Case No. RG272-00008

January 7, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Name of Applicants: Darke Landmark, Inc., et al.

Dates of Filing: December 28, 1994, et al.

Case Numbers: RG272-8, et al.

This Decision and Order will consider the Applications for Refund filed by eight applicants listed in the Appendix attached to this Decision and Order. The Applications are based upon the applicants' purchases of refined petroleum products during the crude oil price control period (August 19, 1973 through January 27, 1981). Each applicant has requested a refund from crude oil funds available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under the provisions of 10 C.F.R. Part 205, Subpart V.

In the past, purchasers of refined products were allowed to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders between the DOE and numerous firms that sold crude oil during the 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 that we have established specify that, to receive a refund, an applicant generally must: (1) document its purchase volumes; and (2) show that it was injured by crude oil overcharges.

We have further established that an applicant is presumed to have absorbed rather than passed on crude oil overcharges if it (1) was an end-user (ultimate consumer) of petroleum products; (2) was in a business unrelated to the petroleum industry; and, (3) was not subject to the price regulations of the DOE or its predecessors. 52 Fed. Reg. 11737 (April 10, 1987); City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). Such an applicant is presumed to have been injured and does not need to provide a showing of injury.

Each of the eight applicants listed in the Appendix is an agricultural cooperative. Each Application is based on petroleum products that the agricultural cooperative purchased for resale to

the farmers who were its members. We regard a refund application filed by a cooperative that resold petroleum products to its members as a claim filed on behalf of the members themselves. Farmers Union Oil Co., 17 DOE ¶ 85,464 (1988). A cooperative can thus claim the presumption of end-user injury to the extent that its members were end-users. Consequently, we will consider granting a refund to a cooperative based on products resold to its members on the condition that it certify that it will pass through the refund to its members.

The farmers who compose the eight cooperatives’ memberships are end-users. Each cooperative has certified that it will pass through any refund received to its members. We will therefore consider these claims under the presumption of end-user injury.

We have carefully reviewed the Applications. Each applicant stated in its application its percentage of petroleum sales to non-members during the refund period. We have reduced each applicant’s approved gallonage claim by the percentage it indicated. The purchase volumes and refunds approved for each applicant are set forth in the Appendix. The total volume approved in this Decision and Order is 99,529,910 gallons of refined petroleum products. The total refund amount granted, which is calculated by multiplying the approved gallonage claim by the volumetric refund amount of $0.0016 per gallon, is $159,248.

The final deadline for the crude oil proceeding was June 30, 1995. It is the current policy of the DOE to pay eligible crude oil refund applicants at the 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 eight applicants listed in the Appendix attached to this Decision and Order are hereby granted 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 $159,248 from the DOE deposit fund escrow account denominated Crude Tracking-Applicants 4, Account Number 999DOE010Z, maintained at the Department of Treasury to the eight applicants as listed in the Appendix attached to this Decision and Order.

(3) Each applicant shall pass through to its members/patrons any refunds that it receives on a dollar-for-dollar basis.

(4) 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

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 factual basis underlying any Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: January 7, 1997


Appendix
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RG272-00008 DARKE LANDMARK, INC. C/O RON SMITH 619 SATER ST. GREENVILLE, OH 45331 6,648,733 $10,638
RG272-00039 KETTLE LAKES COOPERATIVE C/O TOM RYSAVY P.O. BOX 305 RANDOM LAKE, WI 53075 29,796,594 $47,675
RG272-00042 DAMAR FARMERS ELEVATOR C/O GLENN COOPER P.O. BOX 46 LANGFORD, SD 57454 3,934,068 $6,295
RG272-00059 LEAKE COUNTY CO-OP C/O BILL JOHNSTON 101 HWY. 16 W. CARTHAGE, MS 39051 2,178,229 $3,485
RG272-00060 MARION LANDMARK, INC. C/O GLENN RICHARDS P.O. BOX 936 MARION, OH 433010936 18,513,797 $29,622
RG272-00723 ROLLINGSTONE COOP OIL ASSN. C/O LINDA KREIDERMACHER P.O. BOX 96 ROLLINGSTONE, MN 55969 6,163,530 $9,862
RG272-00762 FARMERS COOPERATIVE CREAMERY C/O WILLIAM J. THOMAS 700 N. HWY. 99W MCMINNVILLE, OR 97128 2,280,283 $3,648
RG272-00886 COUNTRY PRIDE COOP C/O GARY L. HOFF P.O. BOX 118 ALMENA, WI 54805 30,014,676 $48,023
Totals: 8       99,529,910 $159,248
             


Last Updated on 8/15/97
By OHA