Case No. RG272-00043
April 22, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Applicant:Dart Trucking
Date of Filing: March 24, 1995
Case Number: RG272-43
This Decision and Order will consider an Application for Refund filed by Dart Trucking (Dart). In its application, Dart requests a refund from crude oil overcharge funds. These funds are available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under 10 C.F.R. Part 205, Subpart V. As explained below, we will deny Darts application.
In the past, purchasers of refined petroleum products during the crude oil price control period were allowed to apply to the OHA for a refund from crude oil overcharge funds.(1)51 Fed. Reg. 27899 (August 4, 1986). These funds were collected by the DOE through consent orders with certain firms that sold crude oil during the price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986). We accepted Applications for Refund in the Subpart V crude oil proceeding from injured parties that had not waived their claims by participating in one of the "Stripper Well" refund proceedings. 51 Fed. Reg. 29689 (August 20, 1986); 52 Fed. Reg. 11737 (April 10, 1987).
The "Stripper Well" refund proceedings were created to carry out the terms of the Settlement Agreement reached in The Department of Energy Stripper Well Exemption Litigation, 653 F. Supp. 108 (D. Kan. 1986). The Settlement Agreement established escrow accounts to refund crude oil overcharges to eight 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 "all parties and claimants receiving refunds under this agreement will waive any further claims to crude oil refunds." 653 F. Supp. at 114. Following the court's holding, the Settlement Agreement provides that the settling parties waive their right to participate in any future refund proceeding based on crude oil overcharges. Settlement Agreement, Paragraph III.A.1, 6 Fed. Energy Guidelines ¶ 90,509 at 90,660.
Dart participated in the Surface Transporters refund proceeding of the Stripper Well settlement.(2)To participate in this proceeding, Dart executed a Claim Form and Waiver.(3)
The provisions of the Claim Form and Waiver follow those in the Settlement Agreement. The general waiver provision is found in Paragraph 7 of the Claim Form and Waiver, which provides that Dart:
hereby releases, and waives all [Darts] existing and future claims whether assertable at law or in equity, and whether known or unknown that fall within any one or more of the following classes ... :
... (2) all present and future claims asserting rights to share in existing or future monies paid, ordered to be paid, or held for payment as restitution as a result of any judicial or administrative proceeding relating to the federal mandatory allocation and price regulations applicable to crude oil....
In addition, Paragraph 10 of the Claim Form provides that:
... [Dart] hereby agrees to withdraw and to take all necessary steps to file appropriate withdrawals of any and all claims it now has or hereinafter may have for funds in any Court or agency proceedings, including "Subpart V" proceedings, where such funds are related to Alleged Crude Oil Violations ... [Dart] agrees it will not file any such claims for refund of Alleged Crude Oil Violations in these or similar proceedings in the future.
Roberts Dairy Co., 16 DOE ¶ 85,573 at 89,147 (1987); enforced sub nom. Mid-American Dairymen, Inc. v. Herrington, 704 F. Supp. 198 (D. Kan. 1988); aff'd 878 F.2d 1448 (Temp. Emer. Ct. App. 1989); see also Boise Cascade Corp., 16 DOE ¶ 85,214 (1987); enforced sub nom. In Re: The Department of Energy Stripper Well Exemption Litigation, 707 F. Supp. 1267 (1987).
By choosing to obtain relief from the Surface Transporters escrow account, Dart waived its right to participate in the Subpart V crude oil proceeding. We will therefore deny Darts application.
It Is Therefore Ordered That:
(1) The Application for Refund filed by Dart Trucking (Case No. RG272-43) is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: April 22, 1997
(1)The crude oil price control period extended from August 19, 1973 through January 27, 1981.
(2)2/ The OHA, administrator of the Surface Transporters escrow account, granted a refund to Dart Trucking (Case No. RF270- 1571) on July 6, 1987. Rocky Mountain Moving & Storage, 16 DOE ¶ 85,196.
(3)The Claim Form was signed on behalf of Dart Trucking by Daniel P. Howley, Vice President, on December 5, 1986.