Case No. RF272-94751

October 8, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Kentucky-American Water Company, et al.

Dates of Filings: June 5, 1993, et al.

Case Numbers: RF272-94751, et al.

This Decision and Order will consider Applications for Refund filed by 7 claimants that purchased refined petroleum products during the period August 19, 1973 through January 27, 1981. Each applicant listed in the Appendix attached to this Decision and Order has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 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 by the overcharges. However, applicants that were end users of petroleum products and whose business was unrelated to the petroleum industry are presumed to have been injured. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

2 of the applicants considered in this Decision and Order are agricultural cooperatives that bought petroleum products for resale to their members, who were end-users, the remaining 5 applicants were end-users. We consider a claim by an agricultural cooperative that resold petroleum products to its members as a claim on behalf of the members. Farmers Union Oil Co., 17 DOE ¶ 85,644 (1988). Therefore, we afford such a cooperative the presumption of end-user injury on the condition that it certify that it will pass through the refund to its members. All of the cooperatives considered in this Decision and Order have provided this certification.

Both cooperatives resold petroleum products to non-members.(1) In the Subpart V refund proceedings, we have treated a cooperative’s sales to non-members in the same manner as sales by other resellers. Upland Farmers Union Coop. Inc., 19 DOE ¶ 85,041 (1989). Consequently, a cooperative is not eligible to receive a crude oil refund for gallons sold to non-members without providing a detailed demonstration of injury. A. Tarricone Inc., 15 DOE ¶ 85,495 (1987). Neither of the 2 cooperatives have attempted to make an injury showing with respect to the gallons that it resold to non-members. Thus, both cooperative claimants are eligible for a refund based solely on the percentage it resold to its members, and we have adjusted the volume of each refund claim accordingly.

Each of the applicants listed in the Appendix has documented its purchase volumes. The purchase volumes and refunds approved for each applicant are set forth in the Appendix. The total volume for which refunds are approved in this Decision is 17,888,774 gallons and the sum of the refunds granted is $28,622.

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 claimants at the rate of $0.0016 per gallon. We will decide after the resolution of a few outstanding enforcement proceedings whether sufficient funds are available for additional refunds.

It Is Therefore Ordered That:

(1) The Applications for Refund filed by the claimants listed in the Appendix 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 the refund amounts set forth in the Appendix to this Decision and Order from the DOE deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants IV, Account No. 999DOE010Z, to the applicants listed in the Appendix to this Decision and Order.

(3) All cooperatives listed in the Appendix to this Decision and Order shall pass through to their members any refunds that they receive on a dollar for dollar basis.

(4) To facilitate the payment of future refunds, the applicants 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: October 8, 1997

(1)State Line Grain Company (RF272-94785) resold 4 percent to non-members; and Wheatland Cooperative Association (RF272-95275) resold 3 percent to non-members.


Appendix
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RF272-94751 KENTUCKY-AMERICAN WATER CO. C/O COLEMAN D. BUSH 2300 RICHMOND RD. LEXINGTON, KY 40502 212,829 $341
RF272-94785 STATE LINE GRAIN CO. C/O JAMES K. DARST RT. 1, BOX 1 MANCHESTER, OK 73758 4,428,988 $7,086
RF272-95228 MILTON M. GOERING 1505 TRAIL W. MCPHERSON, KS 67460 39,133 $63
RF272-95275 WHEATLAND COOPERATIVE ASSN. C/O NELSON VINEYARD 305 16TH ST. WHEATLAND, WY 82201 12,659,042 $20,254
RF272-95285 SPURGER IND. SCHOOL DIST. C/O JOHNNY LEWIS P.O. BOX 38 SPURGER, TX 77660 68,820 $110
RF272-95293 G/L TRUCKING OR ARTHUR GUTHMILLER & M. LEISKE 258 GARDEN CIRCLE DR. MANTECA, CA 95336 253,748 $406
RF272-95294 NORTH SPENCER COUNTY SCHOOL C/O ALAN COX BOX 316 DALE, IN 47523 226,214 $362
Totals: 7       17,888,774 $28,622


Last Updated on 10/20/97
By OHA