Case No. RK272-04124

March 26, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Buffalo Paperboard Corporation

Date of Filing: January 23, 1997

Case Number: RK272-04124

This Decision and Order will consider an Application for Supplemental Refund filed by Buffalo Paperboard Corporation (Buffalo) in the Subpart V crude oil refund proceeding being conducted by the Office of Hearings and Appeals (OHA). (1) The Application is based upon purchases of refined petroleum products made by Domtar Gypsum, Inc. (Domtar).

The basis for Buffalo's claim is that it purchased a papermill from Domtar in 1992. According to Buffalo's Controller, David Sholk, the transaction between Domtar and Buffalo was a sale of assets only. Buffalo acquired none of Domtar's stock. Further, Sholk reports that Domatar no longer exists.

OHA has a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502(b). The Office would be negligent in discharging that duty if it granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586, n.4 (1992). Therefore, the refund procedures the Office has 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; (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).

In this case, Buffalo did not purchase any of Domtar's capital stock. Moreover, Buffalo's Controller does not believe that the Asset Purchase Agreement transferred the right to the subject refund to Buffalo. As such, the owners of the capital stock of Domtar did not relinquish their right to receive the supplemental crude oil refund based on the company's petroleum purchases during the price control period. We will therefore deny the Application submitted by Buffalo.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Buffalo Paperboard Corporation, Case No. RF272-04124, be and hereby is denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 26, 1997

(1)For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).