Case No. RK272-04883
May 10, 1999
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Names of Petitioners:Meridian Aggregates Company
Interstate Brick Co.
Dates of Filing: December 7, 1998
April 2, 1999
Case Numbers: RK272-04883
RK272-04917
Pursuant to the long-standing policy of the Department of Energy (DOE), thousands of purchasers of petroleum products have applied for, and been granted, refunds from crude oil overcharge funds under jurisdiction of the DOE's Office of Hearings and Appeals (OHA). See Statement of Modified Restitutionary Policy To Be Implemented In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). The standards for considering Applications for Refund from these crude oil funds are set forth at 10 C.F.R. Part 205, Subpart V.
The OHA has approved more than 87,000 requests for refund from the pool of crude oil overcharge funds. In Subpart V crude oil refund cases, a claimant is generally eligible for a refund equal to the number of gallons of eligible refined petroleum products it purchased during the period from August 19, 1973 through January 27, 1981, multiplied by a per gallon amount. That per gallon refund amount is derived by dividing the total refund monies available by the total U.S. consumption of petroleum products during the crude oil price control period. Refunds had been calculated by multiplying the number of gallons of eligible refined petroleum products purchased by the applicant by $0.0008 (the volumetric factor). That volumetric factor had been in use since April 1989, when it replaced an earlier volumetric factor of $0.0002 per gallon. Any applicant who received a refund at the lower volumetric factor has also received a supplemental refund based on an additional $0.0006 per gallon. See Crude Oil Supplemental Refund Distribution, 18 DOE ¶ 85,878 (1989).
Additional crude oil overcharge funds have become available for disbursement and we can now issue additional refund checks to applicants. Sufficient funds are available to pay applicants at a new,
aggregate rate of $0.0016 per gallon.(1) Thus, the amount of the supplemental refund will be equal to the refund already received. Refunds are rounded to the nearest dollar.
In order to receive a supplemental refund check, applicants are being required to verify (directly or through their representatives) that their name and address in our records are correct, to correct any information that is not accurate, and to indicate whether there has been any change in circumstances affecting the payment of the refund. We intend to issue a series of Decision and Orders approving supplemental refunds as we receive completed verification forms from all applicants or certifications from their representatives.
This Decision and Order involves requests for supplemental refund in two cases in which there have been changes in business ownership since the initial refund. Under OHA precedent, the right to a refund generally remains with the owner of the business that made the purchases for which the refund is sought. There are two exceptions to this rule. The first is where the business is a corporation and the stock of the corporation is sold. The second is where an agreement transferring the business (i) specifically includes the transfer of the right to the refund or (ii) contains language so broad as to encompass the transfer of the right to a refund. Primerica Corp., 27 DOE ¶ 85,001 at 88,003 (1998) (quoting Primerica Corp., 26 DOE ¶ 85,050 at 88,139 (1997)). Each applicant granted in this Decision meets one of these two exceptions.
One applicant, Meridian Aggregates Company (Meridian), submitted an Application for Supplemental Refund (Case No. RK272-04883) on behalf of Boorhem-Fields, Inc. (Boorhem). Boorhem was granted its original crude oil refund on October 18, 1989 (Case No. RF272-41025). The refund of $1,173 was based on 1,466,666 gallons of petroleum products purchased by Boorhem between August 1973 and January 1981. On March 8, 1993, Meridian purchased all of Boorhems assets, including refunds, claims, causes of action, choses in action and rights of recovery. This Office has in the past found this type of language sufficient to transfer the right to refund. See, e.g., Gulf Oil Corporation/Marine Fueling Division, 25 DOE ¶ 85,011 at 88,027 (1995). In this case, we find that Meridian has purchased the right to the supplemental crude oil refund. Meridian will therefore be granted a supplemental refund of $1,173 (1,466,666 gallons x $0.0008 per gallon volumetric).
The other applicant, Interstate Brick Co. (Interstate), also submitted an Application for Supplemental Refund (Case No. RK272-1939). However, because Interstate did not respond to our requests for information, that application was dismissed on March 4, 1999. But because it promptly thereafter submitted the requested information on March 29, 1999, we have exercised our discretion and chosen to examine their Application for Supplemental Refund (Case No. RK272-04917). Interstate was granted its original crude oil refund on November 30, 1990 (Case No. RF272-57641). The refund of $3,445 was based on 4,305,821 gallons of petroleum products purchased by Interstate between August 1973 and January 1981. Interstate submitted documentation that its new corporate parent, PacBric, Inc. (PacBric), had purchased 100 percent of Interstates stock. In this case, we find that PacBric has purchased the right to the supplemental crude oil refund. See Ward Transport, Inc., 26 DOE ¶ 85,027 (1997). Interstate will therefore be granted a supplemental refund of $3,445 (4,305,821 gallons x $0.0008 per gallon volumetric).
If there are any future disbursements of crude oil funds, these cases will be known by their RK272- numbers. (In the case of Interstate, it will be known by its latter RK 272- number.) The total amount of the refund that the applicants are being awarded is $4,618 (5,772,487 gallons x $0.0008 per gallon volumetric).
It Is Therefore Ordered That:
(1) The Application for Supplemental Refund for Case No. RF272-41025 filed by Meridian Aggregates Company, Case No. RK272-04883, is hereby approved as set forth in Paragraph (3) below.
(2) The Application for Supplemental Refund for Case No. RF272-57641 filed by Interstate Brick Co., Case No. RK272-04917, is hereby approved as set forth in Paragraph (4) below.
(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 supplemental refund in the amount of $1,173 from the escrow fund denominated Crude Tracking-Claimants IV, Account No. 999DOE010Z, maintained at the Department of the Treasury to the following applicant:
Meridian Aggregates Co.
c/o Vincent Porvaznik, Tax Acct.
5575 DTC Parkway, Ste. 325
Greenwood Village, CO 80111
(4) 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 $3,445 from the escrow fund denominated Crude Tracking-Claimants IV, Account No. 999DOE010Z, maintained at the Department of the Treasury to the following applicant:
Interstate Brick Co.
c/o Darren Morris, Dir. of Acct.
3001 I Street
Sacramento, CA 95816
(5) To facilitate the payment of future refunds, each 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 on the presumed validity of the statements and documentary material submitted by the applicants. Any of these determinations may be revoked or modified at any time upon a finding that the basis underlying any supplemental 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:May 10, 1999
(1)We are now paying first-time crude oil refund recipients at the volumetric rate of $0.0016 per gallon.