Case No. RF342-00278

April 7, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner:Apex Oil Co., Clark Oil & Refining Corp./

Go-Tane Service Stations , Inc.

Date of Filing:July 30, 1992

Case Number:RF342-278

This Decision and Order considers an Application for Refund submitted by Go-Tane Service Stations, Inc. (Go-Tane) for a portion of the $11,379,351, plus accrued interest, which AOC Acquisition Corp. (AOC) remitted to the Department of Energy (DOE) under the terms of a 1988 settlement agreement. The Settlement Agreement resolved DOE allegations that Clark Oil & Refining Corp. (Clark) had violated the Mandatory Petroleum Price and Allocation Regulations in its sales of refined petroleum products during the period August 19, 1973 through January 27, 1981, the period covered by the settlement agreement.(1) For the reasons discussed below, we have determined that Go-Tane should be granted a refund of $432,497, plus accrued interest.

On August 20, 1991, the Office of Hearings and Appeals (OHA) issued a Decision and Order instituting special refund procedures for the distribution of the settlement fund. See Apex Oil Co., 21 DOE ¶ 85,341 (1991) (hereinafter Apex/Clark). In accordance with the goals of 10 C.F.R. Part 205, Subpart V, the Apex/Clark determination implemented a process for refunding portions of the settlement fund to purchasers of Clark refined petroleum products who demonstrate that they were injured as a result of Clark's alleged regulatory violations.

Go-Tane, a gasoline retailer and purchaser of gasoline from Clark during the settlement agreement period, claims in its application that it was injured both as a result of alleged Clark overcharges and by Clark's alleged failure to furnish gasoline that it was obliged to supply under the DOE allocation regulations. Go-Tane requests a total refund of $5,735,436, including $1,572,439 based on alleged

overcharges, $3,262,997 for injuries resulting from alleged allocation violations, and $900,000 in accounting and legal fees incurred by Go-Tane in the course of private litigation against Clark.

I. Background

A. The Apex/Clark Refund Proceeding

The Subpart V regulations authorize the OHA to formulate “special procedures” to distribute refunds to injured persons. 10 C.F.R. § 205.280. While the “standards and procedures” that will be used in evaluating individual refund applications are generally similar, they vary depending on the facts in the underlying enforcement proceeding that led to a remedial order or settlement. 10 C.F.R. § 205.282(e).

In Apex/Clark, we adopted a presumption that the alleged Clark overcharges had been dispersed equally over all gallons of regulated petroleum products sold by the firm during the settlement agreement period. We stated that, in the absence of a demonstration of an actual overcharge, a claimant would be allocated a share of the settlement fund on a per gallon, or "volumetric," basis. Under this volumetric refund presumption, a claimant's allocable share equals $0.0011 multiplied by the number of gallons of covered product that it purchased from Clark.(2)

In order to receive its full allocable share under the volumetric presumption, a claimant is also required to demonstrate that it was injured as a result of its Clark purchases; that is, that it did not pass through to its customers Clark's alleged overcharges. This showing will generally consist of two distinct elements. First, a reseller claimant will be required to show that it had "banks" of unrecouped increased product costs in excess of the refund claimed.(3) Second, because a showing of banked costs alone is not sufficient to establish injury, a claimant must provide evidence that market conditions precluded it from increasing its prices to pass through the additional costs associated with the alleged overcharges. Such a showing could consist of a demonstration that a firm suffered a competitive disadvantage as a result of its purchases from Clark. See Behm Family Corp. v. DOE, 903 F.2d 830 (Temp. Emer. Ct. App. 1990); National Helium Co./Atlantic Richfield Co., 11 DOE ¶ 85,257 (1984), aff'd sub nom. Atlantic Richfield Co. v. DOE, 618 F. Supp. 1199 (D. Del. 1985).

A reseller claimant whose allocable share of the refund pool exceeds $10,000, excluding interest, may receive a refund of either $10,000 or 40 percent of its allocable share, up to $50,000, whichever is larger, without submitting evidence of injury beyond documentation of the volume of Clark refined petroleum product it purchased during the refund period. This method of calculating refunds reflects our conviction that larger, mid-level claimants were likely to have experienced some injury as a result of the alleged overcharges. Apex/Clark at 89,022.

If an individual claimant believes that it was injured by more than its volumetric share, it may elect to forego the volumetric refund presumption and file an application based upon a claim that it suffered an actual overcharge as a result of Clark's alleged violations. Apex/Clark at 89,020-21 n. 2. In accordance with the standards which have been developed in other special refund proceedings, such a claim will be granted if the claimant makes a persuasive showing that it was "overcharged" by a specific amount, and that it absorbed those overcharges. See, e.g., Mobil Oil Corp./Atchison, Topeka and Santa Fe Railroad Co., 20 DOE ¶ 85,788 (1990); Mobil Oil Corp./Marine Corps Exchange Service, 17 DOE ¶ 85,714 (1988).

