S.C. §§ 1 et seq., if it

has on file at the Commission a tariff which has not been

cancelled or suspended.

292. Pursuant to 49 U.S.C. §6(1) every common carrier

subject to the Act must file with the Commission and pub-

lish a tariff “showing all the rates, fares, and charges for

transportation between different points on its own route.

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Verified Petition of Mobil Alaska To Annul ICC Order.

. . -” Deviation from tariffs so filed is prohibited by 49

U.S.C. § 6(7) ; transportation operations without a lawfully

filed tariff are prohibited by the same paragraph of § 6. The

Commission is without authority under § 6 to reject a tariff

filed under §6 unless its form is not in compliance with

Commission regulations, 49 U.S.C. §6(6), or it fails to

state its effective date, 49 U.S.C. § 6(9).

23. The regulations of the Commission, Tariff Circular

20, Rule 57, 49 C.F.R. § 1300.57, require that tariffs applica-

ble to newly constructed pipelines be filed with the Commis-

sion not less than ten days before the effective date of said

tariffs. Tariff changes are required by 49 U.S.C. § 6(3) to

be filed on thirty-days’ notice unless special permission to

file on less notice is obtained.

24. Pursuant to the requirements of Tariff Circular 20,

Mobil Alaska filed its first and only tariff over the Trans

Alaska Pipeline System on June 10, 1977 effective June 20,

1977. Mobil Alaska’s Tariff I.C.C. No. 1 included the rules

which would govern its acceptance and shipment of crude

oil. This tariff covering the rules is not in controversy.

Mobil Alaska’s Tariff I.C.C. No. 2 included only its rate, the

amount in cents per barrel of crude oil which it will charge

for transportation from Prudhoe Bay to Valdez. In order

to accommodate a Commission request, Mobil Alaska filed

a supplement extending the effective date of its rate tariff

to June 30, 1977, and it is this rate tariff which is the sub-

ject of this controversy.

25. Mobil Alaska’s rate tariff was lawfully filed in

accordance with the requirements of 49 U.S.C. § 6 and it is

presumptively lawful and reasonable under the Act unless

and until adjudicated unlawful on the basis of record evi-

dence developed at a “full hearing” pursuant to 49 U.S.C.

§ 15(1).

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Verified Petition of Mobil Alaska To Annul [CC Order.

26. On June 13, 1977, the Commission issued a Notice

announcing that it would conduct a summary suspension

proceeding to consider TAPS rate tariffs. The Notice con-

tained a schedule which provided for submission of pro-

tests to the six TAPS rate tariffs then on file at the Com-

mission, and also provided for the submission of replies to

any protests by the TAPS owners. The Notice further

announced that oral argument would be held on June 27,

1977 and stated that the deadline for a Commission decision

on any relief requested by protestants would be June 29,

1977.

27. On June 15, 1977, the United States Department of

Justice, Antitrust Division, the Bureau of Investigations

and Enforcement of the Interstate Commerce Commission,

the State of Alaska and the Arctic Slope Regional Corpora-

tion (“Protestants”) filed protests to the TAPS tariffs then

on file at the Commission. Alleging all the TAPS rates to

be unlawful, each of the four Protestants requested that the

Commission suspend the TAPS owners’ tariffs, including

that of Mobil Alaska, and that it institute a formal investi-

gation of all the TAPS rates. In addition, each of the Pro-

testants urged the Commission to establish interim rates,

substantially lower than the carrier-filed rates, which the

TAPS owners would be allowed to refile on one day’s notice.

Such interim rates were requested to supplant the carrier-

initiated rates and to remain in effect pending the expected

formal hearing adjudicating the lawfulness of the TAPS

rates. Protestants stated that they urged the prescription

of interim rates in order to avoid the effect of a suspension

decision—preclusion of lawful transportation operations—

during the pendency of the suspension period.

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Verified Petition of Mobil Alaska To Annul ICC Order.

28. On June 22, 1977, Mobil Alaska submitted its reply

to the protests in which it argued that its challenged rate

was both reasonable as well as lawful; that the Commission

lacked authority to suspend a first rate filed for a newly-

constructed pipeline which was planned and constructed to

offer transportation services not previously available at

that location; and that a suspension order entered without

prejudice to refiling at a lower rate suggested or prescribed

by the Commission would be unlawful.

29. On June 27, 1977, the full Commission heard oral

argument on the protests, including Mobil Alaska’s conten-

tions that the Commission lacked the power to suspend the

TAPS rate tariffs and that any Commission order designed

to result in refiling of TAPS rates at lower levels would

constitute unlawful prescription of rates.

The Commission’s Order

30. The full Commission, on June 28, 1977, entered an

order suspending the rate tariffs as filed by Mobil Alaska

and six other TAPS owners; the eighth owner’s tariff hav-

ing been filed later than the rest, it was found by the Com-

mission as not ripe for disposition. The order suspended

the rates for the maximum period of seven months as speci-

fied in 49 U.S.C. § 15(7); instituted an investigation into

and concerning the lawfulness of the rates in the suspended

schedules; and authorized the TAPS owners to refile, on

not less than one-day’s notice, “interim rates” not exceeding

rates specified in the order. A copy of this order is attach

as Exhibit B. ‘ ”

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Verified Petition of Mobil Alaska To Annul ICC Order.

31. The interim rates set by the Commission are sub-

stantially lower than those filed by the TAPS owners:

As Filed

By TAPS Authorized

rs_ By Order Reduction

Amerada Hess Pipeline Cor-

poration ..... $6.44 $4.85 $1.59

Arco Pipe Line Company ...... 6.04 4.91 1.13

BP Pipelines Inc. 6.35 4.68 1.67

Exxon Pipeline Company ...... 6.27 5.10 1.17

Mobil Alaska Pipeline Com-

pany 6.31 4.84 1.47

Phillips Alaska Pipeline Cor-

ee 6.22 Not Acted Upon Yet

Sohio Pipe Line Company... 6.16 4.70 1.46

Union Alaska Pipeline Com-

EE ccnpctinicernninieinnins 6.09 4.89 1.20

32. The TAPS owners argued that the Commission was

not empowered to suspend originally filed rates, and even

if so authorized, no basis existed for suspension of the

TAPS rates:

[TAPS owners] argue that protestants would not

be harmed by allowing the proposed rates to go into

effect, inasmuch as refunds or reparations would be

available if the investigation should show that the

filed rates are too high. Order at 3.

33. The Protestants argued that the possibility of

refunds did not constitute adequate protection:

The Arctic Slope Regional Corporation, which

represents Alaskan Natives, notes that the longer

it must wait for its share of royalty revenues (which

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Verified Petition of Mobil Alaska To Annul ICC Order.

are adversely affected by high transportation rates),

the less value such revenues will have. Protestants

also argue that the maintenance of pipeline rates at

too high a level would act as a deterrent to the use

of the pipeline by independent oil producers. Order

at 3.

34. The Commission held:

Although we recognize that the refund remedy is

available, we do not believe that the rates can be

allowed to go into effect, without suspension, when,

as here, the protestants have made a showing or

probable unlawfulness. Moreover, as noted by pro-

testants, the maintenance of excessively high rates

could act as an obstacle to the use of the pipeline by

non-affiliated oil producers, and would also delay the

Alaskan interests in obtaining revenues that depend

upon the wellhead price of the oil. Under the cir-

cumstances, we have concluded that the proposed

rates, as filed, should be suspended, pending our

investigation, for the statutory period of 7 months.

Order at 3.

35. The Commission further concluded that the power

to allow interim rates is inherent in the suspension power

and that to suspend without “allowing” interim rates

“would be to preclude the carriers from commencing their

operations during the suspension period.” Order at 4. The

Commission also recognized that the TAPS owners “may”

have no means of obtaining restitution in the event that

they acceded to the Commission’s order and the investiga-

tion proved the interim rates imposed during the sus-

pension period to be too low. Order at 4.

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Verified Petition of Mobil Alaska To Annul ICC Order.

36. The interim rate set for the Mobil Alaska portion

of TAPS was alleged to have been computed by the Com-

mission using “basic data supplied” by petitioner and other

TAPS owners. Mobil Alaska has not, however, supplied

to the Commission the data upon which it computed its

originally filed rate. Therefore the Commission’s calcula-

tions necessarily were based in part upon assumptions con-

cerning both the data applicable to Mobil Alaska’s rate, as

well as assumptions by the Commission concerning the pro-

cedures followed by petitioner when it computed its rate

as originally filed.

Relevant Statutory Provisions and Regulations _

37. Those to be regulated by the Commission are cov-

ered in Section 1 of the Act which states in relevant part

(1) That the provisions of this part shall apply

to common carriers engaged MDs és

(b) The transportation of oil . . . by pipe line,

or partly by pipeline and partly by railroad or by

water. 49 U.S.C. §1 (emphasis added)

38. The Commission’s power to suspend tariffs is gov-

erned by § 15(7), incorporated into the Act with the pas-

sage of the Mann-Elkins Act in 1910, Pub. L. No. 61-218, ch.

309, 36 Stat. 539, June 18, 1910, which states in relevant

part:

Whenever there shall be filed with the Commission

any schedule stating a new individual or joint rate,

fare, or charge, or any new individual or joint classi-

fication, or any new individual or joint regulation or

practice affecting any rate, fare, or charge, the Com-

mission shall have, and it is given, authority, either

upon complaint or upon its own initiative without

Verified Petition of Mobil Alaska To Annul ICC Order.

complaint, at once, and if it so orders without answer

or other formal pleading by the interested carrier

or carriers, but upon reasonable notice, to enter upon

a hearing concerning the lawfulness of such rate,

fare, charge, classification, regulation, or practice;

and pending such hearing and the decision thereon

the Commission, upon filing with such schedule and

delivering to the carrier or carriers affected thereby

a statement in writing of its reasons for such sus-

pension, may from time to time suspend the opera-

tion of such schedule and defer the use of such rate,

fare, charge, classification, regulation, or practice,

but not for a longer period than seven months beyond

the time when it would otherwise go into effect; and

after full hearing, whether completed before or after

the rate, fare, charge, classification, regulation, or

practice goes into effect, the Commission may make

such order with reference thereto as would be proper

in a proceeding initiated after it had become effec-

tive... . 49 U.S.C. § 15(7) (emphasis added).

39. A proceeding pursuant to §15(7) to determine

whether to suspend a proposed “new” tariff rate is a sum-

mary, informal proceeding designed to permit a discretion-

ary decision not ordinarily subject to judicial review. It is

made within the short period of time after a rate is filed

but before its effective date. No evidentiary rights exist

in @ suspension proceeding nor is any record developed as

a basis for judicial review, Commission Rules of Practice

(“Commission Rules”), Rule 200, 49 C.F.R. §1100.200.

Commission Rule 57, 49 C.F.R. § 1100.57, specifically pre-

eludes use of normal discovery devices in hearings gov-

erned by Rule 200.

40. To ensure the complete separation of the summary

suspension proceeding from a due process hearing pursuant

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Verified Petition of Mobil Alaska To Annul ICC Order.

to § 15(1), Commission Rule 19, 49 C.F.R. § 1100.19 declares

that documents filed in a suspension proceeding shall not

constitute evidence

Recitals of material and relevant facts in a plead-

ing filed prior to oral hearing in any proceeding,

unless specifically denied in a counterpleading filed

under these rules, shall constitute evidence and be

a part of the record without special admission or

incorporation therein, but if request is seasonably

made, a competent witness must be made available

for cross-examination on the evidence so included in

the record. Pleadings may contain specific refer-

ences to or quotation from the tariffs or schedules

containing the several rates, fares, charges, sched-

ules, classifications, regulations or practices alleged

to be material. A filing under Rule 42 Petitions for

suspension of tariffs or schedules, shall not be con-

sidered a pleading for purposes of this rule. 49

C.F.R. § 1100.19.

41. The Commission’s power to determine and prescribe

rates is governed by Section 15(1) of the Act which states

in relevant part:

That whenever, after full hearing, upon a com-

plaint made as provided in Section 13 of this title, or

after full hearing under an order for investigation

and hearing made by the Commission on its own ini-

tiative, either in extension of any pending complaint

or without any complaint whatever, the Commission

shall be of opinion that any individual or joint rate,

fare, or charge whatsoever demanded, charged, or

collected by any common carrier or carriers subject

to this chapter for the transportation of persons or

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Verified Petition of Mobil Alaska To Annul ICC Order.

property .. . is or will be unjust or unreasonable

. .. or otherwise in violation of any of the provi-

sions of this chapter, the Commission is hereby

authorized and empowered to determine and pre-

scribe what will be the just and reasonable individual

or joint rate... 49 U.S.C. § 15(1). (emphasis added)

FIRST CAUSE OF ACTION

42. Mobil Alaska repeats and realleges paragraphs 1

through 41 above with full force and effect as if fully set

forth herein.

43. The Commission’s actions and order suspending

petitioner’s TAPS tariff rate were in excess of its lawful

authority and without observance of the procedures

required by law. Petitioner will suffer irreparable harm

by reason of its tariff rate not being in effect when the

TAPS pipeline is ready to commence common carrier

operations on or about July 18, 1977.

