[Federal Register Volume 60, Number 129 (Thursday, July 6, 1995)]
[Notices]
[Pages 35186-35191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16608]



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DEPARTMENT OF ENERGY
Office of General Counsel


Proposed Consent Order With Occidental Petroleum Corporation

AGENCY: Department of Energy.

ACTION: Notice of proposed consent order and opportunity for public 
comment.

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SUMMARY: The Department of Energy (DOE) announces a proposed Consent 
Order between the DOE and Occidental Petroleum Corporation 
(Occidental), including its wholly owned subsidiary OXY USA Inc. (OXY) 
which was formerly Cities Service Oil and Gas Corporation, successor in 
interest to Cities Service Company (Cities).
    The agreement proposes to resolve matters relating to Occidental's 
compliance with the federal petroleum price and allocation regulations 
for the period October 1, 1979 through January 27, 1981. If this 
Consent Order is made final, Occidental will pay to the DOE two hundred 
seventy five million dollars ($275,000,000). Within thirty (30) days of 
the effective date of the Consent Order, Occidental shall make an 
initial payment to the DOE of one hundred million dollars 
($100,000,000), 

[[Page 35187]]
and thereafter five (5) equal annual payments of thirty-five million 
dollars ($35,000,000), plus interest at the rate of seven and six-
tenths percent (7.6%), compounded quarterly, on the unpaid balance. 
This Consent Order would not affect the Consent Order between Cities 
and DOE dated October 31, 1979, which, except as otherwise provided 
therein, covered the period August 19, 1973 through September 30, 1979.
    To distribute the moneys collected under the Consent Order, DOE's 
Office of Hearings and Appeals (OHA) will be petitioned to implement 
Special Refund Procedures pursuant to 10 CFR Part 205, Subpart V, in 
which proceedings any persons who claim to have suffered injury from 
the alleged overcharges would have the opportunity to submit claims for 
payment.
    Pursuant to 10 CFR 205.199J, DOE will receive written comments on 
the proposed Consent Order for thirty (30) days following publication 
of this Notice and will consider all comments received from the public 
in determining whether to accept the settlement and issue a final 
Order, renegotiate the agreement and issue a modified agreement as a 
final Order, or reject the settlement. DOE's final decision will be 
published in the Federal Register, along with an analysis of 
significant written comments in response to this Notice, as well as any 
other considerations that were relevant to the final decision.

DATES: Comments must be received by August 7, 1995.

ADDRESSES: Interested parties are invited to submit written comments 
concerning this proposed Consent Order to: Occidental Consent Order 
Comments, U.S. Department of Energy, Office of General Counsel, GC-43, 
1000 Independence Avenue, SW, Washington, DC 20585. Any information or 
data considered confidential by the person submitting it must be 
identified as such in accordance with the provisions of 10 CFR 
205.9(f).

FOR FURTHER INFORMATION CONTACT: Betty L. Dingle-Brown, Department of 
Energy, GC-43, 1000 Independence Avenue, SW, Washington, DC 20585, 
(202) 523-3011.

SUPPLEMENTARY INFORMATION:

  I. Resolution of Regulatory Issues
 II. Determination of Reasonable Settlement Amount
 III. Terms and Conditions of the Consent Order

I. Resolution of Regulatory Issues

    Occidental is a successor in interest to Cities, which was a 
refiner, producer and reseller subject to the DOE's audit jurisdiction 
to determine compliance with the Federal Petroleum Price and Allocation 
Regulations. During the period covered by this proposed Order (October 
1, 1979 through January 27, 1981),1 Cities engaged in, among other 
things, the production, importation, purchase, sale, exchange and 
refining of crude oil, and the purchase and sale of refined product. As 
a result of its audit, the DOE raised certain issues with respect to 91 
reciprocal purchases and sales of crude oil in which Cities sold price-
controlled crude oil to resellers and concurrently purchased price 
exempt-certified crude oil at a discount from the market price. These 
transactions and OXY's potential liability arising therefrom constitute 
the central issue which would be resolved by the proposed Order.

