Case No. RF272-58138
November 29, 2001
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Applications for Refund
Names of Petitioners: Adee Tower Apartments, Inc.
Blythe Industries, Inc.
Transervice Lease Corp.
Date of Filings: May 25, 1988, et al.
Case Numbers: RF272-58138
RF272-59165
RD272-59165
RF272-86595
This Decision and Order considers and ultimately grants, in whole or in part, three Applications for Refund, totaling $26,407 in the Subpart V crude oil refund proceeding. The names of the Applicants are set forth in the Appendix to this Decision and Order. Each Applicant purchased refined petroleum products during the period August 19, 1973 through January 27, 1981 and each has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy (DOE) pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). Each Applicant relies on the presumption of injury for end-users as the basis for its refund claim. Under this presumption, OHA will presume applicants were injured if they were end-users of petroleum products and were not covered by the DOE or its predecessors price controls. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).
We have reviewed the information submitted by all three applicants and determined that each was an end-user of eligible petroleum products(1). Each of the applicants listed in the Appendix derived its purchase volume claim by consulting actual records or by using reasonable estimation techniques.
After considering each Application carefully, we have concluded that refunds are warranted for the purchase volumes and in the amounts set forth in the Appendix attached to the Decision (2). The total volume for which refunds are approved in this Decision is 16,504,310 gallons and the sum of the refunds granted is $26,407.
The final deadline for the crude oil 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, as we near the resolution of the remaining pending claims, whether any further payment is appropriate.
It Is Therefore Ordered That:
(1) The Applications for Refund filed by the claimants listed in the Appendix to this Decision and Order for all available crude oil overcharge funds are hereby approved as set forth in Paragraph (3) below.
(2) The Motion for Discovery filed by a group of States and Territories of the United States, Case No. RD272-59165, is hereby denied.
(3) 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 the refund amounts set forth in the Appendix to this Decision and Order from the DOE deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants IV, Account No. 999DOE010Z, to the applicants or their representatives listed in the Appendix.
(4) To facilitate the payment of any future refunds, the applicants shall notify the Office of Hearings and Appeals in the event that there is a change in its 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
(5) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary material submitted by the applicants. This Decision and Order may be revoked or modified at any time upon a determination that the basis underlying the refund application is incorrect.
(6) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date:November 29, 2001
(1)In response to the Application for Refund filed by Blythe Industries (Blythe), Case No. RF272-59165, a group of States and Territories of the United States (States) filed a consolidated States Objection to Claim for Refund (Objection) in which the States attempt to rebut the presumption of injury with respect to Blythes Application. After reviewing this Objection, we find that it fails to present specific enough evidence indicating that Blythe Industries passed through a specific amount of crude oil overcharges. See, e.g., A.H. Smith Associates, 22 DOE ¶ 85,036 at 88,098 (1992). The States have also filed a Motion for Discovery (designated Case No. RD272-59195). The Motion is similar to the ones States have made in other cases. The OHA has found such general requests for information are not appropriate in a Subpart V proceeding where the States have presented insufficient evidence to rebut the presumption of end-user injury. Id. Consequently, OHA will deny the States motion for discovery.
(2)In this Decision and Order, the original gallonage of 27,809,350, claimed by Blythe Industries has been adjusted downward to 13,640,533, to exclude petroleum products purchased pursuant to contracts with the State of North Carolina Department of Transportation (NCDOT) with price escalator clauses.
Appendix
CASE NO. APPLICANT CONTACT ADDRESS CITY/STATE VOLUME REFUND RF272-58138 ADEE TOWER APARTMENTS, INC. C/O KATHY SANDOVAL 3000 BRONX PARK E. BRONX, NY 10467 1,550,070 $2,480 RF272-59165 BLYTHE INDUSTRIES, INC. C/O MARCIA MILLER PO BOX 31635 CHARLOTTE, NC 28231 13,640,533 $21,825 RF272-86595 TRANSERVICE LEASE CORP. C/O ERIC R. SKLAR 5 DAKOTA DR. LAKE SUCCESS, NY 11042 1,313,707 $2,102 TOTALS: 3 16,504,310 $26,407