44. Petitioner’s originally-filed tariff rate for the TAPS

pipeline is not a “new” rate within the meaning of Section

15(7) of the Act and thus cannot be suspended by the Com-

mission.

a. The Trans Alaska Pipeline System is newly-

constructed to afford crude oil transportation in a

geographic location previously devoid of any regu-

lated common carrier operations performing the

same or similar services.

b. The Trans Alaska Pipeline System is clearly

sut generis in the history of pipeline construction

projects attempted in the United States due to the

unique climatic conditions, terrain circumstances

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Verified Petition of Mobil Alaska To Annul ICC Order. Verified Petition of Mobil Alaska To Annul ICC Order.

and environmental concerns which the builders were

required to overcome.

ce. The Trans Alaska Pipeline System was built

in three years with minimum effect on the surround-

ing environment, a remarkable construction and

engineering feat considering the uniquely adverse

conditions which had to be surmounted.

d. The Congress of the United States declared

that the “earliest possible construction of a trans-

Alaska pipeline from the North Slope of Alaska to

Port Valdez in that State will make the extensive

proven and potential reserves of low-sulfur oil avail-

able for domestic use and will best serve the national

interest,” 43 U.S.C. §1651(c) (emphasis added),

thus further distinguishing the construction of

TAPS from any other pipeline construction project.

e. The operation of the Trans Alaska Pipeline

System will present continuing financial risks to its

owners quite unlike any associated with other petro-

leum pipeline operations in the United States since

environmental concerns required that 423 miles of

TAPS be constructed above ground making it vulner-

able to sabotage, earthquake, and climatic damage

which could result in damage to the surrounding

environment in the event of a break in the line.

f. The tariff rates originally filed by the TAPS

owners, while computed in accordance with standard

rate-determination procedures as established and

endorsed by past Commission practice, nevertheless

present unprecedented rate-determination questions

for eventual disposition by the Commission.

g. The originally-filed TAPS tariff rates are not

“new” rates within the meaning of Section 15(7),

and thus not subject to the Commission’s summary

suspension power for the further reason that they

do not

i. change, replace or otherwise affect an exist-

ing rate;

ii. pertain to a pipeline or other transportation

facility presently engaged in transportation within

the meaning of the Act; and

iii. pertain to a transportation service which,

upon summary suspension of the “new” rate, would

continue to be available to the public.

h. Mobil Alaska’s originally-filed TAPS tariff

rate, not constituting a “new” rate within the mean-

ing of the Act, the Commission is prevented by the

Act from making any determination concerning the

reasonableness, justification, and lawfulness of said

tariff unless and until a full evidentiary hearing is

held, and petitioner afforded meaningful oppor-

tunity to discover and test the evidence, if any, upon

which the reasonableness of its rate is challenged, so

that the Commission’s determination would be sus-

ceptible to judicial review.

i. Mobil Alaska is not a common carrier subject

to regulation by the Commission since it is not

“engaged” in transportation within the meaning of

the Act, 49 U.S.C. § 1, and will not be in a position to

engage in transportation until such time as TAPS is

filled and ready to deliver crude oil at the Port

Valdez in Alaska. Suspension of petitioner’s tariff

presents petitioner with two choices, either (1) delay

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Verified Petition of Mobil Alaska To Annul ICC Order.

commencement of common carrier operations pend-

ing investigation, full hearing and ultimate deter-

mination of the TAPS rate questions by the

Commission, or upon expiration of seven months,

whichever should occur first; or (2) accept the Com-

mission’s interim rate pending final rate determina-

tion or the expiration of the seven-month period.

The Commission’s power to suspend “new” rates

does not include the power to impose further sanc-

tions of this nature upon pipeline owners and further

evidences that petitioner’s originally-filed TAPS

tariff is not a “new” tariff within the meaning of the

Act.

SECOND CAUSE OF ACTION

45. Mobil Alaska repeats and realleges paragraphs 1

through 41 above with full force and effect as if fully set

forth herein.

46. Even if Mobil Alaska’s originally-filed TAPS tariff

is a “new” tariff within the meaning of Section 15(7) of the

Act, in summarily determining “that there has been a suffi-

cient showing of probable unlawfulness,” and in ordering

the suspension of petitioner’s tariff rate, the Commission

acted arbitrarily and capriciously and grossly abused its

discretion.

a. Mobil Alaska has not been permitted appro-

priate opportunity to present any evidence concern-

ing the procedures followed and the standards

complied with in the formulation of its originally-

filed rate. The Commission’s rules do not require

submission of such evidence when a rate is filed, 49

U.S.C. §6, the requirement arising only upon insti-

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Verified Petition of Mobil Alaska To Annul ICC Order.

tution of an investigation by the Commission in

accordance with Section 15(1) of the Act. The

investigation of petitioner’s tariff commenced with

the Commission’s order which was issued on June

28, 1977 and which also ordered the suspension of

said tariff rate.

b. The Commission’s Rules do not permit filings

made seeking suspension of rates to be considered

as evidence. Rule 19.

ce. Since the Trans Alaska Pipeline System is a

newly-constructed property located in a part of the

United States where oil has only recently been dis-

covered, and since the magnitude and complexity of

the TAPS construction project is unrivaled in the

history of the petroleum pipeline industry, the Com-

mission lacked the experience as well as the expertise

upon which it might call for purposes of prelimin-

arily assessing the “probable unlawfulness” of peti-

tioner’s originally-filed rate.

d. The Commission’s actions and order suspend-

ing petitioner’s TAPS rate were in fact based upon

the opinions of representatives of the protestants,

State of Alaska and Arctic Slope Regional Corpora-

tion. Petitioner was deprived of any reasonable

opportunity to test the validity of those opinions, in

particular, their claims that maintenance of the rates

as originally filed by the TAPS owners pending final

determination as to reasonableness by the Commis-

sion following investigation and hearing (1) “could

act as an obstacle to the use of the pipeline by non-

affiliated oil producers”; (2) that the longer the Arc-

tic Slope Regional Corporation, which represents the

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Verified Petition of Mobil Alaska To Annul ICC Order.

Alaskan Natives, “must wait for its share of royalty

revenues (which are adversely affected by high

transportation rates), the less value such revenues

will have”; and (3) that the possibility of refunds

does not constitute “adequate protection” for the

protestants. Order at 3.

e. Sub-paragraphs a. through i. of paragraph 44

above are repeated and realleged with full force and

effect as if fully set forth herein.

THIRD CAUSE OF ACTION

47. Mobil Alaska repeats and realleges paragraphs 1

through 43 above with full force and effect as if fully set

forth herein.

48. The Commission’s actions and order prescribing the

rate at which petitioner would be permitted to operate its

portion of TAPS as a common carrier until January 29,

1978 were in excess of its lawful authority and without

observance of the procedures required by law. Petitioner

will suffer irreparable harm by reason of its originally-

filed tariff rate not being in effect for the specified seven-

month period.

49. Section 15(1) of the Act provides the procedures to

be followed before the Commission is empowered to deter-

mine and prescribe a rate and to issue an order prohibiting

a carrier from publishing, demanding or collecting any rate

other than the rate prescribed, 49 U.S.C. §15(1). Section

15(1) provides that the Commission may only prescribe a

rate “after full hearing.”

50. Neither Section 15(1) nor Section 15(7) of the Act

grants to the Commission any authority to prescribe a rate

617a

Verified Petition of Mobil Alaska To Annul ICC Order.

on the basis of summary proceedings that deprive the

carrier of the right to discovery, as provided in the Rules,

as well as the right to a full hearing on the record with the

opportunity to present evidence to support the reasonable-

ness of its rate and to test by cross-examination and other-

wise, allegations that its rate is unreasonable.

FOURTH CAUSE OF ACTION

51. Mobil Alaska repeats and realleges paragraphs 1

through 41 above with full force and effect as if fully set

forth herein.

52. Even if the Commission is empowered to prescribe

interim rates on the basis of summary proceedings and is

not required to take such action after full hearing, the exer-

cise of such power on June 28, 1977 as to Mobil Alaska was

arbitrary and capricious and constituted gross abuse of

Commission discretion for the reasons set forth in subpara-

graphs (a) through (i) of paragraph 44 above and sub-

paragraphs (a) through (d) of paragraph 46 above.

FIFTH CAUSE OF ACTION

53. Mobil Alaska repeats and realleges paragraphs 1

through 41 above with full force and effect as if fully set

forth herein.

54. The Commission’s actions and order suspending

petitioner’s originally-filed TAPS tariff rate and the set-

ting of an interim rate as a condition precedent for the

commencement of common carrier operations by petitioner

as an owner of the Trans Alaska Pipeline System, are pro-

hibited by the Fifth Amendment to the Constitution of the

United States and violate elementary and controlling prin-

ciples of fairness and administrative due process for the

618a

Verified Petition of Mobil Alaska To Annul ICC Order.

reasons set forth in subparagraphs (a) through (i) of

paragraph 44 above and subparagraphs (a) through (d) of

paragraph 46 above.

SIXTH CAUSE OF ACTION

55. Mobil Alaska repeats and realleges paragraphs 1

through 41 above with full force and effect as if fully set

forth herein.

56. The interim rate of $4.84 per barrel which the Com-

mission seeks to impose upon petitioner’s operation of its

portion of the Trans Alaska Pipeline System for the period

on or about July 18, 1977 through January 29, 1978 would

not permit Mobil Alaska to cover its share of operating

expenses for TAPS during that period, nor its capital costs

of doing business. The interim rate of $4.84 per barrel

would not produce enough revenue during the period to

allow Mobil Alaska to service its debt and allow a return

on equity sufficient to attract capital (Order at 7).

57. Mobil Alaska will have no opportunity to recoup the

losses in revenue and other losses which it will incur if the

interim rate becomes effective during the suspension

period. Thus, the Commission’s actions and order sus-

pending petitioner’s originally-filed tariff rate, and the set-

ting of an interim lower rate as a condition precedent to

petitioner’s operation of its portion of TAPS for the

period July 18, 1977, or thereabouts, through January 29,

1978 constitutes confiscation of Mobil Alaska’s property

without just compensation in violation of rights guaranteed

by the Fifth Amendment to the Constitution of the United

States.

619a

Verified Petition of Mobil Alaska To Annul ICC Order.

IRREPARABLE INJURY

58. Unless enjoined and restrained by this Court,

respondents’ actions and orders as herein before alleged

will cause immediate, substantial and irreparable injury to

petitioner and others, including the following:

a. The Commission’s actions and order of June 28,

1977 will require Mobil Alaska to choose between the

following alternatives on or before July 17, 1977,

each of which will cause irreparable injury to peti-

tioner:

(i) Petitioner can elect not to refile its TAPS

tariff at the $4.84 rate prescribed by the Commis-

sion, which would deprive it of common carrier

status under the Act and thus effectively prevent

operation of its portion of TAPS until such time

as the Commission completes its determination as

to the lawfulness of petitioner’s originally-filed

rate or until January 29, 1978, whichever should

occur first. This course of action would postpone

for at least some months the time when Mobil

Alaska could expect its investment in TAPS to

commence producing revenue, and would thus con-

stitute a revenue loss of up to $88,000 per day to

Mobil Alaska for each day after July 18, 1977,

which is the date presently scheduled for the com-

mencement of TAPS common carrier operations.

(ii) Petitioner can otherwise elect to commence

common carrier operations on or about July 18,

1977 by refiling its tariff at $4.84 in accordance

with the Commission’s order, which would result in

a daily loss of revenue to Mobil Alaska, due to the

$1.47 reduction in its original rate, of between

620a

Verified Petition of Mobil Alaska To Annul ICC Order.

$44,100 to $88,200 per day until January 30, 1978

or ultimate Commission determination of the

TAPS rates, whichever should occur first.

b. If petitioner is forced to accede to the Commis-

sion’s actions and order, and operates its portion of

TAPS at the reduced interim rate set by the Com-

mission for the suspension period, it will suffer a loss

amounting to approximately $18,522,000. The esti-

mated loss which would be suffered by all TAPS

owners resulting from the pipeline operation for the

suspension period at the reduced rates would be

approximately $343,335,000. These losses in revenue

could not be recovered by the TAPS owners in the

event that the Commission ultimately determines

that their originally filed rates for TAPS are just,

reasonable and lawful.

In contrast, royalty-owner protestants, as recog-

nized by the Commission, Order at 3, stand to suffer

delay in receipt of, but not loss of, royalty revenue

should the originally filed rates remain in effect and

the Commission ultimately determine a lower rate to

be reasonable. Thus, if the interim rates were found

to be the lawful rate, and the originally filed rates

were effective during the suspension period, Alaska’s

royalty interest in Mobil Alaska’s overcollection

would be approximately $2,315,000, and $46,000 of

that amount would represent the interest of Arctic

Slope Regional Corporation. Thus, the Commis-

sion’s actions and order, if implemented, will require

Mobil Alaska permanently to forego $18.5 million in

revenues for the principal purpose, according to the

order, of merely assuring against any possibility of

delay in royalty payments amounting to $2.3 million

621la

Verified Petition of Mobil Alaska To Annul ICC Order.

for the State of Alaska and $46,000 for the Arctic

Slope Regional Corporation.

c. If Mobil Alaska and/or other TAPS owners

decide that it is in their best individual interest not

to refile tariff rates at the interim levels set by the

Commission, an alternative which is probably not

economically viable given the magnitude of the

investment made in TAPS and the owners’ need to

have that property start producing revenue, the

resulting shut-in of all or part of the TAPS crude oil

transportation capacity would cause irreparable

injury to the national energy policy and the overall

economy of the United States.

d. The respondents’ actions will have a chilling

effect upon future decisions to invest in petroleum

pipeline property subject to Commission regulation

due to the ad hoc and summary approach taken by

the Commission in responding to the unsupported

claims made against the TAPS rates by protestants.

59. The price to be paid by refiners on the West Coast

of the United States for the North Slope crude oil to be

transported by TAPS, and thus the price to be paid by

consumers for the petroleum products to be manufactured

from said crude, will not be affected by the subject contro-

versy concerning the TAPS rates since the Federal Energy

Administration (FEA) established the prices refiners will

pay for North Slope crude and the TAPS transportation

cost will be included within, and not in addition to, the FEA

determined prices.

PRAYER

Wuenrerore, petitioner prays that this Court:

A. Enter judgment annulling and setting aside the

Commission’s order of June 28, 1977 in Investigation and

622a

Verified Petition of Mobil Alaska To Annual ICC Order.

Suspension Docket No. 9164, “Trans Alaska Pipeline Sys-

tem (Rate Filings)”;

B. Enter judgment enjoining and restraining the

respondents and all persons acting under their direction

and authority, or in active concert or participation with

them from taking or attempting to take any action to pre-

vent the tariff rates as originally filed by the TAPS owners,

including the $6.31 rate as filed by petitioner, from becom-

ing immediately effective and from remaining effective as

the lawful rates applicable to the common carrier operation

of that petroluem pipeline unless and until the Commission

should determine and prescribe, following investigation

and after full hearing, that rates other than those as

originally filed are reasonable, just and lawful.