    \1\ In a previous Consent Order dated October 31, 1979, and 
generally covering the period August 19, 1973 through September 30, 
1979, Cities agreed to price rollback, refund and bank reduction 
remedies totaling $177 million.
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    In a Proposed Remedial Order issued in March 1985, DOE sought to 
hold OXY liable for overcharges in these transactions, seeking $263.8 
million plus prejudgment interest, on the ground that Cities violated 
DOE's crude oil resale price rule applicable to refiners. DOE prevailed 
at the initial stage before the OHA. Cities Service Oil and Gas Corp., 
17 DOE para. 83,021 (1988). Five years later, the OHA decision was 
vacated by the Federal Energy Regulatory Commission (FERC), to which 
Cities had appealed. Cities Service Oil and Gas Corp., 65 FERC para. 
61,403 (1993), reconsideration denied, 66 FERC para. 61,222 (1994). The 
relevant statute, 42 U.S.C. 7193, provides that FERC's decision in such 
a case is a final action by DOE.2

    \2\ Two groups of intervenors, however, attempted to appeal 
FERC's decision. Alabama v. FERC, CA No. 94-0347 (D.D.C.), and 
Consolidated Edison Co. of New York, Inc. v. O'Leary, CA No. 94-0352 
(D.D.C.). On June 8, 1995, the court dismissed both suits based on 
the plaintiffs' lack of standing. Plaintiffs in the second case have 
noticed their appeal.
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    On February 21, 1992, pursuant to OHA's remand in the 1988 Remedial 
Order and while Cities' appeal to FERC was pending, DOE issued a 
Revised Proposed Remedial Order (RPRO) to OXY under an alternative 
theory of liability. The RPRO charged that in 82 reciprocal crude oil 
transactions between October 1979 and December 1980, Cities violated 
DOE's Entitlements Program reporting regulations: (1) That the 
transactions served no legitmate business or economic purpose and were 
therefore legally ineffective in transforming Cities' controlled crude 
oil into entitlements purchase-exempt crude; and (2) that Cities had no 
plausible basis for its professed belief that entitlements-exempt uses, 
rather than miscertification, explained the deep discounts Cities 
obtained on the exempt-certified crude. OXY USA Inc., OHA Case No. LRO-
0003. In the remand proceeding, DOE is seeking $253.767 million in 
refunds, plus prejudgment interest which would currently total $915.533 
million.
    A tentative settlement reached between DOE and Occidental in 1989 
was rejected by the DOE in 1991 upon consideration of the comments and 
testimony submitted in the course of the public process.3 Attempts 
to renegotiate or modify the proposed Order were unavailing, and later 
efforts conducted pursuant to the FERC's settlement procedures also led 
to an impasse. More recently, in January 1995, DOE and Occidental, 
along with intervenor parties, agreed to attempt a structured 
mediation. The settlement proposed today represents the product of that 
mediation process.

    \3\ 54 FR. 22469 (May 24, 1989); 54 FR. 35371 (Aug. 25, 1989); 
56 FR. 21361 (May 8, 1991).
II. Determination of Reasonable Settlement Amount

    DOE has preliminarily agreed to the settlement terms after 
considering the factual and legal issues in dispute in the litigation, 
assessing the litigation risks associated with establishing the alleged 
violations, and considering the benefit to the public from prompt 
receipt of the benefits from settlement of the extensive number of 
legal and factual issues that would require intensive additional 
litigation to resolve. DOE also considered the litigation risk factors 
generally present in all regulatory disputes in this program based on 
its current legal framework. The total amount of OXY's potential 
liability resulting from the subject transactions could only be 
recovered by the government if, in litigation, all issues were resolved 
in the DOE's favor. The risks inherent in such litigation make such an 
outcome uncertain.
    Based on consideration of all of these factors, DOE's preliminary 
determination is that Occidental's agreement to the terms of the 
proposed Consent Order constitutes a settlement which is in the public 
interest.

