Case No. RF272-38479

June 5, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Rufus Morrison, Sr. et al.

Dates of Filings: January 7, 1988 et al.

Case Numbers: RF272-38479 et al.

This Decision and Order will consider the Applications for Refund filed by five claimants that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Each applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy under 10 C.F.R. Part 205, Subpart V. We have established refund procedures for these funds, which have been made available through consent orders entered into by the DOE and numerous firms that sold crude oil during the price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987) (Berry); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).

In order to receive a refund for crude oil overcharges, an applicant generally must: (1) document its purchase volumes; and (2) show that it was injured as a result of the alleged overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end-users of petroleum products and whose businesses were unrelated to the petroleum industry are presumed to have absorbed the crude oil overcharges, and generally need not submit proof of injury to receive a refund in the Subpart V proceeding. See also Berry.

In general, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016 per gallon, the volumetric refund amount currently available. We derived the volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).

Each of the applicants considered in this Decision and Order is an end-user. Each bought petroleum products to operate its business. Each applicant has derived its purchase volume claim by using actual records or a reasonable estimation technique. We have

carefully reviewed the information submitted by the applicants, and have determined that the information provided by the applicants sufficiently supports their requests for refunds.(1)

One of the applicants, Auto Fast Freight, Case No. RF272-98743, was a corporation that was suspended by the state of California in 1995. At that time there were three equal shareholders. In the case of a corporation not dissolved through bankruptcy, it has been the policy of the OHA to award the refund to the former stockholders according to their respective ownership interests in the corporation at the time of dissolution. See Gulf Oil Corporation/Pate’s Gulf, 22 DOE ¶ 85,219 (1992) (Pate’s). Therefore, each shareholder, Luciano Giudice, Charlotte Giudice and John Traina, is entitled to one-third of the refund. We direct Wilson, Keller and Associates, the applicants’ filing service, to divide the refund for Case No. RF272-98743 in this manner.

Another application considered in this decision was filed on behalf of Harper Trucking Service, Inc. (Harper), Case No. RF272-98719. Harper was dissolved in 1986. At that time, C. Dudley Harper owned seventy percent of Harper and his wife, Lorene Harper, owned ten percent. Their four children, Curtis Harper, Jim Harper, Doris Lane and Marlene Stone, each owned five percent of Harper. Usually, as explained above, the refund would be distributed according to these ownership interests. However, C. Dudley Harper passed away in 1991. He did not leave a specific bequest of the right to a refund. In the absence of a specific bequest of the right to a refund, we generally consider the right to a refund to be transferred by the residuary clause of a will. See, e.g., Texaco Inc./Eastland Texaco, 24 DOE ¶ 85,074 (1994). C. Dudley Harper left the remainder of his property to his four children. Based on this information, Lorene Harper is entitled to ten percent of the refund and the four children are each entitled to 22.5 percent of the refund. We direct Wilson, Keller and Associates, the applicants’ filing service, to divide the refund for Case No. RF272-98719 in this manner.

Since the applicants listed in the two Appendices to this Decision are end-users of refined petroleum products, they are presumed injured by the crude oil overcharges and are entitled to receive their full allocable share of the crude oil monies. The refund amounts are calculated by multiplying the approved purchase volumes by the volumetric refund amount of $0.0016 per gallon. The purchase volumes and refunds approved for each applicant are set forth in the Appendices. The total volume for which refunds are approved in this Decision is 15,470,944 gallons, and the sum of the refunds granted is $24,754.

Three of the applicants filed their Applications through Wilson, Keller & Associates, a private filing service. In accordance with these applicants’ requests, their refund checks be sent to that firm. The other two applicants will have their checks sent to them directly.

The final deadline for the crude oil refund proceeding was June 30, 1995. It is the current policy of the DOE to pay crude oil refund claimants at the current rate of $0.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.