C. Enter judgment as prayed for in paragraph B above,

preliminarily until ten (10) days after final determination

of this action on the merits by this Court.

D. Grant petitioner such other, further or different re-

lief as to the Court may seem just and proper.

Dated: July 5, 1977

Respectfully submitted,

Donovan Leisure Newton & IrvINE

Of Counsel:

James R. Kinzer Anprew J. K1icarr

General Counsel Maureen O’Bryon

Mobil Alaska Pipeline 1666 K Street, N. W.

Company Washington, D. C. 20006

Box 900 Telephone: (202) 785-8900

Dallas, Texas 75221

Council For Petitioner

Mobil Alaska Pipeline Company

[Verification of James R. Kinzer, Certificate of Service

and Map of Trans Alaska Pipeline Route (Exhibit A)

omitted in printing.]

Order of

Tariffs and

“Exhibit B”

Commerce Commission Suspending

ing Interim Rates, Attached As

erified Petition of Mobil Alaska Pipe-

line Co., Filed July 6, 1977.

ORDER *

At a General Session of the INTERSTATE COMMERCE

COMMISSION, held at its office in Washington, D.C.,

on the 28th day of June, 1977.

INVESTIGATION AND SUSPENSION

DOCKET NO. 9164

TRANS ALASKA PIPELINE SYSTEM

(Rate Filings)

No. 36611

TRANS ALASKA PIPELINE SYSTEM

(Rules and Regulations)

Initial rate tariffs have been filed by eight pipeline

companies, proposing to operate as common carriers of

crude petroleum over the Trans Alaska Pipeline System.

Protests and petitions for suspension of the tariffs

have been filed by the United States Department of Jus-

tice, the State of Alaska, the Arctic Slope Regional Corpo-

ration and our Bureau of Investigations and Enforcement.

These pleadings seek to invoke our power under section

15(7) of the Interstate Commerce ‘Act (1) to enter upon

a hearing concerning the lawfulness of the tariffs and

(2) pending the hearing and decision, to suspend the

operation of the tariffs for a period no longer than seven

months. Replies to the protests have been filed by each

of the eight carriers.

The tariffs are identified in Appendix 1 to this order.

As noted therein, the various rules contained in the

tariffs have already been placed under investigation by

Commission order dated June 17, 1977, No. 36611. Con-

sideration of the tariff rates, however, was deferred

* Corrected to include changes set forth in Correction Notice dated

June 29, 1977.

624a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

to the present order. The rates per barrel proposed by

the respective companies are as follows:

Amerada Hess Pipeline Corporation $6.44

Arco Pipe Line Company 6.04

BP Pipelines Inc. 6.35

Exxon Pipeline Company 6.27

Mobil Alaska Pipeline Company 6.31

Phillips Alaska Pipeline Corporation 6.22

Sohio Pipe Line Company 6.16

Union Alaska Pipeline Company 6.09

With respect to these rates, we have given careful

consideration to the protests, and to the carriers’ replies.

In addition, we have heard oral argument by the parties.

It is our conclusion that a formal investigation concern-

ing the lawfulness of the proposed rates should be in-

stituted pursuant to sections 15(1) and 15(7) and that

because of the close interrelationship of the rate filings

and the applicable rules and- regulations, they should

be considered in the same proceeding. We further con-

clude that such rates should be suspended, without preju-

dice to the filing of interim rates, during the suspension

period. -

In reaching these conclusions, we have considered the

following issues: (1) whether an investigation should

be instituted; (2) whether the proposed rates can and

should be suspended; (3) whether interim rates can and

should be authorized; (4) what level of interim rates

should be authorized: and (5) what conditions should

be attached to the acceptance of interim rate filings.

The institution of an investigation.

Section 15(7) of the act empowers the Commission

to enter upon a hearing concerning the lawfulness of a

filed tariff stating a new rate or charge. In order for a

rate to be lawful, a primary requirement is that it be

625a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

just and reasonable (section 1(5)). The act sets forth

other requirements as well, and if an investigation is

instituted, any and all aspects of the lawfulness of the

rate may be considered. However, the question raised

by the protests is whether there is reason to believe the

proposed rates are not just and reasonable.

Protestants contend that the filed rates would provide

excessive profits, whether compared with a traditional

rate of return on valuation or with the carriers’ capital

costs. They also contend that the cost data provided

by the carriers is overstated.

The carriers reply that their rates were computed to

allow a 7 percent return on valuation, as contemplated

in a 1941 consent agreement between the Justice De-

partment and a number of shipper-owned pipelines

(United States v. Atlantic Refining Co., C.A. No. 14060,

D.D.C. decided December 23, 1941). They also assert

that the standards used by protestants are unrealistic

in that they do not recognize that the carriers are able

to maintain high levels of debt financing only because

such debt is guaranteed by the parent oil companies.

The carriers argue that, without such guarantees, they

would have to resort to a larger amount of equity fi-

nancing, and their overall capital costs would be higher

than the amounts recognized by protestants. The carriers

also deny that their cost data is overstated. However,

they do not object to a formal investigation of the filed

rates.

For reasons set forth below, we do not accept the 1941

consent decree as a standard of reasonableness under the

Interstate Commerce Act. Moreover, while there may be

merit to the carriers’ contentions that the standards

used by protestants do not cover their true costs of capi-

tal, this is a matter that cannot be resolved until a

more complete record is developed. Finally, evidentiary

hearings will be necessary to develop acceptable cost

626a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

data for use in applying whatever measures of reason-

ableness are found to be appropriate. Therefore, we con-

clude that there has been a sufficient showing of prob-

able unlawfulness to warrant the institution of a formal

investigation concerning the proposed rates.

The suspension of the proposed rates. Some of the

carriers argue that the Commission is without power

to suspend initial rates. They rely on numerous ref-

erences in legislative history and past cases to exercise

of the suspension power in instances of “increased” rates.

They rely on such references to conclude that the power

of suspension does not apply to initial rates. However,

the reason that the suspension powers are usually dis-

cussed in the context of increased rates is clear: the

vast majority of rate proceedings involve situations where

increases in existing rates are at issue.

We see no basis in the sources cited for concluding

that we may not suspend initial rates. If this were the

Congressional intention, we believe that it would have

been explicitly stated. It was not so stated, and the car-

riers have been unable to cite any direct authority for

their position.

It is stated in section 15(7) that the Commission is

authorized to enter upon a hearing concerning “any

schedule stating a new individual or joint rate, fare, or

charge.” Pending this hearing and decision, the Com-

mission may suspend, for up to seven months, the schedule

being investigated. In Rail-Water, Grain in Bulk, Mo.,

Ill., and Ind., to Buffalo, 321 1.C.C. 564, 566 (1963),

it was said that the term “new rate” in section 15(")

encompasses “both changed and initial” rates.

Similar suspension powers pertaining to other modes

of carriage are contained in sections 216(g), 218(c), 307

(g), and 406(e) of the act. In each of these sections,

there is “grandfather” language making the provisions

627a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

inapplicable to “initial’’ rates filed on or before a certain

date. By implication, then, the investigation and sus-

pension provisions are applicable to initial rates filed

after such date.

As noted, if it were intended to exclude initial rates

from the suspension power of section 15(7), one would

expect specific language to this effect. No such language

appears. Accordingly, we have no doubt that the sus-

pension power is applicable to initial rates.

The carriers also question whether, even if the sus-

pension power is applicable, we should exercise it here.

They argue that protestants would not be harmed by

allowing the proposed rates to go into effect, inasmuch

as refunds or reparations would be available if the in-

vestigation should show that the filed rates are too high.

Protestants, however, do not consider the possibility of

refunds to be adequate protection. The Arctic Slope Re-

gional Corporation, which represents Alaskan Natives,

notes that the longer it must wait for its share of

royalty revenue (which are adversely affected by high

transportation rates), the less value such revenue will

have. Protestants also argue that the maintenance of

pipeline rates at too high a level would act as a deterrent

to the use of the pipeline by independent oil producers.

Although we recognize that the refund remedy is

available, we do not believe that the rates can be allowed

to go into effect without suspension, when, as here, the

protestants have made a showing of probable unlawful-

ness. Moreover, as noted by protestants, the maintenance

of excessively high rates could act as a deterrent or an

obstacle to the use of the pipeline by non-affiliated oil

producers, and would also delay the Alaskan interests

in obtaining revenues that depend upon the wellhead price

of the oil. Under the circumstances, we have concluded

that the proposed rates, as filed, should be suspended,

628a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

pending our investigation, for the statutory period of 7

months.

The specification of interim rates. Protestants seek

to have the Commission name specific rates that may be

charged by each carrier while the investigation is be-

ing conducted. The carriers, however, contend that the

Commission has no power to do so. They argue that the

specification of interim rates would be a rate prescrip-

tion within the meaning of section 15(1) of the act,

and that we are empowered to take such action only

after a full hearing.

We see no basis for considering such action to be a

prescription of rates... We may authorize interim rates

without requiring that the rates proposed in the tariffs

be cancelled, and without precluding the proposed rates

from taking effect at the end of the 7-month suspension

period if our investigation is not then completed (sub-

ject, however to a refund provision as hereafter de-

scribed). These interim rates would not be intended to

have permanent effect, but would merely be interim rates

that we would allow to be collected during the suspension

period. Such rates, if filed, remain subject to Commis-

sion scrutiny and are not to be considered as prescribed

1 Moss V. C. A. B., 480 F.2d 891, is clearly distinguishable. That

case involved ex parte meetings and the substitution by the Board

of “‘a complete and innovative scheme for setting all passenger rates

for the Continental United States,” with an indication that such a

filing would not be suspended. In Moss, the court noted that unlike

the Interstate Commerce Act, the Federal Aviation Act has no pro-

vision for reparations, thus rendering the procedural safeguards of

the Aviation Act the public’s sole defense. The court also pointed

out its view might have been different if interim action were in-

volved. In the present TAPS proceeding, both the proposed rates

and any interim rates which may be filed will remain subject to

full investigation. See also Consolidated Edison Co. of New York

v. F. P. C., 168 U.S.App.D.C. 92, 512 F.2d 1882, 1340, distinguishing

Moss Vv. C. A. B. and stressing th- behind-the-scenes aspect of the

Moss case.

629a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

within the meaning of the decision in Arizona Grocery

v. Atchison, T. & S. F. Ry., Co., 284 U.S. 370, 52 S.Ct.

183, 76 L.Ed. 348.

We believe that the power to allow interim rates is in-

herent in the suspension power. Without it, the Com-

mission could be faced with the choice of allowing the

carriers to operate at any rate they choose, whether

or not lawful, or precluding carrier operations alto-

gether. We do not believe that Congress could have

intended our powers to be so inflexible. If the suspension

power did not include the discretion to permit interim

rates, it would be a substantially less satisfactory tool

for serving the public interest.

Having concluded that we possess the power to author-

ize interim rates, we have no hesitation about taking

such action in the present circumstances. If we were to

suspend the proposed rates without allowing interim

rates, the result would be to preclude the carriers from

commencing their operations during the suspension pe-

riod. Such a result would be contrary to the interests

of all concerned.

The level of interim rates. We believe that the proper

question to be asked concerning our action in these pro-

ceedings is not whether we have the discretion to author-

ize an interim rate. Rather, the question should be

whether we have exercised such discretion in a reason-

able manner.

The key to a proper exercise of our discretion in this

situation lies in recognizing the possible consequences

of our action. We must bear in mind that the carriers

may have no means of obtaining restitution if initially

required to maintain too low a rate. On the other hand,

a remedy by way of refunds or reparations is available

to persons injured by the charging of a rate that is

ultimately found to be too high. In these circumstances,

630a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

the reasonable approach to determining an interim rate

is (1) to accept the basic data supplied by the carriers

and (2) at the same time to require the refund provi-

sion in the event that such amounts are ultimately de-

termined to exceed a reasonable level. This, then, is the

course that we shall follow.

The process of arriving at an acceptable interim rate

requires two steps. The first is to define the basic

carrier data that will be employed, and the second is to

perform computations using such data.

The data that we will employ is set forth in Appendix

2. For the purposes of the present decision, we have,

for the most part, employed the figures supplied by the

carriers. Appendix 2 displays this data both in total

dollars and in dollars per barrel. The conversion to per-

barrel figures is based on the assumption that the normal

traffic volume for the beginning years will be 438 million

barrels a year (1.2 million barrels a day), and that this

number of barrels will be apportioned among the car-

riers according to their respective ownership shares in

the pipeline.

Of the items set forth in Appendix 2, substantial

questions have been raised at this stage ui the proceed-

ing particularly with regard to removal and restoration

costs and depreciation. Removal costs are the costs ex-

pected to be incurred at the end of the useful life of the

pipeline in order to meet environmental requirements.

According to the Alyeska Pipeline Service Company,

these costs will amount to about $1.049 billion in 1977

dollars. Some of the carriers propose to simply set aside

one twenty-fifth of their total share of this amount

each year for 25 years. Others propose more detailed

computations to inflate the removal costs to dollar costs

for the year 2002, and to allow for compounded interest

on the yearly accruals. The protestants, on the other

631la

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

hand, seek to reduce the yearly removal charges by re-

quiring that they be amortized over a period longer than

25 years.

With respect to depreciation charges, the carriers uni-

formly propose a 25-year service life, on the basis. that

known recoverable reserves on the North Slope are ex-

pected to be depleted in terms of economic recovery in

25 years. Protestants propose that service lives as long

as 35 years be required, on the basis that additional

oil fields exist on the North Slope that are likely to extend

the pipeline’s useful life and that even the present re-

serve may have a longer life than 25 years."

Both of these issues will receive substantial attention

during our formal investigation. However, at this stage

of the proceedings, the data presented concerning addi-

tional reserves is of a somewhat uncertain nature. We

do not deem this data sufficient to warrant a reduction

in the amount allowed for depreciation for the purposes

of determining the lawfulness of the proposed rates

at the suspension level. By the same token, we will not,

at this time, compute removal charges over an amortiza-

tion period of more than 25 years.

