Case No. RR321-00197

March 10, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Texaco Inc./Chain Oil Co.

Date of Filing: February 6, 1997

Case Number: RR321-197

This Decision and Order concerns a Motion for Reconsideration that was filed in the Texaco refund proceeding by Donald E. Foster on behalf of Chain Oil Co. (Chain Oil). In this proceeding, the Department of Energy (DOE) refunded consent order funds remitted to the DOE by Texaco to purchasers of Texaco refined petroleum products who demonstrated that they were injured as a result of Texaco's alleged regulatory violations.

This is the second Motion for Reconsideration that Mr. Foster has filed with the Office of Hearings and Appeals (OHA) in the Texaco proceeding. His first Motion was denied on February 21, 1996. See Texaco Inc./Chain Oil, 25 DOE ¶ 85,091 (1996)(Chain). In his current Motion, Mr. Foster again requests that we reconsider a Decision and Order that we issued to him on October 20, 1995. See Texaco Inc./Donald E. Foster, Case No. RF321-12205 (October 20, 1995)(Foster).

I. Background

A. The Foster Decision

In Foster, we considered two Applications for Refund that were filed by the Movant. One of the applications was filed by Mr. Foster for purchases of Texaco products that he personally made (RF321-12205). The second application (RF321-12208) was filed by Mr. Foster on behalf of Chain Oil, a reseller of Texaco refined petroleum products purchased by Mr. Foster in February 1985. We granted Mr. Foster a refund for his purchases of Texaco refined petroleum products, but we denied the application that he filed on behalf of Chain Oil.

In so doing, we stated that in instances in which the ownership of an applicant firm has changed since the refund period, we have generally determined that the owners of that firm during the refund period are entitled to any refund, unless (I) the firm was a

corporation and ownership was transferred through a stock sale, or (ii) the firm's assets were sold pursuant to a contract that indicated, either explicitly or implicitly, that potential refunds were an asset being transferred. See Foster at 3 (citing ARCO/Dick's ARCO, 20 DOE ¶ 85,389 (1990); Murphy Oil Corp./Severson Oil Co., 20 DOE ¶ 85,695 (1990)).

We denied the Chain Oil application because Mr. Foster failed to show that his acquisition of that company met either of the above criteria. Instead of submitting a copy of the contract by which he acquired Chain Oil, Mr. Foster had submitted a signed statement from Frank and Georgia Chain to the effect that the assets of Chain Oil sold to Mr. Foster included the right to any refund. We determined that statement was insufficient to demonstrate that the right to a refund was transferred to Mr. Foster, especially in the absence of any contention that the sales contract itself was unavailable. We added that the statement did not indicate the relationship, if any, between Frank and Georgia Chain and Chain Oil, nor the extent of their knowledge about the sale. We were therefore unwilling to accept the statement as proof that Mr. Foster was entitled to receive a refund for purchases of Texaco products made by Chain Oil.

B. The Chain Decision

In his first Motion for Reconsideration, Mr. Foster submitted a copy of the sales contract and claimed that contract, when viewed in conjunction with the Chains' statement, transferred the right to a refund to Mr. Foster. In Chain we rejected this argument and denied the Motion. We found that the language of the contract did not explicitly or implicitly indicate that the right to a refund was among the assets of Chain Oil being transferred to Mr. Foster.(1) We further concluded that the Chains' statement should be accorded little weight because we could not contact the Chains to determine whether the statement accurately reflected their intentions at the time of the sale or whether the Chains signed with full knowledge of the circumstances under which the statement was solicited by Mr. Foster. We therefore determined that the contract did not transfer the right to a refund to Mr. Foster, and we denied his Motion.

C. The Second Motion for Reconsideration

On February 6, 1997, Mr. Foster filed his current Motion for Reconsideration. In this submission, he asserts that he has located Mrs. Chain, and he offers to arrange a telephone conversation between Mrs. Chain and the OHA. Although his Motion is based on the assumption that Mrs. Chain will provide corroboration for his claim that the right to a refund was transferred, he does not specify what he believes the substance of Mrs. Chain's statements would be. He provides no other basis for requesting reconsideration of our Decision.

II. Analysis

DOE regulations do not explicitly provide for reconsideration of a final Decision and Order in a refund proceeding. However, we have the discretion to consider the factual and procedural merits of Motions for Reconsideration. See, e.g., Tenneco Oil Co./Major Oil Co., 13 DOE ¶ 85,322 (1985); Texaco Inc./Ray's Texaco, 22 DOE ¶ 85,129 (1992).

Given the untimely nature of Mr. Foster's submission, we do not believe that granting his Motion would be an appropriate exercise of that discretion. The Motion was filed on February 6, 1997, almost one year after the issuance of Chain and almost three years after the February 28, 1994 deadline for the filing of Texaco refund applications. See 58 Fed. Reg. 59461 (November 9, 1993). Mr. Foster has provided no explanation for this lengthy delay, and we can think of none. For reasons of administrative efficiency and finality in Subpart V refund proceedings, we therefore conclude that Mr. Foster's Motion should be denied. See, e.g., Texaco Inc./Self Enterprises, 25 DOE ¶ 85,064 (1995).

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Donald E. Foster on behalf of Chain Oil Co. on February 6, 1997 is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 10, 1997

(1)That contract states, in pertinent part, that Chain will sell "all rights to do business in line of petroleum marketing and all rights dealing with Texaco" and this "will specifically include all rights to any petroleum allocation, both past and future, that Chain may have or may accumulate at any time in the future from doing business as Chain Oil Co."