Case No. RF272-89435

July 23, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: Consolidated Badger Co.

Date of Filing: April 3, 1991

Case Number: RF272-89435

This Decision and Order will consider an Application for Refund filed by Consolidated Badger Co. (Consolidated Badger),(1) a firm that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Consolidated Badger has requested refunds from crude oil monies available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under 10 C.F.R. Part 205, Subpart V.

Pursuant to current DOE policy, purchasers of refined petroleum products may apply to the OHA for refunds from the crude oil overcharge funds collected by the DOE. Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).(2) We have established refund procedures for these funds, which have been made available through court-approved settlements, remedial orders, and consent orders entered into by the DOE and various firms that sold crude oil during the period of price controls. See, e.g., New York Petroleum, Inc., 18 DOE ¶ 85,435 (1988); Ernest A. Allerkamp, 17 DOE ¶ 85,079 (1988); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987). In the Order Implementing the MSRP, the OHA states that it will accept Applications for Refund in the Subpart V crude oil special refund proceeding from injured parties that have not waived their claims

by electing to participate in one of the "Stripper Well" refund proceedings.(3) Order Implementing the MSRP, 51 Fed. Reg. 29689; see April 10 Notice.

Consolidated Badger is a producer and distributor of dairy products that filed for, and was granted, a refund from the Surface Transporters (ST) proceeding. United Agri. Trans. Assoc. Of America Marketing Co-op, 16 DOE ¶ 85,463 (1987). Pursuant to Section III.A.1 of the Settlement Agreement, which every ST applicant was required to sign, an applicant to one of the Stripper Well escrows waives its right to a refund in any Subpart V proceeding. CF Indus., Inc., 16 DOE ¶ 85,586 (1987); Florida Rock and Tank Lines, Inc., 16 DOE ¶ 85,546 (1987). These waiver provisions were incorporated into Paragraphs 7 and 10 of the Surface Transporters Escrow Claim Form and Waiver which Consolidated Badger, under its previous name Morning Glory Farms, signed. Consequently, by virtue of its Application to the ST Escrow, Consolidated Badger waived its right to a refund under Subpart V. Accordingly, the Application for Refund filed by Consolidated Badger in the Subpart V crude oil refund proceeding must by denied. See Best Products, Inc., 20 DOE ¶ 85,163 (1990); W. R. Grace & Co., 20 DOE ¶ 85,117 (1990).

It Is Therefore Ordered That:

(1) The Application for Refund filed by Consolidated Badger Co., Case No. RF272-89435, is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 23, 1999

(1)Consolidated Badger has had a number of name changes in the past few years. Currently it is named Foremost Foods, Inc. Previously it was known as Morning Glory Farms.

(2)2/See Order Implementing the Modified Statement of Restitutionary Policy Concerning Crude Oil Overcharges, 51 Fed. Reg. 29689 (August 20, 1986) (Order Implementing the MSRP); see also Implementation of Special Refund Procedures, 52 Fed. Reg. 11737 (April 10, 1987) (April 10 Notice).

(3)The "Stripper Well" refund proceedings refer in part to the eight escrow accounts created by the U.S. District Court for the District of Kansas to implement the terms of the Settlement Agreement approved in 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 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.