Case No. RF272-98800

March 29, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: McLane Company, Inc. et al.

Dates of Filing: July 5, 1994 et al.

Case Numbers: RF272-98800 et al.

This Decision and Order will consider the Applications for Refund submitted by nine claimants that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). The names of these claimants are set forth in the Appendix to this Decision and Order. Each applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) pursuant to the OHA's authority under 10 C.F.R. Part 205, Subpart V.

This refund proceeding was instituted to allow purchasers of refined petroleum products during the price control period to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. Statement of Modified Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders entered into by the DOE and numerous firms that sold crude oil during the crude oil price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).

The refund procedures set forth in these cases specify that in order to receive a refund, an applicant generally must (1) document its purchase volumes and (2) show that it was injured by alleged crude oil overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end- users of petroleum products and whose businesses were not covered

by the DOE's or its predecessors' price controls are presumed to have been injured.

Generally, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016. We derived this volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).

We have carefully reviewed the information submitted by the applicants included in this Decision and Order and have found that the information provided by each sufficiently supports its request for a refund.(1)These applicants have relied upon estimates or contemporaneous records to derive their gallonage claims. The OHA has examined each estimation technique used and finds both that the estimates derived are reasonable and that the volumes claimed appear to reflect accurately the applicants' purchases.(2)

One of the applicants considered in this Decision and Order, Farmers, Case No. RF272-98889, is an agricultural cooperative that bought petroleum products for resale to its members, who were end- users. We consider a claim by an agricultural cooperative that resold petroleum products to its members as a claim on behalf of the members. Farmers Union Oil Co., 17 DOE ¶ 85,464 (1988). Therefore, we afford such a cooperative the presumption of end-user injury on the condition that it certify that it will pass through the refund to its members. Farmers has provided this certification. Further, because Farmers sold 27.5 percent of its purchases to non-members, we have subtracted that portion from its total purchase volume.

The purchase volumes and refunds approved for each applicant are set forth in the Appendix. The refund amount granted to each applicant, which is calculated by multiplying the approved gallonage claim by the volumetric refund amount of $0.0016 per gallon, is set forth in the Appendix to this Decision and Order. The total volume approved in this Decision is 13,240,692 gallons of refined petroleum products, and the total of the refunds granted is $21,185.

The final deadline for the crude oil refund proceeding was June 30, 1995. It is the current policy of the DOE to pay crude oil refund claimants at the current rate of $0.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.

It Is Therefore Ordered That:

(1) The Applications for Refund filed by the claimants listed in the Appendix to this Decision and Order for all available crude oil overcharge funds are hereby approved 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 of the Department of Energy, shall take appropriate action to disburse a total of $21,185 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants IV, Account Number 999DOE010Z, maintained at the Department of the Treasury, the amounts specified in the Appendix to this Decision and Order to the applicants specified in that Appendix.

(3) Farmers Grain Co. (Farmers), Case No. RF272-98889, shall notify its membership of the receipt of the refund and shall pass through to its cooperative member customers all crude oil refunds received in Subpart V refund proceedings conducted by the Office of Hearings and Appeals.

(4) To facilitate the payment of future refunds, the applicants shall notify the Office of Hearings and Appeals in the event that there is a change of address, or if an address correction is necessary. Such notification shall be sent to:

Director of Management Information

Office of Hearings and Appeals

Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20585-0107

(5) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary materials submitted by the applicants. These determinations may be revoked or modified at any time upon a finding that the basis underlying any refund application is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 29, 1999

(1)One application, Case No. RF272-98889, was originally filed by Nash Equity Exchange. However, since the filing, this agricultural cooperative merged with two other cooperatives and the new entity named itself Farmers Grain Co. (Farmers). We are therefore granting the refund to Farmers.

(2)We note that one applicant, J.L. Rothrock, Inc., Case No. RF272-98803, provided dollar amounts of its crude oil product purchases during the refund period and requested that we calculate the gallonages. We have done so using information provided by the DOE's Energy Information Administration.

Appendix
CASE NO.APPLICANT CONTACTSTREET ADDRESSCITY/STATE VOLUMEREFUND
RF272-98800 MCLANE CO., INC.C/O TERESA SHELLEY 4747 MCLANE PKWY.; POB 6115TEMPLE, TX 7650361151,618,649 $2,590
RF272-98803 J.L. ROTHROCK, INC.C/O M.G. WOODELL P.O. BOX 77257GREENSBORO, NC 27417 2,866,211 $4,586
RF272-98811 LADY BALTIMORE FOODS, INC.C/O JOHN ELLIS POB 175001; 1601 FAIRFAX TRFWY.KANSAS CITY, KS 66117 2,478,593 $3,966
RF272-98868 WESTMORELAND CNTY TREASURERC/O NORM RISAVI P.O. BOX 1000MONTROSS, VA 22520 441,423 $706
RF272-98873 JASPER COUNTYC/O RAY DIEL 100 W. JOURDAN ST.NEWTON, IL 62448 2,130,578 $3,409
RF272-98875 CALLOWAY COUNTY BD. EDUCATIONC/O WALTER BYARS P.O. BOX 800MURRAY, KY 42071 682,759 $1,092
RF272-98889 FARMERS GRAIN CO.C/O ROGER GOODWIN F/K/A NASH EQUITY EXCHANGEP.O. BOX 477POND CREEK, OK 73766 2,469,822 $3,952
RF272-98893 BROOME-DELAWARE-TIOGA BOCESC/O ROBERT KALKA 435 GLENWOOD RD.BINGHAMTON, NY 13905 547,695 $876
RF272-98896 CARDINAL STRITCH HIGH SCHOOLC/O DANIEL KARAMOL 3225 PICKLE RD.OREGON, OH 43616 4,962 $8
TOTALS: 9       13,240,692 $21,185
             


Last Updated on 3/25/1999
By OHA