Case No. RK272-04907

February 19, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Petitioner: CertainTeed Corporation

Date of Filing: January 27, 1999

Case Number: RK272-04907

On June 11, 1990, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order granting an Application for Refund that CertainTeed Corporation (CertainTeed) filed in the Subpart V crude oil refund proceeding (Case No. RF272-456). See CertainTeed Corp., 20 DOE ¶ 85,399 (1990). In that Decision, OHA granted CertainTeed a refund of $832,926 based on its purchases of 1,041,159,455 gallons of refined petroleum products from August 17, 1973 through January 27, 1981. (1) Subsequently, in a October 20, 1997 Decision, we rescinded the refund granted on June 11, 1990, because a subsidiary of CertainTeed, in applying for a refund in the Surface Transporters stripper well proceeding, executed a waiver of its and CertainTeed's right to participate in any future refund proceedings based on crude oil overcharges, including the Subpart V proceeding. CertainTeed Corp., 26 DOE ¶ 85,059 (1997). In rescinding this refund, we did not require CertainTeed to repay the refund previously granted to it.(2) The October 20 Decision, however, barred CertainTeed from receiving a supplemental crude oil refund based upon its previously granted application. (3)

CertainTeed subsequently appealed our October 20 Decision to the U.S. District Court for the District of Columbia. The firm claimed that the waiver was not binding because it had been

withdrawn. In a September 29, 1998 Decision, the District Court declined to adopt OHA's interpretation of the binding effect of the waiver and reversed our October 20 Decision. See CertainTeed Corp. v. Peña, No. 97-3049 (D.D.C. Sept. 29, 1998). Consequently, in this Supplemental Order we will grant CertainTeed a supplemental crude oil refund based upon its originally granted application. Sufficient refunds are now available to pay applicants an additional $0.0008 per gallon. Accordingly, we will grant CertainTeed a supplemental refund of $832,928 ($0.0008 per gallon x 1,041,159,455 gallons). To this amount we will add $2 to correct our earlier mathematical error described supra in note 1. Consequently, CertainTeed will be granted a total refund of $832,930.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund for Case No. RF272-456, now redesignated RF272- 04907, filed by CertainTeed Corporation is 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 supplemental refund in the amount of $832,930 from the escrow fund denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, maintained at the Department of the Treasury to CertainTeed Corporation by wire transfer.

(3) To facilitate the payment of future refunds, CertainTeed Corporation 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

Washington, DC 20585-0107

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 19, 1999

(1)We have subsequently discovered that due to a mathematical error CertainTeed's refund should have totaled $832,928. We will adjust the supplemental refund granted in this Order by $2 to correct this error.

(2)The October 20 Decision also rescinded a duplicate refund of $10,918 granted to a CertainTeed facility in Berlin, New Jersey (Case No. RF272-25405). CertainTeed subsequently repaid this amount to the DOE.

(3)Crude oil refunds are paid in installments. A second installment is now available for disbursement since CertainTeed had received its original crude oil refund.