Case No. RR272-00024

May 29, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motions for Reconsideration

Names of Petitioners: Burkland Oil Company

Cal's Supply, Inc.

T.A. Wiseman

Milliken & Servas, Inc.

Johnson Oil Company

Fraser Oil Company

Brookline Avenue Service

Schlottman Oil Company

Mike Junker

Date of Filings: April 21, 1989

Case Numbers: RR272-00024

RR272-00025

RR272-00026

RR272-00027

RR272-00028

RR272-00029

RR272-00030

RR272-00031

RR272-00032

The nine Petitioners considered in this Decision and Order filed Motions for Reconsideration with the Office of Hearings and Appeals (OHA) of the Department of Energy. If the Motions were granted, OHA would reconsider the Applications for Refund filed by the Petitioners in the Subpart V Crude Oil Special Refund Proceeding that were denied on March 22, 1989. Miles Lumber Co., 18 DOE ¶ 85,816 (1989).

All of the Petitioners' Applications for Refund were denied because they were found to be resellers or retailers that are not entitled to a presumption of injury in this proceeding and did not attempt to make a showing of injury. Id. at 89,337.(1)The Motions for

Reconsideration are based on the statements and supporting documents of Dr. Peter D. Linneman, who presented econometric evidence to the OHA in connection with the Office's preparation of the Report on Stripper Well Overcharges for the United States District Court for the District of Kansas. Dr. Linneman expressed the opinion that resellers and retailers, as a group, probably absorbed some of the crude oil overcharges during the price control period.

We have previously held that Dr. Linneman's general econometric evidence is insufficient to show injury for any particular claimant for the purposes of a Subpart V refund. See, e.g., John J. Hudson, Inc., 20 DOE ¶ 85,787 at 89, 855 (1990), reconsideration denied, 21 DOE ¶ 85,326 (1991); A-1 Oil Co., 20 DOE ¶ 85,745 at 89,745 (1990); Coastal Gas, Inc., 20 DOE ¶ 85,225 at 88,505-06 (1990). After acquainting counsel for the Petitioners with our precedent in this area, we requested counsel either to provide information demonstrating firm-specific injury or to provide some other basis for the Motions. Counsel is unable to provide information for any of the petitioners which would demonstrate injury. See Letter of March 31, 1995 in OHA Case No. RR272-25. Counsel also has informed us that the sole basis for the Motions is the Linneman material, that it was aware of the relevant OHA precedent, and that it does not challenge that precedent. See Memorandum of Telephone Conversation of April 6, 1995 in OHA Case No. RR272-25. Therefore, in accord with the precedent cited above, we find that there is no basis for reconsideration of the previous disposition of the applications for refund, and we should deny these Motions for Reconsideration.

It Is Therefore Ordered That:

(1) The Motions for Reconsideration filed by Burkland Oil Company (RR272-24), Cal's Supply, Inc. (RR272-25), T.A. Wiseman (RR272-26), Milliken & Servas, Inc. (RR272-27), Johnson Oil Company (RR272-28), Fraser Oil Company (RR272-29), Brookline Avenue Service (RR272-30), Schlottman Oil Company (RR272-31), and Mike Junker (RR272-32) are hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 29, 1997

(1)Resellers and retailers must prove injury to receive a refund in the Crude Oil Subpart V Special Refund proceeding because the operations of the Entitlements Program spread crude oil overcharges evenly through the petroleum industry. We therefore presume that these overcharges were not absorbed by the industry but passed through to the ultimate consumers of petroleum products.