Case Nos. RC272-00367, RC272-00368, RK272-04336 & RK272-04337
August 8, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Names of Applicants: Asamera Oil (U.S.) Inc.
Steuart Transportation Co.
Dates of Filing: August 5, 1997
January 17, 1997
August 5, 1997
December 27, 1996
Case Numbers: RC272-367
RK272-4336
RC272-368
RK272-4337
On July 25, 1990, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order granting a refund to Asamera Oil (U.S.) Inc. (Asamera) in the Subpart V crude oil refund proceeding. FFF Industries Liquidation Trust et al., Case No. RF272-71085 et al. Asamera (Case No. RF272-71390) was granted a $1,739 refund based on purchases of 2,173,600 gallons of refined petroleum products during the crude oil price control period. On November 30, 1990, OHA issued a Decision and Order granting a refund to Steuart Transportation Co. (Steuart) in the Subpart V crude oil refund proceeding. Renaud, Inc. et al., Case No. RF272-65595 et al. Steuart (Case No. RF272-66465) was granted a $8,829 refund based on purchases of 11,036,814 gallons of refined petroleum products during the crude oil price control period.
It has come to our attention that Asamera received a refund of $69,554 and an affiliate of Steuart, Steuart Petroleum Company, received a refund of $9,947 from the Refiners Escrow in the Stripper Well refund proceedings. See Refiners Escrow Disbursement at 3-4, Attachment to Letter from Gerald M. Gleason, Vice President and Trust Officer, Bank IV Wichita, N.A., to Ted Hochstadt, Assistant Director, OHA (July 16, 1990). The Stripper Well refund proceedings refer to the eight escrow accounts created by the U.S. District Court for the District of Kansas to implement the terms of the Stripper Well Settlement Agreement (Settlement Agreement). In Re: The Department of Energy Stripper Well Exemption Litigation, 653 F. Supp. 108 (D. Kan. 1986). The escrow accounts were created to refund a portion of the 1.4 billion dollars in crude oil overcharges to eight specified groups of
petroleum product purchasers: Refiners, Retailers, Resellers, Agricultural Cooperatives, Airlines, Surface Transporters, Rail and Water Transporters, and Utilities. In creating the escrow accounts, the court announced that "[a]ll parties and claimants receiving refunds under this agreement will waive any further claims to crude oil refunds." 653 F. Supp. at 114.
In order to be considered for a refund from the Refiners Escrow, each claimant was required to submit a validly executed Release of Claims. It is explicitly stated in the Settlement Agreement that [p]rior to the distribution by the Refiners Escrow Agent, the Refiners Escrow Agent shall secure from each Refiner receiving funds hereunder the waiver and release in the form set forth in Attachment A to the Refiners Escrow Agreement. Settlement Agreement ¶ III.A.2. The Release of Claims specifically states that the signatory waives the right to obtain future payment of a share of existing or future monies paid or ordered to be paid based upon or arising out of any Alleged Crude Oil Violation by any Person (whether or not such Person is a Participating Person). Refiners Escrow Agreement Attachment A ¶ 3(d).(1)
Paragraph VI.A of the Settlement Agreement makes the provisions of the Agreement, including the waiver provisions, binding on Parties to the Agreement and their affiliates. That paragraph defines affiliate as any Person (and the successors and assigns of such Person) which controls, is controlled by, or is under common control with such Party. Since Steuart is an affiliate of Steuart Petroleum Company as that term is defined under Paragraph VI.A of the Settlement Agreement, it, like Asamera, is bound by all the provisions of the Agreement, including the waiver provision. See Kennecott Corporation, 20 DOE ¶ 85,376 (1990).
By choosing to obtain relief from the Refiners escrow, Asamera waived its right and Steuart Petroleum Company waived the rights of its affiliates to receive a refund in the Subpart V crude oil proceeding. Therefore, the OHA will rescind the two Decisions and Orders with respect to the two applicants at issue here, and each applicant shall be obligated to remit to the DOE the total amount of the crude oil refund that it received. In addition, we shall deny the Applications filed by each applicant for a Supplemental Crude Oil Refund.(2)
It Is Therefore Ordered That:
(1) The Decision and Order issued by the DOE on July 25, 1990, FFF Industries Liquidation Trust et al., Case No. RF272-71085 et al., is hereby rescinded with respect to Asamera Oil (U.S.) Inc. (Case No. RF272-71390, redesignated RC272-367).
(2) The Decision and Order issued by the DOE on November 30, 1990, Renaud, Inc. et al., Case No. RF272-65595 et al., is hereby rescinded with respect to Steuart Transportation Co. (Case No RF272-66465, redesignated RC272-368).
(3) Asamera Oil (U.S.) Inc. shall remit the sum of $1,739 to the DOE within 30 days. Steuart Transportation Co. shall remit the sum of $8,829 to the DOE within 30 days. Each check shall be made payable to the "U.S. Department of Energy." Asamera Oil (U.S.) Inc.s check shall prominently display Case No. RC272-367 and Steuart Transportation Co.s check shall prominently display Case No. RC272-368. Each check shall be sent to:
Department of Energy
Office of the Controller
Cash Control Branch
P.O. Box 500
Germantown, MD 20874-0500
In the event that payment is not made within 30 days of the date of this Decision and Order, interest shall accrue on the amount due at the rate generally assessed by the Department of Energy on overdue receivables. Other charges generally assessed on overdue DOE receivables shall also apply.
(4) Upon notification by the Office of the Controller of the receipt of these funds, the Director of Special Accounts and Payroll, Office of the Departmental Accounting and Financial Systems Development, Office of the Controller of the Department of
Energy, shall deposit these funds into the deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z.
(5) The Applications for Supplemental Refund filed by Asamera Oil (U.S.) Inc. (Case No. RK272-4336) and Steuart Transportation Co. (Case No. RK272-4337) are hereby denied.
(6) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: August 8, 1997
(1)A supplemental agreement between the parties to the Settlement Agreement provides that Each refiner who executes and delivers a counterpart of this Agreement shall be conclusively deemed and considered for all purposes to have simultaneously executed and delivered the Release . . . and it shall not be necessary or required that a Refiner execute and deliver a separate copy of such Release. Settlement Agreement, Appendix 1 § 5.3.1. John A. Blair, Controller of Steuart Petroleum Company, and William D. Narva, President of Asamera, each signed this counterpart document.
(2)In addition, Asamera stated in its original Application that it was a refiner and marketer of petroleum at wholesale and retail levels. Therefore, its application should have been denied unless it could make a showing of injury from crude oil overcharges. See Nox-crete, Inc., 22 DOE ¶ 85,120 (1992).