Case No. RR272-00307
March 18, 1999
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Motion for Reconsideration
Name of Petitioner: Delta Asphalt Paving Co.
Date of Filing: March 3, 1998
Case Number: RR272-307
On February 18, 1998, the Office of Hearings and Appeals issued a Decision and Order which granted in part the Application for Refund filed by Delta Asphalt Paving Co. (Delta) in the DOE crude oil refund proceeding.(1) In the February 18, 1998 Decision, OHA denied all of Deltas claim with respect to purchases of asphalt it made after April 1, 1974. We denied this part of Deltas claim, because applicants are not eligible for refunds where they passed through the crude oil overcharges to their customers. On that date, the State of Florida began adding fuel cost adjustment clauses to their paving contracts. When a product was sold pursuant to a cost adjustment clause, we have found that the company was able to pass through rather than absorb any overcharges. Because Delta had not shown what part of its asphalt purchases were made by Florida, we denied its post April 1, 1974 asphalt claim in full. On March 3, 1998, Delta filed a Motion for Reconsideration in which it has submitted information specifying that portion of its claim which was associated with contracts that Delta had with Florida. Delta contends that it should be granted a refund on those amounts of liquid asphalt that were not covered by cost adjustment clauses.
In the past, the OHA has granted Motions for Reconsideration if the applicant presents additional information which was unavailable at the time of its original filing or a compelling reason why the prior Decision should be modified. See, e.g. Mobile Oil Corp./Larko, Inc., 17 DOE ¶ 85,205 (1988). Delta has provided documentation that establishes what portion of Deltas purchases were covered by cost adjustment clauses. Delta subtracted the gallons attributable to contracts performed for Florida from the total gallons of asphalt previously claimed in its original Application. Its revised asphalt claim is 17,231,823 gallons. We will subtract from this amount the of 2,188,044 gallons of asphalt purchased prior to April 1, 1974, for which it has already received a refund. The refund amount that
a successful crude oil refund applicant receives equals its approved number of petroleum products, multiplied by the current volumetric fact of $0.0016. Thus, the total additional refund granted to Delta is $24,070 (15,043,823 gallons x $0.0016/gallon = $24,070).
It Is Therefore Ordered That:
(1) The Motion for Reconsideration filed by Delta Asphalt Paving Co., Case No. RR272- 307, for all available crude oil overcharge funds 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 total of $24,070 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury. The check shall be made payable to "Delta Asphalt Paving Co. and shall be sent to the following address:
Delta Asphalt Paving Co.
Attn: Mr. Douglas B. Conner
P. O. Box 16686
Tampa, FL 33687-6686
(3) 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
1000 Independence Avenue, S.W.
Washington, D.C. 20585-0107
(4) 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 any refund application is incorrect.
(5) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date:March 18, 1999
(1)Purchasers of refined petroleum products were allowed to apply to the Office of Hearings and Appeals (OHA) for a refund from crude oil overcharge funds collected by the DOE from firms that sold crude oil during the price control period. Statement of Modified Restitutionary Policy To Be Implemented In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).