Case No. RF272-57209
June 11, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: M & S Transport, Inc.
Date of Filing: May 23, 1988
Case Number: RF272-57209
In this Decision and Order, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) will determine the eligibility of M & S Transport, Inc., d/b/a Groendyke Transport, Inc. (Groendyke) for a refund from the crude oil monies currently available for disbursement in a proceeding conducted pursuant to the provisions of 10 C.F.R. Part 205, Subpart V. The applicant has applied for a refund for its purchases of petroleum products.
Pursuant to DOE policy, purchasers of refined petroleum products were permitted to apply to the OHA for a refund from crude oil overcharge funds under the OHA's jurisdiction until the filing deadline of June 30, 1995. See Statement of Modified Restitutionary Policy to be Implemented in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986) (the MSRP). We have established refund procedures for these funds which have been made available through consent orders entered into by the DOE and numerous 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) (Tarricone); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986). In the Order implementing the MSRP, the OHA stated that it would accept Applications for Refund in the Crude Oil Subpart V proceeding from injured parties who had not waived their claims by electing to take refunds from one of the escrow funds established pursuant to the final Settlement Agreement in the DOE Stripper Well Exemption Litigation, M.D.L. 378 (D. Kan.).(1)
51 Fed. Reg. 29689 (August 20, 1986). See also Notice Explaining Crude Oil Refund Procedures, 52 Fed. Reg. 11737 (April 10, 1987). Accordingly, any claim filed in the Subpart V crude oil refund proceeding must state that the claimant has not elsewhere waived its right to a refund. See Tarricone, 15 DOE at 88,898.
In its refund application, Groendyke states that it purchased 1,774,532 gallons of refined petroleum products during the period from August 1973 through January 1981. Groendyke had previously applied for and received a refund from the Surface Transporters (ST) Escrow account (Case No. RF270-1833). See C.R. England & Sons, Inc., 16 DOE ¶ 85,465 (1987), modified, Groendyke Transport, Inc., 16 DOE ¶ 85,692 (1987) (redesignated Case No. RF270-2502). In seeking a refund from this account, Groendyke was required to execute a Waiver and Release, in which it waived its right to participate in any future refund proceeding based on crude oil overcharges, including this Subpart V proceeding. The waiver provisions of Paragraph III.A.1 of the Stripper Well Settlement Agreement were incorporated into Paragraphs 7 and 10 of the Surface Transporters Escrow Claim Form Waiver which all ST applicants had to agree to in order to be eligible for an ST refund.
After considering all of the circumstances in this case, we have determined that Groendyke is not eligible for a crude oil refund. Groendykes ST Escrow Settlement Claim Form and Waiver was signed by its Controller, James J. Leslie. The Waiver expressly precludes Groendyke from filing any other claim for crude oil refunds:
7. (a) Grantor hereby releases, and waives all Grantors 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, except such claims as are specifically excepted from this Waiver and Release:
...
(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, and the entitlements program (herein Alleged Crude Oil Violations).
10. Except for the matters described in Paragraph 8 above, Grantor hereby agrees to withdraw and 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 and to notify the Escrow Administrator when it has done so. Grantor agrees it will not file any such claims for refund of Alleged Crude Oil Violations in these or similar proceedings in the future. ...
Surface Transporters Escrow Settlement Claim Form and Waiver ¶¶ 7 and 10.
Since Groendyke is bound by all the provisions of the Settlement Agreement, and executed a valid and binding waiver of its rights to participate in this Subpart V crude oil proceeding, its Application for Refund should be denied.
It Is Therefore Ordered That:
(1) The Application for Refund filed by M & S Transport, Inc. on May 23, 1988 (Case No. RF272-57209) is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: June 11, 1997
(1)*/ Eight escrow accounts were created by the U.S. District Court for the District of Kansas to implement the terms of the Settlement Agreement. The escrow accounts were created to refund a portion of 1.4 billion dollars in crude oil overcharges to eight enumerated groups of petroleum purchases: Refiners, Retailers, Resellers, Agricultural Cooperatives, Airlines, Surface Transporters, Rail and Water Transporters, and Utilities. The Court appointed the OHA to administer refund proceedings for two of these groups: "Surface Transporters" and "Rail and Water Transporters."