Case No. RF272-98707
May 14, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Applications for Refund
Names of Petitioners: Hershey Entertainment & Resort Co. et al.
Date of Filings: July 5, 1994
Case Numbers: RF272-98707 et al.
This Decision and Order will consider the Applications for Refund filed by five claimants that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Each applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy under 10 C.F.R. Part 205, Subpart V. We have established refund procedures for these funds, which have been made available through consent orders entered into by the DOE and numerous firms that sold crude oil during the price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987) (Berry); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).
In order to receive a refund for crude oil overcharges, an applicant generally must: (1) document its purchase volumes; and (2) show that it was injured as a result of the alleged overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end-users of petroleum products and whose businesses were unrelated to the petroleum industry are presumed to have absorbed the crude oil overcharges, and generally need not submit proof of injury to receive a refund in the Subpart V proceeding. See also Berry.
In general, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016 per gallon, the volumetric refund amount currently available. We derived the volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).
Each of the applicants considered in this Decision and Order is an end-user. Each bought petroleum products to operate its business. Each applicant has derived its purchase volume claim by using
actual records or a reasonable estimation technique. We have carefully reviewed the information submitted by the applicants, and have determined that the information provided by three of the applicants sufficiently supports their requests for refunds.(1)
However, in two cases we have reduced the applicants volume claims. In the case of Tarrant County (Tarrant), Case No. RF272- 98757, the county applied for a refund based on estimated purchases of 12,255,005 gallons of covered petroleum products from Gulf Oil Corporation (Gulf) and 807,669 gallons of non-Gulf purchases. However, Tarrants purchase volume printout from Gulf showed purchases totaling only 4,782,318 gallons. Tarrants representative, Wilson, Keller & Associates (WKA), extrapolated that figure for the period after the July 1, 1976 decontrol date for diesel fuel, because it alleged Tarrant purchased only diesel fuel from Gulf. In attempting to verify this assertion, we discovered on a more detailed Gulf customer listing that contrary to WKAs claim, Tarrant did not purchase any diesel fuel from Gulf. We have therefore reduced Tarrants gallonage claim accordingly.(2)
Had this Office accepted WKAs assertion that Tarrant purchased diesel fuel from Gulf, this would have resulted in an additional $11,956 erroneously granted to Tarrant. There is no indication anywhere in the case file that WKA attempted to confirm this assertion with Tarrant, this Office or any other source. Further, WKAs assumption that Tarrant purchased only diesel fuel and did not purchase any other types of products is contrary to common sense. In fact, as indicated above, Tarrant purchased no diesel fuel at all from Gulf.
It is one of the primary responsibilities of filing services such as WKA to insure that they have provided accurate information concerning the claimants they represent. We rely on the veracity of their assertions about the purchases made by those claimants. It is because we believe that a filing service is trustworthy that we are willing to mail refund checks to the service on behalf of refund recipients.
Due to the incorrect assertion by WKA concerning the type of product purchased by Tarrant, we have lost some of our confidence in the ability of the firm to fulfill its obligations scrupulously. We see here a rather disquieting willingness to make statements that are expedient, rather than accurate.
In prior instances in which we have lost confidence in a filing services truthfulness, we have disqualified it from representing clients before the OHA. See Energy Refunds, Inc., 23 DOE ¶ 85,076 (1993); Kens Professional Waterproofing, 18 DOE ¶ 85,771 (1989). We do not believe this measure is warranted here. However, in this particular case, instead of following our normal procedure of sending Tarrants refund check to WKA for ultimate disbursement to that applicant, we will direct the Controller of the DOE to mail the refund check directly to Tarrant. See Wales Transportation, Inc., 26 DOE ¶ 85,036 (1997), reconsideration denied, 26 DOE ¶ 85,042 (1997).
We have also reduced the claimed gallonage of another applicant, the Roman Catholic Diocese of Paterson (the Diocese), Case No. RF272-98796, which applied on behalf of a number of different parishes and schools. The Diocese applied for a refund based on purchases of 13,572,297 gallons. However, some of the parishes and schools whose purchases are included in its claim have already been granted crude oil refunds, and therefore those volumes were subtracted from the Dioceses volume claim. These parishes which have already been granted refunds are listed in the following table:
Case No.
