Case No. RF272-98700

April 10, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Catalano Bros., Inc. et al.

Dates of Filings: July 5, 1994 et al

Case Numbers: RF272-98700 et al

This Decision and Order will consider the Applications for Refund filed by 20 claimants that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Each applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy under 10 C.F.R. Part 205, Subpart V. 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) (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; and (2) show that it was injured as a result of the alleged overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end-users of petroleum products and whose businesses were unrelated to the petroleum industry are presumed to have absorbed the crude oil overcharges, and generally need not submit proof of injury to receive a refund in the Subpart V proceeding. See also Berry.

In general, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016 per gallon, the volumetric refund amount currently available. We derived the volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of

petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).

Each of the applicants considered in this Decision and Order is an end-user. Each bought petroleum products to operate its business.

Each applicant has derived its purchase volume claim by using actual records or a reasonable estimation technique. We have carefully reviewed the information submitted by the applicants, and have determined that the information provided by the applicants sufficiently supports their requests for refunds.(1)

All applicants listed in the Appendix are treated as end-users of refined petroleum products for purposes of this proceeding. Accordingly, they are presumed injured by the crude oil overcharges and are entitled to receive their full allocable share of the crude oil monies.(2) The refund amounts are calculated by multiplying the approved purchase volumes by the volumetric refund amount of $0.0016 per gallon. The purchase volumes and refunds approved for each applicant are set forth in the Appendices. The total volume for which refunds are approved in this Decision is 36,587,737 gallons, and the sum of the refunds granted is $58,543.

Sixteen of the applicants filed their Applications through Wilson, Keller & Associates, a private filing service. In accordance with these applicants' requests, their refund checks will be sent to Wilson, Keller & Associates. The other applicants will have their checks sent to them directly.

The final deadline for the crude oil refund proceeding was June 30, 1995. It is the current policy of the DOE to pay crude oil refund claimants at the current rate of $0.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.

It Is Therefore Ordered That:

(1) The Applications for Refund filed by the 20 claimants listed in the Appendices attached 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 from the escrow account maintained at the Department of the Treasury denominated Crude Tracking- Claimants IV, Account No. 999DOE010Z, the amounts specified in Appendices 1 and 2 to this Decision and Order to the applicants specified in those Appendices. The refund checks for the applicants listed in Appendix 1 should be sent to Wilson, Keller & Associates, P.O. Box 221135, Memphis, TN 38122.

(3) Upon receipt of the refund checks, Wilson, Keller & Associates shall divide the refund for Case No. RF272-98752 as set forth in this Decision and Order. Wilson, Keller & Associates shall then notify the Office of Hearings and Appeals, in writing, that it has divided the refund in such a manner.

(4) To facilitate the payment of future refunds, each applicant 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: April 10, 1997

(1)Several of the applicants submitted the amount of gallonage for which each was granted a refund in the Gulf Oil Corp. (Gulf) refund proceeding. In that proceeding each submitted a printout from Gulf. The printout lists the applicants’ purchases on a yearly basis, beginning in 1973. We believe that the 1973 purchase figures listed begin in January because (1) although the refund period in the Gulf proceeding began in August 1973, that proceeding’s consent order period began in January 1973; and (2) the yearly pattern of purchases confirms this assumption. See Carolina Dairies Corp. et al., Case No. RF272-97820 et al. (July 23, 1996). Therefore, we reduced each of these applicant’s volumes by approximately eight and one half months of 1973 purchases.

(2)2/ One of the applicants, Bio-Med-Hu, Inc., Case No. RF272-98752, was a corporation that was involuntarily dissolved by the state of Kentucky in 1990. At that time there were three shareholders, Arthur J. Shulthise who owned 80 percent of the shares, and Arthur J. Shulthise III and Rebecca Shulthise Schweiger, who each owned 10 percent of the shares. In the case of a corporation not dissolved through bankruptcy, it has been the policy of the OHA to award the refund to the former stockholders according to their respective ownership interests in the corporation at the time of dissolution. See Gulf Oil Corporation/Pate’s Gulf, 22 DOE ¶ 85,219 (1992). Therefore, Arthur J. Shulthise is entitled to 80 percent of the refund and Arthur J. Shulthise III and Rebecca Shulthise Schweiger are each entitled to 10 percent of the refund. We direct Wilson, Keller and Associates, the applicants’ filing service, to divide the refund for Case No. RF272-98752 in this manner.


