Case No. RR340-00007

February 20, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Enron Corporation/

Texaco Refining and Marketing, Inc.

Date of Filing: October 28, 1998

Case Number: RR340-00007

On December 6, 1991, the Office of Hearings and Appeals (OHA) issued a Decision and Order granting a refund of $64,297 to Texaco Refining and Marketing, Inc. (TRMI) in the Enron Corporation (Enron) refund proceeding. On April 20, 1992, TRMI filed a Motion for Reconsideration of the December 6 Order.(1) The details of the original TRMI refund claim and the overall Enron refund proceeding are set forth in Enron Corp./Texaco, Inc.; Texaco Refining and Marketing, Inc., Case No. RF340-25, December 6, 1991 (unpublished Decision and Order)(hereinafter Enron/Texaco). See also Enron Corp., 21 DOE ¶ 85,323 (1991) (hereinafter Enron). For purposes of the instant Motion for Reconsideration, the relevant facts are as follows.

Our 1991 decision granting a refund to TRMI indicates that TRMI is a wholly-owned subsidiary of Texaco, Inc. Prior to its acquisition by Texaco, Inc. in December 1984, TRMI operated under the name of Getty Refining and Marketing Company (Getty). Getty itself was the successor by stock acquisition and merger to Skelly Oil Company (Skelly), which it had acquired on January 31, 1977. The Enron product for which TRMI claims a refund was purchased from Enron by

Skelly and Getty. In its original refund application, TRMI claimed a refund based upon 178,413,104 gallons of NGLPs that Skelly and Getty purchased from Enron between 1973 and 1979, and elected to receive its maximum refund under the applicable presumption of injury set forth in Enron. Accordingly, we granted TRMI a refund of $50,000 in principal. TRMI also received interest on that amount of $14,297.

In its Motion for Reconsideration, TRMI seeks to reopen the injury showing issue. The firm asks that we now consider whether the firm is eligible for a full volumetric refund based upon a showing of actual injury, rather than limiting the firm’s refund to the maximum payment of $50,000 available under a presumption of injury.

The Motion for Reconsideration is a vehicle that permits the OHA to correct errors in and make appropriate adjustments to prior Decisions and Orders. See Oceana County Road Commission, 20 DOE ¶ 85,081 (1990). It generally is not appropriate for an applicant to use the Motion for Reconsideration to reopen a question that has been previously closed at its own request. However, in this instance, TRMI only discovered additional information subsequent to our initial decision. This information, monthly purchase information which is necessary to prove actual injury, existed in sources outside of the company. Moreover, TRMI submitted this additional information in a timely fashion and within the time period during which we were accepting Enron refund applications. Accordingly, in this instance we will grant this request and consider TRMI’s injury claim.

II. Analysis.

A. TRMI’s Injury Showing for Skelly’s and Getty’s Enron Purchases.

1. The Bases for Showing Injury in this Proceeding.

In Enron we adopted a presumption that the alleged overcharges attributable to the Enron sale of NGLs and NGLPs had been dispersed equally in all sales of refined product made by the covered entities during the consent order period. Enron, 21 DOE at 88,959. We stated that, in the absence of a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the consent order funds on a volumetric basis. We provided that eligible claimants would receive $.00601 per gallon of covered Enron product purchased.(2)Id. We refer to the dollar amount derived by multiplying an applicant's purchase volume by the per gallon refund amount as the applicant's allocable share.

Enron generally requires a claimant to demonstrate that it was injured by Enron's alleged overcharges in order to receive a refund equal to its full allocable share. See 10 C.F.R. Part 205, Subpart V at § 205.280. However, in Enron, we adopted several presumptions of injury that allow certain types of claimants to receive a refund without a detailed demonstration of injury. As noted above, TRMI initially chose to rely upon these presumptions of injury, and in a Decision and Order dated December 6, 1991, we granted TRMI a refund, including interest, of $64,297. In its Motion for Reconsideration, the firm has submitted additional information aimed at showing that it was injured with respect to the product that it purchased from Enron and resold to third parties or used in its refining operations. Accordingly, we now will consider whether to grant TRMI a refund up to its full allocable share based on our analysis of this information concerning injury.