III. Terms and Conditions of the Consent Order

    If the Consent Order is made final, Occidental Petroleum and OXY 
will be jointly and severally liable for the following payments: $100 
million within 30 days of the Consent Order 

[[Page 35188]]
becoming effective, and five subsequent annual installments of $35 
million plus interest on the unpaid balances at 7.6% per annum, 
compounded quarterly. In all, the principal payments will be $275 
million, and the interest will total approximately $41 million. 
Payments which are more than fifteen days late will accrue interest at 
the rate of 15.2% per annum. The DOE's Office of Hearings and Appeals 
will be petitioned to implement Special Refund Procedures for 
distribution of the settlement funds pursuant to 10 CFR part 205, 
subpart V.
    Upon becoming effective, DOE and Occidental would file appropriate 
pleadings to withdraw all claims and dismiss with prejudice all 
proceedings covered by the Consent Order, including the case pending 
before the OHA.
    The agreement does not affect any rights Occidental may have in 
connection with the funds at issue in a specific refund proceeding 
pending before the DOE's Office of Hearings and Appeals, Enron Corp./
OXY USA Inc., OHA Case No. RF340-00112, or in the exception proceeding 
originally styled The 341 Tract Unit of the Citronelle Field/OXY USA 
Inc., OHA Case No. RF345-00021 and now under review in Amoco Oil Co., 
et al. v. DOE, CA No. H-94-2423 (S.D. Tex.) and in R. H. Stechman, et 
al. v. DOE, CA No. 94-0887-A-M (S.D. Ala.).
    If the agreement is made final, Occidental will withdraw certain 
requests and portions of other requests made by its attorneys under the 
Freedom of Information Act. Occidental and DOE mutually release each 
other from claims and actions arising under the subject matters covered 
by the proposed Consent Order. Also, the proposed Order does not affect 
the right of any other party to take action against Occidental, or of 
Occidental or the DOE to take action against any other party. Finally, 
Occidental may withdraw from the agreement if the settlement is not 
made final by the one hundred twentieth (120th) day following 
execution.

Submission of Written Comments

    The proposed Consent Order cannot be made effective until the 
conclusion of the public review process, of which this Notice is a 
part.
    All comments received by the thirtieth (30th) day following 
publication of this Notice in the Federal Register will be considered 
before determining whether to adopt the proposed Consent Order as a 
final Order. Any modifications of the proposed Consent Order which 
significantly alter its terms or impact will be published for 
additional comments. If, after considering the comments it has 
received, DOE determines to issue the proposed Consent Order as a final 
Order, the proposed Order will be made final and effective by 
publication of a Notice in the Federal Register.

    Issued in Washington, DC, on June 29, 1995.
Eric J. Fygi,
Deputy General Counsel.

I. Introduction

    101. This Consent Order is entered into between Occidental 
Petroleum Corporation (``Occidental''), including its wholly owned 
subsidiary OXY USA Inc. (``OXY'') (formerly Cities Service Oil and Gas 
Corporation, successor in interest to Cities Service Company (``Cities 
Service'')), and the United States Department of Energy (``DOE''). 
Except as otherwise provided herein, this Consent Order settles and 
finally resolves all civil and administrative claims and disputes, 
whether or not heretofore asserted, between the DOE, as hereinafter 
defined, and Occidental, as hereinafter defined, relating to 
Occidental's compliance with the federal petroleum price and allocation 
regulations, as hereinafter defined, during the period October 1, 1979, 
through January 27, 1981 (all the matters settled and resolved by this 
Consent Order are referred to hereinafter as ``the matters covered by 
this Consent Order''). This Consent Order does not affect the Consent 
Order between Cities Service and DOE dated October 31, 1979, which, 
except as otherwise provided therein, covered the period August 19, 
1973, through September 30, 1979.
II. Jurisdiction, Regulatory Authority and Definitions

