Case No. RR272-00303

October 1, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Applicant: Pillsbury Company

Date of Filing: September 19, 1997

Case Number: RR272-303

On August 7, 1997, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order rescinding a refund of $11,348 issued to Pet, Inc. (Pet) in the Subpart V crude oil refund proceeding. Plastics Universal Corp., Case No. RC272-366 et al. (August 7, 1997). This refund was rescinded because we discovered that Pet had signed a Stripper Well application in the Surface Transporters proceeding, waiving Pet’s right to receive a refund in the Subpart V proceeding.

On September 19, 1997, the Pillsbury Company (Pillsbury), Pet’s parent corporation, submitted a Motion for Reconsideration, which asserted that Pet should not be required to repay the rescinded refund. Pillsbury argues that Pet never applied for and never received the rescinded refund. Instead, Pillsbury states that another corporation, Land O’Sun Dairies, Inc. (Land O’Sun), purchased Pet’s assets and received the refund in Pet’s name.

Analysis

The DOE regulations do not explicitly provide for reconsideration of a final Decision and Order in a refund proceeding. See 10 C.F.R. Part 205, Subpart V. However, in prior cases, we have used our discretion to consider Motions for Reconsideration where a movant has alleged that a previous determination did not accurately characterize the movant’s prior submissions or has provided other compelling reasons. See Shell Oil Company/Briggs Transportation Company, 24 DOE ¶ 85,139 (1995); Tenneco Oil Co./Kern Oil and Refining Co., 10 DOE ¶ 85,022 (1982). In the present case, we have decided, as a discretionary matter, to consider the Motion for Reconsideration filed by Pillsbury.

In 1985, Challer Foods (which later changed its name to Land O’Sun) bought some of the assets of Pet. In the asset purchase agreement, Land O’Sun agreed that it would not use the name “Pet” as part of

a business or corporate logo. See Agreement of Sale between Pet and Challer Foods at Exhibit N (November 18, 1985) (1985 agreement). In 1987, Land O’Sun submitted a Subpart V crude oil refund application in Pet’s name, requesting a refund for the purchases made by Pet during the price control period, August 1973 to January 1981. A refund was issued in Pet’s name and mailed to a Portsmouth, Virginia location which had been sold to Land O’Sun in the 1985 agreement. See Peoria Park District et al., Case Nos. RF272-81212 et al. (July 7, 1993) (Case No. RF272-81601).

Since Pet did not receive the refund, it should not be required to repay it. However, in examining the 1985 agreement, it is clear that Land O’ Sun did purchase Pet’s right to a crude oil refund, since it purchased “all claims and choses in action of the [Pet] Dairy Division.” See 1985 Agreement at Paragraph 2.1(c); cf. Murphy Oil Corporation/Marine Fueling Division, 21 DOE ¶ 85,329 (1991). Moreover, Pet’s waiver of its right to a Subpart V refund does not extend to Land O’Sun because Land O’Sun acquired the right to the crude oil refund prior to the Stripper Well “Payment Date” of August 7, 1986. See Stone Container Corporation, 21 DOE ¶ 85,034 at 88,126 (1991) (Stripper Well waiver only binding as of date funds distributed by U.S. District Court to Parties to Stripper Well Agreement or their escrows).

Therefore, we are granting Pillsbury’s Motion for Reconsideration, because it should not be required to pay back the refund granted in Pet’s name. Moreover, since we have found that Land O’Sun was entitled to receive a Subpart V refund, we will not require Land O’Sun to repay the refund.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed on behalf of the Pillsbury Company on September 19, 1997, Case No. RR272-303, is hereby granted as set forth in paragraph (2) below.

(2) The Decision and Order issued by the DOE on August 7, 1997,

Plastics Universal Corp., Case No. RC272-366 et al., is hereby modified with respect to Pet, Inc., Case No. RC272-369. Notwithstanding our directive in that Decision, Pet, Inc.’s obligation to pay $11,348 to the DOE is hereby cancelled.

(3) The volume claim approved for Land O’Sun Dairies, Inc., f/k/a Pet, Inc., Case No. RF272-81601, shall be changed in the Office of Hearings and Appeals database from zero gallons to 14,184,939 gallons.

(4) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 1, 1997