Case No. RF272-37416

April 5, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Motion for Discovery

Name of Petitioner: Energy Center Partners

Dates of Filings: January 6, 1988

May 31, 1988

Case Numbers: RF272-37416

RD272-37416

This Decision and Order grants an Application for Refund filed by Energy Center Partners (ECP). The firm purchased refined petroleum products during the period August 19, 1973, through January 27, 1981, and has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). This Decision also denies a Motion for Discovery filed by a group of States and Territories of the United States (States) that contest ECP's claim.

To receive a refund for crude oil overcharges, an applicant generally must (1) document its purchase volumes and (2) show that it was injured by the overcharges. Applicants are presumed to have been injured if they were end-users of petroleum products and not covered by the DOE's or its predecessors' price controls. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). However, the presumption of injury is rebuttable. In an attempt to rebut the presumption, the States have filed Objections to the ECP's Application and a related Motion for Discovery. They contend that ECP did not experience an injury because it could pass through most or all of the crude oil overcharges to its customers.

ECP used heating oil in the production of steam to heat and cool 90 major buildings in downtown Minneapolis. ECP has agreed to pass through 100 percent of any refund received to its customers. We will treat ECP similar to electric cooperatives. See VGS Corp./South Mississippi Electric Power Association (SMEPA), 14 DOE ¶ 85,277 (1986) (granting a refund to SMEPA, which purchased on behalf of its electric utility members and agreed to pass through the entire refund amount.) Since the firm will pass through the refund, whether ECP was itself injured is irrelevant. Therefore, there is no merit to the States’ Objections. We shall, therefore, deny them and the associated Motion for Discovery.

We have carefully reviewed the Application filed by ECP. ECP is an end-user of refined petroleum products. ECP claims, based upon usage records, that it purchased 23,465,715 gallons of No. 6 heating oil. After considering the Application, we have concluded that the claimed volume is accurate, and a refund of $37,545 is warranted ($0.0016 x 23,465,715 = $37,545). It is the policy of the DOE to pay all crude oil refund claims that were filed by June 30, 1995, the final deadline for the crude oil proceeding, at the rate of $.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 know how much money is remaining after all outstanding enforcement proceedings are resolved.

It Is Therefore Ordered That:

(1)The Application for Refund filed by Energy Center Partners, Case No. RF272-37416, for all available crude oil overcharge funds is hereby approved as set forth in Paragraph (3) below.

(2)The Motion for Discovery filed by the consortium of States and Territories, Case No. RD272-37416, is hereby denied.

(3)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 $37,545 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury. The check should be made payable to “Energy Center Partners or NRG Energy Center, Inc.,” and shall be sent to:

Energy Center Partners

Attn: Mr. Dennis M. O’Malley

Lindquist & Vennum

4200 IDS Center

80 South Eighth Street

Minneapolis, MN 55402-2205

(4)The applicant in this case shall pass through to its customers the refund that it receives on a dollar for dollar basis.

(5)To facilitate the payment of future refunds, the Applicant 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, D.C. 20585-0107

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

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

George B. Breznay

Director

Office of Hearings and Appeals

Date:April 5, 1999