Case No. RR272-00265
October 3, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Motion for Reconsideration
Name of Petitioner:Steuben County Farm Bureau
Date of Filing:November 7, 1996
Case Number:RR272-265
This Decision and Order will consider a Motion for Reconsideration filed by Energy Refunds, Inc.
on behalf of the Steuben County Farm Bureau (Steuben). Steuben purchased refined petroleum products during the period August 19, 1973 through January 27, 1981. Steuben has requested that we reconsider our October 21, 1996 denial of its application for refund from crude oil monies available for disbursement by the Department of Energy pursuant to the Statement of Modified Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986) (SMRP). See Steuben County Farm Bureau, 26 DOE ¶ 85,016 (1996) (Steuben). We denied the refund application because we found that Steuben had waived its right to a Subpart V crude oil refund.
DOE regulations do not explicitly provide for reconsideration of a final Decision and Order in a refund proceeding. See 10 C.F.R. Part 205, Subpart V. However, we have discretion to consider the factual and procedural merits of a Motion for Reconsideration. See, e.g., Tenneco Oil Co./Major Oil Co., 13 DOE ¶ 85,322 (1985) (motion granted); Aminoil U.S.A. Inc./Saber Petroleum Marketing Co., 17 DOE ¶ 85,491 (1988) (motions denied). We generally consider a Motion for Reconsideration if the movant presents a compelling reason sufficient to justify reconsideration.
In the Order implementing the SMRP, 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 U.S. District Court created the escrow accounts 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 Steuben, we denied the application for refund because Steuben informed us that it applied for a refund from the Retailers Escrow in the Stripper Well proceeding. Steuben at 88,030. Thus, we found that Steuben, in applying for a Retailers Escrow refund, had waived its right to a Subpart V refund. Steuben contends that the waiver it executed in the Stripper Well proceeding is ineffectual and thus does not bar Steuben from receiving a Subpart V crude oil refund. According to Steuben, it did not meet the Stripper Well Settlement Agreement requirements for a Retailer to receive a refund from the Retailers Escrow. Steuben states that for this reason, the Retailers Escrow Administrator denied its claim.
Steuben was unable to provide any proof from the Retailers Escrow Administrator to show that he denied its application. We have reviewed recently acquired records from the Retailers Escrow Administrator that list many firms that received refunds from the Retailers Escrow. Based on an extensive review of these voluminous records, we believe that Steuben did not receive a Retailers Escrow refund. Moreover, Steuben, as a farm cooperative, did not qualify as a valid Retailer claimant. See Final Stripper Well Settlement Agreement, Para. I E (definition of retailers); In Re: DOE Stripper Well Exemption Litigation, M.D.L. 378, Order Approving Independent Retailers of Motor Fuels Group Administration And Trust Agreement Para. 3 (D. Kan. August 7, 1987) (the Independent Retailers or Motor Fuels Group . . . does not include companies or entities, more than forty-nine percent (49%) owned, or controlled, by . . . an agricultural cooperative. . . .). Accordingly, we conclude that Steuben did not validly execute its waiver, and therefore, the firm did not waive its right to a Subpart V refund. See Clyde v. Small, 17 DOE ¶ 85,100 at 88,222 n.3 (1988) (firm not bound by invalid waiver).
Steuben is an agricultural cooperative that bought petroleum products for resale to its members. We consider a claim by an agricultural cooperative as a claim on behalf of its members. See Farmers Union Oil Co., 17 DOE ¶ 85,464 (1988). Thus, we afford a cooperative the presumption of end-user injury on the condition that it certifies it will pass through, in full, any refund to its members. Steuben has stated that it will pass through, in full, any refund to its members. Therefore, Steuben is eligible to for us to consider it under the end-user presumption of injury.
Since Steuben has documented its purchases of 9,890,671 gallons (85% or 8,407,070 gallons to actual members of the cooperative) of petroleum products by consulting actual records, we find that Steuben has sufficiently supported its request for a refund. The total volume for which we have approved a refund in this Decision is 8,407,070 gallons and the sum of the refund granted is $13,451, calculated by multiplying the approved purchase volume by the volumetric refund amount of $0.0016 per gallon. In accordance with Steubens request, we will make the refund check payable to Steuben County Farm Bureau or Energy Refunds, Inc. and we will send the refund check to Energy Refunds, Inc.
The final deadline for the crude oil proceeding was June 30, 1995. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.
It Is Therefore Ordered That:
(1) The Motion for Reconsideration filed by Steuben County Farm Bureau is hereby granted as set forth in Paragraph (2) below.
(2) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller of the Department of Energy shall take appropriate action to disburse from the escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, a total of $13,451 to Steuben County Farm Bureau. The refund check should be made payable to Steuben County Farm Bureau or Energy Refunds, Inc., 31 Small Lane, Hardin, KY 42048.
(3) To facilitate the payment of future refunds, the applicant shall notify the Office of Hearings and Appeals in the event that there is a change in its address, or if an address correction is necessary. Such notification shall be sent to
Director of Management Information
Office of Hearings and Appeals
Department of Energy
1000 Independence Ave., S.W.
Washington, D.C. 20585-0107
(4) The determination made in this Decision and Order is based upon the presumed validity of the statements and documentary material submitted by the applicant. This Decision and Order may be revoked or modified at any time upon a determination that the basis underlying the refund application and Motion for Reconsideration is incorrect.
(5) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: October 3, 1997