July 9, 2003

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Grow Group, Inc.

Date of Filing: October 28, 1996

Case Number: RR272-00104

The Office of Hearings and Appeals (OHA) of the Department of Energy received a Motion for Reconsideration of a March 23, 1993 Decision and Order denying an Application for Refund that Grow Group, Inc., (Grow Group) had filed in the Subpart V crude oil refund proceeding. That Application was denied because Grow Group was identified as having sold blended products that “consisted entirely, or almost entirely, [of] solvents that were covered petroleum products.” Grow Group, Inc., Case No. RF272-68932 (March 23, 1993). Grow Group was identified as falling within one of three classes of firms – refiners, resellers, and retailers – from whom a detailed demonstration is required to establish injury in the crude oil proceeding. Id. Grow Group submitted no such showing. Id.

The Grow Group submission states that the prior decision should be reconsidered and a refund granted to Grow Group in the crude oil proceeding because the underlying analysis was erroneous as a matter of fact and law. In the alternative, Grow Group argues that it should be afforded another opportunity to demonstrate that it suffered actual injury as a result of the crude oil overcharges.

In the past, OHA has stated that it would consider granting a Motion for Reconsideration if the applicant submits additional information which was unavailable at the time of its original filing or presents compelling reasons why the prior Decision should be modified. 10 C.F.R. § 1003.55(b)(2). Oceana County Road Comm’n, 20 DOE ¶ 85,081 (1990); Mobil Oil Corp./Larko, Inc., 17 DOE ¶ 85,205 (1988). Grow Group does not assert that it satisfies any of these criteria, and our review of the Motion does not indicate that such a showing could be made. For example, there is no new factual information, nor is there any showing of significantly changed circumstances which would lead us to conclude that the prior decision should be reconsidered. Therefore, under these criteria alone, the Motion for Reconsideration should be denied.

Moreover, the arguments which Grow Group makes are not compelling. Grow Group claims that it should receive a refund because it did not receive notice of the existence of the Entitlement Program or, in the alternative, that it has proven injury. We disagree. Grow Group admits in its original Application that it purchased petroleum products and resold 15 percent of them without changing or blending them. This evidence alone substantiates our conclusion that Grow Group is properly considered a reseller and thus is ineligible to receive a refund in this crude oil refund proceeding. With regard to the other 85 percent of the product it purchased, Grow Group blended together covered petroleum products and resold the blended product. The definition of “covered product” contained in the price control regulations stated that any product containing at least 50 percent covered product was designated as a covered product. The final product that Grow Group sold contained 100 percent covered product. Consequently, we find that Grow Group was a reseller of covered petroleum products.(1) Resellers are ineligible for a refund in the crude oil proceeding absent a showing of injury, which Grow Group did not make. Therefore, the Motion for Reconsideration should be denied.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Grow Group, Inc., Case No. RR272-00104, 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 9, 2003

(1)Grow Group’s attempt, in its Motion for Reconsideration, to prove injury raises the same generic arguments we have reviewed previously and found to be insufficient to prove injury. We have stated on numerous occasions that a detailed showing is required. Grow Group’s submission fails to meet this standard.