    201. This Consent Order is entered into by the DOE pursuant to the 
authority conferred upon it by Sections 301 and 503 of the Department 
of Energy Organization Act (``DOE Act''), 42 U.S.C. 7151 and 7193, 
Executive Order No. 12009, 42 FR 46267 (1977); Executive Order No. 
12038, 43 FR 4957 (1978); and 10 CFR 205.l99J.
    202. For purposes of this Consent Order, the phrase ``federal 
petroleum price and allocation regulations'' means all statutory 
requirements and administrative regulations and orders regarding the 
pricing and allocation of crude oil, refined petroleum products, 
natural gas liquids, and natural gas liquid products, including the 
entitlements and mandatory oil import programs, administered by the 
DOE. The federal petroleum price and allocation regulations include 
(without limitation) the pricing, allocation, reporting, certification, 
and recordkeeping requirements imposed by or under the Economic 
Stabilization Act of 1970, the Emergency Petroleum Allocation Act of 
1973, the Federal Energy Administration Act of 1974, the DOE Act, any 
and all amendments to said acts, Presidential Proclamation 3279, all 
applicable DOE regulations codified in 6 CFR parts 130 and 150 and 10 
CFR parts 205, 210, 211, 212, and 213, and all rules, rulings, 
guidelines, interpretations, clarifications, manuals, decisions, 
orders, notices, forms, and subpoenas relating to the pricing and 
allocation of petroleum products. The provisions of 10 CFR 205.l99J and 
the definitions under the federal petroleum price and allocation 
regulations shall apply to this Consent Order except to the extent 
inconsistent herewith. Reference herein to ``DOE'' includes, besides 
the Department of Energy, the Cost of Living Council, the Federal 
Energy Office, the Federal Energy Administration, the Office of Special 
Counsel, the Economic Regulatory Administration and all agencies 
succeeding to the DOE's authority to administer or enforce the federal 
petroleum price and allocation regulations. References in this Consent 
Order to ``Occidental'' shall include: (1) Occidental Petroleum 
Corporation, its subsidiaries and affiliates, and its and their 
predecessors, including Cities Service Company and Cities Service Oil 
and Gas Corporation, and their subsidiaries and affiliates, (2) all of 
Occidental's petroleum-related activities, whether as a refiner, 
producer, operator, working interest or royalty interest owner, 
reseller, retailer, natural gas processor, or otherwise, and (3) 
Occidental's present and former directors, officers and employees.

III. Facts

    The stipulated facts upon which this Consent Order is based are as 
follows:
    301. During the period covered by this Consent Order, Occidental 
was a ``refiner'', ``producer'' and ``reseller'' as those terms are 
defined in the federal petroleum price and allocation regulations and 
was subject to the jurisdiction of the DOE.
    302. On October 31, 1979, Cities Service and the DOE entered into a 
Consent Order which settled all claims and disputes against Cities 
Service by the DOE, except as otherwise provided therein, for the 
period August 19, 1973, through September 30, 1979, with respect to the 
statutory and regulatory petroleum programs administered and 

[[Page 35189]]
enforced by the DOE and its predecessor agencies.
    303. Following the 1979 Consent Order, the DOE audited Cities 
Service's compliance with the federal petroleum price and allocation 
regulations for the period after September 30, 1979. As a result, the 
DOE raised certain issues with respect to certain related purchases and 
sales of crude oil in which Cities Service sold price-controlled crude 
oil to resellers and purchased exempt-certified crude oil from those 
resellers. The DOE initiated formal enforcement action alleging that 
these transactions violated certain provisions of the federal petroleum 
price and allocation regulations. Occidental maintains, however, that 
Cities Service's conduct with respect to these transactions was in all 
respects lawful and in accordance with the federal petroleum price and 
allocation regulations. The DOE and Occidental have each asserted its 
belief that its respective legal and factual positions regarding such 
transactions are meritorious. These positions were emphasized in the 
intensive review and exchange of information conducted during the 
audit, during litigation of those issues, and during the settlement 
negotiation process. Neither DOE nor Occidental disavows any position 
taken with respect to such matters. However, in order to avoid the 
expense of further protracted and complex litigation and the disruption 
of its orderly business functions, Occidental has agreed to enter into 
this Consent Order, which, among other things, resolves both the 
principal and interest component of the claims that the DOE has 
asserted against Cities Service and/or Occidental in connection with 
the above-described transactions. The DOE believes this Consent Order 
constitutes a satisfactory resolution of the matters covered herein and 
is in the public interest.

