Case No. RR300-00275

December 6, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Gulf Oil Corporation/Buffalo Aeronautical Corp./Miller Tabek Hirsch & Co.

Date of Filing: March 7, 1996

Case Number: RR300-00275

On January 30, 1996, the Office of Hearings and Appeals (OHA) dismissed as incomplete the Application for Refund filed by Buffalo Aeronautical Corp. (Buffalo), Case No. RF300-16947, in the Gulf Oil Corporation special refund proceeding. That Application was filed with the assistance of Wilson, Keller & Associates (WKA), a private filing service located in Memphis, Tennessee. WKA has now submitted a Motion for Reconsideration, requesting that we grant the refund claim filed on behalf of Buffalo in Case No. RF300-16947 to Miller Tabek Hirsch & Co.

The Refund Application

The original Application, Case No. RF300-16947, was filed under the name "Buffalo Aeronautical Corp." and signed by Mr. Stephen Zuppello, who is identified as the "C.F.O." The Application was originally filed on May 29, 1991. On December 3, 1991, we received a letter from WKA stating that WKA was attempting to obtain unspecified additional information relating to the case, and that the information would be forthcoming as soon as possible. We received no further information from WKA at that time. On October 5, 1993, we received another letter from WKA stating that WKA was attempting to contact Buffalo to determine if the Applicant in question was entitled to receive a refund in the Gulf proceeding. In that letter, WKA wrote that it would submit "whatever supplementary material proves necessary as soon as possible." Again, we received no further information from WKA. On January 30, 1996, the OHA dismissed as incomplete the Application filed on behalf of Buffalo by WKA.(1)

Motion for Reconsideration

Wilson, Keller & Associates has now filed a Motion for Reconsideration (Motion), Case No. RR300-00275, asking that we grant the previously dismissed Application for Refund (Case No. RF300-16947) filed on behalf of Buffalo to another company, Miller Tabek Hirsch & Co. In the Motion, WKA states that Buffalo no longer exists. According to WKA, the capital stock of Buffalo was purchased by another company in 1981. The second company, Van Dusen Air, Inc. (Van Dusen), was then merged into a third company. The third company, APL Limited Partnership (APL), was renamed Van Dusen Air, Inc. pursuant to the merger agreement between Van Dusen and APL. Van Dusen Air, Inc. was then dissolved in August 1987. The Articles of Dissolution were signed by Mr. Stephen Zuppello, who is identified as the Assistant Secretary of Van Dusen Air, Inc.(2) On the basis of this information, WKA asks that the OHA grant the refund monies due to Buffalo to yet another company, Miller Tabek Hirsch & Co., which WKA asserts is an affiliate of APL.

Conclusions

We commenced accepting Refund Applications in the Gulf refund proceeding on September 8, 1987, more than eight years ago. While the originally-announced deadline for such submissions was June 30, 1988, we continued to liberally accept Applications after the deadline. In June 1992, after reviewing the length of time the refund period had been open, and noting that we had already received more than 20,000 Gulf Refund Applications, we concluded that eligible Applicants had been provided ample opportunity to file. Therefore, we announced that we would not accept Applications postmarked after March 1, 1993. We published a Notice to that effect in the Federal Register, stating specifically that all new Applications for Refund from the Gulf consent Order fund postmarked after the final filing date of March 1, 1993 would be subject to summary dismissal. 57 Fed. Reg. 27771 (June 22, 1992). See also, Gulf Oil Corporation/Evarts Service Station, 23 DOE ¶ 85,016 (1993).

The original Application for Buffalo Aeronautical Corp. (Case No. RF300-16947) was filed prior to the March 1, 1993 deadline. In that Application, the only party listed as an Applicant for the refund monies due to Buffalo Aeronautical Corp. was Buffalo Aeronautical Corp. itself. Although there was ample time between the date on which this case was originally filed and the date on which it was dismissed as incomplete, there was no mention of either Van Dusen Air, Inc., APL Limited Partnership or Miller Tabek Hirsch & Co. in the original Application. Because the current Applicant, Miller Tabek Hirsch & Co., is in no way mentioned in the original Application, we must consider this Motion a new filing.(3)

Although the filing deadline for new cases has passed, we will generally look at all Motions for Reconsideration to see if a compelling reason to re-open the case is presented. See Gulf Oil Corporation/Villa Maria Gulf, Case No. RF300-00251 (April 23, 1993). After analyzing the Motion submitted on behalf of Miller Tabek Hirsch & Co. we have not found any compelling reasons for the claim to be reconsidered. The Motion did not demonstrate, for example, that the current information submitted by Wilson, Keller & Associates was unavailable at the time of the original filing. Indeed, all the changes in status cited by WKA in the Motion (i.e., sale of Buffalo stock to Van Dusen, merger of Van Dusen and APL, dissolution of Van Dusen) occurred prior to the date on which the Application was submitted. Furthermore, there is no verification that Miller Tabek Hirsch & Co. is, indeed, the party eligible to receive refund monies on behalf of Buffalo; simply asserting that Miller Tabek Hirsch & Co., a brokerage firm located in New York, New York, was affiliated with APL, which merged with Van Dusen after Van Dusen purchased the stock of Buffalo, does not verify that Miller Tabek Hirsch & Co. is entitled to receive refund monies due to Buffalo. Most important, the Motion gives no reason why this claim from Miller Tabek Hirsch & Co. could not have been submitted during the five years that the original Application was pending before the OHA.

We find that the Motion for Reconsideration filed by Wilson, Keller & Associates has not met the standards established for Motions for Reconsideration in the Gulf proceeding. Accordingly, this Motion for Reconsideration will be dismissed.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed on behalf of Buffalo Aeronautical Corp./Miller Tabek Hirsch & Co. (Case No. RR300-00275) is hereby dismissed.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: December 6, 1996

(1)WKA did, however, submit a letter dated February 5, 1996 (5

days after the case was dismissed) asking the OHA to "please delay processing claim number RF300-16947" while WKA worked to resolve any outstanding issues. Because this letter provided no additional information, it was not sufficient to open a Motion for Reconsideration of Case No. RF300-16947.

(2)We must presume that Mr. Stephen Zuppello was an officer of both Buffalo and, later, Van Dusen. However, there is no mention of Van Dusen, or Miller Tabek Hirsch & Co., in the original Application. Mr. Zuppello's signature on both the Application and the Articles of Dissolution for Van Dusen is the only direct connection between the original Application and the Motion for Reconsideration. Mr. Zuppello's past or current relationship to the Applicant in this Motion, Miller Tabek Hirsch & Co., is not clear. We are told in the Motion that Mr. Zuppello "is no longer with" Miller Tabek Hirsch & Co. and that there is a new contact person for the Motion.

(3)Miller Tabek Hirsch & Co. is mentioned, by name only, in the letter sent by WKA after the case was dismissed on January 30, 1996 (dated February 5, 1996). However, because this letter was written after the case was dismissed, it cannot be considered part of the original case record.