In Apex/Clark, we stated that we would also consider claims in this proceeding based upon Clark's alleged failure to furnish petroleum products that it was obliged to supply under the DOE allocation regulations that became effective in January 1974. See 10 C.F.R. Part 211. We further stated that we would evaluate any such applications with reference to the standards set forth in Subpart V implementation cases such as Office of Special Counsel, 10 DOE ¶ 85,048 at 88,220 (1982), and refund application cases such as Mobil Oil Corp./Reynolds Industries, Inc., 17 DOE ¶ 85,608 (1988); Marathon Petroleum Co./Research Fuels, Inc., 19 DOE ¶ 85,575 (1989), aff'd sub nom., Research Fuels, Inc. v. Dep't of Energy, No. CA3-89-2983G, slip op. (N.D. Tex. Oct. 3, 1991), aff'd, 977 F.2d 601 (Temp. Emer. Ct. App. 1992) (Marathon/RFI). These standards generally require an allocation claimant to demonstrate the existence of a supplier/purchaser relationship with Clark and the likelihood that Clark failed to furnish petroleum products that it was obliged to supply to the claimant under 10 C.F.R. Part 211. In addition, the claimant should provide evidence that it had contemporaneously notified the DOE or otherwise sought redress from the alleged allocation violation. Finally, the claimant must establish that it was injured and document the extent of the injury.

B. The Proposed Decision and Order

On July 7, 1995, the DOE issued a Proposed Decision and Order (PD&O) which tentatively determined that Go-Tane should be granted a refund of $354,190. The PD&O is incorporated herein by reference and is attached as Appendix B to this Decision and Order. Go-Tane was allowed 30 days in which to file a statement of objections to the PD&O. After requesting and receiving three extensions of time, Go-Tane filed its statement of objections on October 25, 1995. Go-Tane Service Stations, Inc.’s Statement of Objections to Proposed Decision and Order (October 25, 1995) [hereinafter “Objections”]. Go-Tane also requested that a conference with OHA be scheduled so that it could present its case in person and respond orally to OHA’s concerns. The conference was held on April 2, 1996. Go-Tane then requested an opportunity to file a post-conference submission. This submission was received by the OHA on June 21, 1996. Go-Tane Service Stations, Inc.’s Post- Conference Submission (June 21, 1996) [hereinafter “Post-Conference Submission”].

1. Go-Tane’s Prior Section 210 Action

We discussed in the PD&O the significance of Go-Tane’s prior lawsuits against Clark to our consideration of Go-Tane’s present refund claim. In 1979, Go-Tane filed suit against Clark under section 210 of the Economic Stabilization Act of 1970 (ESA), which allowed purchasers of regulated petroleum products to bring private actions for the recovery of overcharges in violation of the pricing regulations. Section 210 actions were filed in the federal district courts, the decisions of which could be appealed to the Temporary Emergency Court of Appeals (TECA). See Go-Tane Service Stations, Inc. v. Clark Oil & Refining Corp., No. 79 C 1674 (N.D. Ill. 1985), modified, 798 F.2d 481 (Temp. Emer. Ct. App. 1986), cert. denied, 479 U.S. 1008 (1986). In Go-Tane’s private action, the district court awarded Go-Tane $279,667 for damages resulting from overcharges. On appeal, TECA reversed the award of the district court, finding that a recovery for overcharges was barred by Illinois' statute of limitations. TECA remanded the case “with directions to dismiss those claims with prejudice.”

In addition to the overcharge claim in that case, Go-Tane claimed that Clark’s practices deprived Go- Tane of its lawful allocation of gasoline. At trial, the following interrogatory was put before the jury:

Do you find that Go-Tane was entitled to purchase additional amounts of gasoline from Clark and it did not purchase those amounts either because Clark was charging a price in excess of the Maximum Allowable Price under the Refiner Price Rule or because Clark did not maintain the customary price differential which existed on May 15, 1973, between Clark’ own dealers and [Go-Tane] in violation of normal business practices?

Application at Exhibit 5. The jury responded affirmatively, and awarded Go-Tane $2,967,466 in damages. This damage award was affirmed by TECA on appeal.

2. The Hydrocarbon Decision

In the PD&O, we also discussed the recent opinion of the U.S. District Court for the District of Columbia in Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995) at 11. The Hydrocarbon decision upheld a determination by the OHA denying an application in the Exxon refund proceeding, where the applicant had previously settled a section 210 action with Exxon. The court stated that “a final judgment, whether arrived at by way of a settlement agreement or an adjudication on the merits, does extinguish a party’s claim to remedies pertaining to ?all or any part of the transaction, or series of connected transactions, out of which the action arose.’” Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995) at 11 (quoting Restatement (Second) of Judgments § 24 (1982)).

We cannot lightly regard the holdings of a federal court, particularly when a court specifically applies them to a Subpart V refund proceeding. Applying the holding of Hydrocarbon, we found in the PD&O that Go-Tane undeniably received a final judgment on both its section 210 overcharge and allocation claims against Clark, which judgment was arrived at by an adjudication on the merits.(4) We further noted that the Restatement of Judgments, upon which the Hydrocarbon court relied, provided an exception to the bar against any further claim to damages where “[t]he judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim”. Restatement (Second) of Judgments § 26 (1982).

In implementing the statutory scheme set forth in the Petroleum Overcharge Distribution and Restitution Act of 1986, 15 U.S.C. §§ 4501-07 (PODRA), which governs the Subpart V refund process, we have routinely granted refunds to applicants who, like Go-Tane, at one time had the right to seek compensation through a private section 210 action, but who no longer have that opportunity due to the operation of applicable statutes of limitations. It would be plainly inconsistent with the equitable implementation of the statutory scheme of the PODRA to treat a similarly situated applicant differently in this proceeding based solely on the fact that it attempted, unsuccessfully, to exercise its right of private action after the statute of limitations had run.