For removal costs, we have used the same per-barrel

allowance for each carrier, because we see no basis for

cost differences among the carriers on this item. Our al-

lowance is based on a simple amortization without in-

flation or discounting. While this approach may some-

what understate the amounts that need to be accrued, the

magnitude of the discrepancy would not be great in

terms of the overall tariff computation. It may well be

outweighed by overstatement in the depreciation charges.

An additional issue is raised by protestants concerning

the investment and valuation figures. It is their conten-

* It should be noted that at oral argument several protestants did

not dispute the use of 25 years at the suspension level.

632a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

tion that these figures are affected b

struction costs. Needless to say, this Neen” rey Noe

— focus of our formal investigation. However, as

ms protestants themselves concede, this is not a matter

rg can be properly dealt with at the present stage of

= proceeding. Accordingly, the investment figure pro-

; meyoe , — bony be used at this time. Our valua-

as use

foun ae eae _ —_ data in providing valuation

In one aspect, the investment data shown on Appen

di

4 differs from figures supplied by certain lie in

a it does not include an amount for working capital.

ry all of the carriers reported working capital as part

of their investment. Those that did appear to have used

no consistent standard. For this reason, and because

a satisfactory basis for judging the carriers’ working

capital needs has not been shown, we have omitted it

from the investment figures. We believe that our ac-

tion in this respect is more than compensated by our

liberality in not averaging down the i

for depreciation over the first few noon see diac

Having the basic data at hand

question of rate computation. uerniageso dang

In justifying the filed tariff rates, the carri

ers con-

tend that the proposed rates are merely sufficient to

— expenses and interest and to allow an after-tax

= urn on equity equal to 7 percent of their valuation.

ey consider this method of gauging a return on equity

to be permissible since it is used in the 1941 consent

agreement between the Justice Department and a lar

number of shipper-owned pipelines. “

However, the consent decree standard h

employed in a Commission proceeding as the test of =

* An allowance for working capita

the staff evaluation estimates at pone bye included in

633a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

sonableness of rates. Its sole legal status is as a limit

on the amount of dividends that pipelines may pay to

shipper owners without risking prosecution under the

Elkins Act for illegal rebates. Moreover, as a standard

of reasonableness, it has nothing to recommend it from

a conceptual standpoint. Although valuation is a meas

ure of the entire investment, the consent decree standard

allows a return on valuation to be used entirely to com-

pensate one segment of the capital invested. Such a stand-

ard can have no relationship, except by coincidence, to

the carriers’ true capital costs. As shown in Appendix

3, the filed rates would produce returns on equity rang-

ing from 81 percent to 96 percent. Accordingly, it can

be seen that the tariff rates would produce returns ex-

ceeding capital costs, even where the carriers’ own ex-

pense and investment data are accepted.

Inasmuch as the carriers’ justification does not appear

satisfactory, we must next consider what standards

would be appropriate based on our own precedents. As

we noted in No. 36538, Petroleum Products, Williams

Brothers Pipe Line Company, —— 1.C.C. —— (1976),

the standards we have applied in the past have been an

8 percent return on valuation for crude oil pipelines and

10 percent on valuation for petroleum products pipelines.

At the outset, we have questions about the appropriate-

ness of an 8 percent return in this instance, where an-

nual interest rates generally exceed 8 percent. The small

margin of earnings in excess of interest that would re-

sult is demonstrated in Appendix 4. As may be seen,

rates computed on this basis would range from $3.74 for

BP to $4.16 for Exxon. Further study of this table shows

that five of the eight carriers would have returns on

equity of 10 percent or less under this standard, and

returns for some would be lower than 3 percent. Such

a return would be unreasonably low.

634a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

It should be noted that the 8 percent on valuation

standard arose in the early 1940’s, when capital costs

were substantially lower than they are today. It could

continue to provide a substantial return on original in-

vestment to established carriers, whose valuations have

risen well above their actual investment because of in-

flation. In the case of the TAPS carriers, however, their

property was constructed so recently that valuation is

little higher than actual cost, and an 8 percent return

on valuation becomes quite deficient.

The question arises, then, as to whether the Commis-

sion can permissibly depart from its previous standards

in these proceedings. The answer lies in the fact that,

whatever standards we use, the earnings allowed to the

carriers must comply with governing judicial require-

ments. The controlling standard, set forth in Federal

Power Commission v. Hope Natural Gas Co., 820 U.S.

591, 603, 64 S.Ct. 281, 83 L.Ed. 388 (1944), is that a

regulated firm must be aliowed enough revenue not only

for operating expenses, but also for the capital costs

of the business. Such revenue must cover service on the

debt and a return on equity sufficient to attract capital.

[See also section 15a(2).]

For the purposes of the present decision, we have de-

termined that the standard of a 10 percent return on

valuation for petroleum products pipelines is appropriate

for the TAPS carriers. Our selection of the 10 percent

return on valuation standard is based primarily on two

factors. One is that the magnitude and inherent attri-

butes of the TAPS project produce a higher risk factor

than is normal in crude oil pipeline operations. Many of

the construction features are being tested for the first

time. Geographic terrain, environmental and tempera-

_ ture problems, possible earthquakes, vulnerability to sabo-

tage, future oil pricing policies, and regulatory uncer-

tainty are among the factors to be considered. More

635a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

over, a 10 percent return on valuation appears generally

sufficient to cover estimated capital costs. As previously

noted, an 8 percent return on valuation produces gen-

erally insufficient returns on equity.

As shown in Appendix 5, a 10 percent return on

valuation produces for the individual carriers on their

actual capital structure returns on equity ranging from

13.8 percent to 54.8 percent, with no figure for Mobil

which claims to be totally debt financed. The composite

return on equity is 23 percent.

While these returns on equity have been challenged

by protestants, the carriers note that they have an ab-

normally high proportion of debt in their capital struc-

tures, which is made possible by the fact that their debt

obligations are unconditionally guaranteed by their parent

oil companies. The carriers would argue that tariff rates

based on 10 percent return on valuation provide a much

lower return on equity with a more normal capital struc-

ture.

Although the 10 percent return on valuation appears

suitable for present purposes, we stress that it is not

intended to be a general standard nor to be a prejudg-

ment of criteria to be used upon the conclusion of the

investigation in these proceedings, nor is it in any way

to be considered a prejudgment of the issues in Ex Parte

No. 308.

Conditions for the acceptance of interim rate filings.

The Bureau of Investigations and Enforcement asks that

the carriers be required to produce a number of types

of documents as a condition to our acceptance of interim

rates. The carriers, however, contend that BIE’s pro-

condition is an attempt to circumvent the Com-

mission’s established discovery rules, and should not be

adopted.

636a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

We have concluded not to impose the requested con-

dition in the present order. We do not believe that such

orders are a necessary subject for inclusion in an order

disposing of petitions for suspension of a tariff. Any

future request for orders can be handled as separate

matters later, when all factors concerning the production

of the requested data can be properly considered. In

addition, we note that at oral argument, the carriers

indicated their willingness to cooperate in the production

of documents. We shall expect them to abide by this

agreement.

The other condition requested by protestants pertains

to possible refunds of excess charges collected. We recog-

nize that even the lower interim rate levels may prove

upon investigation to exceed reasonable levels. Therefore,

as a condition to filing such interim rates, we will require

that the carriers keep account of the amounts collected

under the interim rates or the proposed rates should they

become effective and that they agree to refund any por-

tion of such amounts that may ultimately be established

as excessive.

Immediately prior to the oral argument on June 27,

1977, the Department of Justice filed a memorandum in

reply to the responses of the carriers together with a

motion for leave to file. Neither the special procedure

adopted in this case nor our rules of practice contem-

plate replies to replies and the motion for leave to file

is denied.

In the paragraphs below, the tariffs of Phillips Alaska

Pipeline Corporation are not included. As noted in Ap-

pendix 1, a separate order with respect to Phillips will

be issued before July 20, 1977.

It is ordered, That the operation of the schedules au-

thorized below be, and it is hereby, suspended, and that

the use thereof in interstate or foreign commerce be

637a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

deferred from June 30, 1977, and to and including Jan-

uary 29, 1978, except as to I.C.C. 2, published by Amerada

Hess, which bears a July 1 effective date and the opera-

tion of which is suspended to January 31, 1978, unless

otherwise ordered by this Commission ;

AMERADA HESS PIPELINE CORPORATION

LC.C. NO. 2

ARCO PIPE LINE COMPANY

1.C.C. NO. 1030

on page 14, the rate of $6.04

BP INDUSTRIES, INC.

I.C.C. NO. 2

EXXON PIPELINE COMPANY

I.C.C. NO. 125

MOBIL ALASKA PIPELINE COMPANY

I.C.C. NO. 2

SOHIO PIPE LINE COMPANY

L.C.C. NO. 742

on the title page, the rate of $6.16

UNION ALASKA PIPELINE COMPANY

1.C.C. NO. 2

It is further ordered, That an investigation be, and it

is hereby, instituted into and concerning the lawfulness

of the rates contained in the suspended schedules, as

aforesaid, as well as the interim schedules authorized to

be filed, pursuant to section 15(1) and section 15(7),

with a view to making such findings and orders in the

premises as the facts and circumstances shall warrant.

In the event the schedules here under investigation are

changed, amended or reissued, upon termination of the

suspension period and the investigation not having been

concluded, such changed, amended or reissued schedules

will be included in this investigation.

ee A EN I TO TO AON

ee

638a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

It is further ordered, That the investigation in this

proceeding shall include all matters and issues with re-

spect to the lawfulness of the said rates under the In-

terstate Commerce Act.

It is further ordered, That the named carriers be,

and they are hereby, authorized to file, upon not less than

one day’s notice, interim rates not exceeding the follow-

ing amounts:

Amerada Hess Pipeline Corporation $4.85

Arco Pipe Line Company 4.91

BP Pipelines Inc. 4.68

Exxon Pipeline Company 5.10

Mobil Alaska Pipeline Company 4.84

Sohio Pipe Line Company 4.70

Union Alaska Pipeline Company 4.89

subject, however, to the condition that the carriers keep

account and that (1) the interim tariffs contain a re-

fund provision to the effect that if the rates charged

exceed the rates subsequently authorized or prescribed

by the Interstate Commerce Commission, the carriers

will refund the difference between the rates charged and

any rates which may subsequently be authorized or pre-

scribed by the Interstate Commerce Commission with in-

terest computed in accordance with section 15(8) (e)

of the act, added by the Railroad Revitalization and Reg-

ulatory Reform Act of 1976; and (2) that the carriers

file (effective on not less than 1 day’s notice) a similar

refund provision applicable to the original proposed rates.

Although that section does not apply to pipelines, it rep-

resents the latest expression of Congressional interest,

and the Commission’s notice of April 14, 1977 indicated

its applicability to all carriers under Part I. It should

also be noted that the carriers at the oral argument ex-

pressed assent to an even higher rate of interest in the

event of an investigation without suspension. Under

the circumstances, we believe interest computed in ac-

639a,

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

cordance with section 15(a)(e) would be fair to all

parties.

And it is further ordered, That a copy of this order

be filed an ihe schedules in the office of the Interstate

Commerce Commission, and that copies hereof be served

upon the carriers parties to the said schedules, and that

the said carriers be, and they are hereby, made respond-

ents to this proceeding.

By the Commission. (Commissioner Brown approves

the order except insofar as it denies the motion of the

Department of Justice for leave to file a response to the

carriers’ responses) .

H. G. HoMME, JR.,

Acting Secretary.

[SEAL]

APPENDIX 1

INITIAL TARIFFS APPLICABLE TO THE TRANS ALASKA PIPELINE SYSTEM

Effective Date

a ee ee a

= LCC. No. 1030 May 27, 1977 June 30, 1977

— oe file | Re

Smeg =e city) tom Ret Se Sk

“Pdetemeey «GEA Samet tne

ne ee tame ee

— LCC. No, 742 Jane 3, 1977 June 90, 1977

UMpdee Company == LG Nad jee 6S

ta ee le lad ty oo to meen al itt Comuretion ofthe rate fled by

wee bel!

ee

APPENDIX 2

640a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

CREB ERCREECELERL

AL ELEL EL EL EL i

1&8 No, 9164

641a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

FOOTNOTES TO BASIC CARRIER DATA

Amerada Hess

1,

PPR PH >

Reported in undated statement submitted by Amerada Hess en-

titled “General Assumptions for Calculating TAPS Tariff as of

May, 1977.”

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Amerada Hess’ ownership share (1.50

percent).

Amerada Hess’ share (1.50 percent) of Alyeska investment

($7,959 million for facilities plus $16 million for land), plus

Amerada Hess’ capitalized construction interest ($22,670,500)

and capitalized overhead costs ($1,735,400) as reported by letter

from R. K. Stafford dated May 13, 1977.

Reported in letter from R. K. Stafford dated June 1, 1977.

Reported in “General Assumptions” statement.

Reported in “General Assumptions” statement.

Interest divided by debt.

Investment minus debt.

Staff estimate based on reported investment figures.

Arco

1. Reported in letter from J. D. Wessling dated June 1, 1977.

2.

3.

SBP >

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Arco’s ownership share (21 percent).

Arco’s share (21 percent) of Alyeska investment ($7,959 million

for facilities, plus $16 million for land), plus Arco’s capitalized

construction interest ($257,100,000), as reported in letter from

J. D. Wessling dated June 1, 1977.

Reported in letter dated June 1, 1977.

Interest divided by interest rate.

Reported in June 1, 1977 letter.

Weighted average interest rate of debt issues shown in a letter

from J. D. Wessling dated June 2, 1977.

8. Investment minus debt.

9.

BP

1.

2.

3.

Staff estimate based on reported investment figures.

Reported in BP’s submission of June 15, 1977, in explanation of

filed tariff rates.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by BP’s ownership share (15.84 percent).

BP’s share (15.84 percent) of Alyeska investment ($7,959 million

for facilities plus $16 million for land), plus BP’s capitalized

ei nn «

ee

FR Oe eR omer ee

642a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

construction interest and overhead costs ($204 million), with

the latter as reported in BP’s submission of June 15, 1977.

