Case No. RF272-89015
August 6, 1999
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Waste Management - Madison
Date of Filing: April 2, 1991
Case Number: RF272-89015
This Decision and Order will consider an Application for Refund filed by Waste Management - Madison (WM - Madison),(1) a firm that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). WM - Madison 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.
WM - Madison, a division of Waste Management - Wisconsin (WM-Wisconsin), is in the business of collecting waste. WM - Wisconsin filed for a refund from the Surface Transporters (ST) proceeding. Acme Truck Line, Inc., 16 DOE ¶ 85,464 (1987)(dismissing WM-Wisconsins Application). 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 WM - Wisconsin signed. In addition, Paragraph 9 of the Claim Form and Waiver signed and filed by WM - Wisconsin states that the [w]aiver and [r]elease shall be binding upon the Granter, its parents, subsidiaries, affiliates, successors and assigns. Surface Transporters Escrow Settlement Claim Form and Waiver filed by WM - Wisconsin at ¶ 9. Consequently, by virtue of its Application to the Surface Transporters Escrow, WM - Wisconsin waived its right and that of its subsidiaries and affiliates to a refund under Subpart V.(4) Accordingly, the Application for Refund filed by WM - Madison 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 Waste Management - Madison, Case No. RF272-89015, is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: August 6, 1999
(1)WM - Madison is a division of Waste Management - Wisconsin (WM-Wisconsin).
(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.
(4)The fact that WM - Wisconsins Application in ST was dismissed does not effect the outcome of this determination. We have previously held that where a firm is in fact a Surface Transporter, it makes an irrevocable election of remedies when it submits its waiver in the ST proceeding. Boise Cascade Corp., 16 DOE ¶ 85,124 (1987). Dismissal of a ST claim does not nullify a firms waiver or its right to apply for a Subpart V crude oil refund. Mid-America Farm Lines, Inc., 17 DOE ¶ 85,760 (1988).