Case No. RK272-04304

June 13, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Stone Container Corporation

Date of Filing: March 31, 1997

Case Number: RK272-04304

This Decision and Order will consider an Application for Supplemental Refund filed by Stone Container Corporation (Stone) in the Subpart V crude oil refund proceeding being conducted by the Office of Hearings and Appeals (OHA). (1) The Application is based upon purchases of refined petroleum products made by H&H Plastic Manufacturing Co. (H&H).

According to Stone’s Controller, Bruce Mick, Stone acquired H&H’s assets in 1989. H&H’s stock, however, has remained at all times with its sole shareholder, James Humel. When contacted by OHA, Mr. Humel confirmed the facts surrounding the Asset Purchase between Stone and H&H.

OHA has a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502(b). The Office would be negligent in discharging that duty if it granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586, n.4 (1992). Therefore, the refund procedures the Office has established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firm’s assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).

In this case, Stone did not purchase any of H&H’s capital stock. Moreover, the Asset Purchase Agreement between Stone and H&H did not transfer the right to the subject refund to Stone. As such, Mr. Humel, the owner of H&H’s capital stock did not relinquish his right to receive the supplemental crude oil refund based on the company’s petroleum purchases during the price control period. We will therefore deny the Application submitted by Stone.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Stone Container Corporation, Case No. RF272-04304, be and hereby is denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 13, 1997

(1)For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).