Case No. RC272-00404
December 1, 1999
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Name of Petitioner: Waste Management of Colorado Springs
Date of Filing: October 15, 1999
Case Number: RC272-00404
On July 12, 1990, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order granting crude oil refunds to 76 claimants. Waste Management of Colorado Spring, et al., Case Nos. RF272-67001 (July 12, 1990) (Waste Management). In that Decision, the DOE granted Waste Management of Colorado Springs (Waste Management), a corporation located in Colorado Springs, Colorado (Case No. RF272-67001), a refund of $2,702 based on its purchases of 3,377,546 gallons of refined petroleum products.
This Office is in the process of issuing supplemental refunds to all applicants granted refunds in the crude oil proceeding. In this process, applicants are sent a Verification Form to complete. The original form was sent to Waste Management, who was granted an earlier refund. This form informs this Office of any changes that may have taken place since the issuance of the initial refund check. However, in our review of duplicate filings, it appears that Waste Management of Colorado Springs, Colorado is a wholly owned subsidiary of Waste Management of North America.(1) In a Decision and Order issued on October 2, 1987, OHA granted the parent firm, Waste Management of North America, a refund from the Surface Transporters (ST) Escrow Account. See Antelope Valley Bus Co., 16 DOE ¶ 85,466 (1987) (unpublished Appendix). Pursuant to
Paragraphs III.A.1 and VI.A of the Settlement Agreement, an applicant for a refund from one of the Stripper Well escrows waives its and any affiliates right to a refund in the Subpart V crude oil proceedings.(2) See CF Industries, Inc., 16 DOE ¶ 85,586 (1987 (CFI); Boise Cascade Corp., 16 DOE ¶ 85,214 (1987) (Boise Cascade). 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 and Waiver (ST Release) which all ST applicants had to agree to in order to be eligible for a ST refund. The applicability of the waiver provisions of the Settlement Agreement to affiliates of firms that apply for ST funds is also set forth in Paragraph 9 of the ST release signed by Waste Management of North America.
The Waiver and Release form which Waste Management of North America filed with OHA as part of its ST application became effective and irrevocable at the time of its filing with OHA. See CFI, 16 DOE at 89,169; Boise Cacade, 16 DOE at 88,411-412. Accordingly, by virtue of its Application for Refund from the ST Escrow, Waste Management of North America waived its right and Waste Managements right to participate in this Subpart V proceeding.
As Waste Management of Colorado Springs is an affiliate of Waste Management of North America as that term is defined under Paragraph VI.A of the Settlement Agreement, the applicant is bound by the terms of the Agreement, including the waiver provisions. In view of these circumstances, we have determined that the refund issued to Waste Management of Colorado Springs should be rescinded.
In Waste Management, we stated:
The determinations made in this Decision and Order are based upon the presumed validity of the 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.
Waste Management, slip op. at 3. Accordingly, this Office is rescinding the refund in the amount of $2,702 that was granted to Waste Management of Colorado Springs, Colorado under Case No. RF272-67001. Since the firm is ineligible to receive a Supplement refund, the Verification Form submitted on behalf of Waste Management to receive a Supplemental Refund will be denied.
It Is Therefore Ordered That:
(1) The Decision and Order issued by the DOE on July 12, 1990, Waste Management of Colorado Springs, et al., Case Nos. RF272-67001 is hereby rescinded as to Waste Management of Colorado Springs, Colorado, Case No. RF272-67001, redesignated as RC272-00404.
(2) Waste Management of Colorado Springs, Colorado, is directed to remit $2,702 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 No. RC272-00404. 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 DOE receivables. Other charges generally assessed on overdue DOE receivables shall also apply.
(3) Upon receipt of the payment specified in paragraph (2) above, 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 redeposit the amount of $2,702 back into the DOE deposit fund escrow account maintained at the Department of the Treasury and funded by Crude Tracking-Claimants 4, Account No. 999DOE010Z.
(4) The Verification Form filed by Waste Management of Colorado Springs, is hereby denied.
(5) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: December 1, 1999
(1)In a June 22, 1999, telephone conversation, Gerald Penberthy, Controller of Waste Management of Colorado, informed this Office that Waste Management of North America was the parent company of Waste Management of Colorado during the crude oil price control period (August 1973 through January 1981).
(2)Paragraph III.A.1 of the Settlement Agreement states:
The Parties other than DOE and the States release, waive, and agree to withdraw any claims before any Federal or state court or agency . . . (a) against funds which have been or will be paid to satisfy compliance or enforcement actions (including declaratory actions) brought or to be brought based on Alleged Crude Oil Violations.
Paragraph VI.A of the Settlement Agreement provides that:
The provisions of this Agreement. . . shall be 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,. . . As used herein, an Affiliate of any Party includes any Person (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, directly or indirectly (through one or more intermediaries), of more than 49 percent of a person.