Case No. RF272-89514

April 1, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: Van’s Auto & Air Express

Date of Filing: July 26, 1991

Case Number: RF272-89514

This Decision and Order will consider an Application for Refund filed by Van’s Auto & Air Express (Van’s), a firm that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Van’s 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 could 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).(1) However, parties that participated in one of the "Stripper Well" refund proceedings are excluded.(2) Order Implementing the MSRP, 51 Fed. Reg. 29689; see April 10 Notice. This includes the “Surface Transporters” proceeding.

Van’s is a trucking company that filed for a refund from the Surface Transporters (ST) proceeding. 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 Van’s signed. Thus, Van’s waived its right to a refund under Subpart V and the present Application must, therefore, be denied.

Van’s claim for a refund in the ST proceeding was dismissed and Van’s filed this claim. Acme Truck Lines, 16 DOE ¶ 85,464 (1987) (Acme). Van’s asserts that a footnote in the Acme Decision states that “these applicants or the owner-operators on whose behalf they filed may be eligible for refunds in Subpart V crude oil proceedings.” Id. at n.4. This footnote forms the basis for Van’s refund claim. In another decision, we rejected this claim stating that the footnote in Acme “does no more than suggest that there are further issues regarding the validity of waivers that may need to be resolved in another appropriate proceeding.(3) For the same reason, the Application for Refund filed by Van’s 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 Van’s Auto & Air Express, Case No. RF272-89514, is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 1, 1999

(1)1/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).

(2)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.

(3)”Tajon, Inc. Case No. RR272-229 (November 1, 1996) (Tajon).