Case No. RK272-04625

October 20, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Transit Mix Concrete and Materials Company

Date of Filing: September 5, 1997

Case Number: RK272-04625

This Decision and Order will consider an Application for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Transit Mix Concrete and Materials Company (Transit).(1) The Application is based upon purchases of refined petroleum products made by Waco Ready Mix Concrete (Waco) from August 1973 to January 1981.

In a telephone conversation with the OHA on September 29, 1997, James Neal of Transit explained that Waco was a corporation. He also explained that Transit purchased all of Waco’s assets, but did not purchase any of Waco’s capital stock.

We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. Therefore, the refund procedures we have established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, 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).

According to Mr. Neal, Transit did not purchase any of the capital stock of Waco. In addition, there is no indication in the Application that the right to receive future crude oil refund monies was either explicitly or implicitly included in the sale of Waco’s assets to Transit. As such, the owners of the capital stock of Waco did not relinquish their right to receive the supplemental crude oil refund based on the company’s petroleum purchases during the price control period. We will therefore deny the Application submitted by Transit.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Transit Mix Concrete and Materials Company, Case No. RK272-04625, is hereby denied.

(2) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 20, 1997

(1) For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).