Case No. RC272-00397

December 28, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Names of Petitioner: Ryan’s, Inc.

Western Grocers, Inc.

Date of Filing: December 1, 1998

Case Numbers: RC272-00397

RC272-00398

RJ272-00068

RJ272-00069

On November 23, 1988, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order to 41 applicants. Cathern E. Deboer et al., Case Nos. RF272-30734 et al. (November 23, 1988). In that Decision, the DOE granted refunds to Ryans, Inc. (Ryans) and Western Grocers, Inc. (Western), stores located in Billings, Montana, and Albuquerque, New Mexico (Case Nos. RF272-32584 and RF272-32585).

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 A. Tarricone, Inc., 15 DOE ¶ 85,495 at 88,898 (1987). Both of these Applicants stated that they had not waived their right to a refund.

We recently discovered that in a Decision and Order dated June 2, 1987, Super Valu Stores, Inc. an affiliate of Ryan’s and Western’s, was approved for a refund from the Surface Transporters (ST) Escrow. See Super Valu Stores, Inc., 16 DOE ¶ 85,089 (1987) In seeking a refund from that account, Super Valu executed 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. The waiver provisions of Paragraph III.A.1 of the 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. The Waiver was signed on December 5, 1986, by Richard H. Kochersperger, Director of Transportation for Super Valu Stores. The Waiver and Release form which Super Valu Stores filed with OHA as part of its ST application became effective and irrevocable at the time of its filing with OHA. See CF Industries, Inc., 16 DOE ¶ 85,586 at 89,169 (1987); Maritime Overseas Corp., 16 DOE ¶ 85,428 at 88,852 (1987). Accordingly, by virtue of its Application for Refund from the ST Escrow, Super Valu Stores waived its right and all of its affiliates rights to a crude oil refund under Subpart V.

Crude oil refunds are paid in installments. As we stated in the Cathern E. Deboer Decision and Order, when additional crude oil monies became available, meritorious applicants would receive a share of the additional monies. At the time of the initial Decision, Ryan's received a refund in the amount of $364, and Western's refund was for $106. In addition to the initial refunds, two Supplemental refunds were issued. The first supplemental distribution in 1989, Ryan received $1,092 and Western received $317. On September 11, 1995, Supplemental Refunds were issued to both applicants. Ryan's refund was in the amount of $1,455 and a refund of $422 was granted to Western.

Since Super Valu Stores 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, the Applications for Refund previously granted for Ryan’s and Western Grocers, should have been denied.

We stated in Ordering Paragraph (4) of Cathern E. Deboer:

The determinations made in this Decision and Order are based upon the presumed validity of statements and documentary material submitted by the applicants. Any of these determinations may be revoked or modified at any time upon a finding that the basis underlying any refund application is incorrect.

Such remedial action is appropriate here. This Office is therefore rescinding Ryan’s and Western’s initial and supplemental refunds. Therefore, Ryan’s is liable for the repayment of $2,911 -- the $364 the firm was granted under Case No. RF272-32584, $1,092 the firm was granted under the First Supplemental Refund Distribution, and the $1,455 supplemental refund that the firm was granted under Case No. RB272-40. Western is liable for the repayment of $845 -- the $106 the firm was granted under Case No. RF272-32585, $317 the firm was granted under the First Supplemental Refund Distribution, and the $422 supplemental refund that the firm was granted under Case No. RB272-40.

It Is Therefore Ordered That:

(1) The Decision and Order issued by the Department of Energy on November 23, 1988, Cathern E. Deboer et al., Case Nos. RF272-30734 et al., is hereby rescinded as to Ryan’s, Inc., Case No. RF272-32584 redesignated as RC272-00397 and Western Grocers, Inc., Case No. RF272-32585 redesignated as RC272-00398.

(2) The Supplemental Orders issued by the Department of Energy on September 11, 1995, Crude Oil Supplemental Refund Distribution, Case No. RB272-40, is hereby rescinded as to Ryan’s Inc., Case No. RF272-32584, redesignated as RJ272-00068 and Western Grocers, Inc., Case No. RF272-32585, redesignated as RJ272-00069.

(3) Ryan’s, Inc. is directed to remit $2,911 to the Department of Energy and Western Grocers, Inc. is directed to remit $845 to the Department of Energy. Payment shall be mailed to the following address:

U.S. Department of Energy

Office of the Controller

Cash Control Branch

P.O. Box 500

Germantown, MD 20874-0500

Payment should be made by check payable to the U.S. Department of Energy and should refer to Case Nos. RC272-00397 and RC272-00398 and RJ272-00068 and RJ272-00069. 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 receipt of the payment specified in paragraph (4) above, the Director of Special Accounts and Payroll, Office of Chief Financial Officer, shall take appropriate action to deposit these funds into the DOE deposit fund escrow account denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, maintained at the Department of the Treasury.

(5) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date:December 28, 1998

(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.”