A reseller or refiner whose allocable share exceeds $10,000 must demonstrate that it was injured by Enron's alleged overcharges in order to receive a refund equal to its full volumetric allocation of the consent order fund. The procedures in Enron outline a two- step requirement for applicants attempting to make an injury showing. First, a claimant must show that it accumulated banks of unrecovered increased product costs large enough to justify the amount of the refund claimed during the period from either November 1973, the first month of the banking period, or the first month in which it purchased from Enron, whichever was later, through the end of the banking period. Second, it must show that market conditions forced it to absorb the alleged overcharges. Id. at 88,960.

In order to determine the degree to which market conditions forced an applicant to absorb the alleged overcharges, we apply a three part competitive disadvantage analysis that has been reviewed in detail and upheld by the courts. See Behm Family Corp. v. DOE, 903 F.2d 830 (Temp. Emer. Ct. App. 1990); Atlantic Richfield Co. v. DOE, 618 F. Supp. 1199 (D. Del. 1985). Under this methodology, we infer that purchases made at above average market prices indicate that the firm was unable to pass through the alleged overcharges. Conversely, we infer that purchases made at prices below the market average placed a firm at a competitive advantage and did not injure the firm. The analysis produces three measures which the OHA uses as guidelines in determining the claimant's level of injury. The first measure, "gross excess cost," is the sum of the amounts by which an applicant's monthly purchase costs exceeded the market average. The second measure, "net excess cost," equals an applicant's gross excess cost minus the sum of the amounts by which its purchase costs were below the market average. This measure provides an indication of the cumulative impact of the alleged overcharges, balancing the adverse effect of the comparatively expensive purchases against the positive effect of comparatively inexpensive purchases. The third measure, the "above-market volumetric share," is the number of gallons purchased at prices which exceed market prices multiplied by the volumetric factor. This measure is indifferent to the magnitude of the excess costs incurred, accounting only for the number of gallons of uncompetitively priced product purchased by the applicant. We consider all of these indicators of competitive disadvantage in determining whether, and to what extent, an applicant was injured by its purchases, and thereby we calculate an appropriate refund amount. See Texas Oil and Gas Corp./Gulf Oil Corp., 13 DOE ¶ 85,135 (1985); see also Texaco Inc./Oakwood Oil Co., 22 DOE ¶ 85,262 (1993).

However, in Enron we also adopted a rebuttable presumption that firms that purchased Enron covered products on the spot market were not injured by Enron's alleged overcharges. A claimant is a spot purchaser if it made only sporadic purchases of significant volumes of Enron's covered products. Id. at 88,961. This presumption is based upon the general conclusion that purchasers on the spot market tend to have considerable discretion in where and when to make purchases. Therefore, a firm would not have made spot purchases of Enron product without evaluating the full financial effect of those purchases. Accordingly, we believe that a spot purchaser would not generally have made a spot purchase unless it was to its financial advantage. We therefore infer that it was not injured. A spot purchaser can rebut this presumption by demonstrating that it was in fact injured by its spot purchases. See generally Sauvage Gas Co./NGL Supply, Inc., 19 DOE ¶ 85,622 (1989). In prior proceedings we have allowed applicants to rebut the spot purchaser presumption by demonstrating that: 1) they were forced to make the purchases to meet their base period supply obligations; or 2) they resold the product at a loss which was not subsequently recovered. E.g., Saber Energy, Inc./Mobil Oil Corp., 14 DOE ¶ 85,170 (1986). As indicated below, we conclude that although Skelly and Getty purchased Enron propane and natural gasoline on the wholesale spot market, the presumption of non- injury should not apply to these purchases. However, we do find that the presumption of non-injury should apply to Getty’s purchases of butane from Enron.

2. Application of the Spot Purchaser Presumption to Skelly’s and Getty’s Purchases from Enron.

Skelly’s and Getty’s Enron purchases occurred at the wholesale marketer level of NGLP distribution. They have characteristics of sales in the producer/wholesaler market - namely, large volumes of product and a price that is usually negotiated for each transaction.

Accordingly, it appears that Skelly and Getty purchased Enron product primarily on the spot market. As noted above, spot purchasers are generally presumed not to have been injured by the alleged overcharges. The OHA has adopted this presumption because firms usually made spot purchases only when those transactions were beneficial to them and provided the best available terms. Thus, it is unlikely that they would have been injured on those purchases by the consent order firm's pricing practices.

