Case Nos. RC272-00366, RC272-00369, RK272-04069 and RK272-04335
August 7, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Names of Applicants: Plastics Universal Corp.
Pet, Inc.
Dates of Filing: August 5, 1997
October 10, 1996
August 5, 1997
December 17, 1996
Case Numbers: RC272-366
RK272-4069
RC272-369
RK272-4335
On September 2, 1988, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order granting a refund to Plastics Universal Corp. (Plastics) in the Subpart V crude oil refund proceeding. Terry & Ann McMillan, 17 DOE ¶ 85,756 (1988). Plastics (Case No. RF272-07936) was granted a $1,027 refund based on purchases of 5,136,510 gallons of refined petroleum products between August 19, 1973, and January 27, 1981 (the crude oil price control period). Plastics was later granted a further refund of $3,082. Crude Oil Supplemental Decision, 18 DOE ¶ 85,878 (1989). On July 7, 1993, OHA issued a Decision and Order granting a refund to Pet, Inc. (Pet) in the Subpart V crude oil refund proceeding. Cavalier Public School Dist. 6 et al., Case No. RF272-81359 et al. Pet (Case No RF272-81601) was granted a $11,348 refund based on purchases of 14,184,939 gallons of refined petroleum products during the crude oil price control period.
It has come to our attention that Pet and an affiliate of Plastics received refunds from the Surface Transporters Escrow in the Stripper Well refund proceedings. Plastics affiliate, Service Transportation Company (Service), received a refund under Case No. RF270-00243. Smithway Motor Xpress, Inc., 16 DOE ¶ 85,137 (1987) (unpublished appendix). Pet, under Case No. RF270-01386, also received a refund in that proceeding. Metro Cab, Inc., 16 DOE ¶ 85,051 (1987) (unpublished appendix). 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 participate in one of the Stripper Well refund proceedings, Pet and Service executed the "Surface Transporters Escrow Settlement Claim Form and Waiver" (Waiver Form). By executing the Waiver Form, each signer waived its right to participate in any future refund proceeding based on crude oil overcharges, including this Subpart V proceeding. The waiver provision is found in Paragraph 7(a) of the Waiver Form, which states that the signer:
hereby releases, and waives all [the signer's] 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 Waiver Form provides that:
[the signer] 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 ... [the signer] agrees it will not file any such claims for refund of Alleged Crude Oil Violations in these or similar proceedings in the future.
Paragraph VI.A of the Settlement Agreement states:
The provisions of this Agreement. . . shall be binding upon (1) all the Parties hereto and (2) all Persons executing waivers or releases pursuant to this Agreement, and with respect to such Parties and Persons, their Affiliates, subsidiaries. . . officers, agents, attorneys and any other Persons while acting under their direction or control. As used herein, an Affiliate of any Party includes any Person (and the successors and assigns of such Person) . . . which controls, is controlled by or is under common control with such Party. For this purpose, control means the power (existing on the Payment Date), by contract, partnership agreement, stock ownership or otherwise, to control the policies and business operations of a Person, including, without limitation, the ownership, directory or indirectly (thorough one or more intermediaries), of shares of stock having the right to elect a majority of the Board of Directors of a corporate Person, or the ownership (on the Payment Date), directly or indirectly (through one or more intermediaries), of more than 49 percent of a person.
Settlement Agreement, ¶ VI.A. This language is incorporated in the provisions of Paragraph 9 of the Waiver Form signed by Plastics affiliate, Service.
By choosing to obtain relief from the Surface Transporters escrow, Pet waived its right and Service 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.
It Is Therefore Ordered That:
(1) The Decision and Order issued by the DOE on September 2, 1988,
Terry & Ann McMillan et al., RF272-04162 et al., is hereby rescinded with respect to Plastics Universal Corp. (Case No. RF272-07936, redesignated RC272-366).
(2) The Decision and Order issued by the DOE on July 7, 1993, Cavalier Public School Dist. 6 et al., Case No. RF272-81359 et al., is hereby rescinded with respect to Pet, Inc. (Case No RF272-81601, redesignated RC272-369).
(3) Plastics Universal Corp. shall remit the sum of $4,109 to the DOE within 30 days. Pet, Inc. shall remit the sum of $11,348 to the DOE within 30 days. Each check shall be made payable to the "U.S. Department of Energy." Plastics Universal Corp.s check shall prominently display Case No. RC272-366 and Pet Inc.s check shall prominently display Case No. RC272-369. 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 Plastics Universal Corp. (Case No. RK272-4069) and Pet, Inc. (Case No. RK272-4335) 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 7, 1997