Case No. RF300-16900

June 10, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Gulf Oil Corporation/O.M. Johnson Gulf

Gulf Oil Corporation/A.W. Strout, Inc.

Gulf Oil Corporation/Inland Transport Co.

Gulf Oil Corporation/Hendries, Inc.

Dates of Filing: May 29, 1991

May 29, 1991

December 9, 1991

March 3, 1993

Case Numbers: RF300-16900

RF300-16923

RF300-18794

RF300-21657

On July 25, 1985, the Economic Regulatory Administration of the Department of Energy (DOE) filed a Petition with the Office of Hearings and Appeals (OHA) requesting that the OHA formulate and implement procedures for distributing funds obtained through a consent order with Gulf Oil Corporation (Gulf). See 10 C.F.R. Part 205, Subpart V. The consent order resolved DOE allegations that Gulf violated the mandatory petroleum regulations in its sales of crude oil and refined petroleum products from January 1, 1973 through January 27, 1981 (the consent order period). On September 8, 1987, the OHA issued a Decision and Order setting forth final procedures for disbursing the portion of the Gulf settlement fund attributable to Gulf's sales of refined petroleum products. Gulf Oil Corp., 16 DOE ¶ 85,381 (1987) (Gulf). In accordance with the goals of 10 C.F.R. Part 205, Subpart V, Gulf implements a process for refunding the consent order funds to purchasers of Gulf refined petroleum products who are able to demonstrate that they were injured as a result of Gulf's alleged overcharges. This Decision and Order renders a determination upon the merits of four (4) Applications for Refund submitted by resellers and consumers of Gulf refined products. The names, case numbers, and volumes of Gulf product purchased by these Applicants are set forth in the Appendix to this Decision and Order.

In Gulf, we adopted a presumption that the alleged Gulf overcharges attributable to refined products had been dispersed equally in all sales of refined product made by Gulf during the consent order period. Gulf, 16 DOE at 88,736. We stated that, in the absence of a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the consent order funds on a volumetric basis. We provided that eligible claimants would receive $.00064 per gallon of covered Gulf product purchased.(1)Id. at 88,739. We established that a refiner, reseller, or retailer claimant generally would be required to demonstrate that it was injured as a result of its Gulf purchases; that is, that it did not pass through to its customers Gulf's alleged overcharges. However, we established a presumption that firms claiming refunds of $5,000 or less would not be required to demonstrate that they absorbed the alleged overcharges. Id. at 88,740. We also established that end- users or ultimate consumers whose businesses are unrelated to the petroleum industry were injured by the alleged refined product overcharges. Id. Thus, end-user claimants need only document their purchase volumes of Gulf products to make a sufficient showing that they were injured by the alleged overcharges. Id.

All of the information required of Applicants by the Gulf Decision has been submitted by the Applicants in these four (4) cases. Id. at 88,741-42. Each of the Applicants provided a copy of the Gulf volume sheet, which demonstrates the number of gallons of Gulf refined products that they purchased during the Gulf consent order period. The Applicants submitted further documentation to establish that they are the purchasers named on the Gulf volume sheet and are thus the rightful recipients of a refund. These documents, along with the Gulf volume sheet, affirm that each Applicant was a customer of Gulf during the consent order period and is therefore entitled to a refund based on the total number of gallons each purchased from Gulf.

None of the Applicants have demonstrated that they suffered a disproportionate overcharge as a result of Gulf's alleged over- charges. Accordingly, each Applicant's allocable share of the Gulf fund will be based on the volumetric approach described above. Each Applicant's allocable share is less than $5,000. Therefore, these Applicants will not be required to provide separate, detailed demonstrations that they absorbed the alleged overcharges.

Accordingly, each Applicant will receive a refund amount equal to its allocable share (the principal amount), as well as interest accrued on the principal since the consent order funds were placed in escrow.(2)The total refund amount that each Applicant will receive is set forth in the Appendix. The total volume approved in this Decision and Order is 9,121,205 gallons of refined petroleum products, and the sum of the refunds granted is $11,400.

It Is Therefore Ordered That:

(1) The Applications for Refund specified in the Appendix to this Decision 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 a total of $11,400 from the DOE deposit fund escrow account maintained at the Department of the Treasury and funded by Gulf Oil Corporation, Consent Order No. RGFA00001Z, to the four (4) Applicants specified in the Appendix to this Decision and Order. The address to which each check should be sent is included in the Appendix.

(3) The determinations made in this Decision and Order are based on 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 determination that the factual basis underlying any Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 10, 1997

(1)1/ This amount was derived by dividing the fund received from Gulf allocable to refined products ($42,499,566) by the estimated volume of refined products sold by Gulf from August 1973 through the date of decontrol of the relevant product (66,387,563,569 gallons). Id.

(2)2/ Interest has been computed on the basis of 7 percent compounded yearly since June 20, 1985, the date that Gulf remitted the consent order funds to the DOE. Each Applicant's refund amount will be calculated by multiplying its approved gallonage by the total volumetric to date, which is $.00125 (principal volumetric of $.00064 + interest volumetric to date of $.00061 = $.00125).


Appendix:

Case No.

Applicant Name

Address

Gallonage

Refund

RF300-16900

O.M. Johnson Gulf

O.M. Johnson Gulf

1,297,881

$ 1,622

OR Wilson, Keller & Associates

Peter McMickle

P.O. Box 221145

Memphis, TN 38122

RF300-16923

A.W. Strout, Inc.

A.W. Strout, Inc.

3,624,377

$ 4,530

OR James Plummer and Dorothy Plummer

OR Wilson, Keller & Associates

Peter McMickle

P.O. Box 221145

Memphis, TN 38122

RF300-18794

Inland Transport Co.

Inland Transport Co.

4,051,474

$ 5,064

c/o Don Peterson

P.O. Box 1506

Cedar Rapids, IA 52406

RF300-21657

Hendries, Inc.

Hendries, Inc.

147,473

$ 184

OR New England Frozen Foods

Robert Frotten

P.O. Box 409

Southborough, MA 01772-0409

TOTAL NUMBER OF APPLICANTS = 4

TOTALS =

9,121,205

$ 11,400