We therefore conclude that we should afford Go-Tane an opportunity to assert its overcharge claim in the present proceeding.(5) We proposed in the PD&O that, subject to the showing of injury normally required in these proceedings, Go-Tane should be provided equitable restitution for the $279,667 in damages it proved before the trial court in its private action. We also tentatively decided to consider $115,634 in overcharge claims calculated under the same methodology accepted by the jury that case, but for which Go-Tane could not recover at trial, again solely due to the application of the relevant statute of limitations.

On the other hand, we found in the PD&O that Go-Tane’s allocation claim fit squarely and inescapably within the holding in Hydrocarbon. Not only did Go-Tane have an opportunity in its section 210 action to present its allocation claim to the trial court, but the court in that case awarded Go-Tane $2,967,466, the full amount of the damages that the jury found had been sustained by Go- Tane. TECA did not set aside this award as it had Go-Tane’s overcharge remedy. Clearly, the judgment on Go-Tane’s allocation action extinguished any further “claim to remedies pertaining to ?all or any part of the transaction, or series of connected transactions, out of which the action arose.’” Hydrocarbon at 11. We therefore tentatively denied Go-Tane’s allocation claim in the present proceeding.

In its Objections and Post-Conference Submission, which we address in detail in our analysis below, Go-Tane took issue with our findings on both its overcharge and allocation claims. First, Go-Tane maintains that it should be awarded not only the $297,667 it proved before a jury, but an amount over five times greater. Go-Tane’s claim to over $1.5 million in overcharges is supported by a series of rather tortured arguments, which we reject for the reasons set forth in section II.A below. The applicant also contends that its allocation claim in this proceeding should not be barred by the judgment on its prior section 210 action. As explained in section II.B below, we will follow the holding in Hydrocarbon and deny Go-Tane’s allocation claim. Finally, in section II.C, we reject Go- Tane’s unprecedented claim for nearly $1 million in legal and accounting fees as being wholly outside the scope of “injury” for which we are legally authorized to provide a remedy in this proceeding.

II. Analysis

A. Go-Tane’s Overcharge Claim

Go-Tane states in its application that it purchased a total of 25,828,115 gallons of gasoline from Clark during the period from September 1973 through March 1976. Based upon those purchases, the maximum volumetric refund that Go-Tane may receive is $28,411 (25,828,115 gallons multiplied by the volumetric factor of $0.0011 per gallon), plus accrued interest. Without submitting evidence of injury, Go-Tane would be eligible to receive a mid-level presumption refund of $11,364, an amount equal to 40% of its volumetric share. However, Go-Tane alleges in its refund application that it was injured by more than its volumetric share, and attempts to rebut the volumetric refund presumption in order to receive a refund of $1,572,439 based on alleged overcharges.

Before we analyze Go-Tane's request for an above-volumetric refund, some background will be helpful. Under the Mandatory Petroleum Price Regulations that were in effect from August 19, 1973 through January 27, 1981, refiners, such as Clark, were required to establish prices for covered products in accordance with the provisions of 10 C.F.R. Part 212, Subpart E, and the predecessor Cost of Living Council Phase IV regulations at 6 C.F.R. Part 150, Subpart L. Those regulations required that a refiner sell each covered product at a price that did not exceed the maximum allowable price ("MAP") for that product, a price equaling the base price established for the product plus certain allowable increased non-product costs. The refiner's base price for the product sold to a class of purchaser was defined as the weighted average price at which the product was sold to that class on May 15, 1973 (hereinafter "May 15, 1973 price") plus the refiner's increased product costs incurred between May 1973 and the month of measurement. 10 C.F.R. § 212.82(b).(6)

1. Go-Tane's Calculation of Overcharge

Go-Tane claims that it was overcharged by Clark in its purchases of gasoline from four Clark terminals. According to the applicant, Clark overcharged Go-Tane by calculating its MAPs using the prices at which the products were sold on August 20, 1973, rather than by using the May 15, 1973 price as required by the regulations. Go-Tane contends than Clark's use of the August 20 price resulted in overcharges to Go-Tane equal to the difference between the August 20 and May 15 prices.

As stated above, we will grant a claim for an above-volumetric refund if the claimant makes a persuasive showing that it was overcharged by a specific amount, and that it absorbed those overcharges. Go-Tane has presented evidence that Clark calculated excessive MAPs at several of its terminals. However, the MAP represents only the maximum amount that Clark could charge under the regulations, and therefore does not reflect the price Clark actually charged. In fact, it was not unusual during the period of price controls for a refiner to charge less than its MAP. Thus, whether Clark calculated excessive MAPs tells us nothing about whether and by how much the prices Go-Tane paid to Clark exceeded the proper MAP.

a. Decisions of the Temporary Emergency Court of Appeals (TECA)

Go-Tane contends that it "is well established that an overcharge is not limited to a price that exceeds a refiner's [MAP] . . . , but also includes excessive prices paid due to the failure to maintain customary price differentials." Application at 12. In support of its position, Go-Tane cites the decision of TECA in Wellven v. Gulf Oil Corp., 731 F.2d 892 (Temp. Emer. Ct. App. 1984), a case decided under section 210 of the Economic Stabilization Act. In Wellven, Gulf contended

that § 210(b) [allowing for the recovery of treble damages where a defendant is "found to have overcharged the plaintiff . . ."] is not applicable to overcharges resulting from wrongful withdrawal of a comparable discount to a member of [a] class of purchasers, when the withdrawal does not result in a charge in excess of the general maximum ceiling price allowable under the pricing regulations.