Reported in BP’s submission of June 15, 1977.

Investment less equity.

Reported in a leter from P. H. Jones dated May 27, 1977.

Interest divided by debt.

Reported in a letter from P. H. Jones dated June 14, 1977.

Staff estimate based on reported investment figures.

Exzzon

1.

2.

PW MKNKQOARS

Reported in Appendix. A to Exxon’s reply to protests.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Exxon’s ownership share (20 percent).

Exxon’s share (20 percent) of Alyeska investment ($7,959

million for facilities, plus $16 million for land), plus Exxon’s

capitalized construction interest ($242 million), with the latter

. a in a letter from J. D. Sturtevant dated March 21,

Reported in a letter from J. D. Sturtevant dated June 1, 1977.

Interest divided by interest rate.

Reported in Appendix A to Exxon’s reply to protests.

Reported in Appendix A to Exxon’s reply to protests.

Investment minus debt.

Staff estimate based on reported investment figures.

Mobil

po

Sere

Reported in a letter from C. R. Thompson dated May 27, 1977.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Mobil’s ownership share (5 percent).

Mobil’s investment, including capitalized construction interest

($57.7 million) and capitalized overhead costs ($3.2 million) as

reported in a letter from C. R. Thompson dated April 29, 1977.

Reported in letter dated May 27, 1977.

Debt presumed to be 100 percent of investment. Data filed by

Mobil gives no indication of equity financing.

Reported in letter dated May 27, 1977.

Interest divided by debt.

Investment minus debt.

Staff estimate based on reported investment figures.

Phillips

1.

Reported in a letter from James Mullen dated July [sic; June]

20, 1977.

IH

643a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Phillips’ ownership share (1.66 percent).

Phillips’ share (1.66 percent) of Alyeska investment ($7,959

million for facilities plus $16 million for land), plus Phillips

capitalized construction interest ($14,944,000) and capitalized

overhead costs ($40,000), with the latter items as reported in

letter of June 20, 1977. Working capital ($1,480,000) excluded.

Reported in undated statement entitled “Phillips Petroleum Com-

pany—Estimate of Expenses.”

Reported in letter of June 20, 1977.

Reported in letter of June 20, 1977.

Interest divided by debt.

Investment minus debt.

Staff estimate based on reported investment figures.

Sohio

1.

2.

Reported in a letter from J. T. Boltacz dated June 13, 1977.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Sohio’s ownership share (33.34 percent).

. Sohio’s investment (3,138.5 million) as reported in letter dated

June 18, 1977. Working capital ($18 million) excluded. Sub-

tracting Sohio’s share of Alyeska investment would indicate

$479,635,000 as capitalized construction interest and overhead

costs.

Reported in letter dated June 13, 1977.

Reported in letter dated June 13, 1977.

Reported in letter dated June 13, 1977.

Interest divided by debt.

Investment minus debt.

Staff estimate based on reported investment figures.

Union

a

2.

3.

Tt

Reported in a letter dated May 27, 1977, from E. J. Takach.

Estimated Alyeska removal cost ($1,049 million) divided by 25

years, multiplied by Union’s ownership share (1.66 percent).

Union’s share (1.66 percent) of Alyeska investment ($7,975 for

facilities plus $16 million for land), plus Union’s capitalized con-

struction interest ($10.6 million), with the latter as reported in

a letter from David M. Schwartz dated June 14, 1977. .

Reported in letter dated May 27, 1977.

Reported in letter dated June 14, 1977.

Computed from debt description in letter dated June 14, 1977.

Interest divided by debt.

Investment minus debt.

Staff estimate based on reported investment figures.

~~ wee

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645a

Order of Interstate Commerce Commission

ariffs and Authorizing Interim

Rates.

Suspending T

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646a

Order of Interstate Commerce Commission

Suspending Tariffs and Authorizing Interim Rates.

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APPENDIX 5°

TARIFF COMPUTATION

ALLOWING 10 PERCENT RETURN ON VALUATION—ACTUAL CAPITAL STRUCTURE

=

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equity)

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647a

Affidavit of C. R. Thompson, Controller and Treasurer

of Mobil Alaska Pipeline Co., in Support of Application

for Temporary Restraining Order, July 6, 1977.

UNITED STATES COURT OF APPEALS

ror THE Firra Cracuir

[Caption Omitted In Printing]

AFFIDAVIT

Cuartes R. Txompson, being duly sworn, deposes and

says

1. I am a Certified Public Accountant and Controller

and Treasurer of Petitioner Mobil Alaska Pipeline Com-

pany and make this affidavit in support of the Application

for Temporary Restraining Order and Application and

Motion for Interlocutory Injunction filed herewith.

2. I have examined the Interstate Commerce Commis-

eion’s Order of June 28, 1977, in No. 36611 (“Order”) and

the petitions and protests of the State of Alaska and the

Arctic Slope Regional Corporation, Based on the differ-

ences between the carrier-initiated TAPS rates suspended

in the Order and the “interim” rates authorized therein, I

have prepared Appendix A to petitioner’s memorandum in

support of its applications for temporary restraining order

and interlocutory injunction.

8. I computed for each TAPS owner the difference

between its own rate (Column 2) and the “interim” rate

authorized in the Order (Column 3). The reduction in the

rate to the Commission’s “interim” rate, expressed in dol-

lars per barrel of crude oil shipped, for each TAPS owner

is set forth in Column 4.

4. Assuming a throughput of 1.2 million barrels per

day through TAPS for a period of seven months (210

days), I computed the total barrels of crude which would

be shipped through TAPS during a seven-month suspen-

FN OO EL _

648a 649a

Affidavit of C. R. Thompson, Mobil Alaska. Affidavit of C. R. Thompson, Mobil Alaska.

sion period. Multiplying that figure by the percentage sSy

ownership interest of each TAPS owner in TAPS (Column $18 & x B ‘| i

1) I caleulated the barrels each TAPS owner would ship Rez sr

during a suspension period of seven months (Column 5). E

Multiplying the total barrels for each TAPS owner by that 2 an | ©

owner’s reduction in revenue per barrel I obtained the total t 3- E 4 |

revenue reduction for each TAPS owner (Column 6). oye ' eo

5. Based on the assumption that the total reductions in Eat

revenue for all TAPS owners, $343,335,000, would cause an : S o ‘in

equivalent increase in the wellhead value of crude oil, I cal- a 2 é iy: ° z © & g 8 8 a A

culated the total amount of increased revenues to the State eee gs a & oe “| 3

of Alaska from the use of the “interim” rates during a er ; ;

seven-month suspension period. Since Alaska owns a 3 co =

12.5% royalty interest in the wellhead value of erude to i pes n <5 *o33 393 h ~

be shipped through TAPS, by multiplying 12.5% by the -ageg * o. 6 SS 3 =| 8

total revenue reduction for TAPS (Column 6) I obtained «| 4 gigs .

a figure representing the maximum royalty benefit to the = " S 5

State from operations at the Commission’s “interim” rate : <| 2 a: ; ¥ rm

levels during a seven-month period (Column 7). : sSice ¢ &. g S . S < ® : 8 ~

6. The Arctic Slope Regional Corporation (“ARSC”) ofc 3 z

has a right to a total of $500,000,000 of Alaska’s royalty g ae 4, #2 : @5e2 58 8 &

interest in the wellhead value of the crude accumulated by His : ao A

payment from Alaska of 2% of its own royalty interest & ; I s¢2ekNSKS28 &

(.02 x .125 == .0025 or .25%). By multiplying Column 7 by og Z y i gee e © 6 © ©

2% I obtained a figure representing the maximum benefit & g2*

to the ARSC from operations at the Commission’s see # F "

“interim” rate levels during a seven-month period (Column ities 4 id & 8 s 3 . * i

8). =] “ =

Date: July 2, 1977 *

a

Cuartzes R. Taompson

(Sworn to on July 2, 1977.)

in

Amerada Hess Pipe-

_ Vine Corporation

1608

reduction for al] carriers other than Phillips Alaska Pipeline Corporation

lement Act, usc Sec.

1.2 million berrels daily for 7 months (210 days)

Claims Sett

upon yet

weight average

Alaska Natives

650a

Affidavit of Dale A. Lucas, Manager of Transportation

of BP Pipelines Inc., in Support of Application for

Temporary Restraining Order, July 11, 1977.

UNITED STATES COURT OF APPEALS

ron THe Firra Crmovir

[Caption Omitted In Printing]

AFFIDAVIT

Tue Strate or Texas

County or Harnis

Darz A. Lucas, being duly sworn, deposes and says:

I am Manager of Transportation of BP Pipelines Inc.

(“BP”), the petitioner in this proceeding. I make this

affidavit in support of BP’s motion for an order staying,

restraining and suspending an order of the Interstate Com-

merce Commission which suspends for seven months tariffs

filed by BP with the Commission for the transportation of

crude oil in the Trans-Alaska Pipeline System (“TAPS”).

BP owns an 15.84% undivided interest in TAPS.

Schedule A to this affidavit shows projected operating

results for BP for its share of TAPS over the seven-month

period ending January 31, 1978, the approximate period of

the suspension ordered by the LC.C.

The figures appearing on this Schedule A are compiled

from data furnished by BP to the I.C.C., on which the LC.C,

bases the calculations appearing in the appendices to its

order now under review.

The figures on Schedule A reflect a build-up over the

period covered in the amount of oil to be transported by

BP. The I.C.C.’s calculations are based on operation for a

full year at a rate which our figures show will not actually

be reached until late in the suspension period. By the

LC.C.’« approach, BP would transport about 35 million

barrels over the suspension period; actually, as Schedule

65la

Affidavit of Dale A. Lucas, BP Pipelines.

A shows, we estimate BP will transport only 25.75 million

barrels over that period, with correspondingly less revenue.

Schedule A shows operating results based on two dif-

ferent tariff rates. The figures in the right-hand column

use the $6.35 initial rate tariff filed by BP, which the I.C.C.

has suspended. The figures in the left-hand column use

the $4.68 rate which the I.C.C. has said it would approve.

As Schedule A shows, under the IL.C.C. suggested rate BP’s

revenues would be, over the seven-month suspension period,

$43 million less than under BP’s suspended tariff.

In fact, as Schedule A shows, the $4.68 tariff will result

in a net loss to BP of about $3.6 million over the seven-

month suspension period.

D. A. Lucas

[Sworn to on July 8, 1977.]

er er me ee em et et re

652a

Affidavit of Dale A. Lucas, BP Pipelines.

SCHEDULE A

BP PIPELINES INC.

Operating Results for Seven Month

Period Ending January 31, 1978

(Operations Commencing August 1, 1977)

($000)

Line Tariff Rates

No. Description $4.68 $6.35

(a) (b) (c)

1 Throughput (thousand

IE cenncititbiniensticticssanisessiianin 25,750 25,750

2 Operating Revenue .................... $120,510 $163,513

3 Operating Expense:

4 Depreciation’ .......................... 29,901 29,901

5 Dismantling/Restoration’ .... 3,323 3,323

6 Other Operating Expenses’ ...... 33,052 33,052

7 Net Carrier Operating Income ¢ 54,234 $ 97,237

8 Interest Expense’ ...................... 57,833 97,833

I Te cette — 20,840

10 Net Income (Loss) .................... $ [3,599] $ 18,564

NoTEs:

1. 1977 figure 7 to the I.C.C., plus 1/12 of 1978 figure

reported to the I.C.C. (as presented in explanation of initial tariff,

dated June 15, 1977).

2. One-half annual amount applied by I.C.C. in Order of June

28, 1977.

653a

Affidavit of Richard M. Voripaieff, Vice President—

Administration and Treasurer of Exxon Pipeline Com-

pany, in Support of Motion for Expedited Considera-

tion or, in the Alternative, for a Stay Pending Review,

July 12, 1977.

UNITED STATES COURT OF .APPEALS

FOR THE Firrx Cimcuir

[Caption Omitted in Printing]

AFFIDAVIT

Strate or Texas

County or Harris

Ricuarp M. Vorrparr, being duly sworn, deposes and

says:

That I am the Vice President—Administration and

Treasurer of Exxon Pipeline Company.

That, to the best of my knowledge, information and belief

as of the time Exxon Pipeline Company filed its I.C.C.

Tariff No. 125, the anticipated revenue barrels to be trans-

ported through its undivided interest share of the capacity

of the Trans Alaska Pipeline System for the period from

July 26, 1977, through January 29, 1978, were as shown on

Table 1 attached to this Affidavit. Since thé filing of I.C.C.

Tariff No. 125, an industrial accident occurred resulting in

the loss of certain critical facilities at one of the pipeline

system’s pump stations. Thus, the anticipated revenue

barrels for the period July 26, 1977, through January 29,

1978, will be substantially less than the previous estimate.

That, to the best of my knowledge, information and belief,

the figures and calculations shown in Tables 2 and 3

attached to this Affidavit are correct.

RicHaRD M. Vonsparars 3

[Sworn to on July 11, 1977.)

ee

654a

Affidavit of R. Voripaieff, Exxon Pipeline.

TABLE 1

Exxon Pipeline Company

TAPS Anticipated Revenue Barrels

July 26, 1977 Through January 29, 1978

Scheduled Throughput

Date —

7-26 128

7-27 160

UIE deiadbestlassinsetsniitinaaiaeidabacetueenidaiiail 176

7-29 .. 182

7-30 ...... - - . 182

7-31 185

8-1 185

8-2 n 190

8-3 195

SIE ‘dacnshesiesesiesstieridetstntaiteniaiisaaieatidananeataattsiauadiantiateacinitas 200

ITEP oeniceiviasteaiecniicatettnanidtltandesicieaniasiasiaiaieneiieeiabiaabaaniaaieniaiiin 205

EP ccinlasthicisepihaihtdincaieiiasoapntiiltnatesaniiaaiteibasiitiinaenisbieiineess 210

eee 215

220

8-9 .. 225

Se 230

8-11 . 235

8-12 sane aiiiabiiapnetniesideion 240

8 ET TT 33,840

Total 37,403

Less: 10% for TAPS downtime, fuel and other

factors 3,740

Working inventory in terminal tankage at 3

days throughput ...... 720

Total Revenue Barrels Through 12-31-77 ................ 32,943

1-1-78 Through 1-29-78 6,960

Less: 5% for TAPS downtime, fuel and other

factors " 348

Total Revenue Barrels 1-1 through 1-29-78 ............ 6,612

Total Revenue Barrels During Period .................... 39,555

; —

655a

Affidavit of R. Voripaieff, Exxon Pipeline.

