Case No. RF272-76687

March 13, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Motion for Reconsideration

Names of Petitioners: Farmers Co-op Elevator et al.

Dates of Filing: October 10, 1989 et al.

Case Numbers: RF272-76687 et al.

This Decision and Order will consider Applications for Refund and a Motion for Reconsideration filed by 12 claimants that purchased refined petroleum products during the period August 19, 1973 through January 27, 1981.(1)Each applicant listed in the Appendix

attached to the Decision and Order 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 order to receive a refund for crude oil overcharges, an applicant that was an end-user (i.e., consumer) of refined petroleum products must document its purchase volumes. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). Each applicant's refund share is calculated using the current refund amount of $0.0016 per gallon.

We have reviewed the information submitted by these applicants and determined that each was an end-user of petroleum products.(2)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.(3)

Each of the applicants listed in the Appendix is eligible to receive a refund. The purchase volumes and refunds approved for each applicant are set forth in the Appendix. The applicants considered in this Decision applied either on their own behalf or through a private filing service. In accordance with each applicant's request, refund checks will be sent to either the applicant or its representative. The total volume for which refunds are approved in the Appendix is 154,258,602 gallons and the sum of the refunds granted is $246,814.

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 and Motion for Reconsideration filed by the claimants listed in the Appendix 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 the refund amounts set forth in the Appendix to this Decision and Order from the DOE deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, to the applicants or their representative listed in the Appendix.

(3) Farmers Co-op Elevator shall notify its membership of the receipt of the refund and shall pass through to its member customers all crude oil refunds received in Subpart V refund proceedings conducted by the Office of Hearings and Appeals.

(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 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.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 13, 1997

(1)One applicant, San Luis Hills Farms (San Luis) (Case No. RG272-440), was granted a refund in an earlier Decision. However, this applicant is requesting a refund based on additional purchases and has submitted the appropriate verification of its additional purchase claim. Since this material was submitted before the filing deadline, we will consider San Luis’ claim.

Another applicant, Wallace Dairy (Wallace) (Case No. RR272- 267), has filed a Motion for Reconsideration of a Decision and Order that was issued by the Office of Hearings and Appeals (OHA) on August 28, 1996. In that Decision, the OHA approved a refund for 50,101 gallons of petroleum products purchased by Wallace. In the motion, Mrs. Angela Wallace stated that her husband was ill when he completed the application, and listed the firm’s grand total as 50,101 gallons, when that was the estimated figure for only one year of the refund period. Mr. Wallace should have multiplied that figure by 7.44, the number of years in the August 19, 1973 through January 27, 1981 refund period and thus, the firm’s grand total claim should have been 372,751 gallons. Therefore, Wallace’s Motion for Reconsideration will be considered for an additional 322,650 gallons.

(2)

2/ 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.

(3)One of the applicants is an agricultural cooperative. In Subpart V refund proceedings, 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 this claim. The cooperative has certified that it will pass through any refund to its members. Furthermore, we have subtracted from this gallonage claim the volume that the cooperative sold to non-members. Accordingly, we will grant a refund to this cooperative based on the volume set forth in the Appendix.


Appendix
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RF272-76687 FARMERS CO-OP ELEVATOR C/O STAN BERKLAND P.O. BOX 67 BURT, IA 50522 3,392,526 $5,428
RG272-00320 WATSON ASPHALT PAVING CO. INC. C/O CLIFFORD SCHROEDER P.O. BOX 845; 19220 N.E. 80TH REDMOND, WA 980730845 39,952,430 $63,924
RG272-00373 DYKES PAVING & CONSTRUCTION C/O WINDY SPEARS 2775 JONES MILL RD. NORCROSS, GA 30071 8,910,096 $14,256
RG272-00374 HICKS CO. OR THOMAS A. HICKS 10380 E. WING RD. SHEPHERD, MI 48883 70,802,492 $113,284
RG272-00377 MARYSVILLE PAVING & CONSTRUTN. C/O HAROLD JORDAN 2801 S. MACHIAS RD. SNOHOMISH, WA 982904740 1,768,673 $2,830
RG272-00390 MOBILE ASPHALT CO., INC. C/O RANDY BILLINGSLEY P.O. BOX 869 SARALAND, AL 36571 10,265,030 $16,424
RG272-00397 LEUCADIA, INC. C/O PACIFIC TRAILWAYS OR WILSON, KELLER & ASSOCIATES P.O. BOX 221145 MEMPHIS, TN 38122 4,491,107 $7,186
RG272-00444 SIERRA COAL CO. C/O BILL FLANAGAN 9OR WILSON, KELLER & ASSOCIATES P.O. BOX 221145 MEMPHIS, TN 38122 2,054,863 $3,288
RG272-00460 SAN LUIS HILLS FARMS C/O CHARLES EMRICH OR WILSON, KELLER & ASSOCIATES P.O. BOX 221145 MEMPHIS, TN 38122 1,042,940 $1,669
RG272-00484 VIRGINIA CAROLINA PAVING CO. OR ROY G. HIATT 1247 HWY. 52 N. MOUNT AIRY, NC 27030 5,843,654 $9,350
RG272-00499 BTA OIL PRODUCERS C/O GREGG A. GROVES 104 S. PECOS MIDLAND, TX 79701 5,412,141 $8,659
RR272-00267 WALLACE DAIRY C/O OWEN WALLACE 890 E. SUNNYSIDE IDAHO FALLS, ID 83404 322,650 $516
Totals: 12       154,258,602 $246,814
             


Last Updated on 7/24/97
By OHA