Case No. RR272-00268

April 23, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Applicant:West Building Materials / Associated Distributors

Date of Filing: December 4, 1996

Case Number: RR272-268

On December 4, 1996, West Building Materials / Associated Distributors (West) filed a Motion for Reconsideration with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). If the Motion were granted, the OHA would reconsider the Application for Refund filed by West in the Subpart V crude oil refund proceeding (Case No. RG272-790) that was dismissed on November 15, 1996.

On June 30, 1995, West mailed an Application for Refund to the OHA. This application was based upon West’s purchases of refined petroleum products during the crude oil price control period, August 19, 1973 through January 27, 1981. The application was sent to the OHA by West’s filing representative, Federal Refunds, Inc. The application did not contain a gallonage claim but indicated that one would be submitted at a later date. On September 5, 1996, we contacted West by letter and requested that it submit a gallonage claim by November 1, 1996. After the passage of the November 1 deadline, we had not received a response from West, and we decided to dismiss the application. Shortly after the dismissal, we received the requested information in a letter from Federal Refunds.

In its December 4, 1996 Motion for Reconsideration, West asks us to reconsider our dismissal. West states that it mailed a response to our request before the November 1 deadline and does not know why we did not receive it. All of the documents forwarded to us in the Motion were dated September 26, 1996. Due to the fact that West prepared and claims to have sent the requested information well before the deadline, we believe that a dismissal would unfairly penalize West, and we have decided to grant its Motion for Reconsideration. We will therefore analyze the application.

In the past, purchasers of refined products have been allowed to apply to the OHA for a refund from crude oil overcharge funds

collected by the DOE. 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders between the DOE and numerous firms that sold crude oil during the price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85, 495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).

The refund procedures specify that in order to receive a refund, an applicant generally must: (1) document its purchase volumes and (2) show that it was injured by alleged crude oil overcharges. Applicants who were end-users of petroleum products, however, and whose businesses were unrelated to the petroleum industry are presumed to have absorbed the crude oil overcharges. These applicants need not submit proof of injury to receive a refund in the Subpart V proceeding. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

In general, an applicant is eligible for a refund equal to the number of gallons it purchased multiplied by the volumetric refund amount. Currently, the volumetric refund amount is $.0016 per gallon.

We have carefully reviewed the information submitted by West. West estimated its gallonage claim using fuel expense records. Based on the information in the Motion, we find that the estimated gallonage claim submitted by West is reasonable.

We find that West was an end-user of refined petroleum products. It used 3,729,206 gallons of gasoline in its delivery trucks. Accordingly, it is presumed injured by the crude oil overcharges and is entitled to receive its full allocable share of the crude oil funds. The total volume approved in this Decision is 3,729,206 gallons, and the refund granted is $5,967.

The final deadline for the crude oil proceeding was June 30, 1995. It is the current policy of the DOE to pay eligible crude oil refund applicants at the rate of $0.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for this 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 Motion for Reconsideration filed by West Building Materials / Associated Distributors, Case No. RR272-268, is hereby granted 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 $5,967 from the DOE deposit fund escrow account denominated Crude Tracking-Applicants 2, Account Number 999DOE008Z, maintained at the Department of Treasury to West Building Materials / Associated Distributors.

(3) The refund check should be sent to "Associated Distributors, Re: West Building Materials / Associated Distributors, 5775-D Glenridge Drive, Atlanta, GA, 30328."

(4) To facilitate the payment of future refunds, West shall notify the Office of Hearings and Appeals in the event that there is a change of 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 materials submitted by West. Any of these determinations may be revoked or modified at any time upon a finding that the basis underlying any Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 23, 1997