Id. at 898. TECA found that "the words 'overcharge' and 'overcharged' as used in § 210 include both (a) charges in excess of the general maximum allowable ceiling prices under the pricing regulations, and (b) charges in excess of a discounted price to a member of a class of purchasers entitled to a discounted price." Id. Thus, Gulf was found to have "overcharged" the plaintiff by withdrawing a price discount that it had up to that time given to the plaintiff and to others in the plaintiff's class of purchaser.

However, in Wellven, TECA never addressed the issue that is central to the present case, the calculation of the specific amount of the overcharge, because

[the] parties by stipulation (Rec. Tab D) agreed that if a violation was found damages would be computed by multiplying the number of gallons of gasoline sold . . . times the discount per gallon for each station. This agreement between the parties greatly facilitated the calculation of damages by eliminating the need to show each individual price difference between the applicable price ceiling and the actual price charged.

Id. at 895 n. 3 (emphasis added). Thus, the court strongly implied that, without such a stipulation, the plaintiff would have been entitled to recover only the amount by which the actual price it was charged exceeded the "applicable ceiling price," or MAP.

In its Post-Conference Submission, Go-Tane disagrees with our statement in the PD&O and here that the court in Wellven never addressed the issue of the amount of the overcharge. Go-Tane cites to no statement in Wellven which does address the issue, but argues tautologically that “TECA’s express rejection of Gulf’s arguments reveals that the issue was, in fact, addressed.” Post-Conference Submission at 7. As we stated in the PD&O, the argument profferred by Gulf in Wellven, and rejected by TECA, was that no “overcharge” within the meaning of section 210(b) had occurred. Wellven, 731 F.2d at 898. In the present case, we have never stated that Go-Tane was not overcharged by Clark. It is the amount of those overcharges which is the key issue here, and one for which the court in Wellven offers us no guidance.

Similarly inapplicable to the present case are four other decisions cited by Go-Tane in its Objections and Post-Conference Submission, Eastern Airlines, Inc. v. Mobil Oil Corp., 735 F.2d 1379 (Temp. Emer. Ct. App. 1984); McWhirter Distributing v. Texaco, Inc., 668 F.2d 511 (Temp. Emer. Ct. App. 1981); Reynolds v. Mobil Oil Corp., 741 F.2d 1385 (Temp. Emer. Ct. App. 1985); and Carbone v. Gulf Oil Corp., 812 F.2d 1416 (Temp. Emer. Ct. App. 1987). Objections at 4-5; Post-Conference Submission at 8.

The issues facing TECA in McWhirter and Eastern were succinctly described by TECA in Eastern:

McWhirter held that summary judgment should not have been granted in view of a factual dispute as to whether the refiner had properly calculated and reported its bank of unrecouped costs under the deemed recovery rule--this dispute being material to the issue (erroneously pretermitted by the trial court) as to whether the purchasers had been charged more than the maximum allowable price under the regulations. Id. at 521. The court noted that unequal price increases would also violate § 210.62(b) if they had the effect of "frustrating or impairing the objectives, purposes and intent" of the Act or the regulations, but left open the question as to the circumstances under which such increases would be proscribed. Id. at 522-23. It is this latter question, not decided in McWhirter, that is before the court in the present case.

The sole basis for Eastern's claim of discrimination under § 210.62(b) is that it was charged prices which, although less than the ceiling prices, were greater than those charged another member of the same class of purchaser.

Eastern, 735 F.2d at 1383 (emphasis added). Thus, in McWhirter, TECA reversed the granting of summary judgment by the trial court in view of a factual dispute that needed to be resolved before it could be decided “whether the purchasers had been charged more than the maximum allowable price under the regulations.” McWhirter, 668 F.2d at 521. In Eastern, the lower court’s granting of summary judgment motion against Eastern was affirmed, as TECA found insufficient Eastern’s “sole basis” for its claim. The court noted, “It is clear from the regulations as a whole that not every difference in price or other conditions of sale by a supplier constitutes a prohibited discrimination.” Id. at 1382. Go-Tane cites Eastern and McWhirter as supporting the proposition that “the destruction of customary price differentials violates the regulations even when no violation of the Refiner Price Rule is established,” Objections at 4, though this statement ignores the exceptions to such a rule clearly reserved by TECA in McWhirter and applied by the court in Eastern.

Unlike the present case, both Reynolds and Carbone involved actions filed by purchasers based on the refiner’s elimination of a discount in the actual prices charged to the plaintiffs. In Reynolds, TECA found that the discount was not proven to be a customary price differential, and therefore its elimination did not constitute a regulatory violation. In Carbone, the court reversed a decision by a trial court to dismiss a case as barred by the statute of limitations. TECA expressed no opinion on the merits of the case, and remanded it back to the lower court, noting that “[b]ecause the District Court erroneously and summarily dismissed the action of the appellant, . . . the facts concerning the possible issues, including but not limited to the alleged single overcharge, and amount thereof, . . . are not developed in the record.” Carbone, 812 F.2d at 1422 (emphasis added).

As in Wellven, TECA in each of these four decisions discusses what acts (in these cases, various forms of alleged pricing discrimination) would or might constitute an actionable violation of the pricing and allocation regulations. However, as was also true in Wellven, in none of these cases does TECA discuss what it thinks would be an appropriate remedy for such a violation. Thus, none of the five TECA decisions relied upon by Go-Tane address the issue at hand. Our job in the present case is not to determine whether Clark, as Go-Tane argues, violated Section 210.62(b) of the pricing and allocation regulations. Our clear mandate, as set forth in the PODRA, is to identify “persons or classes of persons injured by any actual or alleged violation of” those regulations, to “establish[] the amount of any injury incurred by such persons,” and to make restitution to such persons. 15 U.S.C. §§ 4502(b)(1)(A)-4502(b)(1)(C) (1986) (emphasis added). Go-Tane’s general argument that it paid "excessive prices" due to Clark’s alleged failure to maintain customary price differentials is not helpful in this regard, as it makes no reference to the prices it was charged by Clark, only to the May 15, 1973 price that Go-Tane alleges was improperly used by Clark in computing its MAP.

