Case No. RF272-98969
September 17, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Cincinnati Paperboard Corporation
Date of Filing: July 6, 1994
Case Number: RF272-98969
In this Decision and Order, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) will determine the eligibility of Cincinnati Paperboard Corporation (formerly known as Container Corp. of America) for a refund from the crude oil monies currently available for disbursement in proceedings conducted pursuant to the provisions of 10 C.F.R. Part 205, Subpart V. Cincinnati Paperboard Corp. has applied for a refund for purchases of petroleum products by its Cincinnati, Ohio plant.
In the past, purchasers of refined petroleum products could apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. Statement of Modified Restitutionary Policy to be Implemented in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986) (MSRP). We have established refund procedures for these funds which have been made available through consent orders entered into by the DOE and several 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). In the Order implementing the MSRP, the OHA stated that it would accept Applications for Refund in the Subpart V crude oil proceeding from injured parties that have not waived their claims by electing to participate in one of the "Stripper Well" refund proceedings. 51 Fed. Reg. 29689 (August 20, 1986); see also Implementation of Special Refund Procedures, 52 Fed. Reg. 11737 (April 10, 1987).
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. 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.
Any claimant seeking a refund from one of these escrow accounts was required to execute a "Waiver and Release," in which the claimant waived its right to participate in any future refund proceeding based on crude oil overcharges, including this Subpart V proceeding. In accordance with the terms of the Stripper Well Settlement Agreement, these Waivers were made 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 persons (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, direct or indirectly (through 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.
Stripper Well Settlement Agreement ¶ VI.A.
Mobil Oil Corporation (Mobil), an affiliate of Container Corp., applied for and received a refund from the Refiners Escrow Account. As part of that process, Mobil executed a valid and binding waiver of its right and any affiliate's right to participate in this Subpart V crude oil proceeding. As a consequence, Cincinnati Paperboard Corp.'s Application for Refund should be denied. See Union Carbide Industrial Gases, Inc., RF272-92548 et al. (May 17, 1994) (denying crude oil claims by Container Corp. for two other locations).
It Is Therefore Ordered That:
(1) The Application for Refund filed on July 6, 1994 by Cincinnati Paperboard Corporation for a refund under 10 C.F.R. Part 205, Subpart V is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: September 17, 1998