Case No. RF272-98604


May 6, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners: Cornwall Industries, Inc. et al.

Dates of Filing: June 5, 1994 et al.

Case Numbers: RF272-98604 et al.

This Decision and Order will consider 26 Applications for Refund that were submitted by purchasers of refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). These applicants have requested refunds from crude oil monies available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) pursuant to the OHA's authority under 10 C.F.R. Part 205, Subpart V. The names of the claimants and the volumes of refined petroleum products that they purchased are set forth in the Appendices to this Decision.

This refund proceeding was instituted to allow purchasers of refined petroleum products during the price control period to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. Statement of Modified Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). We 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 crude oil price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987); 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 by 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 not covered by the DOE's or its predecessors' price controls are presumed to have been injured.

Generally, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016. We derived this 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).

Each of the claimants has submitted all of the information required of crude oil applicants.(1) Specifically, they have all submitted actual or estimated volume claims, and documentation for those claims. We have thoroughly examined the information submitted, and we conclude that the estimation techniques used are reasonable and that the volumes claimed reflect accurately the applicants’ purchases. We will therefore approve the applicants’ gallonage claims.(2)

The claimants purchased their refined petroleum products for use in businesses that are unrelated to the petroleum industry and did not resell those products. They are therefore end-users of refined petroleum products and are presumed to have been injured by the crude oil overcharges. Accordingly, the applicants are entitled to receive their full allocable shares of the crude oil monies.

The refund amount granted to each applicant is set forth in the Appendices to this Decision and Order. The total volume approved in this Decision is 146,862,721 gallons of refined petroleum products, and the total of the refunds granted is $234,977.

The final deadline for applications in the crude oil refund proceeding was June 30, 1995. 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 this applicant 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 claimants listed in the Appendices 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 $234,977 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury to the applicants set forth in the Appendices to this Decision and Order. The refund checks for the applicants set forth in Appendix A shall be remitted to those applicants at the addresses set forth in that Appendix. The refund checks for the applicants set forth in Appendix B shall be made payable to “[Applicant’s Name] or Wilson, Keller & Associates,” and shall be sent to the following address: Wilson, Keller & Associates, P.O. Box 221145, Memphis, TN 38122.

(3) 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

(4) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary materials submitted by the applicants. These determinations may be revoked or modified at any time upon a finding that the basis underlying any refund application is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 6, 1997

(1)Interested parties were provided with an opportunity to submit comments regarding individual crude oil refund applications. No such comments were filed with respect to the applications considered in this Decision.

(2)Two of the applicants (Public Service Co. Of N.C. Inc., RF272- 98641; and The East Ohio Gas Co., RF272-98647) are public utilities. In subpart V refund proceedings, we have generally regarded refund applications filed by utilities as claims filed on behalf of their customers because utilities are in a position to pass through any refunds received to their customers. Thus, the end-user presumption of injury is applicable to these claims. Each of the utilities has certified that it will pass through any refund to its customers.


