Case No. RF272-97796

April 2, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Pharmhouse, Inc. et al.

Dates of Filing: June 29, 1994 et al.

Case Numbers: RF272-97796 et al.

This Decision and Order will consider the Applications for Refund filed by eight claimants based upon their purchases of refined petroleum products during the period August 19, 1973 through January 27, 1981 (the crude oil price control period). The names of these applicants are set forth in the Appendix attached to this Decision and Order. Each applicant has requested a refund from crude oil monies made available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under 10 C.F.R. Part 205, Subpart V. Until June 30, 1995, purchasers of refined products could apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. See Modified Statement of Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986); Notice of New Filing Deadline in Special Refund Proceeding Involving Crude Oil Overcharge Refunds, 60 Fed. Reg. 19914 (April 21, 1995). 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).

The refund procedures set forth in these cases specify that in order to receive a refund, an applicant generally must: 1) document its purchase volumes; and 2) show that it was injured as a result of the alleged crude oil 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, 16 DOE at 88,799.

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).

We have carefully reviewed the information submitted by the eight applicants, and have determined that the information provided by the applicants sufficiently supports their requests for refunds.(1) Each of the applicants has demonstrated the volume of its claim by consulting actual records or by using a reasonable estimation technique. The gallonage amounts listed in the Appendix to this Decision and Order reflect the approved purchase volume for each applicant.(2)

We have found that all eight applicants were end-users of refined petroleum products. Accordingly, they are presumed injured by the crude oil overcharges and are entitled to receive their full allocable shares 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 Appendix. The total volume for which refunds are approved in this Decision is 211,451,958 gallons, and the sum of the refunds granted is $338,324.

Two of the applicants listed in the Appendix filed their Applications through a private filing service, Wilson, Keller & Associates. In accordance with the applicants’ requests, the refund checks will be made payable to the applicants “or Wilson, Keller & Associates,” and be sent to Wilson, Keller & Associates, P.O. Box 221145, Memphis, TN 38122.

It is the current policy of the DOE to pay eligible crude oil refund claimants 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 claimants listed in the Appendix 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 a total of $338,324 from the DOE deposit fund escrow account denominated Crude Tracking-Claimants IV, Account Number 999DOE010Z, maintained at the Department of Treasury, to the eight applicants listed in the Appendix.

(3) Two applicants listed in the Appendix to this Decision applied through Wilson, Keller & Associates, Inc., a private filing service. At their request, the refund checks should be sent to Wilson, Keller & Associates, P.O. Box 221145, Memphis, TN 38122. The refund checks for the six remaining applicants in the Appendix should be sent to the addresses listed in that Appendix.

(4) To facilitate the payment of future refunds, the applicants 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. Any of these determinations may be revoked or modified at any time upon finding that the 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: April 2, 1997

(1)Interested parties were given an opportunity to submit comments regarding individual crude oil refund applications. No such comments were filed with respect to any application involved in this determination.

(2)Three of the applicants listed in the Appendix are agricultural cooperatives. In the Subpart V refund proceeding, we have generally regarded refund applications filed by cooperatives as claims filed on behalf of their members because cooperatives are in a position to pass through any refunds received to their members. Thus, to the extent that the volumes claimed by the cooperatives were sold to their members, the end-user presumption of injury is applicable to these claims. Each of the cooperatives has certified that it will pass through any refund to its members. Furthermore, we have subtracted from each of the gallonage claims the volumes that the cooperative sold to non-members. Accordingly, we will grant refunds to these cooperatives based on the volumes set forth in the Appendix.


Appendix
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RF272-97796 PHARMHOUSE, INC. C/O MANFRED BRECKER 860 BROADWAY, 4TH FL. NEW YORK, NY 10003 4,962,640 $7,940
RG272-00507 STATE OF OHIO OR TREASURER OFFICE OF ENERGY SERVICES 4200 SURFACE RD. COLUMBUS, OH 432281395 51,204,237 $81,927
RG272-00510 ALLEN COUNTY COOP ASSN., INC. C/O PHYLLIS LAMPE P.O. BOX 97 NEW HAVEN, IN 46774 17,772,484 $28,436
RG272-00511 SCOTTY'S CONTRACTING & STONE C/O DAVID HOWLETT P.O. BOX 4500 BOWLING GREEN, KY 42102 88,354,717 $141,368
RG272-00515 AGRI-TECH FS, INC. C/O JIM LEITZINGER P.O. BOX 210; 16119 HWY. 81 W. DARLINGTON, WI 53530 23,852,423 $38,164
RG272-00549 SCHNEIDER MILLS, INC. C/O HAMPTON SCHELL OR WILSON, KELLER & ASSOCIATES P.O. BOX 221145 MEMPHIS, TN 38122 2,208,393 $3,533
RG272-00550 EDDY PACKING CO., INC. C/O LARRY RUTLEDGE OR WILSON, KELLER & ASSOCIATES P.O. BOX 221145 MEMPHIS, TN 38122 778,442 $1,246
RG272-00573 HIGH PLAINS COOPERATIVE C/O SCOTT ROHLIK P.O. BOX 636 PLAINVIEW, MN 55964 22,318,622 $35,710
Totals: 8       211,451,958 $338,324
             


Last Updated on 7/22/97
By OHA