TABLE 2

Minimum Rate for the Period June 30, 1977 through

January 29, 1978 Using ICC Method Adjusted to Reflect

Anticipated Throughput

MS$

Return on Valuation @ 10% (includes

both net income after taxes and gross

interest expense) $ 99.8

Operating Expenses 25.8

Ad Valorem Taxes j 14.4

Book Depreciation 36.6

TAPS Dismantling 43

Provision for Income Taxes 46.6

Total Revenue $227.5

S/bbl_

$2.520

Rice a.

656a

Affidavit of R. Voripaieff, Exxon Pipeline.

TABLE 3

Minimum Rate for the Period June 30, 1977 through

January 29, 1978 Using ICC Method Adjusted to Reflect

Anticipated Throughput, Anticipated Dismantling

Expense, and Anticipated Income Taxes

MS = S/bbL.

Return on Valuation at 10% (includes

both net income after taxes and

gross interest expense) $ 99.8 $2.520

Operating Expense ......................-.--s-0-+ 25.8 651

Ad Valorem Taxes ..........2.........:..c::-00++ 14.4 363

Book Depreciation ........................---+-+- 36.6 924

ee I ciniciceneniimetocsnnnicunitn 8.1 .205*

Provision for Income Taxes ................ 46.9 1.187°*

_. 2 ss EEE $231.4 $5.850

* Based on $16.4 million annual removal costs for Exxon pro-

rated on the basis of an average throughput of 211,000 barrels per

day for the interim period (total revenue barrels of 39,555,000 for

Exxon as shown in Table 1).

** Based on increased dismantling expenses shown above.

657a

“Appendix A” to Memorandum of Exxon Pipeline Co.

In Support of Application for Injunction: Verified

Statement of Ernest C. Terry, C.P.A. of Exxon Pipeline

Co. Describing Calculation of Tariff Rates for Trans

Alaska Pipeline as Submitted to Interstate Commerce

Commission, July 12, 1977.

UNITED STATES COURT OF APPEALS

FOR THE Firtrae Crmovir

STATEMENT OF ERNEST C. TERRY

My name is Ernest C. Terry. I am employed by Exxon

Pipeline Company. I graduated from Southern University

in New Orleans in 1964 with a bachelor of Science degree

in Accounting. Following graduation, I was employed for

three years with the Kaiser Aluminum and Chemical Cor-

poration as a Cost Accountant. In 1967, I joined Johnson

and Johnson as a Supervisory Accountant. In May 1969,

I was employed by the Humble Oil & Refining Company

(now Exxon Company, U.S.A., a division of Exxon Corpo-

ration) as a Budget and Cost Accountant in the Production

Department and was later transferred to the Controller’s

corporate staff. Subsequently, I was assigned to the

Marketing Department as a Financial Reporting Super-

visor. In 1976, I was employed by the Exxon Pipeline

Company. In my various assignments, I have had experi-

ence in long-range forecasting, investment evaluation and

financial analysis, both near-term and long-term.

I am a Certified Public Accountant (CPA), and member

of the American Institute of Certified Public Accountants

and the National Association of Black Accountants.

In my present assignment, my duties include budget

development, long-range financial planning and develop

ment of tariff rates for Exxon Pipeline Company’s interest

in the Trans Alaska Pipeline System.

In my statement, I will describe the procedure employed

in the computation of the initial tariff rate filed by Exxon

658a

Verified Statement of E. Terry, Exxon Pipeline.

Pipeline Company. Specifically, my testimony will cover

(1) computation of an estimated ICC valuation, (2)

description of the elements used in the development of the

rate, (3) computation of the rate and (4) the latest earn-

ings forecast for Exxon Pipeline Company attributable to

its interest in the Trans Alaska Pipeline System for the

years 1977 and 1978 based on the rate filed.

The initial rate was developed and computed using the

traditional guidelines of the Interstate Commerce Commis-

sion as described to me by the Exxon Pipeline Company

legal advisors, applying, however, an earnings limitation

of 7% on estimated ICC valuation consistent with the Pipe-

line Consent Decree.

It was necessary to compute an estimated TCC valuation

for Exxon Pipeline Company’s interest in the Trans Alaska

Pipeline System in order to compute an initial tariff rate.

In computing the estimated TCC valuation, the general

guidelines reported by the Interstate Commerce Commis-

sion in Ex Parte No. 308 as shown in the testimony of

Jesse C. Oak, Senior Valuation Engineer, Bureau of

Accounts, of the Interstate Commerce Commission were

followed. Attachment I to this statement shows the com-

putation of the estimated TCC valuation used for the 1978

computation, The estimated valuation for Exxon Pipeline

Company’s 20% interest in the Trans Alaska Pipeline

System is $1,976.5 million. The general guidelines given

by Mr. Oak, his description of the elements of valuation

and the method used by Exxon Pipeline Company to esti-

mate valuation are:

(1) Cost of Reproduction New. Mr. Oak described

this as “the estimated cost of reproducing substan-

tially the identical or similar property constructed in

a prior period at a price level as of a subsequent

659a

Verified Statement of E. Terry, Exxon Pipeline.

date.” Attachment IT shows the computation of an

estimated cost of reproduction new. Column 1 shows

original cost by year of expenditure and Exxon Pipe-

line Company’s 20% share. To this 20% share, esti-

mated interest capitalized during construction was

added. Column 2 lists the annual indices issued by

the Interstate Commerce Commission for the years

1969 through 1975 and estimated indices for the

years 1976 through 1978. The indices for 1976

through 1978 were estimated by compounding the

1975 index by 6% inflation factor. Column 3 is the

reciprocal of Column 2. Column 4 reflects the 1947

Period Prices calculated by multiplying Column 1

times Column 3. Column 5, 1977 Period index, was

determined by taking the average of the annual

indices for the five-year period, 1974 through 1978,

Column 6 shows the computation of the estimated

cost of reproduction new for the Trans Alaska Pipe-

line System and Exxon Pipeline Company’s 20%

share. An interest amount was added to this 20%

share. Two factors were considered in calculating

the interest:

(a) a predetermined annual interest rate, and

(b) an estimated construction period.

The annual interest rate presently allowed by the

ICC for this purpose is six (6) percent. The con-

struction period considered was approximately 39

months. The interest additive was arrived at by

applying six (6) percent for one-half of the construc-

tion period plus three months to the cost of repro-

duction new. The estimated cost of reproduction

new for Exxon Pipeline Company’s interest in the

Trans Alaska Pipeline System is $1,877.0 million.

660a

Verified Statement of E. Terry, Exxon Pipeline.

(2) Cost of Reproduction New Less Depreciation.

Mr. Oak described this as “a value arrived at after

giving consideration to the effects of observed physi-

cal wear, decay and functional inadequacy or obso-

lescence.” Since the Trans Alaska Pipeline System

is a newly constructed pipeline facility, the cost of

reproduction new less depreciation was assumed to

be the same as cost of reproduction new,

(3) Original Cost. Mr. Oak described the origi-

nal cost as “the actual cost of construction or acqui-

sition of property to the first person or corporation

dedicating such property to public use.” Exxon

Pipeline Company used the original cost number

received from Alyeska Pipeline Service Company.

These estimated costs were furnished to the Commis-

sion by letter dated April 27, 1977 and are shown on

Attachment ITI. More recent estimates from Aly-

eska Pipeline Service Company show these costs to

be slightly higher. Nevertheless, for the purpose of

our estimate we have used the estimate previously

provided the Interstate Commerce Commission.

(4) The Present Value of Land. Mr. Oak

described this as “a present fair average market

value of all parcels of land owned or used by a car-

rier in common carrier services.” For the purpose of

this estimate, the original cost of land as reported by

Alyeska Pipeline Service Company was used. Exxon

Pipeline Company’s share of this cost was $.6 mil-

lion dollars and consistent with Mr. Oak’s guidelines,

half of this amount was used in estimating an initial

valuation.

(5) Present Value of Rights of Way. Mr. Oak

described this as “the unamortized balance of car-

66la

Verified Statement of E. Terry, Exxon Pipeline.

rier’s cost paid for an easement across a landowner’s

property.” For the purpose of this estimate, Exxon

Pipeline Company’s share of the original costs of

rights of way were used. This amount was $.2 mil-

lion.

(6) Working Capital. Mr. Oak described work-

ing capital as consisting of “investment in material

and supplies suitable and intended for maintenance

and operation and a fund of money necessary to meet

current operating demands which much be supplied

in addition to the receipts of common carrier opera-

tions.” In Exxon Pipeline Company’s letter to the

Interstate Commerce Commission of June 1, 1977

(Attachment TV), working capital was estimated to

be $8 million and this was used in estimating valua-

tion.

(7) Going Concern Value. Mr. Oak described this

as “an intangible value of an assembled and estab-

lished pipeline doing business, as compared with one

which has not yet commenced operation.” Mr. Oak

stated in his testimony that the Commission has used

in pipeline valuation 6% of the value of depreciable

property before adding the amount for present value

of land, present value of rights of way and working

capital. Exxon Pipeline followed this procedure in

estimating valuation.

Using the estimated valuation, a tariff rate was caleu-

lated for a full year’s operation at the maximum through-

put levels. At the time the tariff rate was calculated, the

Trans Alaska Pipeline System was expected to receive line

fill on June 20, 1977. Because of the uncertainty of initial

throughput and operating conditions through year end

$ALE LA

Verified Statement of E. Terry, Exxon Pipeline.

1977, a rate based on 1977 was not calculated. A compara-

ble rate for that period would be higher than a tariff rate

during a full year of operation. A rate of $6.53 per barrei

was computed for the year 1978. Attachment V shows the

computation of that rate.

The elements that were used in developing the 1978 rate

were:

(1) Operating Expenses

Sheet 3 of Attachment IV shows the forecasted

expenses for 1978. Operating expenses are com-

posed of Alyeska Pipeline Service Company’s esti-

mated field and administrative costs, Exxon Pipe-

line Company’s estimated cost of fuel for operations,

ad valorem taxes and other required support costs.

Details of the estimated operating expenses for 1978

were sent to the Interstate Commerce Commission

in Exxon Pipeline Company’s letter dated June 1,

1977. The more significant elements of each ex-

pense item are:

(a) Field and administrative costs include all

costs items to be incurred such as personnel costs,

catering, maintenance contracts, maintenance ma-

terials, commercially purchased fuel and power,

communications, equipment and building rentals.

Maintenance services will be primarily performed

by outside contractors.

(b) Fuel Furnished in Kind. Exxon Pipeline

forecasts that its share of natural gas require-

ments in 1978 will be 1.5 billion cubic feet, Exxon

Pipeline’s share of fuel extracted from topping

plants for 1978 are forecasted to be approximately

Verified Statement of E. Terry, Exxon Pipeline.

3 million barrels. This latter requirement will

be secured from shippers in Exxon Pipeline’s

capacity. Tariff rules and regulations require

payment to the shippers.

(¢) Exxon Pipeline Company will require office

personnel, data processing service, and other serv-

ices to support the operation of the Trans Alaska

Pipeline System. These costs are estimated at

$725M dollars for 1978.

(d) Ad valorem taxes were estimated at 2% of

gross investment in property, plant and equip-

ment.

(2) Depreciation

Depreciation was calculated using the straight line

method and a 25-year life. Details on the computa-

tion of depreciation were sent to the Interstate Com-

merce Commission by Exxon Pipeline Company’s

letter of April 27, 1977. (See Attachment III.)

Cost of depreciable assets were computed to be

$1,842.4 million, This includes Exxon Pipeline Com-

pany’s 20% share of the latest estimated depreciable

construction costs from Alyeska Pipeline Service

Company of $8,003 million and includes $241.7 mil-

lion which represents Exxon Pipeline Company’s

interest capitalized during construction.

(3) Dismantling and Restoration

The Federal and State of Alaska right-of-way per-

mits require that upon the completion of use the per-

mittees shall remove all aboveground facilities and

restore the right of way to a condition satisfactory

:

'

;

6640

Verified Statement of E. Terry, Exxon Pipeline.

to the Department of Interior and the State of

Alaska. Assuming that all buried pipe can be left

in place, Alyeska has estimated that the total cost in

1977 dollars to meet this requirement is $1,049 mil-

lion (Exxon Pipeline’s share is $209.8 million in

1977 dollars). Based on a six percent per annum

inflation factor, Exxon Pipeline estimates this future

cost to be $4,052 million (Exxon Pipeline’s share is

$900.4 million).

An amount required to recover these costs has been

include in the rate in a manner that will result in no

gain or loss to Exxon Pipeline. The amount to be

included was calculated using sinking fund tables

and an estimated earnings rate of 6% after income

taxes on the reinvestment of funds collected. This

earnings rate is essentially equivalent to the return

available on high-grade tax-exempt municipal securi-

ties. On this basis, Exxon Pipeline will only col-

lect $212.5 million after income taxes from shippers

to fund a total cost before tax of $900.4 million.

(4) Interest Expense

Interest expense was included based on an Exxon

Pipeline average interest rate of 8% on outstanding

debt invested in its share of the Trans Alaska Pipe-

line System. For 1978, debt is estimated to be 80%

of total capital expenditures including interest capi-

talized during construction.

(5) Income Taxes

Provision is made for income taxes taking into con-

sideration a Federal tax rate of 48% and a State

of Alaska tax rate of 9.4%.

Verified Statement of E. Terry, Exxon Pipeline.