Case Name
Approved gallons
RF272-77643
St. John Cathedral
288,000
RF272-77736
St. Marys
156,000
RF272-77768
St. Peters Church
95,200
RF272-77800
Morris Catholic High School
296,600
RF272-77867
St. Pauls Catholic Church
292,100
RF272-77889
St. Brendan Parish
203,800
RF272-89777
Our Lady Queen of Peace
204,796
RF272-90185
Holy Spirit Church
88,724
RF272-90264
St. Marys Church
129,705
RF272-90471
Our Lady of the Mountain
49,728
RF272-90504
St. Anthonys Church
150,000
RF272-92571
Immaculate Conception Church
89,409
Total:
2,101,062
Accordingly, the Dioceses approved volume claim is 11,471,235 gallons.(3)
Since the applicants listed in the two Appendices to this Decision are end-users of refined petroleum products, they are presumed injured by the crude oil overcharges and are entitled to receive their full allocable share of the crude oil monies. The refund amounts are calculated by multiplying the approved purchase volumes by the volumetric refund amount of $0.0016 per gallon. The purchase volumes and refunds approved for each applicant are set forth in the Appendices. The total volume for which refunds are approved in this Decision is 18,931,722 gallons, and the sum of the refunds granted is $30,291.
Four of the applicants filed their Applications through WKA and each requested that their refund checks be sent to that firm. However, as explained above, we will honor only three of those applicants' requests. For those three applicants, their refund checks will be made payable to the applicants or Wilson, Keller & Associates and be sent to WKA. The other two applicants will have their checks sent to them directly.
The final deadline for the crude oil refund proceeding was June 30, 1995. It is the current policy of the DOE to pay crude oil refund claimants at the current 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 five claimants listed in the Appendices attached to this Decision and Order for all available crude oil overcharge funds are 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 from the escrow account maintained at the Department of the Treasury denominated Crude Tracking- Claimants IV, Account No. 999DOE010Z, the amounts specified in Appendices 1 and 2 to this Decision and Order to the applicants specified in those Appendices. The refund checks for the applicants listed in Appendix 1 should be sent to Wilson, Keller & Associates, P.O. Box 221135, Memphis, TN 38122. The refund check for the applicants listed in Appendix 2 should be sent to those applicants.
(3) 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 in its 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 material submitted by the applicants. This Decision and Order may be revoked or modified at any time upon a determination that the basis underlying a 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: May 14, 1997
(1)One applicant, Snokist Growers, Case No. RF272-97861, was previously granted a refund in this proceeding under Case No. RF272-00714. In the earlier application, the applicants claim was based purely on purchases from Yakima Oil Company and Petrolane Gas Service. In the application at issue in this proceeding, the applicant has used records indicating its purchases from Atlantic Richfield Company. The applicant has satisfactorily proven that it purchased the additional petroleum products for which it is awarded a refund in this case.
(2)In addition, we believe the Gulf printout submitted by Tarrant includes all of Tarrants 1973 purchase volume, and accordingly, must be reduced to account for the beginning of the crude oil refund period, August 1973. See, e.g., Carolina Dairies Corp. et al., Case No. RF272-97820 et al. (July 23, 1996). Therefore, we further reduced Tarrant volumes by approximately eight and one half months of 1973 Gulf purchases. The total approved purchase volume for Tarrant is 5,303,078 gallons.
(3)In addition, there are five other applicants who have received refunds in this proceeding and who are also affiliated with the Diocese. The Diocese has not applied for refunds on behalf of these applicants. These five applicants are listed in the table below:
Case No.
Case Name
RF272-10646
St. Marys Hospital
RF272-12110
St. Josephs Hospital and Medical Center
RF272-77784
St. John Kanty R.C. Church
RF272-77873
St. Philip the Apostle Church
RF272-77886
Paul VI Reg. High School
Appendix
CASE NO. APPLICANT FIRM CONTACT VOLUME REFUND RF272-98707 HERSHEY ENTERTAINMENT & RESORT OR WILSON, KELLER & ASSOCIATES C/O FRED BEKENROD 1,144,487 $1,831 RF272-98715 FLAMENCO AIRWAYS, INC. OR WILSON, KELLER & ASSOCIATES C/O NOEMI GONZALEZ 460,393 $737 RF272-98761 SNOKIST GROWERS OR WILSON, KELLER & ASSOCIATES C/O ROB GALLION 552,529 $884 Totals: 3 2,157,409 $3,452 CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND RF272-98757 TARRANT COUNTY C/O JUDGE TOM VANDERGRIFF 100 E. WEATHERFORD ST. FT. WORTH, TX 76196 5,303,078 $8,485 RF272-98796 R.C. DIOCESE OF PATERSON C/O JOYCE LARSON 777 VALLEY RD. CLIFTON, NJ 07013 11,471,235 $18,354 Totals: 2 16,774,313 $26,839
Last Updated on 7/10/97
By OHA