Case No. RF342-00305

April 30, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: Apex Oil Co.

Clark Oil & Refining Corp./

NGL Supply, Inc.

Date of Filing: August 24, 1992

Case Number: RF342-305

On August 24, 1992, 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 $11,379,351, plus accrued interest, which AOC Acquisition Corp. (AOC) remitted to the DOE under the terms of a 1988 settlement agreement. See Apex Oil Co., 21 DOE ¶ 85,341 (1991) (hereinafter Apex/Clark). The Settlement Agreement resolved DOE allegations that Clark Oil & Refining Corp. (Clark) had violated the Mandatory Petroleum Price and Allocation Regulations in its sales of refined petroleum products during the period August 19, 1973 through January 27, 1981, the period covered by the settlement agreement.(1)In accordance with the goals of 10 C.F.R. Part 205, Subpart V, the Apex/Clark determination implemented a process for refunding portions of the settlement fund to purchasers of Clark refined petroleum products who demonstrate that they were injured as a result of Clark's alleged regulatory violations.

In Apex/Clark, we adopted a presumption that the alleged Clark overcharges had been dispersed equally over all gallons of regulated petroleum products sold by the firm during the settlement agreement period. We stated that, in the absence of a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the settlement fund on a per gallon, or "volumetric," basis. Under this volumetric refund presumption, an eligible claimant can receive

$0.0011 for each gallon of covered product that it purchased from Clark. (2)Apex/Clark at 89,021. Under the procedures established in Apex/Clark, a claimant is generally required to demonstrate that it was injured as a result of its Clark purchases; that is, that it did not pass through to its customers Clark'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 Clark products were injured by the alleged overcharges. 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. Consequently, such applicants are not required to submit evidence of injury beyond documentation of the volume of Clark refined petroleum products they purchased during the refund period. Apex/Clark at 89,022.

This Decision and Order concerns the Application for Refund filed by NGL Supply, Inc., a company that purchased Clark-branded product during the refund period (March 1973 through January 1981). NGL has submitted all of the information required of applicants in the Apex/Clark Decision. In particular, the applicant has established the volume of covered product that it purchased from Clark during the period in which it was a regular purchaser of Clark products. NGL Supply’s allocable share is $90,432, and the applicant has stated that it wishes to rely upon the relevant presumption of injury. Thus, under the procedures outlined in the Apex/Clark Decision, the applicant is entitled to receive a principal refund of $36,176, an amount which is equal to 40 percent of its allocable share, as well as a pro rata share of the interest that has accrued on the principal since the settlement fund was placed in the appropriate DOE deposit fund escrow account. The total refund amount granted to the applicant is $57,421 (comprised of $36,176 in principal and $21,245 interest) based on its purchases of 82,217,542 gallons of product.

It Is Therefore Ordered That:

(1) The Application for Refund filed on behalf of NGL Supply, Inc. (Case No. RF342-305) 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 from the DOE deposit fund escrow account maintained at the Department of the Treasury for this purpose and funded by AOC Acquisition Corporation, Consent Order No. RCKH016A1Z, $57,421 (comprised of $36,176 in principal and $21,245 interest) to:

NGL Supply, Inc.

c/o Michael O’N. Barron

Attorney at Law

12417 Conway Road

St. Louis, MO 63141

(3) The determination made in this Decision and Order is based on the presumed validity of statements and documentary material submitted by the applicant. This determination may be revoked or modified at any time upon a determination that the factual basis underlying any Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 30, 1997

(1)1/ In 1981, Apex Oil Company (Apex) acquired the Clark Oil & Refining Corporation (Clark) through its wholly-owned subsidiary, Apex Holding Company, a Missouri corporation. AOC, the one-time successor to Apex, was the entity that actually agreed to the settlement with the DOE. Separate provision was made in Apex/Clark for the distribution of the crude oil portion of the AOC settlement fund. See 21 DOE ¶ 85,341 at 89,017-20.

(2)2/ We derived this figure by dividing the refined product portion of the settlement fund, $11,379,351, by 10,506,641,585 gallons, the volume of gallons of covered refined products which Clark sold from August 19, 1973, through the date of decontrol of the various products.