Case No. RC272-00372

October 1, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Petitioner: Harris Teeter Super Markets, Inc.

Case Number: RC272-00372

Date of Filing: August 19, 1997

On February 23, 1990, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued a Decision and Order to 39 applicants, in the crude oil refund proceeding. See Mill Service, Inc. et al., Case Nos. RF272-56000 et al. (February 23, 1990) (Mill Service). In that Decision, this Office granted a refund of $5,833 to Harris Teeter Super Markets, Inc. (Harris Teeter), a retail grocery business located in Charlotte, North Carolina (Case No. RF272-56339, redesignated as RC272-372), based on purchases of 7,291,246 gallons of refined petroleum products from August 1973 through January 1981 and a per gallon volumetric refund amount of $0.0008.

This Office is in the process of issuing supplemental refunds to all applicants granted refunds in the crude oil proceeding. As we stated in the Mill Service Decision and Order, when additional crude oil monies became available, meritorious applicants would receive a share of the additional monies. During our review process for this supplemental refund, we discovered that in August 1994, Harris Teeter was granted an additional refund of $9,726 for purchases of 12,157,000 gallons of refined petroleum products under Case No. RF272-92469. See Thorn EMI Malco, Inc. et al., Case Nos. RF272-92407 et al. (August 26, 1994). Mr. B.J. Moffet, Assistant Controller/Secretary of the firm filed the first application and Mr. Kemp Woollen, Accounting Manager of Harris Teeter, filed the second application. Each application requested a refund based on purchases for Harris Teeter and Food Worlds, a firm that merged with Harris Teeter on April 2, 1984.

There is nothing in either application to indicate that the applications filed on behalf of Harris Teeter differ in anything other than the amount of the purchase volume claims. Each

application requested refunds for purchases of refined petroleum products used for the maintenance and operation of the company from August 19, 1973 through January 27, 1981. This Office wrote to Harris Teeter, to give the firm an opportunity to show that the applications were not duplicative, but were for separate purchases. The firm did not respond to our request. Therefore, we find that a duplicative refund was erroneously granted based on the same purchases. Based on the available information in the files, this Office has decided that the claim filed by Mr. Woollen (RF272- 92469) is the more accurate one.

We stated in Ordering Paragraph (5) of Mill Service:

The determinations made in this Decision and Order are based upon the presumed validity of 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 refund application is incorrect.

Such remedial action is appropriate here. This Office is therefore rescinding the refund in the amount of $5,833 that was granted to Harris Teeter under Case No. RF272-56339. Since the supplemental per gallon refund amount ($0.0008) is the same as the prior refund amount, rather than requiring Harris Teeter to repay the duplicative refund, we normally would have subtracted that amount ($5,833) from the supplemental refund to which the firm is entitled ($9,726) and issue a supplemental refund for the difference ($3,893). See State of Montana, 25 DOE ¶ 85,059 (1995). However, a supplemental refund of $9,726 has already been granted to Harris Teeter. See Crude Oil Supplemental Refund Distribution, Case No. RB272-88 (October 8, 1996). Since we have already granted a full supplemental refund for Case No. RF272-92469, we are requiring that Harris Teeter repay the original refund of $5,833 granted under Case No. RF272-56339.

It Is Therefore Ordered That:

(1) The Decision and Order issued by the Department of Energy on February 23, 1990, Mill Service, Inc. et al., Case Nos. RF272-56000 et al., is hereby rescinded as to Harris Teeter Super Markets, Inc., Case No. RF272- 56339, redesignated as RC272-00372.

(2) Harris Teeter Super Markets, Inc. is directed to remit the sum of $5,833 to the Department of Energy. Payment shall be mailed to the following address:

U.S. Department of Energy

Office of the Controller

P.O. Box 500

Germantown, MD 20874-0500

Payment should be made by check payable to the U.S. Department of Energy and should refer to Case No. RC272-00372. In the event that payment is not made within 30 days of the date of this Decision and Order, interest shall accrue on the amount due at the rate generally assessed by the Department of Energy on overdue receivables. Other charges generally assessed on overdue DOE receivables shall also apply.

(3) Upon receipt of the payment specified above, 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 deposit these funds into the DOE deposit fund escrow account denominated Crude Tracking Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 1, 1997