The one court case which is most analogous to that presented here was decided by TECA shortly after its decision in Wellven. In Gulf Oil Corp. v. Dyke, Fed. Energy Guidelines (Court Decisions 1981-1984) ¶ 26,485 (Temp. Emer. Ct. App. 1984) (Dyke), the lower court found that Gulf improperly calculated its MAPs for its sales to the plaintiffs by using May 15, 1973 prices as published in Platt's Oilgram. Id. at 29,514. Gulf challenged the lower court ruling that it had "overcharged" the plaintiffs. TECA upheld the ruling of the lower court, noting that the method used to determine whether overcharges had occurred employed

both May 15, 1973 base prices and Gulf's stated increased costs to arrive at the maximum allowable price. Using the figures provided by Gulf, the district court was able to determine the costs Gulf elected to pass through each month as well as the dates on which Gulf did not charge Dyke the full amount of increased costs available. Gulf was given credit for these undercharges to Dyke in computing total overcharges. Thus the findings sufficiently found all of the elements of the maximum allowable price calculations as a basis for determining that sales exceeded the "maximum allowable prices" permitted under the governing Refiner Price Rule.

Id. at 29,518.(7) This TECA precedent, instead of Wellven, controls the present case. First, as in the present case, the overcharge claim in Dyke was based on the use of an improper May 15, 1973 price. Moreover, while TECA in Wellven never reached the issue of calculation of overcharges, the court in Dyke upheld a method of calculating overcharges based on a comparison of the properly determined MAP and the prices charged the plaintiff.(8)

b. OHA Precedent

i. Subpart V Refund Proceedings

Similar precedent to that in Dyke exists in the prior decisions of this office in the Subpart V refund proceedings. For example, in Mobil Oil Corp./Atchison, Topeka and Santa Fe R.R., 20 DOE ¶ 85,788 (1990) (Mobil/ATSF), ATSF contended that Mobil had improperly raised the May 15, 1973 price that it used in computing its MAP for sales of diesel fuel to ATSF. ATSF relied on Mobil pricing schedules from the relevant period

to calculate, on a monthly basis, a per gallon overcharge amount by subtracting what ATSF terms the 'correct selling price' (the sum of the May 15 price of $0.10015 and the 'cumulative passthrough' according to the Mobil pricing schedule) from the actual price charged.

Mobil/ATSF, 20 DOE at 89,860 (emphasis added). In other words, ATSF was able to show that it was overcharged by a specific amount by showing the extent to which the price it paid exceeded Mobil's properly determined MAP, and a refund was granted on this basis.(9)

ii.The Texaco Remedial Order

Finally, Go-Tane contends that a methodology for computing overcharges such as that used in Mobil/ATSF, and which we adopt below, is inconsistent with our decision in Texaco Inc., 16 DOE ¶ 83,016 (1987). In Texaco, a Remedial Order (RO) decision, we found that Texaco used an incorrect May 15, 1973 price in computing maximum allowable prices during specified periods of time. Id. at 86,160. We decided in that case that Texaco should be required to disgorge to the government an amount based upon the difference between the incorrect and correct May 15, 1973 prices multiplied by the volume sold by Texaco in the relevant transactions. Id. at 86,164. The remedial option was called the “refund down” remedy. Id. However, an examination of the nature and circumstances of the Texaco case, as well as the stated basis for our decision, reveals that the Texaco Remedial Order decision should not govern our consideration of Go-Tane’s overcharge claim.

First and foremost, the Texaco Remedial Order decision was not a Subpart V refund decision. As we discussed in section I above, this proceeding is governed by regulations which authorize this office to formulate “special procedures” to distribute refunds. 10 C.F.R. § 205.280. The procedures specific to this proceeding were set forth in the Apex/Clark implementation order, which took into account facts unique to the underlying enforcement action against Clark. Obviously, the Texaco decision was governed by neither the Subpart V regulations nor the Apex/Clark implementation order.

Indeed, the Remedial Order issued in Texaco never became the basis of any Subpart V refund proceeding because a subsequent settlement was reached between Texaco and the government. This settlement also precluded any appeal of the Remedial Order to the Federal Energy Regulatory Commission (FERC), which had in a prior case reversed the DOE’s imposition of the refund down remedy. Id. (citing Texaco Inc., 39 FERC ¶ 61,067 (1987)). The FERC reversed imposition of the remedy on the basis of its holding in an earlier decision that “the DOE could not impose a refund requirement in the absence of a finding that a MAP violation had occurred.” Id. (citing Exxon Co., U.S.A., 35 FERC ¶ 61,033 (1986)).

