Case No. RF272-76720
November 19, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: City of Harrisburg
Date of Filing: October 30, 1989
Case Number: RF272-76720
In this Decision and Order, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) will determine the eligibility of the City of Harrisburg 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. The City of Harrisburg, Pennsylvania, has applied for a refund for purchases of petroleum products.
This refund proceeding was instituted to allow purchasers of refined petroleum products to 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 numerous 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.
In its Application for Refund, The City of Harrisburg certified that neither the City nor any affiliated entity elsewhere waived its right to a refund. The statement is incorrect. The City of Harrisburg chose to participate in the Refiners Escrow.(1)
In order to be considered for a refund from the Refiners Escrow, each claimant was required to submit a validly executed Release of Claims. It is explicitly stated in the Stripper Well Settlement Agreement that [p]rior to the distribution by the Refiners Escrow Agent, the Refiners Escrow Agent shall secure from each Refiner receiving funds hereunder the waiver and release in the form set forth in Attachment A to the Refiners Escrow Agreement. Settlement Agreement ¶ III.A.2. The Release of Claims specifically states that the signatory waives the right to obtain future payment of a share of existing or future monies paid or ordered to be paid based upon or arising out of any Alleged Crude Oil Violation by any Person (whether or not such Person is a Participating Person). Refiners Escrow Agreement Attachment A ¶ 3(d).
A supplemental agreement between the parties to the Settlement Agreement provides that Each Refiner who executes and delivers a counterpart of this Agreement shall be conclusively deemed and considered for all purposes to have simultaneously executed and delivered the Release . . . and it shall not be necessary or required that a Refiner execute and deliver a separate copy of such Release.... Settlement Agreement, Appendix 1 § 5.3.1. A Judith Brown Schimmel, City Solicitor of the City of Harrisburg, signed this counterpart document. The City received $2,630 from the Refiners Escrow. See November 7, 1988 letter from Gerald Gleason, Vice-President and Trust Officer, Bank IV, Wichita, N.A. (Refiners Escrow Agent) to Thomas L. Wieker, OHA Deputy Director.
Accordingly, as in other cases in which city governments participated in the Refiners Escrow, the City of Harrisburgs crude oil Subpart V claim is barred by the waiver provision and should be denied. See Mayor and City Council of Baltimore, 19 DOE ¶ 85,423 (1989); City of Los Angeles, 18 DOE ¶ 85,899 (1989).
It Is Therefore Ordered That:
(1) The Application for Refund filed on October 30, 1989 by the City of Harrisburg 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: November 19, 1997
(1)Refunds from the Refiners Escrow were available not only to refiners, but to all participants in the DOE crude oil Entitlements Program. See Settlement Agreement ¶ I.C and Exhibit A Attachments B, D and E (eligible Entitlements participants).