Case No. RF272-89499
January 30, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Applicant:WHS, Inc.
Date of Filing:July 15, 1991
Case Number:RF272-89499
This Decision and Order denies an Application for Refund filed by WHS, Inc., a firm that purchased bituminous concrete during the period August 19, 1973, through January 27, 1981.(1) The firm 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 the past, purchasers of refined products were able 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) (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 of refined petroleum products and (2) show that it was injured by the overcharges. However, applicants that were end users of petroleum products are presumed to have been injured. As such, they need not submit proof of injury to receive a refund in the Subpart V proceeding. City of Columbus, 16 DOE ¶ 85,550 (1987).
WHS bases its claim upon the liquid asphalt content in bituminous concrete that it purchased for paving purposes. We have previously determined that while purchases of liquid asphalt are eligible for refunds in the crude oil refund proceeding, purchases of bituminous concrete are not eligible for such refunds, except under circumstances where the purchase contract contains a fuel escalation clause or other provision passing any asphalt price increases through to the customer. Kaplan & Sons Construction, Case No. RF272-78324 (June 21, 1994) (unpublished decision); City of Annapolis, 17 DOE ¶ 85,774 (1988). We have found in these cases that the firm that mixes liquid asphalt with aggregate to produce bituminous concrete substantially changes the form of the liquid asphalt and is therefore the end user that is entitled to the crude oil refund. Bituminous concrete is therefore not an
eligible product and purchasers of it are not considered end-users of the liquid asphalt content of the bituminous concrete. Accordingly, WHS's application which is based upon purchases of bituminous concrete shall be denied.
It Is Therefore Ordered That:
(1) The Application for Refund filed by WHS, Inc., is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: January 30, 1997
(1)WHS's original application, Case No. RF272-78349, was dismissed June 12, 1991, because it erroneously appeared to duplicate another refund application. The claim was reinstated under Case No. RF272-89499 when the applicant demonstrated that it was not a duplicate application.