Finally, even assuming, arguendo, that the Texaco Remedial Order decision were relevant to the present case, our decision to adopt the refund down remedy in Texaco turned on three considerations which were factually specific to that case. Id. at 83,166-67. First, we found that Texaco’s customers probably paid higher actual prices in their purchases as a result of Texaco’s use of an incorrect May 15, 1973 selling price because it was “Texaco’s usual practice to use a uniform increased cost increment” across classes of purchasers. Id. at 86,166. Second, we favored the “refund down” remedy in Texaco because it would have restored the customary price differentials that would have existed but for Texaco’s use of an incorrect May 15, 1973 selling price--a conclusion which rested on the assumption that, had Texaco used a correct May 15, 1973 selling price, it would not have used a larger increased cost increment for the affected customers. Id. Third, we noted that adopting the MAP remedy in Texaco would have required a recalculation of Texaco’s MAPs using correct May 15, 1973 selling prices. We found that “to assure the reliability of all aspects of the firm’s banks, additional audits or PROs may be necessary. All of these actions are subject to administrative and judicial appeals, with the possibility of remands for further rounds of adjudication, to be followed by further review.” Id. at 86,167 (citing Kellermyer v. Blue Flame Gas Corp., 797 F.2d 983, 985 (Temp. Emer. Ct. App. 1986)).

None of the above considerations are present here. Most significantly, the elaborate process contemplated in Texaco is not necessary to determine Clark’s MAPs using correct May 15 prices. This calculation was already made in conjunction with Go-Tane’s private action against Clark, which we discuss in section I.B.1 above. Go-Tane’s calculation of Clark’s proper MAPs and the resulting overcharges was the basis for the jury award of $279,667 in damages in that case. Go-Tane has never alleged in this proceeding that the data underlying this MAP calculation was in any way unreliable, and in fact Go-Tane relies on this data in its alternative calculation of overcharge, which we address below in section II.A.2.(10)

In sum, our Remedial Order decisions do not govern our consideration of any particular Subpart V refund claim, and in any event, none of the factual considerations which led us in Texaco to the adoption of a refund down remedy are applicable to the present case. We therefore find that, based on TECA and OHA precedent and on our statement in the Apex/Clark implementation order that claims for disproportionate overcharge in this proceeding will be granted only if the claimant makes a persuasive showing that it was overcharged by a specific amount, any refund granted to Go-Tane should not exceed the amount which it paid Clark in excess of Clark's properly determined MAPs.(11) We therefore requested from Go-Tane information regarding the actual prices charged to it by Clark and the extent to which these prices exceeded Clark's MAPs.

2. Go-Tane's Alternative Calculation of Overcharge

In response to our request for information, Go-Tane supplemented its original application by claiming that it paid in its purchases from Clark $957,388 in excess of Clark's MAPs. While still maintaining its original overcharge claim, the applicant has requested, in the alternative, a refund on this basis. Go-Tane states that it arrived at this figure by using data prepared and used in its section 210 litigation against Clark. See Go-Tane Service Stations, Inc. v. Clark Oil & Refining Corp., No. 79 C 1674 (N.D. Ill. 1985), modified, 798 F.2d 481 (Temp. Emer. Ct. App. 1986), cert. denied, 479 U.S. 1008 (1986). As discussed above, the district court in that case awarded Go-Tane $279,667 for damages resulting from overcharges, an amount equal to Go-Tane's calculations of Clark's overcharges. In that case, Go-Tane calculated Clark’s overcharges by comparing Clark’s MAPs to the price actually charged Go-Tane in each sale. For sales in which Clark’s price to Go-Tane exceeded its MAP, Go-Tane multiplied the difference between the MAP and the actual price charged by the number of gallons sold to arrive at the overcharge amount for that sale.

There are two reasons why the alternative overcharge figure calculated by Go-Tane in the present proceeding ($957,388) is much higher that the amount calculated in its private action against Clark ($279,667). Part of the difference is due to the inclusion in the present figure of $115,634 in overcharges during the period from September 1, 1973 through December 31, 1973, which were not included in Go-Tane's private action. We agree with Go-Tane that it is eligible for a refund for alleged overcharges incurred from September through December 1973. However, the major portion of the difference between the present and prior claim results from the fact that in its present calculations, Go-Tane retroactively applied what is known as the Deemed Recovery Rule in calculating Clark's MAPs for the months prior to September 1974, the month when that rule took effect. For the reasons explained below, we do not agree that the Deemed Recovery Rule should be applied retroactively in calculating Clark's overcharges prior to September 1974.

As stated above, under the petroleum price regulations, a refiner's base price for a product sold to a class of purchaser was defined as the May 15, 1973 price plus the refiner's increased product costs incurred between May 1973 and the month of measurement. 10 C.F.R. § 212.82(b). The regulations required that in computing MAPs, the same increment of increased cost be added to the May 15, 1973 prices of all classes of purchasers of a given product. This requirement was known as the Equal Application Rule. 10 C.F.R. § 212.83(c)(1)(C)(ii). However, because the regulations only prohibited setting prices above the MAP, refiners could charge below the MAP when market conditions permitted. Thus, while the regulations required that the MAPs of various classes of purchasers contain equal increments of increased cost, refiners could still pass through costs unequally in the actual prices charged to each class of purchaser.

In September 1974, to encourage the equal passthrough of increased costs among classes of purchasers, the Federal Energy Administration issued the Deemed Recovery Rule. 10 C.F.R. § 212.83(e)(1). The rule provided that, for purposes of calculating increased product costs not passed through in a given month, a refiner was deemed to have passed through to each class of purchaser of a particular product the largest increment of increased product costs passed through to any one class of purchaser of that product. Because under the regulations, costs not passed through in one month could be "banked" for passthrough in a subsequent month, the Deemed Recovery Rule provided an incentive for refiners to pass through their increased costs evenly among classes of purchasers.

