Case No. VEG-0007

June 15, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Petition for Special Redress

Name of Case: Philip P. Kalodner

Date of Filing: May 25, 2000

Case Number: VEG-0007

Philip P. Kalodner, on behalf of his clients, the “Participant End Users,” which consists of Utilities, Transporters, and Manufacturers (hereinafter collectively UTM), filed an “Application of Participant End Users for Distribution to Them and Their Counsel From Funds Awarded to Refiner Cooperatives.” UTM seeks $89,000 out of the $1.7 million (plus interest) that has been awarded to the Refiner Cooperatives in connection with the Citronelle Settlement Agreement. See The 341 Tract Unit of the Citronelle Field/National Cooperative Refinery Assoc., et al., 26 DOE ¶ 85,014 (1996). The Refiner Cooperatives filed a response on June 1, 2000.

UTM bases its request on Section III.K. of the underlying Citronelle Settlement Agreement and upon its purported contributions in negotiating the final settlement in the Citronelle case.

Section III.K. of the Citronelle Settlement Agreement provides for the distribution of funds from the “End User” account. These funds are specifically reserved for distribution to “End Users” and “Participant End Users.” On the other hand, the money available to fund the Refiner Cooperatives’ refunds is drawn from the “Post- Apportionment Citronelle Escrow Account” which is outside the scope of the provisions of Section III.K.

As is the case with all signers of the Citronelle Settlement, UTM has agreed to “... compromise and settle all of their actual and potential claims arising out of the granting or termination of the Citronelle exception relief or to the funds in the Citronelle escrow account.” Settlement Agreement at 7. This language clearly bars the relief UTM is seeking. Moreover, UTM’s assertion that its efforts benefited the Refiner Cooperatives ignores the fact that UTM consistently opposed and challenged the refund awards to the Refiner Cooperatives as upheld by the a United States District Court. Consolidated Edison v. O’Leary, 3 Fed. Energy Guidelines (CCH) ¶¶ 26,724; 26,726 (D. D.C., 1998); aff’d. sub nom. Consolidated Edison v. Richardson, 3 Fed. Energy Guidelines (CCH), ¶ 26,731 (Fed. Cir. 1999). Simply put, there is no statutory, regulatory, or logical basis whatsoever that would support an award of attorney’s fees to UTM for efforts expended in unsuccessful opposition to the Refiner Cooperatives’ refund awards. Accordingly, UTM’s application for an award of $89,000 from the Refiner Cooperatives’ escrow fund will be denied.

Further, because UTM’s application is wholly unsupported, we decline UTM’S request to delay distribution to the Refiner Cooperatives of the amount in question here pending any “appeals” by UTM of this decision. UTM’s prior challenges have delayed the Refiner Cooperative awards for nearly a four year period. There is simply no legal or equitable basis to support a further delay in providing these awards to their rightful recipients. Accordingly, we shall order that disbursement of these awards be made in accordance with the provisions of the October 10, 1996 Decision and Order authorizing payment of the Refiner Cooperatives’ refunds.

It Is Therefore Ordered That:

The Application for attorney fees and other fees filed by Philip P.

Kalodner (Case No. VEG-0007) be and hereby is denied.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 15, 2000