Appendix
CASE NO. APPLICANT CONTACT STREET ADDRESS CITY/STATE VOLUME REFUND
RF272-98604 CORNWALL INDUSTRIES, INC. C/O ROGER VENETIANER HIMARK ENTERPRISES P.O. BOX 1234 HAUPPAUGE, NY 11787 1,559,681 $2,495
RF272-98610 GENE PORTER DRILLING CO. C/O MARY ANN HINES P.O. BOX 1563 CUSHING, OK 74023 621,552 $994
RF272-98619 HYDER CONSTRUCTION CO., INC. C/O BILL HYDER RR 7, BOX 830 ELIZABETHTON, TN 37643 5,475,840 $8,761
RF272-98624 KELLEY SAND & GRAVEL C/O ELWYN KELLEY P.O. BOX 75 WAUTOMA, WI 54982 1,527,445 $2,444
RF272-98626 L.F. FRANKLIN & SONS, INC. C/O MICHAEL A. MCKEE OR AMERICAN RD. & TRANSPORT. BLDRS ASSN 1010 MASS. AVE., N.W., 6TH FL WASHINGTON, DC 20001 992,851 $1,589
RF272-98628 MARTIN & WRIGHT PAVING C/O JOHN FISHER 103 BOOTH BEND RD. MCMINNVILLE, OR 97128 4,575,600 $7,321
RF272-98632 NORMAN B. HOUGE, INC. C/O DAVID HOUGE 200 CRISTICH LANE CAMPBELL, CA 95008 1,072,163 $1,715
RF272-98633 PAT EATHERLY CONSTRUCTION CO. C/O ROBERT H. CROCKETT OR AMERICAN RD. & TRANSPORT. BLDRS ASSN 1010 MASS. AVE., N.W., 6TH FL WASHINGTON, DC 20001 1,230,217 $1,968
RF272-98640 POUGHKEEPSIE ASPHALT, INC. C/O RAY ALEXANDER 300 NEW HAKENSACK RD. WAPPINGERS FALLS, NY 12590 17,099,939 $27,360
RF272-98641 PUBLIC SERVICE CO. OF N.C. INC C/O ROBERT D. VOIGT P.O. BOX 1398; 400 COX RD. GASTONIA, NC 280531398 10,444,205 $16,711
RF272-98647 EAST OHIO GAS CO. C/O FRANKLIN C. LEWIS P.O. BOX 5759 CLEVELAND, OH 44101 9,752,601 $15,604
RF272-98685 TWIN CITY FOODS, INC. C/O RONALD H. KEOLKER P.O. BOX 699 STANWOOD, WA 98292 4,989,046 $7,982
RF272-98689 WHITE STONE CO. OF S.W. VA WHITE EXCAVATING CO. OR AMERICAN RD. & TRANSPORT. BLDRS ASSN 1010 MASS. AVE., N.W., 6TH FL WASHINGTON, DC 20001 1,114,234 $1,783
Totals: 13       60,455,374 $96,727
             
             
CASE NO. APPLICANT FIRM CONTACT VOLUME REFUND  
RF272-98653 CITY OF HARVEY OR WILSON, KELLER & ASSOCIATES C/O ALEXANDER LITTLE 1,033,426 $1,653  
RF272-98655 FAUCETT PERUVIAN AIRLINES OR WILSON, KELLER & ASSOCIATES COMPANIA DE AVIACION 8,525,261 $13,640  
RF272-98665 GOLDEN GATE AIRLINES OR WILSON, KELLER & ASSOCIATES GEM INVESTORS, INC. 6,878,909 $11,006  
RF272-98671 AMERICA CENTRAL CORP. OR WILSON, KELLER & ASSOCIATES AVIATECA 9,562,891 $15,301  
RF272-98672 AMERICA CENTRAL CORP. OR WILSON, KELLER & ASSOCIATES TACA INTERNAT'L AIRLINE 12,972,750 $20,756  
RF272-98673 AMERICA CENTRAL CORP. OR WILSON, KELLER & ASSOCIATES LACSA 14,088,411 $22,541  
RF272-98675 PRESIDENTIAL AIRWAYS OR WILSON, KELLER & ASSOCIATES C/O KERMIT ROSENBERG 3,038,681 $4,862  
RF272-98676 GRAND UNION CO. OR WILSON, KELLER & ASSOCIATES C/O LINDA VILLANO 8,143,981 $13,030  
RF272-98678 OHIO VALLEY AVIATION OR WILSON, KELLER & ASSOCIATES C/O SALLY MOYERS 166,366 $266  
RF272-98692 W. JEFF HAMMONS MOVING & STRG. OR WILSON, KELLER & ASSOCIATES HAMMOND MOVING & STORAGE 524,335 $839  
RF272-98696 ELAINE S. BOSSERT OR WILSON, KELLER & ASSOCIATES C/O RICHARD M. BOSSERT 15,868,902 $25,390  
RF272-98697 VON DER AHE VAN LINES, INC. OR WILSON, KELLER & ASSOCIATES C/O JOHN BONDEWYNS 231,787 $371  
RF272-98699 BROWNING FREIGHT LINES, INC. OR WILSON, KELLER & ASSOCIATES CLIFTON & LOWELL BROWNING 5,371,647 $8,595  
Totals: 13     86,407,347 $138,250  
             


Last Updated on 7/10/97
By OHA