Whether prior to September 1974 the price regulations implicitly required equal passthrough of increased costs became an issue in Mobil Oil Corp. v. DOE, 547 F. Supp. 1246 (N.D.N.Y. 1982), modified, 728 F.2d 1477 (Temp. Emer. Ct. App. 1983), cert. denied, 467 U.S. 1255 (1984). Specifically at issue in that case was a provision of the regulations, known as the three cent rule, which allowed a refiner to pass through, in addition to its allowable cost increment, up to three cents per gallon at refiner-operated stations. The DOE contended that an equal application requirement, though not explicitly set forth in the regulations until September 1974, was implicit in the three cent rule. The district court disagreed, finding nothing in the regulations prior to September 1974 that required refiners to pass through costs equally in the actual prices charged to various classes of purchasers. Id. at 1266.

On appeal, TECA agreed with the district court. It noted:

The DOE apparently has abandoned the position that an equal application requirement was implicit in the original three cent rule. Its brief on appeal makes no mention of the argument and, indeed, its summary judgment brief in the district court renounces it. In view of this, and based on our reading of the regulations as of April 1974, we find it unnecessary to expand on the district court's analysis of this issue, which we adopt.

Mobil Oil Corp. v. DOE, 728 F.2d 1477, 1489-90 (Temp. Emer. Ct. App. 1983).

Since TECA's decision in Mobil, the ERA has stated that as a matter of general policy it would not seek to enforce the Deemed Recovery Rule for the period prior to September 1, 1974.(12) Moreover, in its Remedial Orders, the OHA has on its own initiative applied the rule only to the period subsequent to September 1, 1974. See Whitaker Oil Co., 13 DOE ¶ 83,004 at 86,025 (1985); aff'd, 33 FERC ¶ 61,292 (1985). Even where the ERA has sought in a PRO to enforce the rule for the period prior to September 1974, we have "in the interest of uniformity and to remove any hint of unfairness on this issue," declined to apply the rule. Eason Oil Co., 20 DOE ¶ 83,011 at 86,109 (1990). Though the DOE's enforcement action against Clark was settled before a Remedial Order was issued by this office, we see no reason to grant a refund based on an alleged violation of a rule that we have not enforced in prior cases, and that we would not have enforced had a Remedial Order been issued to Clark.

In its Objections, Go-Tane argues that the “OHA is required to apply the Deemed Recovery Rule as written,” that we have “no authority to rewrite the regulations in this regard,” that calculating Go- Tane’s overcharges “without retroactively applying the Deemed Recovery Rule represents an attempt by OHA to revoke an important element of the rule without opportunity for notice and comment,” and that “OHA has no authority to refuse to apply existing regulations in a refund proceeding when the consent order does not reflect the exclusion of the claim.” Objections at 8-10, 11.

Again, Go-Tane misunderstands the purpose of the present proceeding, which is not to enforce the petroleum pricing and allocation regulations vis-a-vis Clark or to adjudicate Clark’s liability under those regulations. The Subpart V refund proceedings are intended to provide equitable remedies to those injured by actual or alleged violations of the regulations. Thus, for example, in this proceeding we have the authority under the PODRA to provide a remedy to Go-Tane for Clark’s alleged overcharges, even though the DOE dismissed its enforcement actions against Clark prior to any adjudication of liability. This works to the advantage of all refund applicants in this proceeding, Go- Tane included.

On the other hand, in providing equitable relief, we are limited by the amount of money remitted by a company pursuant to a remedial order, consent order, or settlement agreement. Where, for example, the ERA exercised its prosecutorial discretion in not seeking retroactive application of the Deemed Recovery Rule, this could only have the effect of reducing the amount that a company was ultimately ordered to remit to the DOE, and in turn the amount of money available for disbursement through Subpart V. Similarly, the settlement of an enforcement proceeding made even less money available to Subpart V claimants than would be available had the ERA prevailed in proving the allegations it sought to enforce. Thus, to grant a Subpart V refund to Go-Tane based upon the alleged violation of a rule that would not have been enforced against Clark would be manifestly inequitable vis-a-vis all other claimants in this proceeding. Cf. Amtel, Inc./Whitco, Inc., 19 DOE ¶ 85,319, at 88,596 (1989) (above-volumetric refund reduced by the ratio of the settlement fund to the aggregate amount of alleged overcharges). We therefore reject Go-Tane’s request that we calculate its refund in this manner.

We conclude that Go-Tane has made a persuasive showing for purposes of this refund proceeding that it was overcharged in it purchases from Clark by $432,497. This includes the $279,667 in overcharges calculated by Go-Tane in its private action against Clark for the period April 1974 through March 1975, and $115,634 in overcharges calculated by Go-Tane by applying the same methodology used in its private litigation to purchases made by Go-Tane from September through December 1973. In addition, Go-Tane has since the issuance of the PD&O supplemented its claim further by requesting a refund for overcharges during the period January through March 1974. The amount of those overcharges, also calculated according to the methodology used in its private action, is $37,196, which we believe is calculated accurately, and that amount is included in the calculation of Go-Tane’s overcharges.

3. Go-Tane's Injury Showing

In addition to showing that it was overcharged by a specific amount, a reseller claimant in this proceeding is also required to make a detailed showing that it was injured by Clark's alleged overcharges. As noted above, this showing generally consists of two distinct elements. First, the applicant must show that it had "banks" of unrecouped increased product costs in excess of the refund claimed. Second, because a showing of banked costs alone is not sufficient to establish injury, a claimant must provide evidence that market conditions precluded it from increasing its prices to pass through the additional costs associated with the alleged overcharges.