IV. Remedial Provisions

    401. In full and final settlement of all matters covered by this 
Consent Order and in lieu of all other remedies which have been or 
might be sought by the DOE against Occidental for such matters under 10 
CFR 205.1991 or otherwise, Occidental and OXY shall be jointly and 
severally liable to pay to the DOE two hundred seventy-five million 
dollars ($275,000,000.00), plus interest, in the manner specified in 
paragraphs 402, 403, 404, and 405.
    402. On or before the thirtieth (30th) day following the Effective 
Date of this Consent Order, either Occidental or OXY shall make an 
initial payment to the DOE of one hundred million dollars 
($100,000,000.00). The date of such payment is designated, for purposes 
of this Consent Order, as the Initial Payment Date.
    403. On or before each of the first five anniversaries of the 
Initial Payment Date, either Occidental or OXY shall pay to DOE an 
amount equal to thirty-five million dollars ($35,000,000.00), plus 
interest at the rate of seven and six-tenths percent (7.6%), compounded 
quarterly, accrued on such payment from the Initial Payment Date to the 
date of such payment. If any anniversary of the Initial Payment Date is 
not a business day, the payment shall be due on the first business day 
following such anniversary.
    404. Payments received after the due date shall include additional 
interest, calculated at the rate of 7.6 percent per annum for the first 
fifteen (15) days after the due date and 15.2 percent per annum 
thereafter.
    405. The payments pursuant to paragraphs 402 through 404 shall be 
made by wire transfer in accordance with instructions furnished to 
Occidental and OXY by the DOE in a timely manner.
    406. Inasmuch as this Consent Order settles both the principal and 
interest portions of all claims made by the DOE against Occidental, the 
principal portion of the payments made pursuant to paragraphs 402 
through 404 shall be deemed to be a payment of principal and interest 
in the same ratio that the principal portion of the DOE's claim in the 
proceeding styled In the Matter of OXY USA Inc., Case No. LRO-0003, 
currently pending before the Office of Hearings and Appeals (``OHA''), 
bears to the interest portion of the DOE's claim in that case as of the 
Effective Date.
    407. Payments made pursuant to this Consent Order shall be 
distributed by the DOE pursuant to the special refund procedures 
prescribed by 10 CFR Part 205, subpart V.

V. Issues Resolved

    501. All pending and potential civil and administrative claims, 
whether or not known, demands, liabilities, causes of action or other 
proceedings by the DOE against Occidental regarding Occidental's 
compliance with and obligations under the federal petroleum price and 
allocation regulations during the period covered by this Consent Order, 
whether or not heretofore raised by an issue letter, Notice of Probable 
Violation, Notice of Proposed Disallowance, Proposed Remedial Order, 
Remedial Order, actions in court or otherwise, are resolved, 
extinguished and released as to Occidental by this Consent Order. This 
Consent Order, however, does not resolve, extinguish, release or 
otherwise affect DOE's claims against any other party.
    502. (a) Except as otherwise provided herein, compliance by 
Occidental with this Consent Order shall be deemed by the DOE to 
constitute full compliance for administrative and civil purposes with 
all federal petroleum price and allocation regulations for matters 
covered by this Consent Order. In consideration for performance as 
required under this Consent Order by Occidental, the DOE hereby 
releases Occidental completely and for all purposes from all 
administrative and civil judicial claims, demands, liabilities or 
causes of action, including, without limitation, claims for civil 
penalties that the DOE has asserted or might otherwise be able to 
assert against Occidental before or after the date of this Consent 
Order for alleged violations of the federal petroleum price and 
allocation regulations with respect to matters covered by this Consent 
Order. The DOE will not initiate or prosecute any such administrative 
or civil judicial matter against Occidental or cause or refer any such 
matter to be initiated or prosecuted, nor will the DOE or its 
successors directly or indirectly aid in the initiation of any such 
administrative or civil judicial matter against Occidental or 
participate voluntarily in the prosecution of such actions. The DOE 
will not assert voluntarily in any administrative or civil judicial 
proceeding that Occidental has violated the federal petroleum price and 
allocation regulations with respect to the matters covered by this 
Consent Order or otherwise take any action with respect to Occidental 
in derogation of this Consent Order. However, nothing contained herein 
shall preclude the DOE from defending the validity of the federal 
petroleum price and allocation regulations.
    (b) This Consent Order settles and finally resolves all aspects of 
Occidental's potential liability to the DOE under the federal petroleum 
price and allocation regulations, including but not limited to its 
capacity as an operator or working interest or royalty interest owner 
of a crude oil producing property. In addition, if Occidental was the 
operator of a property that produced crude oil for all or part of the 
period covered by this Consent Order, the DOE shall not initiate or 
prosecute any enforcement action against any person for noncompliance 
with the federal petroleum price and allocation regulations during such 
period relative to such property. Otherwise, the DOE reserves the right 
to initiate and prosecute enforcement actions against any person other 
than Occidental for 

