Case No. RF349-00022
April 9, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Applications for Refund
Name of Petitioner: Metropolitan Petroleum Co., Inc., and
Metropolitan Fuel Oil Company/
JM Pontiac
Date of Filing: August 1, 1995
Case Number: RF349-22
On April 21, 1993, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order instituting special refund procedures for the distribution of $636,856, plus accrued interest, which Metropolitan Petroleum Company, Inc. and Metropolitan Fuel Oil Company (hereinafter referred to collectively as Metropolitan) remitted to the DOE pursuant to a June 6, 1986 Remedial Order. See Metropolitan Petroleum Company, Inc., and Metropolitan Fuel Oil Company, 23 DOE ¶ 85,037 (April 21, 1993) (hereinafter Metropolitan). The Remedial Order resolved DOE allegations that Metropolitan had violated the Mandatory Petroleum Price and Allocation Regulations in its sales of motor gasoline during the period March 1, 1979 through July 31, 1979 (the consent order period). In accordance with the provisions of the procedural regulations of 10 C.F.R. Part 205, Subpart V (Subpart V), the Metropolitan determination implemented a process to make refunds in order to remedy the effects of regulatory violations set forth in the Remedial Order.
In Metropolitan, we adopted a presumption that the alleged Metropolitan overcharges had been dispersed equally over all gallons of regulated petroleum products sold by the firm during the consent order period. We stated that, in the absence of a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the consent order fund on a per gallon, or "volumetric," basis. Under this volumetric refund presumption, an eligible claimant can receive $0.0463 for each gallon of covered product that it purchased from Metropolitan. Metropolitan at 88,092.(1)
Under the procedures established in Metropolitan, a claimant is generally required to demonstrate that it was injured as a result of its Metropolitan purchases; that is, that it did not pass through to its customers Metropolitan's alleged overcharges. However, we presumed that resellers (including retailers and refiners) seeking refunds of $10,000 or less, exclusive of interest, and end-users of Metropolitan products were injured by the alleged overcharges. Consequently, such applicants are not required to submit evidence of
injury beyond documentation of the volume of gasoline they purchased from Metropolitan during the consent order period. Metropolitan at 88,093. In addition, a refiner, reseller or retailer claimant whose allocable share of the refund pool exceeds $10,000, excluding interest, may elect to receive as its refund either $10,000 or 40 percent of its allocable share, up to $50,000, whichever is larger, without submitting additional evidence of injury. These presumptions were adopted in order to (1) allow small claimants to readily prepare their applications, and (2) allow the DOE to evaluate the considerable number of small claims it receives in an efficient manner.
In the course of its audit of Metropolitan's books, the Economic Regulatory Administration obtained information indicating the number of gallons purchased by Metropolitan customers during the consent order period. This information will be made available to applicants, and may be used in place of an applicant's own records to document a refund claim. Metropolitan at 88,094.
This Decision and Order will consider an Application for Refund submitted by JM Pontiac, a reseller of gasoline from Metropolitan during the consent order period. JM Pontiac has submitted all of the information required of applicants by Metropolitan. In particular, it has demonstrated that it purchased gasoline from Metropolitan during the consent order period. JM Pontiac's purchase volume is based on Metropolitan's records. The applicant has not claimed that it suffered a disproportionate share of Metropolitan's alleged overcharges.
JM Pontiac is a reseller whose allocable share is $13,885, and the applicant has stated that it wishes to rely upon the relevant presumption of injury. Thus, under the procedures outlined in Metropolitan, the applicant is entitled to receive a principal refund of $10,000, an amount which is greater than 40 percent of its allocable share ($5,554). To this amount will be added a pro rata share of the interest that has accrued on the principal since the consent order fund was placed in the appropriate DOE deposit fund escrow account.
The total volume approved in this Decision and Order is 299,900 gallons of gasoline, and the refund granted is $13,474 (comprised of $10,000 in principal and $3,474 in interest).
It Is Therefore Ordered That:
(1) The Application for Refund submitted by JM Pontiac, Case No. RF349-22, is hereby granted 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, the Department of Energy, shall take appropriate action to disburse $13,474 (comprised of $10,000 in principal and $3,474 in interest) from the DOE deposit fund escrow account maintained at the Department of the Treasury for this purpose and funded by Metropolitan Petroleum Company, Inc., and Metropolitan Fuel Oil Company, Consent Order No. 412H00171, to:
JM Pontiac
c/o Shirley Tosca
5350 W. Sample Road
Margate, FL 33073
(3) The determination reached in this Decision are based on the representations made by the applicant. If the factual basis underlying our determination in this Decision is later shown to be inaccurate, this Office has the authority to order appropriate remedial action, including rescission or reduction of any refunds approved.
(4) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: April 9, 1997
(1)*/ We derived this figure by dividing the amount of the Remedial Order fund, $636,856, by 13,746,905 gallons, the volume of gasoline which Metropolitan sold from March 1, 1979 through July 31, 1979.