Appendix
CASE NO. APPLICANT FIRM CONTACT VOLUME REFUND  
RF272-98700 CATALANO BROTHERS, INC. OR WILSON, KELLER & ASSOCIATES C/O FREDERIC CATALANO 1,272,201 $2,036  
RF272-98701 SCOTCH PLYWOOD CO. OR WILSON, KELLER & ASSOCIATES C/O GEORGE CHAPMAN 1,516,664 $2,427  
RF272-98702 CHIZEK ELEVATOR TRPT., INC. OR WILSON, KELLER & ASSOCIATES C/O JANICE CHIZEK 2,326,088 $3,722  
RF272-98703 E.L. CRISP, INC. OR WILSON, KELLER & ASSOCIATES C/O E.L. CRISP, JR. 1,212,373 $1,940  
RF272-98708 ESCRO TRANSPORT, LTD. OR WILSON, KELLER & ASSOCIATES C/O DON ESPIOSITO 1,103,763 $1,766  
RF272-98710 FANELLI'S EXPRESS, INC. OR WILSON, KELLER & ASSOCIATES C/O JOHN FANELLI 2,064,894 $3,304  
RF272-98711 TIMLAPH CORP. OF VIRGINIA OR WILSON, KELLER & ASSOCIATES C/O KIM FERGUSSON 2,967,044 $4,747  
RF272-98717 BIRMINGHAM NEWS CO. OR WILSON, KELLER & ASSOCIATES C/O NORMAN L. GRIFFITH 1,051,018 $1,682  
RF272-98722 PUTNAM TRANSFER & STORAGE CO. OR WILSON, KELLER & ASSOCIATES C/O DANIEL E. HENNESSEY 5,925,918 $9,481  
RF272-98733 WALKER ROEMER DAIRIES, INC. OR WILSON, KELLER & ASSOCIATES C/O J.H. LYONS, JR. 1,606,142 $2,570  
RF272-98735 W.M. WALKER, INC. OR WILSON, KELLER & ASSOCIATES C/O ROBERT MATHEWS 2,467,815 $3,949  
RF272-98736 SCHOCK TRF. & WHSE., CO., INC OR WILSON, KELLER & ASSOCIATES C/O RICH MAUER 2,029,695 $3,248  
RF272-98750 GREEN BAY CHICAGO LINES OR WILSON, KELLER & ASSOCIATES C/O MICHAEL SCHMIDT 2,285,364 $3,657  
RF272-98751 MCNAUGHTON BROS., INC. OR WILSON, KELLER & ASSOCIATES C/O BOB SHIVELY 1,187,535 $1,900  
RF272-98752 BIO-MED-HU, INC. OR WILSON, KELLER & ASSOCIATES ART & BECKY SHULTHISE 2,856,484 $4,570  
RF272-98754 CHARRO TRUCKING CO. OR WILSON, KELLER & ASSOCIATES C/O ERIC SKLAR 3,978,673 $6,366  
Totals: 16     35,851,671 $57,365  
             
             
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RF272-98781 STRICKER DRILLING CO., INC. C/O DIANNA STRICKER STAR RT. BOX 42 DEVINE, TX 78016 84,000 $134
RF272-98786 DIOCESE OF ROCHESTER C/O ERIC R. PATCHKE 1150 BUFFALO RD. ROCHESTER, NY 146241890 601,570 $963
RF272-98788 ST. JAMES MINOR CHURCH C/O GEORGE W. TOBIN P.O. BOX 117; 26 CHURCH RD. CADYVILLE, NY 12918 29,184 $47
RF272-98795 YODER'S COUNTRY MARKET OR YODER'S MEATS, INC. C/O JOHN YODER 14 S. TOWER RD. NEW HOLLAND, PA 17557 21,312 $34
Totals: 4       736,066 $1,178
             


Last Updated on 1/16/98
By OHA