(6) Earnings on ICC Valuation

For 1978, provision is made for earnings at 7% on

Exxon Pipeline Company’s estimated Interstate

Commerce Commission’s valuation for its interest

in the Trans Alaska Pipeline System.

The tariff rate of $6.53 for the year 1978 as shown on

Attachment V was computed by dividing the annual rev-

enues by the throughput volumes for 1978. Throughput

volume used for 1978 was 240,000 barrels per day, which

represents Exxon Pipeline Company’s 20% share of the

initial design rate of the Trans Alaska Pipeline System of

1,200,000 barrels per day.

The $6.53 rate computed for 1978, if established as the

initial rate, could require a reduction as of January 1, 1979

depending on the facts at that date. The adjustment would

be required because of changes in expenses and the amount

required to keep earnings within the 7% pipeline Consent

Decree dividend limitations. To avoid the necessity of

such an early change, the rate was computed which would

allow Exxon Pipeline Company to maintain an earnings

level that provides are reasonable return on the estimated

valuation by limiting the earnings to the permissible divi-

dend level under the three year carry forward provision

for deficiencies as permitted by the pipeline Consent Decree.

For the purpose of computing a rate on this basis, the

first four full years, 1978-1981 was selected as the rate

period. An ICC valuation for each of the additional three

years was estimated in the same manner as the 1978 esti-

mated valuation which was described earlier. Using these

valuations and the same elements used in the 1978 rate

computation, a rate of $6.27 was computed as shown on

Attachment VI.

666a

Verified Statement of E. Terry, Exxon Pipeline.

Throughput volumes for the four year period were cal-

culated by using Exxon Pipeline Company’s 20% share of

the current design capacity of the Trans Alaska Pipeline

System of 1,200,000 barrels per day for the years 1978

through 1980. Exxon Pipeline Company is currently fore-

casting an expansion of the system which, considering the

necessary construction period, would be completed and

available for service on July 1, 1981. For 1981, Exxon

Pipeline Company throughput volumes were calculated at

240,000 barrels per day from January 1, 1981 to June 30,

1981 and 308,600 barrels per day from July 1, 1981 through

December 31, 1981. Operating expenses for the years

1979, 1980 and 1981 were forecasted considering the mid-

year 1981 expansion and by escalating the 1978 operating

expense forecast made by Alyeska at 5% per year

compounded.

For the year 1981, an additional amount of depreciation

was added to cover the incremental cost of the expansion

which is estimated at $90.7 million of which $81 million

represents construction costs and $9.7 million represents

interest capitalized. This latter capitalization was then

depreciated over 21.2 years which represents the remaining

life of the system at the time of the expansion.

The dismantling and restoration costs remain the same

as 1978. Interest expense for the years after 1978 were

calculated by retiring debt with 90% of the cash flow from

book depreciation and deferred income taxes.

Using the $6.27 filed rate, a forecast of earnings was

made for the remaining portion of 1977 and for the year

1978. In developing and computing the $6.27 rate, no pro-

visions were made for the loss of revenues due to system

downtime and other factors that could result in less than

667a

Verified Statement of E. Terry, Exxon Pipeline.

100% of expected throughput. For the purpose of fore-

casting financial results for the remaining portion of 1977

and 1978, we estimate throughput at 90% of capacity for

1977 due to the uncertainties of start up and operating

conditions; for the year 1978, a 95% factor was used. At-

tachment VII shows the forecast of revenues and expendi-

tures for 1977 and 1978. The rate of return on estimated

ICC valuation expected for the remaining portion of 1977

is 5.4% and the rate of return on estimated ICC valuation

for the full year 1978 is 5.8%.

m ~ po

CO IMH go

668a 669

Verified Statement of E. Terry, Exxon Pipeline. Verified Statement of E. Terry, Exxon Pipeline.

ATTACHMENT II

ATTACHMENT I

ESTIMATED INITIAL VALUATION pa a2 Bt Bh Eee Ey, Se a SE

= Soa 9A” BF BH SA 2 ©

$M s) HNN A on

Original Cost (Including Interest

a $1,835.9 .

Ce x ” wy w w w “ w w

Reproduction Cost New .... $1,877.0 a “ahs er er eS |

a iicdiesenecsenennes $3,712.9 -

Reproduction Cost New, less

SITTIN siteiasitiehitesenieiiniamecaniienigiliin $1,877.0 323

= Imes On es ao fF& 42 62 O82 FS SCS @

PUNE Ie TIPS ncctnenicsitieiccnennicties eotsinieieniaaiinaionas 49.45% & => "“S3tel @o onnesaan.se

_ oie iin to

A PTE cctrntarsenneeneenensntinsenmentidevemmeisin 50.55 % * =

I TO teal tic aattiiatiaetaial $ 907.8 an _

LE eee $ 948.8 Picts SE

fi5la] a fala on mo NHR ARR

EE OF Ee ihitsnicticsiineninicteitinslininnnininicions $1,856.6 Sia 7 ag i ie i , e fe

Condition Per Cent (4 divided by 2) ...... 100.0% ab 20

Value of Depreciable Property . <

(Multiply 9 by 10) 2... eeecceeeeccsees $1,856.6 a 8

z a aAaaaAnrese® Ss 8 8

Going Concern and Other Intangibles ZISiz| ~ ee ee ee ee

EE UE TEE shiniuhstiinerasinieminiineiiapeenneenaints $ 111.4 i ‘

Present Value of Land ($.6 M X 14)...... $ 3 : a. ‘ve a a 2 eo a S e «

Present Value of Rights-of-Way ($.2).... $ 2 E a iz = $ ° 2. SHR a e | gs 2

~~ lanl ~ ve) an “

Working Capital - . $ 890 oa aoa a!

Estimated Valuation ..............................-.-- $1,976.5 s Pe

wi none ne mone HeehlUlUcoOmlUCUrenClClU z

pn ee ee 8 iT)

MRAARREARRARAB

° 8

S

Ea

rm)

189.0

1,877.0

Interest

Total CRN

241.7

Total Original Cost 1,835.9

(1) excluding land ($3.0 M) and right of way ($1.0 M)

Capitalized Interest

670a

Verified Statement of E. Terry, Exxon Pipeline.

ATTACHMENT OI

[LETTERHEAD OF EXXON PIPELINE COMPANY ]

April 27, 1977

Re: ACA/RJL

Mr. John A. Grady, Director

Bureau of Accounts

Interstate Commerce Commission

Washington, D. C. 20423

As requested in Mr. Ronald Young’s letter of January 4,

1977, we are submitting our views on the Trans Alaska

Pipeline System (TAPS) service life and estimated cost as

of December 31, 1977. These details are shown on Attach-

ments I and II.

In response to your other questions, we offer the follow-

ing information:

1. Known recoverable reserves from the Prudhoe Bay

Field (Sadlerochit Reservoir) are estimated at 9.6 billion

barrels, including condensates and gas liquids, as reported

in Appendix B, page 83, of the latest edition of the

API-AGA publication, “Reserves of Crude Oil, Natural

Gas Liquids and Natural Gas in the U.S. and Canada”, dated

December 31, 1975. Although other commercial reserves

could be discovered or developed in the area tributary to

TAPS some time in the future, such discoveries are specu-

lative and cannot now be classified as known recoverable

reserves for this purpose. TAPS service life should be

based on presently known recoverable reserves and

adjusted if and when additional or new reserves are dis-

covered and proven in the area tributary to TAPS.

67la

Verified Statement of E. Terry, Exxon Pipeline.

2. The anticipated annual throughput, based on Prud-

hoe Bay Field reserves, is shown on Attachement III. Use

of the Mortada estimate as indicated on the table should

not be construed to imply agreement with other elements

of the study.

3. We understand that you define the minimum annual

economic throughput level as being the level at which cash

inflow from tariff charges will be equal to cash needed to

cover out-of-pocket expenses. Since this information is to

be used by the ICC to determine service life for deprecia-

tion, we submit that the minimum economic throughput

level thus defined is not relevant. Instead, the facilities

should be depreciated over a period during which the

Owner can expect to earn a fair return based upon ICC

valuation, giving proper consideration to the high level of

risk inherent in the construction and operation of TAPS

under the facts and circumstances. We estimate that a

fair rate of return can no longer be earned when through-

put declines to a level of 200-300 HBPD.

We would like to emphasize that estimating this through-

put level for TAPS is extremely difficult and to a large

degree is arbitrary because it depends upon estimating sev-

eral factors for a period many years in the future such as

a) the level of pipeline operating and maintenance costs

and expenses in a totally new and radically difficult envi-

ronment for a pipeline that is subject to rigorous govern-

ment specifications and oversight, b) the impact of infla-

tion on such costs and expenses, and c) the maximum tariff

rates that the ICC will approve and shippers will be able

to pay considering producers’ operating expenses and

prices being paid or permitted for crude oil in the fields

connected.

672a

Verified Statement of E. Terry, Exxon Pipeline.

4. Based on the throughput profile shown on Attach-

ment ITI and the position stated in the answer to question

3, we estimate the economic ownership life of the TAPS

system at no more than 25 years. At the end of that time,

throughput is expected to be down to 240,000 barrels per

day and declining. At or below that throughput level, it is

likely that shippers would not be able to pay the tariff rates

required to keep the pipeline in operation were the depre-

ciation charges still a major factor of costs.

As you know, the U.S. pipeline industry has no experi-

ence in operating a pipeline of the design and in an environ-

ment similar to that existing for TAPS. Under these con-

ditions, maintenance problems and costs are extremely diffi-

cult to predict, and we think the costs of prolonging the life

of the pipeline in excess of 25 years might be prohibitive at

such low throughput levels.

5.. Provisions in the Federal and State right of way per-

mits require that the Owners of TAPS, upon completion of

the use of all or a very substantial part of the right of way,

remove the improvements and equipment installed thereon

and restore the environment to an approved condition.

While this cost is not epected to be expended until about the

year 2002, it is a constractual commitment of the Owners

that was essential to TAPS’ construction. Accordingly, it

must be recognized as a cost of operating the System.

Since this cost is expected to exceed any net salvage

credits accruing to the project, we propose that the cost

of dismantling and environmental restoration be accounted

for separately from depreciation in order to preclude nega-

tive net plant investment balances later in the life of

TAPS. Accordingly, zero salvage should be assumed for

depreciation purposes.

Alyeska is currently making a study of TAPS abandon-

ment, salvage and environmental restoration costs. This

673a

Verified Statement of E. Terry, Exxon Pipeline.

information should be available about May 1, 1977, and will

be provided as soon thereafter as possible.

6. We understand that the ICC is currently considering

the unit of production (throughput) method as a possible

alternative to straight-line depreciation for TAPS. Con-

sidering the probable throughput buildup and decline for

this system, as shown in Attachment ITI, we have no objec-

tion to the application of the unit of production method for

TAPS. The unit of production method would more closely

match depreciation expense with the revenues generated by

line throughput and thus minimize the extent to which

tariffs would have to be adjusted from time to time. To be

consistent, the unit of production method would also be

used to accrue the reserve for dismantling, abandonment,

and environmental] restoration. Should additional recover-

able oil reserves be developed that are tributary to and

delivered into TAPS, the unit of production basis would be

adjusted accordingly.

Several of the TAPS owner-company representatives

will be in Washington on May 2 and May 3 and will be

available to discuss the above matters with you and Mr.

Young at your convenience.

J.D. Sturtevant

JDS :hm

Attachments

bee + atts.: Messrs. G. E. Uthlaut

R. R. Die

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“2 wt x0° rash §t * 2008 dust x00t * . ret he. otra ovrt| tet

S ° . . 20°9 "oak St root, . £46 _ Soot ae ee : Jon jo welrg) cet

t () wo =) (s) - o 3) 0) ~ = —

© Rnnrd te _.- (ce-st-o}

Gwe to -wo 4 19 poppe . po te

_ eons 109) perez tieg) coon t 10g) N + sda : An a. ews “a perresaez)| |. stem anneoov auveed : aoe

W) very 010g eticodeeg mn sew eee (as) onywa, * (ad stones * 360) . °. ow

Pee foamy Bay prion Boy potion Bey pavtirn ones toy prownes an 2S

; AAVAHOD BUITZ4I4 KOKES (8aettog pe svertIny

= . (“IC-8T 20 08 200) porvwyaeg @ eoseds Setics Secs tonal

Sawyy2 40 yey, a Kpnag_woy se] 201d0q = woyseywse? vosersen v2eisse2eis

676a

Verified Statement of E. Terry, Exxon Pipeline.

ATTACHMENT III

TAPS ANTICIPATED ANNUAL THROUGHPUT

Million MMBPD

Barrels § Equivalent

1977 72 0.60°

ee . 438 1.20

79 .. , 438 1.20

& .... . 548 1.50

—————— - 548 1.50

82 .. a 548 1.50

83 548 1.50

—— 548 1.50

85 548 1.50

————————eEEE 518 1.42

87 476 1.30

en 442 1.21

—_ en 405 1.11

__ 377 1.03

91 347 0.95

92 318 0.87

DD ccncccnsennssceasesnesmenssesossonssnassess 296 0.81

94 .... 268 0.73

— EE 240 0.66

96 213 0.58

7 . 193 0.53

ED ansprcnsssnenssumusensemneveunssenesoneassene 170 0.47

99 146 0.40

2000 126 0.35

01 105 0.29

02 .... 88 0.24

8,964

* Average rate for last four months of 1977.

s . “The Determination of Equitabl ‘cine Levels for

North Alaskan Crude Oil” dated November 19%6 ( Mortada

Study), Table VI-2, with minor adjustments for 1977 and 1979

aan ep en one Ca é eae

startup and completion of first expansion. throughput estimates

in excess of 1.2 ne ome Se Se ee ee

en dey ay ep eet a AY or such

an expansion at this time.

677a

Verified Statement of E. Terry, Exxon Pipeline.