[[Page 35190]]
noncompliance with the federal petroleum price and allocation 
regulations, including suits against operators for overcharges for 
crude oil when Occidental is a working interest or royalty interest 
owner in such crude oil production. In that connection, Occidental and 
the DOE agree that the amount paid to the DOE pursuant to this Consent 
Order is not attributable to Occidental's activities as a working 
interest or royalty interest owner on properties on which it is not the 
operator. Furthermore, Occidental and the DOE agree that the Consent 
Order and the payments hereunder do not resolve, reduce or release the 
liability of any other person for violations on properties of which 
(but only for the times during which) Occidental is or was a working 
interest or royalty interest owner (and not the operator) or affect any 
rights or obligations between Occidental and the operator or any other 
working interest or royalty interest owner.
    (c) The DOE will not seek or recommend any criminal fines or 
penalties based on information or evidence presently in its possession 
for the matters covered by this Consent Order, provided, however, that 
nothing in this Consent Order precludes the DOE from (1) seeking or 
recommending such criminal fines or penalties if information 
subsequently coming to its attention indicates, either by itself or in 
combination with information or evidence presently known to DOE, that a 
criminal violation may have occurred, or (2) otherwise complying with 
its obligations under law with regard to forwarding information of 
possible criminal violations of law to appropriate authorities. Nothing 
contained herein may be construed as a bar, estoppel or defense against 
any criminal or civil action brought by an agency of the United States 
other than the DOE under (i) Section 210 of the Economic Stabilization 
Act of 1970 or (ii) any statute or regulation other than the federal 
petroleum price and allocation regulations. Finally, this Consent Order 
does not prejudice the rights of any third party or Occidental in any 
private action, including an action for contribution by or against 
Occidental.
    (d) Occidental releases the DOE completely and for all purposes 
from all administrative and civil judicial claims, liabilities or 
causes of action that Occidental has asserted or may otherwise be able 
to assert against the DOE relating to the DOE's administration of the 
federal petroleum price and allocation regulations, except that nothing 
herein is intended to affect in any way any rights Occidental may have 
to receive a portion of the funds at issue in (1) the proceeding 
originally styled The 341 Tract Unit of the Citronelle Field/OXY USA 
Inc., OHA Case No. RF345-00021, and now under review in Amoco Oil Co., 
et al. v. DOE, Civil Action No. H-94-2423 (S.D. Tex., filed July 15, 
1994), and R.H. Stechmann, et al. v. DOE, Civil Action No. 94-0887-A-M 
(S.D. Ala., filed Nov. 17, 1994), and (2) the proceeding pending before 
OHA styled Enron Corp./OXY USA Inc., OHA Case No. RF340-00112. However, 
neither this release nor any other provision of this Consent Order 
precludes Occidental from asserting any factual or legal position or 
argument as a defense to any action, claim, or proceeding brought by 
the DOE, the United States, or any agency of the United States. Nor 
does it preclude Occidental from asserting a defense, counterclaim or 
offset to any action, claim or proceeding brought by any other person.
    (e) Nothing in this Consent Order shall affect any rights 
Occidental may have to challenge the DOE's failure or refusal to 
produce documents in response to requests therefor that have been or 
may in the future be made by Occidental or its attorneys pursuant to 
the Freedom of Information Act, 5 U.S.C. 502, et seq. (``FOIA''), 
except that Occidental hereby withdraws and waives its rights to have 
