Case No. RK272-04765

February 19, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Lafarge Corporation

Date of Filing: January 26, 1998

Case Numbers: RK272-04765

RK272-04766

This Decision and Order will consider two Applications for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Lafarge Corporation.(1) The Applications are based upon purchases of refined petroleum products made by St. Charles Quarry Company, Inc., (St. Charles) and Kurtz Concrete, Inc., (Kurtz) from August 1973 to January 1981.

In the Applications, Todd Barklage of Lafarge stated that Lafarge purchased the assets of both St. Charles and Kurtz in 1990. In a telephone conversation with the OHA on February 13, 1998, Mr. Barklage explained that the purchases were asset purchases only, and that Lafarge did not buy any of the capital stock in St. Charles or Kurtz.

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).

According to Mr. Barklage, Lafarge did not purchase any of the capital stock of St. Charles or Kurtz. In addition, there is no indication in the Applications that the right to receive future crude oil refund monies was either explicitly or implicitly included in the sales of St. Charles’ and Kurtz’s assets to Lafarge. As such, the owners of the capital stock of St. Charles and Kurtz did not relinquish their right to receive the supplemental crude oil refunds based on the companies’ petroleum purchases during the price control period. We will therefore deny the Applications submitted by Lafarge.

It Is Therefore Ordered That:

(1) The Applications for Supplemental Refund filed by Lafarge Corporation, Case Nos. RK272-4765 and RK272-4766, are hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 19, 1998

(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).