In determining whether Skelly’s and Getty’s purchases from Enron were spot purchases, it is important to first understand the purpose and scope of the presumption, so that it may be correctly applied to the facts of this case. In this regard, Enron's extensive discussion of the spot purchaser presumption in the context of responding to comments on the proposed Enron implementation order provides a detailed explanation of the meaning of the presumption, and can provide a basis for our analysis of whether the presumption is applicable to Skelly’s and Getty’s purchases and sales of Enron products.

In Enron, we concluded that the concept of spot purchaser is sufficiently well defined to allow applicants to understand the theoretical basis for the presumption.

The term spot purchase is commonly used and understood in the petroleum industry to mean a contract for the purchase and sale of petroleum products on a short term basis. Sauvage Gas Company/NGL Supply, Inc., 19 DOE ¶ 85,622 at 89,142 (1989) (Supply). The OHA has interpreted the term spot purchaser to mean any firm that purchased significant volumes of covered products from a supplier on a sporadic or isolated basis outside of a long term supply obligation.

Enron at 88,955. It is clear from this discussion that the purchaser's discretion in selecting its supplier of product is a key element underlying the presumption of non-injury.

We have consistently determined that spot purchasers tend to have considerable discretion in where and when to make purchases and therefore would not have made spot market purchases from a firm at increased prices unless they were able to pass through the full price of the purchases to their own customers. The OHA has utilized this spot purchaser presumption of non-injury in numerous special refund proceedings.

Id., citing Sauvage Gas Co., 17 DOE ¶ 85,304 (1988). We recognize that short term, discretionary sales and purchases may have been a normal business arrangement in certain portions of the NGL industry, particularly in the producer and wholesale reseller markets. Nevertheless, we believe such spot market purchases of Enron product establish a presumption that the purchaser was not injured. Such a purchaser may submit additional information concerning its business operations to rebut the presumption on a case-specific basis. As we noted in Enron,

The OHA examines the circumstances of each case to make an initial determination whether the applicant's purchases were likely to have been spot purchases. Where it appears likely that an applicant's purchases were spot purchases, the applicant is generally notified of our tentative conclusion and offered an opportunity to show either that it was not a spot purchaser or that it was injured by its spot purchases. Since this analysis focuses on the fundamental refund issue, viz., whether the applicant was injured, there is no merit to the claim that it is based on an impermissibly vague definition. ...

In Supply, ... we stated that "the determination of whether a [sic] individual's purchases from a particular supplier are spot purchases is a question of fact and therefore must be made on a case-by-case basis." Id. at 89,143.

Id. at 88,955-56. This case-by-case injury analysis is a broad one. Under this method, "we consider the circumstances under which a claimant made its purchases and any information submitted by the applicant that might aid our determination concerning whether its purchases were spot purchases." [Emphasis added] Our determination of whether a spot purchaser was injured is similarly based on a case-by-case analysis of information submitted by the claimant. Id. at 88,956-57. Accordingly, we will proceed with an evaluation of Skelly’s and Getty’s relevant business operations and the circumstances under which they purchased propane, natural gasoline and butane from Enron.

Our 1991 decision granting a refund to TRMI indicates that TRMI is a wholly-owned subsidiary of Texaco, Inc. Prior to its acquisition by Texaco, Inc. in December 1984, TRMI operated under the name of Getty Refining and Marketing Company (Getty). Getty itself was the successor by stock acquisition and merger to Skelly Oil Company (Skelly), which it had acquired on January 31, 1977. The Enron product for which TRMI claims a refund was purchased from Enron by Skelly and Getty.

In its “Proof of Injury” Memorandum, TRMI states that Skelly was a large producer and wholesaler marketer of petroleum products and natural gas liquids with its main offices in Tulsa, Oklahoma. In its June 1, 1999 submission, TRMI describes the large scale propane reselling business operated by Skelly.

It was one of the first large refiners to make a commitment to the retail propane business and it had a large number of retail propane plants throughout the Midwest and it supplied an equally large number of independent propane retailers who sold propane under the Skelgas brand. Its propane sales were probably 70%-80% of its sales of natural gas liquids.