documents produced in response to the following requests: (1) The June 
20, 1988 request submitted by Phillips, Nizer, Benjamin, Krim & Ballon 
(Request No. 8872206R); (2) paragraph 2 of the March 22, 1993 request 
submitted by Skadden, Arps, Slate, Meagher & Flom (``Skadden'') 
(Request No. 93032402R); (3) paragraphs 1, 3-8, 13-15 and 17-18 of the 
June 3, 1993 request submitted by Skadden (Request No. 93060803RG); (4) 
the October 29, 1993 request submitted by Skadden (Request No. 
93110217R); (5) the January 21, 1994 request submitted by Skadden 
(Request No. 94012510X); and (6) the two September 19, 1994 requests 
submitted by Skadden (both designated Request No. 94092001GC).
    503. (a) Within five (5) days after the execution of the Consent 
Order by both parties, the DOE and Occidental shall jointly file 
written notification of the fact of such execution to the OHA. In 
addition, if, by September 8, 1995, this Consent Order has neither 
become effective nor has been withdrawn pursuant to Article IX of this 
Consent Order, DOE and Occidental shall jointly file with the OHA a 
request that OHA stay or otherwise defer consideration of all further 
action in the proceeding styled In the Matter of OXY USA Inc., Case No. 
LRO-0003, until such time as the Consent Order has become effective or 
been withdrawn pursuant to Article IX. In addition, in the event that 
the plaintiffs in the actions in the United States District Court for 
the District of the District of Columbia styled State of Alabama, et 
al. v. Federal Energy Regulatory Commission, et al., Civil Action No. 
94-0347-HHG, and Consolidated Edison Co. of New York, Inc., et al. v. 
Hazel R. O'Leary, et al., Civil Action No. 94-0352-HHG, take an appeal 
prior to the Effective Date of this Consent Order from the decision 
filed by that court on June 8, 1995 dismissing their complaints, the 
DOE and Occidental shall, within fifteen (15) days after the filing of 
such appeal or by July 7, 1995, whichever is later, jointly file with 
the appellate court or courts written notification that this Consent 
Order has been executed, which notice shall request that further 
proceedings on the appeal be suspended until such time as this Consent 
Order has become effective or has been withdrawn pursuant to Article IX 
of this Consent Order.
    (b) Within fifteen (15) days after the Effective Date of this 
Consent Order, Occidental and the DOE shall file or cause to be filed 
appropriate pleadings and will take all other steps necessary to 
withdraw all claims and dismiss with prejudice all proceedings covered 
by this Consent Order then pending before OHA or any other 
administrative tribunal, and to dismiss with prejudice any court 
proceeding then pending involving an appeal from or seeking review of a 
decision by the OHA, the Federal Energy Regulatory Commission 
(``FERC''), a federal district court or a federal court of appeals in 
any such proceedings. With respect to the court cases referred to in 
subparagraph (a) above, the requests to dismiss shall, in addition to 
other grounds for dismissal that might be applicable, recite that the 
underlying claim that was the subject of the FERC orders under review 
in those cases has been fully compromised and released by this Consent 
Order.
    504. Execution of this Consent Order constitutes neither an 
admission by Occidental nor a finding by the DOE of any violation by 
Occidental of any statute or regulation. The DOE has determined that it 
is not appropriate to seek to impose civil penalties for the matters 
covered by this Consent Order, and the DOE will not seek any such civil 
penalties. None of the payments or expenditures made by Occidental or 
OXY pursuant to this Consent Order are to be considered for any purpose 
as penalties, fines, or forfeitures or as settlement of any potential 
liability for penalties, fines or forfeitures.

