July 17, 2003
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Name of Petitioner: Church of Jesus Christ of Latter-Day Saints
Date of Filing: March 26, 1991
Case Number: RR272-00071
The Office of Hearings and Appeals (OHA) of the Department of Energy received a Motion for Reconsideration of a September 11, 1990, Decision and Order denying an Application for Refund that the Church of Jesus Christ of the Latter-Day Saints (LDS) had filed in the Subpart V crude oil refund proceeding. That Application was denied because LDS had requested and received a refund in the Surface Transporters refund proceeding. In order to receive the Surface Transporters refund, LDS had specifically waived any right to seek a refund in the crude oil proceeding. Church of Jesus Christ of Latter-Day Saints, September 11, 1990, Case No. RF272-58108. See also, 10 C.F.R., Part 205, Subpart V. In other words, LDS had chosen to accept a Surface Transporters refund rather than seek a crude oil proceeding refund.
The LDS submission states that the prior decision should be reconsidered and a refund granted to LDS in the crude oil proceeding on both legal and equitable grounds.(1) LDS does not contend that a waiver was never filed and accepted. Instead, LDS argues that the waiver filed in the Surface Transporter proceeding was legally insufficient and that the person executing the waiver was not authorized to bind LDS, citing City of New York v. Watkins, 757 F. Supp. 72 (D.D.C. 1991), affd 956 F.2nd 1175 (Temp. Emer. Ct. App. 1992). LDS also asserts as equitable grounds the fact that it purchased overpriced crude oil and should be allowed to recover the overpayments.
In the past, OHA has stated that it would consider granting a Motion for Reconsideration if the applicant submits additional information which was unavailable at the time of its original filing or presents compelling reasons why the prior Decision should be modified.
10 C.F.R. § 1003.55(b)(2). Oceana County Road Commn, 20 DOE ¶ 85,081 (1990); Mobil Oil Corp./Larko, Inc., 17 DOE ¶ 85,205 (1988). LDS does not assert that it satisfies any of these criteria, and our review of the Motion does not indicate that such a showing could be made. For example, there is no new factual information, nor is there any showing of significantly changed circumstances which would lead us to conclude that the prior decision should be reconsidered. Therefore, under these criteria alone, the Motion for Reconsideration should be denied.
Moreover, the arguments which LDS makes are not compelling. The essence of the LDS claim is that the Surface Transporters Escrow Settlement Claim Form and Waiver filed by the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Transportation Services was improper and unauthorized. Surface Transporters Escrow Settlement Claim Form and Waiver filed by the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Transportation Services, on December 1, 1986. That waiver was executed by Allan L. Murdock, Controller. Id. The LDS submission states that Mr. Murdock is merely an accountant/bookkeeper and therefore not authorized to execute the waiver. However, counsel for LDS confirms that Mr. Murdock was in fact the official Controller of the LDS Transportation Services division, the entity whose petroleum product usage formed the basis for the Surface Transporters claim and a portion of the LDS crude oil refund application. In the absence of any documentation to the contrary, it certainly appears that Mr. Murdock was authorized to act for LDS in the Surface Transporters proceeding, and a refund was approved on that basis. In any case, it is the responsibility of all entities seeking refunds -- not OHA -- to see that the rights of the entity are being properly protected by individuals authorized to act on behalf of the entity. This is an issue the resolution of which -- particularly in the case of large and/or far flung organizations -- may be very complex and properly lies with the organization itself, not this office.(2)
To the extent that the LDS submission relies upon City of New York v. Watkins, we are not persuaded by its arguments. The City of New York is a municipality with public laws and regulations which specifically vest the right to approve or disapprove all settlements or claims involving the city only in the Comptroller of the City. Under New York law, acts of any other authority in the specified areas are null and void. None of these considerations are present in the case of LDS. Consequently, City of New York does not govern the disposition of this proceeding.
LDS also asserts on equitable grounds that it purchased overpriced crude oil and should be allowed to recover the overpayments. LDS is no different in this respect from other firms. In the plan implementing the crude oil refund proceeding, OHA indicated that parties who intended to file claims for refunds from the Surface Transporter Escrow would have to waive any rights they had to a crude oil refund. Order Implementing Modified Statement of Restitutionary Policy Concerning Crude Oil Overcharges. 51 Fed. Reg. 29689, 29691 (1986). LDS had at the time an election of remedies to make and it chose the Surface Transporters Escrow. Now, when it appears that a refund under the crude oil proceeding would be larger, it is arguing that it should receive a refund because it was overcharged. Other entities--including many with overcharge claims--had to make the same election, many with imperfect information. The language in the Surface Transporters waiver form unambiguously puts entities like LDS on notice that they were waiving both their rights and the rights of any other firm in any way affiliated. It was LDS obligation to determine, before filing, whether it was in its and its affiliates best interests to file a Surface Transporter claim. A failure to do so should not be allowed more than 10 year later to disturb the proper administration of this proceeding. Were it otherwise, it would open the door to firms which did not adequately assess their respective positions in filing a Surface Transporters waiver. The Motion for Reconsideration should be denied.
It Is Therefore Ordered That:
(1) The Motion for Reconsideration filed by Church of Jesus Christ of Latter-Day Saints, Case No. RR272-00071, is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: July 17, 2003
(1)LDS received a refund totaling $4,580 in the Surface Transporters proceeding. Our preliminary review indicates that its hypothetical refund in the crude oil proceeding would approximate $57,753.
(2)LDS makes a number of other arguments concerning the way in which the waiver was executed, claiming that differences in nomenclature, which we believe to be insignificant, somehow nullify the waiver, or should have alerted OHA to the alleged insufficiency of the waiver. All of these assertions involve matters solely within the purview of the organization that should have been resolved by the organization before any waiver was executed and submitted. Absent a gross irregularity, we would not have been put on notice that the Controller would not necessarily have had authority to execute the waiver.