Case No. RF272-18674

JUNE 13, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Applicant:Lydall, Inc.

Date of Filing:December 21, 1987

Case Number: RF272-18674

In this Decision and Order, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) will determine the eligibility of Lydall, Inc. (Lydall) for a refund from the crude oil monies currently available for disbursement in a proceeding conducted pursuant to the provisions of 10 C.F.R. Part 205, Subpart V. The applicant has applied for a refund for its purchases of petroleum products.

Pursuant to DOE policy, purchasers of refined petroleum products were permitted to apply to the OHA for a refund from crude oil overcharge funds under the OHA's jurisdiction until the filing deadline of June 30, 1995. See Statement of Modified Restitutionary Policy to be Implemented in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986) (the MSRP). We have established refund procedures for these funds which have been made available through consent orders entered into by 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) (Tarricone); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).

Lydall claims that because it bought the assets of the Manning Division from the Hammermill Paper Company, it is entitled to receive a refund for the refined petroleum purchases of the Manning Division during the refund period. It confirmed that it did not buy any of the capital stock of the Manning Division or of the Hammermill Paper Company. See Letter from Arthur P. Kazanjian, Controller, to Orestes O’Brien, OHA Staff Analyst (June 5, 1990). With that letter, Lydall submitted the asset purchase agreement between itself and Hammermill Paper Company.

Under OHA precedent, the right to receive a refund generally remains with the owner of a firm during the price control period. We have determined that 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) (Troy); see Ward Transport, Inc., 26 DOE ¶ 85,027 (1997). Here, there is no such language in the asset purchase agreement which would indicate that Lydall is in any way entitled to receive refund monies for the purchases of the Manning Division. Therefore, neither of the

circumstances described in Troy exist in this case, and we have determined that Lydall is not eligible for a refund based on the purchases of the Manning Division. Accordingly, we will deny the Application for Refund submitted by Lydall.

It Is Therefore Ordered That:

(1) The Application for Refund filed by Lydall, Inc. on December 21, 1987 (Case No. RF272-18674) is hereby 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