[[Page 35191]]

    505. Notwithstanding any other provision herein, with respect to 
the matters covered by this Consent Order, the DOE reserves the right 
to initiate an enforcement proceeding or to seek appropriate penalties 
for any newly discovered regulatory violations committed by Occidental, 
but only if Occidental has knowingly concealed material facts relating 
to such violations. The DOE also reserves the right to seek appropriate 
judicial remedies, other than full rescission of this Consent Order, 
for any knowing misrepresentation of fact material to this Consent 
Order made by Occidental during the course of the audit or the 
negotiations that preceded this Consent Order.

VI. Recordkeeping, Reporting and Confidentiality

    601. Occidental shall maintain such records as are necessary to 
demonstrate compliance with the terms of this Consent Order. Except for 
such records, Occidental is relieved of its obligation to comply with 
the recordkeeping requirements of the federal petroleum price and 
allocation regulations relating to the matters settled by this Consent 
Order.
    602. Occidental will not be subject to any audit requests, report 
orders, subpoenas, or other administrative discovery by DOE relating to 
Occidental's activities subject to such regulations relating to the 
matters settled by this Consent Order.
    603. The DOE shall treat all information provided to it by 
Occidental pursuant to negotiations which were conducted with respect 
to this Consent Order as confidential. Nothing herein shall alter or 
modify in any way the parties' obligations regarding confidentiality 
set forth in that Mediation Agreement between the DOE, Occidental and 
other parties entered into by the DOE and Occidental on or about 
January 13, 1995. Nor shall anything herein be deemed to waive or 
prejudice any right Occidental may have independent of this Consent 
Order or such Mediation Agreement regarding the disclosure of 
confidential information.

VII. Contractual Undertaking

    701. It is the understanding and express intention of Occidental 
and the DOE that this Consent Order constitutes a legally enforceable 
contractual undertaking that is binding on the parties and their 
successors and assigns. Notwithstanding any other provision herein, 
Occidental (and its successors and assigns) and the DOE agree that the 
sole and exclusive remedy for a breach of this Consent Order shall be 
the filing of a civil action in an appropriate United States district 
court, and the DOE also reserves the right to seek appropriate 
penalties and interest for any failure to comply with the terms of this 
Consent Order. The DOE will undertake the defense of the Consent Order, 
as made effective, in response to any litigation challenging the 
Consent Order's validity in which the DOE, the FERC or any of their 
officials or employees is named as a party. Occidental agrees to 
cooperate with the DOE in the defense of any such challenge. Nothing in 
this Consent Order shall be construed as preventing Occidental from 
also participating as a party in such defense.

VIII. Final Order

    801. Upon becoming effective, this Consent Order shall be a final 
order of the DOE having the same force and effect as a remedial order 
issued pursuant to Section 503 of the DOE Act, 42 U.S.C. 7193, and 10 
CFR 2O5.l99B. Occidental hereby waives its right to administrative or 
judicial review of this Order, but Occidental reserves the right to 
participate in any such review initiated by a third party.

IX. Effective Date

    901. This Consent Order shall become effective as a final order of 
the DOE on the date that notice to that effect is published in the 
Federal Register (the ``Effective Date''). Prior to that date, the DOE 
will publish notice in the Federal Register that it proposes to make 
this Consent Order final and, in that notice, will provide not less 
than thirty (30) days for members of the public to submit written 
comments. The DOE will consider all written comments in deciding 
whether to adopt the Consent Order as a final order, to withdraw 
agreement to the Consent Order, or to attempt to renegotiate the terms 
of the Consent Order.
    902. Until the Effective Date, the DOE reserves the right to 
withdraw consent to this Consent Order by written notice to Occidental, 
in which event this Consent Order shall be null and void. If this 
Consent Order is not made effective on or before the one hundred 
twentieth (120th) day following execution by Occidental, Occidental 
may, at any time thereafter until the Effective Date, withdraw its 
agreement to this Consent Order by written notice to the DOE, in which 
event this Consent Order shall be null and void.

    I, the undersigned, a duly authorized representative of 
Occidental Petroleum Corporation and OXY USA Inc., hereby agree to 
and accept on behalf of Occidental Petroleum Corporation and OXY USA 
Inc. the foregoing Consent Order.

    Dated: June 27, 1995.
Donald P. de Brier,
Executive Vice President and General Counsel, Occidental Petroleum 
Corporation.

    I, the undersigned, a duly authorized representative of the 
United States Department of Energy, hereby agree to and accept on 
behalf of the Department of Energy the foregoing Consent Order.

    Dated: June 27, 1995.
Eric J. Fygi,
Deputy General Counsel, U.S. Department of Energy.
[FR Doc. 95-16608 Filed 7-5-95; 8:45 am]
BILLING CODE 6450-01-P