Case No. RF300-13114
July 11, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Gulf Oil Corporation/Associated Transport
Date of Filing: October 26, 1990
Case Number: RF300-13114
This Decision and Order concerns an Application for Refund filed in the Gulf Oil Corporation (Gulf) special refund proceeding administered by the Department of Energy (DOE). The Application was filed by LK, Inc. (LK), a private filing service, with respect to purchases of Gulf products made by Associated Transport, Inc. (AT), a trucking company. As explained below, we have determined that the Application for Refund should be denied.
On July 25, 1985, the Economic Regulatory Administration of the Department of Energy (DOE) filed a Petition with the Office of Hearings and Appeals (OHA) requesting that the OHA formulate and implement procedures for distributing funds obtained through a consent order with Gulf Oil Corporation (Gulf). See 10 C.F.R. Part 205, Subpart V. The consent order resolved DOE allegations that Gulf violated the mandatory petroleum regulations in its sales of crude oil and refined petroleum products from January 1, 1973 through January 27, 1981 (the consent order period). On September 8, 1987, the OHA issued a Decision and Order setting forth final procedures for disbursing the portion of the Gulf settlement fund attributable to Gulf's sales of refined petroleum products. Gulf Oil Corp., 16 DOE ¶ 85,381 (1987) (Gulf). In accordance with the goals of 10 C.F.R. Part 205, Subpart V, Gulf implements a process for refunding the consent order funds to purchasers of Gulf refined petroleum products who are able to demonstrate that they were injured as a result of Gulf's alleged overcharges.
In Gulf, we adopted a presumption that the alleged Gulf overcharges attributable to refined products had been dispersed equally in all sales of refined product made by Gulf during the consent order period. Gulf, 16 DOE at 88,736. We stated that, in the absence of
a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the consent order funds on a volumetric basis. We provided that eligible claimants would receive $.00064 per gallon of covered Gulf product purchased.(1)Id. at 88,739. We established that a refiner, reseller, or retailer claimant generally would be required to demonstrate that it was injured as a result of its Gulf purchases; that is, that it did not pass through to its customers Gulf's alleged overcharges. However, we established a presumption that firms claiming refunds of $5,000 or less would not be required to demonstrate that they absorbed the alleged overcharges. Id. at 88,740. We also established that end- users or ultimate consumers whose businesses are unrelated to the petroleum industry were injured by the alleged refined product overcharges. Id. Thus, end-user claimants need only document their purchase volumes of Gulf products to make a sufficient showing that they were injured by the alleged overcharges. Id.
LK is seeking this refund on its own behalf, not as a representative of AT. It bases its claim upon an Order of the Bankruptcy Court for the Southern District of New York that LK claims transferred to it the right to receive ATs Gulf refund. We have already construed this assignment in connection with two other Applications for Refund filed by LK on behalf of AT in the Texaco and ARCO special refund proceedings, in Case Nos. RF321-13106 and RF304-12217. See Texaco, Inc./Associated Transport, Inc., Case No. RF321-13106 (May 23, 1995) (unpublished Decision). See also Atlantic Richfield Company/Associated Transport, Inc., Case No. RF304-12217 (December 21, 1995) (unpublished Decision).
In both the Texaco and ARCO Decisions, we noted that the assignment transferred claims related specifically to the Stripper Well exception [sic] litigation, M.D.L. 378. Since product refunds are in no way related to the Stripper Well litigation, we concluded that the right to neither a Texaco refund nor an ARCO refund was transferred by the court order. Because LK similarly seeks a product refund in the instant Application, the same considerations
and analysis apply. Accordingly, the Application for Refund filed by LK in the Gulf special refund proceeding should be denied for the reasons elucidated in the Decision rendered in the Texaco proceeding.
It Is Therefore Ordered That:
(1) The Application for Refund filed by LK, Inc. for purchases made by Associated Transport, Inc., Case No. RF300-13114, is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: July 11, 1997
(1)1/ This amount was derived by dividing the fund received from Gulf allocable to refined products ($42,499,566) by the estimated volume of refined products sold by Gulf from August 1973 through the date of decontrol of the relevant product (66,387,563,569 gallons). Id.