Case No. RK272-04016

August 25, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: M. R. Paving & Excavating

Date of Filing: November 13, 1996

Case Number: RK272-04016

This Decision and Order will consider an Application for Supplemental Refund filed by M.R. Paving & Excavating (M.R. Paving) in the Subpart V crude oil refund proceeding being conducted by the Office of Hearings and Appeals (OHA). (1) The Application is based upon purchases of refined petroleum products made by Wallner Construction Co., Inc. (Wallner).

According to M.R. Paving’s Chief Executive Officer, Timothy Rahe, M.R. Paving purchased Wallner’s assets in 1994, but not its stock. Mr. Rahe further advised that the Asset Purchase Agreement between M.R. Paving and Wallner is silent with respect to the transfer of any refunds.

OHA has a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502(b). The Office would be negligent in discharging that duty if it granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586, n.4 (1992). Therefore, the refund procedures the Office has established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firm’s assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).

In this case, M.R. Paving did not purchase any of Wallner’s capital stock. Moreover, the Asset Purchase Agreement between M.R. Paving and Wallner did not transfer the right to the subject refund to M.R. Paving. As such, Wallner did not relinquish its right to receive the supplemental crude oil refund based on its petroleum purchases during the price control period. We will therefore deny the Application submitted by M.R. Paving.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by M.R. Paving & Excavating, Case No. RF272-04016, be and hereby is denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 25, 1997

(1)For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).