Case No. RF272-86049

March 7, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: Brink's Incorporated

Date of Filing: January 18, 1991

Case Number: RF272-86049

In this Decision and Order, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) will determine the eligibility of Brink's Incorporated (Brink's) 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. Pursuant to current DOE policy, purchasers of refined petroleum products may apply to the OHA for a refund from crude oil overcharge funds under the OHA's jurisdiction. See Statement of Modified Restitutionary Policy to be Implemented in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986) (the MSRP). Brink's has applied for a refund for its purchases of petroleum products.

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).

In a Decision and Order dated October 23, 1987, Brink's was approved for a refund from the Surface Transporters (ST) Escrow. Bilkay's Express Co., 16 DOE ¶ 85,559 (1987). In seeking a refund from that account, Brink's was required to execute a "Waiver and Release," in which the claimant waived its right and right of its affiliates, 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 and Release form which Brink's 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, Brink's waived its right and all of its affiliates rights to a crude oil refund under Subpart V.

Since Brink's 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 Brink's Incorporated on January 18, 1991, is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 7, 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."