ATTACHMENT IV

June 1, 1977

Mr. John A. Grady, Director

Bureau of Accounts

Interstate Commerce Commission

Washington, D.C. 20423

As requested in Mr. J. Richard Berman’s letter of May

11, 1977, we are submitting Exxon Pipeline Company’s pro-

jected operating expenses applicable to our 20% undivided

interest ownership in the Trans Alaska Pipeline System

for the calendar year 1978. Since the major portion of

costs related to the start-up of TAPS will have been

expended in 1977, the calendar year 1978 estimates repre-

sent costs for a more normal level of operations. These

estimates are reflected in Attachment 1.

In response to Mr. Berman’s other questions, we offer

the following information:

1) Latest projections by Alyeska indicate that the first

oil will be received into the Trans Alaska Pipeline System

at Prudhoe Bay by July 1, 1977. The initial pipeline fill

rate will be approximately 300,000 barrels per day, with

deliveries into tankers at Valdez beginning in August 1977.

It is expected that the throughput will increase gradually,

reaching 1.2 million barrels per day, which is the design

capacity of the present System, in September 1977.

2) Information concerning our assumptions as to the

service life of TAPS, including a projected throughput

profile, was contained in our letter dated April 27, 1977.

3) Alyeska has estimated the cost to remove the above

ground TAPS facilities and restore the environment to an

approved condition at $1.049 billion (in 1977 dollars),

678a 679a

Verified Statement of E. Terry, Exxon Pipeline.

EPC’s 20% share of which is $210 Million. We believe

Verified Statement of E. Terry, Exxon Pipeline.

AG LALIIEI

that the ultimate cost of this effort to be incurred at the me

end of the life of TAPS, after allowing for inflation, should TRANS ALASKA PIPELIIIE SYSTEM

be provided for ratably over the life of TAPS and oT Ti ars)

accounted for separately from the depreciation reserve.

We plan to include an appropriate charge in our initial Senn 20% of Expenses Expenses —- Total

. : . I

TAPS tariff and to account for this accrual using accounts io. Name ay ty Dy mee vy _— ‘ce

660 (debit) and 63 (credit). |

_ 4) The projected operating expenses for 1978 included x6 Series 4. Vane - ba Se

in Attachment 1 represent Exxon Pipeline Company’s 20% 4 Grete etal tes —_ 4.088.2 eant sctes.2

share of Alyeska’s latest Operating Budget dated May 16, 340 O11 Losses and Shortages — wae —_

1977. To these amounts we have added our own estimates Total Operations RLS EMS 8 WIERes

of expenses to be incurred by Exxon Pipeline Company

and allocable to our ownership in TAPS. Also included in to eiorigs and Wages 1,328.6

the attachment are our estimated interest expenses for po er ae Seenes ma ° me Y.

1978. 430 Maintenance Materials 1,732.2 ——s 1,732.2

Total Maintenance W.327.8 ———s ee

5) Our assumptions regarding the throughput to be

used in computing our initial TAPS tariff are not yet fet.

finalized es and Wages 3,579.4 395.0 3,974.4

| SAK ee an ar

6) Exxon Pipeline Company’s estimate of Working Rentals 1,466.6 "30.0 1,436.6

Capital ry to — to = La in EPC’s valua- fs Peon‘ $e Spettentien 1am r 7+310.0 "Tans

tion as of January Il, 18 ilhon. sp ons ot oe pos P a ; i.

iwi ; ne taxes . ° )

Original Signed Ral = Yoemso Woe

J. D. Srurrevant

JDS/MJB/ems ced Interest Expense 1,860.8 114,500.0 116, 360.8

feaelen ter re for removal and restoration = 16 ,400.0 16,400.0

"Total Other B08 730,900.0 132,760.8

Attachment

ec: Messrs. G. E. Uthlaut GRAND TOTAL 44,759.4 241,725.0 286,484.4

R. R. Die —_—

F. L. Heard, Jr.

R. H. Voripaieff

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682a

Verified Statement of E. Terry, Exxon Pipeline.

ATTACHMENT VII

FORECAST OF EXXON PIPELINE COMPANY'S

TAPS EARNINGS FOR THE YEARS 1977 AND

1978 AT A RATE OF $6.27

1977 1978

MS M$

Amount Amount

Revenue 206.6 521.8

Operating Expense 21.9 50.0

Ad Valorem Taxes 11.8 31.9

Bood Depreciation 30.7. 73-7

TAPS Dismantling 6.8 16.4

Interest Expense 49.3 114.5

Taxable Income 86.1 235.3

Provision for Income Taxes 41.3 120.6

Earnings 44.8 114.7

Throughput - MB 32.9 83.2

IccC Valuation 1,976.5 1,976.5

Return on Valuation - % 5.4 5.8

683a

Verified Statement of E. Terry, Exxon Pipeline.

VERIFICATION

Strate or Texas

County or Harris

Ernest C. Terry, being duly sworn, deposes and says

that he has read the foregoing statement, knows the con-

tents thereof, and that the same are true as stated.

Ernest C. Terry

Subscribed and sworn to

before me this 21st day

of June 1977.

Detia Hevrine,

Notary Public in and for

Harris County, Texas.

Detia HEeveRine

My Commission Expires 10-31-78.

684a

“Appendix B” to Memorandum of Exxon Pipeline Co.

In Support of Application for Injunction: Letter of

Chairman Stafford, ICC, To Rep. Hungate Enclosing

Corrections To “Hungate Report” July 12, 1977.

LETTERHEAD OF INTERSTATE COMMERCE COMMISSION

March 22, 1976

Honorable William L. Hungate

Chairman

Subcommittee on Activities of

Regulatory Agencies

Committee on Small Business

House of Representatives

Washington, D.C. 20515

Dear Chairman Hungate:

By letter of November 10, 1975 to you, I answered certain

questions contained in your letter of October 7, 1975. These

answers provided supplemental information on several

items covered in my testimony before the Subcommittee on

October 2, 1975. The answer to question No. 5 provided

figures on the average return on investment for companies

owning oil pipelines for the last five years. Since that

information was forwarded, it has been discovered that

there is a discrepancy in the data for “Rate of Return on

Valuation, Year-1972.” This was caused by inadvertently

picking up from the wrong year the net income (or loss)

figure.

We have made the necessary corrections to the affected

schedules, schedules I and IV, and I am enclosing copies of

those corrected schedules. I request that these schedules

be substituted for the corresponding schedules that are

presently contained in the answer to question No. 5.

I regret this mistake, and I hope that we have discovered

it in time to have it corrected on the record. Please let me

know if I can assist you any further in this matter.

Sincerely yours,

Georce M. StTArFForD

Chairman

Enclosures

ot nk

685a

Letter of ICC Chairman to Congressman Hungate.

SCHEDULE I

Oi Pire Line Companires—Rates or RETURN ON VALUATION

Years 1970 turv 1973

From SupportTinG ScHEDULEs II THRU V

Name of Company

Acorn Pipeline Company

Allegheny Pipeline Company

American Petrofina Co. of Texas,

Products Pipeline Dept.

Amoco Pipeline Company

Arapahoe Pipe Line Company

Arco Pipe Line Company

Ashland Pipe Line Company

Atlantic Pipe Line Company!

Badger Pipe Line Company

Belle Fourche Pipe Line Company

. Black Lake Pipe Line Company

Buckeye Pipe Line Company

. Butte Pipe Line Company

Calnev Pipe Line Company

Cherokee Pipe Line Company

Chevron Pipe Line Company

Cheyenne Pipe Line Company

Chicep Pipe Line Company

Cities Service Pipe Line Company

Collins Pipe Line Company

. Colonial Pipe Line Company

Continental Pipe Line Company

. Cook Inlet Pipe Line Company

. CRA, Inc.

. Crown Central Pipe Line and

Transportation Company

Crown-Rancho Pipe Line Corp.

Diamond Shamrock Corp.

Products Pipe Line Dept.

Dixie Pipeline Company

Emerald Pipe Line Corp.

Eureka Pipeline Company

. Exxon Pipe Line Company?

Four Corners Pipe Line Company

Gulf Refining Company

1970

16.58

5.72

6.62

7.61

1.45

4.25

4.96

4.09

6.51

4.90

4.00

4.72

1971

16.96 16.42

5.38 3.9

775 7.24

211 1.32

372 3.54

6.70 693

747 = & 32

2.62 2.65

3.60 3.75

389 3.88

13.05. 11.61

344 ~~ 3.18

5.98 6.30

= 7.08

(1.15) (1.17)

745 5.82

407 3.62

6.29 7.69

8.69 987

049 1.17

(1.63) (25.69)

19.38 18.69

(1.93) (0.43)

527 6.32

4.34 5.68

170 4.16

5.55 6.20

193 143

4.05

3.12

1972

1973

14.20

4.72

6.77

0.85

6.80

10.81

4.83

4.08

9.61

8.89

1.27

5.64

7.52

2.58

6.60

4.84

3.94

7.45

8.49

(1.11)

(9.09)

17.70

(0.85)

4.56

6.82

(0.18)

6.35

0.40

4.27

686a

Letter of ICC Chairman to Congressman Hungate.

SCHEDULE I

Ou Pree Line CompANIES—RATES OF RETURN ON VALUATION

Years 1970 turv 1973

From SupporTING SCHEDULEs II THRU V

Name of Company

Hess Pipe Line Company

Hydrocarbon Transportation, Inc.

Jayhawk Pipe Line Corporation

Jet Lines, Inc.

Kaneb Pipe Line Company

Kaw Pipe Line Company

Kenai Pipe Line Company

Kerr-McGee Pipeline Corp.

Lake Charles Pipe Line Company

Lakehead Pipe Line Co., Inc.

Laurel Pipe Line Company

Mapco, Inc.

Marathon Pipe Line Company

Michigan-Ohio Pipeline Corp.

Mid-Valley Pipeline Corp.

Minnesota Pipe Line Company

Mobil Pipe Line Company

National Transit Company

Ohio River Pipe Line Company

Okan Pipeline Company®

Olympic Pipe Line Company

. OMR Pipe Line Company*

. Paloma Pipe Line Company

Panotex Pipe Line Company

Phillips Petroleum Company

Products Pipe Line Dept.

59. Phillips Pipe Line Company

60. Pioneer Pipe Line Company

61. Plantation Pipe Line Company

62. Platte Pipe Line Company

63. Portal Pipe Line Company

64. Portland Pipe Line Corp.

65. Pure Transportation Company

66. Shamrock Pipe Line Corp.

67. Shell Pipe Line Corp.

SBSRARPESSSSSRSAAS

6

1970

3.30

1.86

4.03

0.93

4.58

3.01

2.93

5.33

3.82

2.68

2.98

3.18

2.81

4.72

14.95

3.92

1.79

(4.23)

5.77

4.59

7.04

11.22

1.50

9.01

6.20

8.00

3.57

5.95

2.98

4.69

5.93

4.35

5.71

1971

1972

2.95

1.01

3.35

2.19

5.29

4.77

4.29

4.32

1.80

3.68

3.92

1.60

5.13

15.67

4.00

(0.69)

(3.55)

3.48

5.00

(0.25)

2.75

3.30

2.91

6.10

3.59

6.63

5.06

0.71

4.01

5.06

0.59

1973

1.68

3.21

4.52

2.34

5.34

2.88

7.25

5.63

5.65

2.05

2.61

3.60

1.14

4.65

10.38

3.33

(3.40)

35.95

3.30

687a

Letter of ICC Chairman to Congressman Hungate.

SCHEDULE I

Om Pree Line Companres—Rates or RETURN ON VALUATION

Years 1970 trurv 1973

From Supportinc ScHepu.es II tarv V

Name of Company 1970 1971 1972 1973

68. Skelly Pipe Line Company 2.38 5.24 4.82 (3.53)

69. Sohio Pipe Line Company 2.62 3.75 3.79 5.29

70. Southcap Pipe Line Company 0.45 4.11 4.01 5.22

71. Southern Pacific Pipe Line, Inc. 8.24 8.62 8.40 9.10

72. Sun Oil Line Co. of Michigan — 2.65 9.04 4.26

73. Sun Pipe Line Company 4.69 7.07 6.29 5.35

74. Tecumseh Pipe Line Company 1.41 1.29 2.74 6.71

75. Texaco-Cities Service Pipe Line

Company 2.23 1.94 1.48 0.46

76. Texas Eastern Transmission Co. 4.33 — 4.15 —

77. Texas Pipe Line Company 5.86 5.76 6.08 4.38

78. Texas-New Mexico Pipe Line Co. 5.74 4.88 5.14 5.22

79. Trans-Mountain Oil Pipe Line Corp.5 17.73 17.49 21.53 20.46

80. Trans-Ohio Pipeline Company 1.17 2.59 11.26 14.43

81. UCAR Pipeline Inc. — a _ (1.80)

82. Wabash Pipe Line Company® 0.91 1.76 1.67 —

83. West Emerald Pipe Line Corp. 6.29 5.87 3.28 3.00

84. West Shore Pipe Line Company 7.19 7.48 6.10 4.16

85. West Texas Gulf Pipe Line Company 5.98 5.80 6.54 6.06

86. White Shoal Pipeline Corp. 16.20 1196 1243 15.45

87. Williams Pipe Line Company 3.36 3.08 3.41 3.61

88. Wolverine Pipe Line Company 0.51 1.95 0.36 0.77

89. Wyco Pipe Line Company 3.91 5.75 7.19 6.35

90. Yellowstone Pipe Line Company 6.44 7.85 6.74 6.11

Average—All Companies 4.73 4.71 4.69 4.68

1. Merged with Arco Pipe Line Company in 1971.

2. Name changed from Humble Pipe Line Company.

3. Major portion of carrier’s properties sold to Oki ine Company i

1973. Net income reflects income from properties eg paytee de

base determined by the Commission as of 12-31-73.

4. Merged with Sun Pipe Line Company in 1972.

5. Carrier is controlled by Trans Mountain Pipe Line Company, a Canadian

corporation, through ownership of all the outstanding capital stock.

1237 72 es with Marathon Pipe Line Company as of close of business

Note—1974 Valuation Reports were not available to calculate a rate of return.

SS eS ee

Letter of ICC Chairman to

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Appendix — Trans Alaska Pipeline Rate Cases · 436 U.S. 631 | Frix