Case No. RG272-00928

January 16, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Decision and Order

Name of Applicant: Brader Hauling Service, Inc.

Date of Filing: July 5, 1995

Case Number: RG272-00928

This Decision and Order will consider an Application for Refund filed by Larry Brader of Brader Hauling Service, Inc., a company that purchased refined petroleum products during the period August 19, 1973 through January 27, 1981. The Applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).

In the past, purchasers of refined products were able to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders between 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 by the overcharges. However, applicants that were end users of petroleum products and whose business was unrelated to the petroleum industry are presumed to have been injured. As such, they need not submit proof of injury to receive a refund in the Subpart V proceeding. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

However, in the Application for Refund submitted by Mr. Brader, he states that Brader Hauling Service, Inc. was sold to Easley Hauling Service in 1985. At the request of the OHA, Mr. Brader submitted a copy of the purchase and sales agreement, titled "Stock Purchase Agreement" (Agreement), between himself and the owners of Easley Hauling Service, Dale and Evelyn Locke. The Agreement confirms that Mr. Brader sold "all of the outstanding capitol stock of the company" at that time.(1)

We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. Therefore, the refund procedures we have 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).

Mr. Brader has confirmed that he did, indeed, sell the capital stock of Brader Hauling Service, Inc. to Dale and Evelyn Locke of Easley Hauling Service in 1985. A review of the purchase agreement submitted by Mr. Brader reveals nothing that would indicate that Mr. Brader retained the right to receive crude oil refunds on the company's behalf. As such, Mr. Brader relinquished the right to receive future crude oil refund monies due to the corporation pursuant to that sale. We will therefore deny the Application submitted by Mr. Larry Brader on behalf of Brader Hauling Service, Inc.

It Is Therefore Ordered That:

(1) The Application for Refund filed by Mr. Larry Brader on behalf of Brader Hauling Service, Inc., Case No. RG272-00928, is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: January 16, 1997

(1) See "Stock Purchase Agreement" submitted by Mr. Larry Brader in support of the Application for Refund filed on behalf of Brader Hauling Service, Inc., Case No. RG272-00928, on December 18, 1996.