June 1, 1999 TRMI submission at 4. It thus appears that Skelly purchased Enron propane to meet the supply requirements of its regular customers, regardless of the prices being charged by Enron for that product. Indeed, the prices that Skelly paid Enron for propane varied considerably from month to month throughout the refund period. Accordingly, Skelly appears not to have engaged routinely in the type of discretionary, back to back purchase and sale transactions that would tend to insure some level of profit on its resales of Enron propane. As many of its propane customers were propane retailers, we also find that Skelly facilitated the movement of propane from Enron's gas plants to the end users of the product. When Getty acquired Skelly in 1977, it appears to have continued Skelly’s business operations and to have relied on Enron as a propane supplier for these operations. For all of these reasons, we conclude that Skelly’s and Getty’s purchases of propane should not be viewed as covered by the presumption of non-injury for purchasers operating on the wholesale spot market. Accordingly, with respect to the propane that Skelly purchased from Enron during the refund period, we will proceed to evaluate Skelly's banks of unrecouped increased product costs and its information concerning competitive disadvantage to determine whether Skelly has demonstrated that the prices that it paid to Enron for propane resulted in economic injury to Skelly.

For similar reasons, we believe that Skelly's natural gasoline purchases from Enron do not fall within the spot purchaser presumption. As discussed below, it appears that prior to the period of price controls, Skelly purchased natural gasoline from Enron pursuant to long-term contracts, presumably for use in its refinery operations or for resale to an established group of refiner customers. During the entire refund period for natural gasoline, it continued to purchase similar quantities of that product from Enron on a very regular basis, in a manner consistent with the utilization of its regulatory allocation of natural gasoline from Enron. After its acquisition of Skelly, Getty appears to have continued this regular pattern of purchases. Accordingly, we find that Skelly’s and Getty's natural gasoline purchases from Enron during the refund period were not discretionary purchase and sale transactions that were unlikely to have resulted in real economic injury to those firms. Moreover, we believe it is likely that Skelly and Getty facilitated the movement of natural gasoline from producers to end users by supplying themselves and other refiners with Enron product. We therefore conclude that the presumption of non-injury for spot market purchases should not be applied to Skelly's and Getty’s natural gasoline purchases from Enron.

However, we believe that Getty’s purchases of iso and normal butane from UPG/Enron were spot purchases. TRMI claims that Skelly and/or Getty made the following purchases of butane from Enron during the entire refund period:

Butane

1975 Jan. 98,280 gallons

1976 October 2,100,000 gallons

November 434,000 gallons

1979 April 294,414 gallons

See Schedule A to TRMI’s “Proof of Injury” Memorandum.(3)These sporadic and generally high volume purchases of Enron butane by Skelly and Getty fit the pattern of short term, discretionary purchases of product that were a normal business arrangement in the producer and wholesale reseller spot market for NGLPs. We find that the pattern and volume of these purchases establish a presumption that Skelly and Getty were not injured by its spot market purchases of Enron butane. TRMI does not discuss these butane purchases in its filings, and clearly has not rebutted the presumption that Skelly and Getty purchased butane from Enron on the spot market, nor has it made the affirmative showings of injury required of spot market purchasers. Accordingly, we conclude that TRMI was not injured by Enron’s alleged overcharges on butane purchased by Skelly and Getty. We will therefore subtract these volumes of butane purchases from TRMI’s refund claim.

3. TRMI's Claim Concerning Skelly’s Early Enron Purchases.

As noted above, we find that Skelly’s pattern of purchases from Enron indicate that it was likely that Skelly had an on-going purchaser relationship with that firm. However, during the initial period of price controls, firms like Skelly which had on-going supply contracts with Enron often purchased product at a contract price established prior to the refund period. Such fixed price purchases prevented any injury from overcharges from being transferred to the purchaser. See Enron Corp./MAPCO, Inc., 27 DOE ¶ 85,018 at 88,115 (1998); Enron Corp./Unocal Corp., 26 DOE ¶ 85,041 at 88,102 (1997). The UPG price data summarized in TRMI’s cost comparison for natural gasoline indicates that from June 1973 through September 1974, Skelly consistently paid UPG/Enron $.0938 per gallon for natural gasoline.(4) Similarly the UPG price data indicates that from June through September 1973, Skelly paid UPG/Enron a fixed price of $.1090 per gallon for propane. Finally, we do not believe that TRMI has established a significant likelihood that the 1,940,947 gallons of ethane that Skelly purchased from Enron between June and December 1973 was not at a contract price established prior to the refund period. In this regard, we note that TRMI states that it has no information on the price that Skelly paid UPG/Enron for this ethane. TRMI’s “Proof of Injury” Memorandum at 3. Accordingly, we conclude that the information provided by TRMI fails to establish that Skelly experienced any injury from overcharges by UPG/Enron for its 1973 ethane purchases, for its purchases of propane prior to October 1973, and for its purchases of natural gasoline prior to October 1974. We will therefore subtract these volumes of Skelly's purchases from TRMI’s refund claim.

