July 9, 2003
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Name of Petitioner: Premier Industrial Corp.
Date of Filing: May 31, 1994
Case Number: RR272-00131
The Office of Hearings and Appeals (OHA) of the Department of Energy received a Motion for Reconsideration of a August 26, 1992 Decision and Order denying an Application for Refund that Premier Industrial Corp. (Premier) had filed in the Subpart V crude oil refund proceeding. That Application was denied because Premier was identified as having sold products that were more than 50 percent covered products. Premier Industrial Corp., August 26, 1992, Case No. RF272-75856. Premier 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.(1) Id. Premier submitted no such showing. Id.
The Premier submission states that the prior decision should be reconsidered and a refund granted to Premier in the crude oil proceeding because it did not purchase or sell covered products or, in the alternative, the rationale for requiring a showing of injury for purposes of the crude oil refund proceeding does not apply. Motion for Reconsideration dated May 25, 1994, filed by Premier.
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 Commn, 20 DOE ¶ 85,081 (1990); Mobil Oil Corp./Larko, Inc., 17 DOE ¶ 85,205 (1988). Premier 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 Premier makes are not compelling. The essence of the Premier claim is that it should receive a refund because it did not purchase or sell covered products. It bases this argument on the 1979 definition of covered products which states covered products means crude oil, gasoline, natural gas liquid and propane. 10 C.F.R. § 212.31. For purposes of the crude oil refund proceeding, a product is eligible for a refund if it was either named as a covered product in regulations promulgated pursuant to the EPAA, or (a) was purchased from a crude oil refinery or (b) originated in a crude oil refinery and was purchased from a reseller who did not substantially change its form. 57 Fed. Reg. 30732 (1992). In addition, the price control regulations defined a covered product as one containing 50 percent of a covered product. 40 Fed. Reg. 2795 (January 16, 1975), reprinted at 10 C.F.R. § 212.31. Consequently, Premier would be considered a reseller or retailer if it sold a product that had ever been named as a covered product in the regulations.
Premier also argues that because it didnt purchase a covered product as defined in 1979, so therefore it couldnt have sold a covered product. This argument is unavailing. Indeed, the logical conclusion of this argument is that if Premier didnt purchase a covered product, then it should not be eligible for a refund. To continue, Premier argues that it did not sell a covered product because the provision indicating that a product was a covered product if it contained more than 50 percent covered product did not become effective until 1978 and the product it purchased was no longer a covered product at that time, it never met the definition of covered product. We disagree. The crude oil proceeding has long considered that if a product was ever mentioned in the definition of covered product, an applicant could receive a refund for its purchases. In the Federal Register Notice issued in 1992, we formalized the standard by which we would determine what constituted a covered product. Unlike our refined product proceedings where a claimant could only receive a refund for product purchases made while the product was under the price control regulations, at no time have we limited the crude oil proceeding in this way. Consequently, we must reject this argument.
Premier also argues that given the stated rationale for recovery, a showing of injury for certain applicants, it should not be required to demonstrate injury. It argues that it enjoyed none of the benefits that permitted regulated firms to mitigate cost increases. It was not a crude oil refiner and did not participate in the Entitlements Program. The Entitlements Program was published in the Federal Register and Premier should have been subject to the price control regulations. The fact that it did not comply with the regulations does not mandate that it be excused from the requirement to show injury in the crude oil proceeding.
We find that Premier did not submit any new factual information or significantly changed circumstances. Further, its arguments do not convince us that the Decision rendered in this case was incorrect. Therefore, the Motion for Reconsideration should be denied.
It Is Therefore Ordered That:
(1) The Motion for Reconsideration filed by Premier Industrial Corp., Case No. RR272-00131, 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)Premier was identified as being either a refiner or a reseller. There is no discussion of whether it was a retailer. Premier Industrial Corp., August 26, 1992, Case No. RF272-75856, at 2.