It Is Therefore Ordered That:

(1) The Applications for Refund filed by the five claimants listed in the Appendices attached to this Decision and Order for all available crude oil overcharge funds are hereby approved as set forth in Paragraph (2) below.

(2) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller, of the Department of Energy shall take appropriate action to disburse from the escrow account maintained at the Department of the Treasury denominated Crude Tracking- Claimants IV, Account No. 999DOE010Z, the amounts specified in Appendices 1 and 2 to this Decision and Order to the applicants specified in those Appendices. The refund check for the applicants listed in Appendix 1 should be sent to those applicants. The refund checks for the applicants listed in Appendix 2 should be sent to Wilson, Keller & Associates, P.O. Box 221135, Memphis, TN 38122.

(3) Upon receipt of the refund checks, Wilson, Keller & Associates shall divide the refunds for Case Nos. RF272-98719 and RF272-98743 as set forth in this Decision and Order. Wilson, Keller & Associates shall then notify the Office of Hearings and Appeals, in writing, that it has divided the refunds in such a manner.

(4) To facilitate the payment of future refunds, each applicant shall notify the Office of Hearings and Appeals in the event that there is a change in its address, or if an address correction is necessary. Such notification shall be sent to:

Director of Management Information

Office of Hearings and Appeals

Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20585-0107

(5) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary material submitted by the applicants. This Decision and Order may be revoked or modified at any time upon a determination that the basis underlying a refund application is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 5, 1997

[Case Nos. RF272-38479 et al.]

APPENDIX 1

Case No.

Payee

Purchase

Refund

and Applicant

and Address

Volume

[Gallons]

_____________________ _______

___________________ _______

________ ___

________ ___

RF272-38479

Rufus Morrison, Sr.

17,947

$29

Rufus Morrison, Sr.

Route 1, #262

Barney, GA 31625

RF272-98785

Halifax Paper Board Company

1,167,000

$1,867

Halifax Paper Board Co.

c/o Donald Dillon, Sec./Treas.

1213 Mall Drive

Richmond, VA 23235

_____________________ _______

___________________ _______

________ ___

________ ___

Two Applicants

1,184,947

$1,896

[Case Nos. RF272-38479 et al.]

APPENDIX 2

Case No.

Contact

Purchase

Refund

and Applicant

Volume

[Gallons]

_____________________ _______

_________________ _______

__________ _

______ _____

RF272-98719

Jim Harper

2,580,408

$4,129

Harper Trucking Service Inc.

OR Wilson, Keller & Associates

RF272-98743

Luciano Giudice

3,722,396

$5,956

Auto Fast Freight

OR Wilson, Keller & Associates

RF272-98748

Gaylord Saner

7,983,193

$12,773

Owens-Illinois, Inc.

Brockway Glass Co., Inc.

OR Wilson, Keller & Associates

_____________________ _______

_________________ _______

__________ _

______ _____

Three Applicants

14,285,997

$22,858

(1)One applicant, Halifax Paper Board Company, Inc. (Halifax), Case No. RF272-98785, applied for purchases at its site during the entire refund period, August 1973 to January 1981. Upon investigation, this Office learned that Halifax purchased the site in April 1980 in an asset transaction from another company, Federal Paper Board Company, Inc. Under OHA precedent, the right to a refund generally does not pass with the purchase of the assets of the company. See Georgia Kraft Company, 25 DOE ¶ 85,075 at 88,192 (1995); cf. Ward Transport, Inc., 26 DOE ¶ 85,027 (1997) (asset sale only transfers right to refund if agreement explicitly or implicitly indicates that potential refunds being transferred). Therefore, Halifax is not eligible for a refund for pre-April 1980 purchases.

Another application was submitted by Brockway Glass Company, Inc. (Brockway) and its parent corporation, Owens-Illinois, Inc. (Owens), Case No. RF272-98748, primarily for the purchases of Brockway. We have determined that there is no duplication of gallonage between this claim and Owens’ earlier claim, Case No. RF272-11705.