4. TRMI’s Banks of Unrecovered Increased Product Costs

As discussed above, Skelly and Getty purchased large quantities of natural gasoline and propane from Enron. TRMI has submitted data which documents banks of unrecovered increased product costs by Skelly and Getty for these products. These banks of unrecovered costs were calculated contemporaneously and were subject to review by the Federal Energy Administration (FEA) and the DOE. Because Getty and Skelly merged on January 31, 1977, a combined bank (hereafter referred to as the Getty bank) existed after that date. With respect to these unrecovered propane and natural gasoline costs, in order to show that Skelly and Getty did not eventually pass through all of the Enron product overcharges to their customers, TRMI must show that at the end of the regulatory period (January 27, 1981), Getty had banks of unrecovered increased costs in excess of the refund requested for the volumes of Getty and Skelly purchases of Enron propane and natural gasoline.(5)

We do not believe that TRMI has made this showing with respect to the Skelly and Getty purchases of propane and natural gasoline. In a November 28, 2000 letter to TRMI’s counsel in this matter, Michael Barron, we indicated that our detailed review of the bank data submitted by TRMI revealed an apparent factual discrepancy concerning the crucial issue of Getty’s bank for general refinery products for January 1981. Specifically, the discrepancy concerns whether Getty calculated its bank of unrecovered increased product costs for that month. This is important because January 1981 was the close out month for such calculations, and, as noted above, a firm seeking a refund must demonstrate that it had a sufficient bank of unrecovered costs for the relevant product to warrant receiving a refund. We noted that attached as Exhibit G to TRMI’s June 1, 1999 filing is a letter from J. Brent Faulk to Mr. Barron dated May 24, 1999 which states:

I have recovered a summary of Skelly and Getty banked product costs up to the time of the merger of the two companies on February 1, 1977 and then up through January 1981.

Exhibit G, Letter of J. Brent Faulk at 1. This would seem to indicate that the relevant bank calculation existed. However, the summary of Skelly and Getty banked costs attached to this letter and included in Exhibit G ends with December 1980.

Under these circumstances, the OHA requested that TRMI double check to make certain that all of the existing bank summary materials provided to Mr. Barron by Mr. Faulk were included in TRMI’s June 1, 1999 filing. In the event that TRMI determined that the existing summary of Skelly and Getty banked product costs does end with December 1980, we requested that TRMI submit a signed letter to that effect from Mr. Faulk which would serve to clarify the record concerning this issue. November 28, 2000 letter from Thomas Wieker, Deputy Director, OHA to Mr. Barron.

The response of TRMI’s counsel to this inquiry fails to resolve this issue. In his January 26, 2001 response on behalf of TRMI, Mr. Barron states that Mr. Faulk is “not available.” He then submits a copy of a report that Getty apparently submitted to the DOE in December 1980 entitled “EIA-14 Summary - Propane, Month of Measurement - December 1980” (hereinafter “EIA-14 Summary for December 1980”). Mr. Barron states that he found this copy of Getty’s DOE filing “among documents that Mr. Faulk had kept in his old office.” He contends that this document proves that “[e]ven if [Getty’s] January cost of propane was zero, its January bank would have been a positive $6,760,000.” January 26, 2001 response at 2.

Mr. Barron’s assertion that Mr. Faulk is “not available” fails to resolve the evidentiary discrepancy that we identified in our November 28, 2000 letter and for which we specifically requested clarification. It therefore remains unclear whether TRMI has provided all of the information in its possession concerning Getty’s banks of unrecovered increased product costs at the end of January 1981.

Nor are we convinced by the information provided in Mr. Barron’s January 26, 2001 filing intended to support his assertion that Getty finished the refund period with a positive bank of unrecovered propane costs. Previous information submitted on behalf of TRMI strongly suggests otherwise. The bank figures that were included in TRMI’s June 1, 1999 submission show a steady decline of more than seven million dollars a month in Getty’s banks in each of the last five months of 1980.

