Case No. RF272-94054

July 13, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Applicant:Buckeye Countrymark, Inc.

Date of Filing: January 22, 1993

Case Number: RF272-94054

This Decision and Order will consider the Application for Refund filed by Buckeye Countrymark, Inc. ( Buckeye). The Application is based upon Buckeye's purchases of refined petroleum products during the crude oil price control period (August 19, 1973 through January 27, 1981). Buckeye has requested a refund from crude oil funds available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under the provisions of 10 C.F.R. Part 205, Subpart V.

In the past, purchasers of refined products have been allowed to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders between the DOE and numerous firms that sold crude oil during the 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).

In order to receive a refund for crude oil overcharges, an applicant generally must: (1) document its purchase volumes and (2) show that it was injured by alleged crude oil overcharges. Applicants that were end-users of petroleum products, however, and whose businesses were unrelated to the petroleum industry are presumed to have been injured because they absorbed the crude oil overcharges. These applicants need not submit proof of injury to receive a refund in the Subpart V proceeding. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

Buckeye is an agricultural cooperative. We regard an Application for Refund filed by a cooperative that resold petroleum products to its members as a claim filed on behalf of the members themselves. Farmers Union Oil Co., 17 DOE ¶ 85,464 (1988). A

cooperative can thus claim the presumption of end-user injury to the extent that its members were end-users. Consequently, we will consider granting a refund to a cooperative based on products resold to its members on the condition that it certify that it will pass through the refund to its members.

Since it filed its Application for Refund, Buckeye has discontinued its operations as a cooperative. It sold its operations to AgTech, a limited liability corporation. Memorandum of telephone conversation between Dennis Nager, Buckeye Countrymark, and William Schwartz, Staff Attorney, OHA, May 30, 1997. Most of Buckeye’s members are now customers of AgTech. However, AgTech is not an agricultural cooperative and has no members to whom to pass through a refund. Id. As a result, no mechanism exists for delivering restitution to the injured purchasers, which is the purpose of this refund proceeding. Because neither Buckeye nor AgTech is able to certify that it will pass through the refund to the former members of Buckeye, we will deny Buckeye’s Application for Refund.

It Is Therefore Ordered That:

(1) The Application for Refund filed by Buckeye Countrymark, Case No. RF272-94054, is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date:July 13, 1998