Case No. RF346-00002
November 13, 2001
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Applications for Refund
Names of Firms: Anchor Gasoline Corporation/
Maple Street Canal
Cameron Bayou Service Station
Dates of Filings: November 9, 1992,
September 14, 1993
Case Numbers: RF346-2
RF346-98
This proceeding involves $3,600,000, plus accrued interest, which Anchor Gasoline Corporation (Anchor) remitted to the Department of Energy (DOE) under the terms of the September 22, 1988 Consent Order entered into by DOE and Anchor.(1) The Consent Order settled, except for those matters specifically excluded therein, all civil and administrative claims and liabilities regarding Anchors compliance with the Federal Petroleum Price and Allocation Regulations during the period August 19, 1973 through January 27, 1981 (the consent order period). On April 2, 1992, the Office of Hearings and Appeals (OHA) of the DOE instituted special refund procedures for the distribution of those funds. See Anchor
Gasoline Corporation, 22 DOE ¶ 85,071 (1992)(Anchor). The special refund procedures allow purchasers of Anchor products which were regulated during the period of price controls (e.g., motor gasoline, propane, middle distillates, natural gas liquids, and natural gas liquid products) to file Applications for Refund from the Anchor consent order fund.(2) Refunds can be sought only for regulated products purchased between August 19, 1973 and January 27, 1981, the end of the period of petroleum price controls. See Anchor at 88,215.
On March 16, 1995, the DOE issued a Proposed Decision and Order (PDO) in the Anchor proceeding. In the PDO, we stated that because of Anchors business practices it was likely that all outlets that sold Anchor gasoline were in fact consignees of Anchor. The DOE determined that since Anchor consignee-agents did not assume title to the refined products they sold on behalf of Anchor, Anchors pricing practices could not have injured the consignees. The PDO examined four criteria for the use of potential refund applicants in determining whether they were independent retailers or Anchor consignees. In summary, those criteria addressed whether Anchor or the claimant established retail product prices, whether Anchor took pump readings at the claimants outlet, whether Anchor refined product was paid for upon delivery, or after the product was sold. The final criterion addressed per-gallon sales commissions which Anchor paid some of its consignee operators. See T Paul Landrys Canal Service Station, Case No. RF346-1, (March 16, 1995). If any of these indicia characterized the operation of a refund applicants outlet, that applicant was almost certainly an Anchor consignee, and presumably is not eligible for a refund from the Anchor escrow fund account.
Maple Street Canal (Maple) and Cameron Bayou Service Station (Cameron) sold Anchor refined products (primarily motor gasoline) at the retail level of distribution. Based upon the record as summarized below, neither of the refund applicants qualifies for a refund from the Anchor escrow fund account since these applicants were consignees of Anchor. See Anchor Gasoline Corporation/Als Canal Station, Case No. RF346-73 et al., (January 5, 2000)(Als Canal Station).
In response to a written information request from OHA, the owner of Maple indicated that during the consent order period his retail product prices were established by Anchor, Anchor was paid for product as it was sold, not upon delivery, and Maples retail product sales were monitored by an Anchor employee on a weekly basis. Maples owner also received a per-gallon sales commission from Anchor. See letter to OHA from Nathan Courmier, owner of Maple Street Canal, received on September 14, 1994. Every one of the four indicia characterizing an Anchor consignee applies to Maple. Maples Application for Refund is therefore denied.
The Cameron refund application also contains a response to our information inquiry. The claimant states that Cameron established its own retail product prices, but acknowledges that Anchor sent a representative to the Cameron outlet to take pump readings and that the firm paid for gasoline as it was sold, not upon delivery. Based upon the description of the Cameron operation, we conclude that the firm was an Anchor consignee-agent during the consent order period, and is therefore not eligible for a refund in this proceeding. Camerons Application for Refund is hereby denied.
It Is Therefore Ordered:
1) The Applications for Refund filed on behalf of Maple Street Canal and Cameron Bayou Service Station, Case Nos. RF346-2 and RF346-98, respectively, are hereby denied.
2) This is a final Decision and Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: November 13, 2001
(1)Under the terms of the Consent Order, Anchor remitted $7,775,000 to the DOE. In addition, Anchor was required to deposit into the escrow account a percentage of its profits each year until 1994, bringing the total Consent Order funds to a minimum of $9,000,000. Our calculations for this proceeding are based on the assumption that the total refunds remitted will be the minimum of $9,000,000. These funds were then divided between Anchors alleged violations regarding refined product sales and crude oil sales. The crude oil portion of the Consent Order fund ($5,400,000) will be distributed in accordance with the procedures established in Anchor Gasoline Corporation, 22 DOE ¶ 85,071 (1992). See also A. Tarricone, Inc., et al., 15 DOE ¶ 85,495 (1987).
(2)For purposes of this proceeding, any reference to Anchor includes Anchor Gasoline Corporation and its wholly-owned subsidiary, Canal Refining Company. See Anchor at 88,210.