August $40,177,000

September $31,990,000

October $23,966,000

November $14,373,000

December $6,760,000

June 1999 submission, Exhibit G. If this steady trend continued in January 1981, the firm’s banks were less than zero in that month. Getty’s bank figures indicate that in 1976, 1976, 1978 and 1979, a declining trend did continue from December into January of the following year. We therefore conclude that the available evidence from Getty’s contemporaneously calculated banks of unrecovered costs indicates a significant likelihood that Getty had a negative bank for propane in January 1981.

Mr. Barron asserts that the “EIA-14 Summary for December 1980” shows that Getty’s January 1981 bank was at least $6,760,000. We are not convinced of the accuracy of this assertion. As an initial matter, Mr. Barron does not indicate whether any knowledgeable company officials subscribe to this assertion. Moreover, the $6,760,000 figure on the “EIA-14 Summary for December 1980” appears to represent the “current bank” for December 1980 that Getty carried into January 1981. See “EIA-14 Summary for December 1980” at item 6. This view is clearly supported by the Getty bank data quoted above. Thus, Mr. Barron’s assertion that Getty’s “actual December 1980 propane bank” was $39,621,000 also appears to be in error. This figure is identified on the December EIA-14 Summary simply as “total available costs”. Id., at item 3. Accordingly, we reject Mr. Barron’s unsupported assertions about Getty’s January 1981 bank of unrecovered costs. He has not persuaded us that the information contained in the “EIA-14 Summary for December 1980” indicates the exact minimum dollar amount that existed in Getty’s propane bank at the end of January 1981, or even whether the bank was a positive or negative amount.

Accordingly, we conclude that TRMI has failed to satisfy its burden to demonstrate that the Enron overcharges attributable to the volumes of propane and natural gasoline purchased by Skelly and Getty were not passed through to those firm’s customers in the form of higher prices on or before January 27, 1981. We therefore find that TRMI’s request for a full volumetric refund based on these Enron purchases should be denied. However, since the bank data supplied by TRMI is incomplete, it also does not establish with certainty Getty did pass through the Enron overcharges to its customers in January 1981. We will therefore permit TRMI to keep the refund of $64,297 that we granted to TRMI on December 6, 1991 using the applicable presumption of injury set forth in Enron.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration submitted by Texaco Refining and Marketing, Inc. (Case No. RR340-00007) is hereby denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 20, 2001

(1)In a July 8, 1998 letter to Michael O’N. Barron, Counsel for TRMI in this matter, we dismissed TRMI’s Motion (OHA Case No. RR340-00001), citing TRMI’s failure to provide information concerning TRMI’s banks of unrecovered product costs that is essential to support its request for a full volumetric refund. In a July 28, 1998 filing, Mr. Barron provided proof that information concerning TRMI’s banks had been sent to the OHA in June 1992, and evidently misfiled. Accordingly, the OHA reinstated TRMI’s motion and assigned it Case No. RR340-00007.

(2)2/ This amount was derived by dividing the fund received from Enron allocable to refined products ($43,200,000) by the estimated volume of refined products sold by Enron from June 13, 1973 through the date of decontrol of the relevant product (7,186,265,624 gallons). Id. at n. 8.

(3)While information provided to the DOE by UPG/Enron substantially confirms the 1975 and 1979 butane purchases claimed by TRMI, there is no indication that either Skelly or Getty made butane purchases from UPG/Enron in 1976. Moreover, TRMI’s original refund application does not include any 1976 butane purchases. If we had not found that the presumption of non-injury was applicable to these volumes, we would require TRMI to provide some substantiation for its claimed butane purchases for that year.

(4)This price dips by one cent in the months of October and November 1973, but we do not believe that this slight and temporary variation is sufficient to show that Skelly’s purchases from UPG/Enron in the period through September 1974 were not made pursuant to a fixed price contract.

(5)Although natural gasoline was deregulated at the end of December 1979, TRMI does not allege that Getty withdrew its unrecovered natural gasoline costs from its bank for general refinery products at that time. Rather, they appear to have remained in the bank, and were available to be passed through to customers of Getty propane.