Go-Tane submitted cost bank information and a competitive disadvantage analysis of its gasoline purchases in support of its refund claim. The motor gasoline cost bank information submitted by Go- Tane shows total banks of unrecouped increased product costs of $5,695,696 for the period August 1973 through June 1980. This cumulative bank amount is well in excess of the $432,497 Go-Tane has shown it was overcharged by Clark. The firm has therefore made the essential threshold showing that cost banks existed which were sufficient to support a refund for these alleged overcharges.

However, as stated above, because a showing of banked costs alone is not sufficient to establish injury, a claimant must provide evidence that market conditions precluded it from increasing its prices to pass through the additional costs associated with the alleged overcharges. 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. This method of gauging injury has been upheld by the federal courts. See Behm Family Corp. v. DOE, 903 F.2d 830 (Temp. Emer. Ct. App. 1990); National Helium Co./Atlantic Richfield Co., 11 DOE ¶ 85,257 (1984), aff'd sub nom. 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.(13) The analysis produces two measures which the OHA has used 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 in other months. This measure provides an indication of the cumulative competitive impact of the prices charged by Clark, balancing the adverse effect of the purchases at above market average prices against the positive effect of purchases made at below market prices.(14) Below is a summary of the results of the competitive disadvantage analysis, which is set forth in detail in Appendix A to this Decision and Order.

Measure of Go-Tane's Competitive Disadvantage

(Total Presumed Overcharge = $432,497)

Gross Excess Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,377,986

Net Excess Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,377,865

In the present case, both the gross and net excess cost figures exceed the total of the alleged overcharges incurred by Go-Tane. In such cases, we have found that applicants are entitled to receive the full amount of the overcharges incurred. See, e.g., Conoco/Power Pak, 17 DOE ¶ 85,016 (1988); Marathon/Acme, 17 DOE ¶ 85,634 (1988). Because Go-Tane's gross and net excess costs are greater than the $432,497 in alleged overcharges incurred, we find that the firm was unable to pass through these overcharges. Therefore, we will approve a refund of $432,497 for injury suffered by Go-Tane as a result of alleged Clark overcharges.

In making this determination, we stress that any interpretation of the DOE regulations contained herein is intended only to facilitate the restitutionary purposes of the Apex/Clark refund proceeding and to ensure an equitable disbursement of the monies collected pursuant to the Apex/Clark settlement agreement. Therefore, the findings and interpretations in this Decision do not represent an adjudication of Clark’s liability under the DOE price regulations.

B. Go-Tane's Allocation Claim

As discussed in section I.B.1 above, the trial court that heard Go-Tane’s section 210 claim against Clark awarded the company nearly $3 million based on the finding of the jury that “Go-Tane was entitled to purchase additional amounts of gasoline from Clark and it did not purchase those amounts either because Clark was charging a price in excess of the Maximum Allowable Price under the Refiner Price Rule or because Clark did not maintain the customary price differential which existed on May 15, 1973, . . .” Application at Exhibit 5. Go-Tane now characterizes its recovery as only “partial compensation” and contends that it is still entitled to an allocation refund of $3.26 million, an amount equal to claimed losses of $6.23 million, less the $2.97 million the company was awarded in the civil action. Application at 25. Go-Tane claims that it suffered injuries of $6.23 million due to the higher prices it paid to other suppliers to replace supplies it did not obtain from Clark, and for lost profits on product for which Go-Tane could secure no replacement product. Application at 21. The applicant argues that it did not recover its full injury in its section 210 action because the jury in that case “evidently discounted [Go-Tane’s] claim” and because Go-Tane now uses “a different methodology to calculate its allocation injury” than it used at trial. Letter from John B. Williams and J. Keith Ausbrook; Collier, Shannon, Rill & Scott; to Steven J. Goering; OHA (August 4, 1994).

1. Following the Holding of the Federal Court in Hydrocarbon, Go-Tane’s Allocation Claim is Barred Under the Doctrine of Res Judicata

On the basis of the material submitted by Go-Tane, we conclude that the applicant is not entitled to a refund in this proceeding based on alleged Clark allocation violations. As discussed above, Go- Tane received a judgment and was awarded $2.97 million in its section 210 action against Clark. Under the doctrine of merger, when a “plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff's original claim is said to be ?merged’ in the judgment.” Restatement (Second) of Judgments § 18 comment a (1982).

As we discussed above, Go-Tane’s allocation claim falls squarely within the holding of the U.S. District Court for the District of Columbia in Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995), where the court stated that “a final judgment, whether arrived at by way of a settlement agreement or an adjudication on the merits, does extinguish a party’s claim to remedies pertaining to ?all or any part of the transaction, or series of connected transactions, out of which the action arose.’” Id. at 11 (quoting Restatement (Second) of Judgments § 24 (1982)).(15)

Accordingly, Go-Tane is precluded by the doctrine of res judicata from claiming now that the $2.97 million jury award was incorrect and that it was actually injured by Clark to a greater extent. See SunBehm Gas, Inc. v. Department of Energy, No. 93-0572 (D.D.C. Mar. 7, 1994) (plaintiff “does not get a second bite at the apple” in the Subpart V refund proceeding in order to submit new evidence of injury), aff’d per curiam, 43 F.3d 1486 (D.C. Cir. 1994).

2. Go-Tane’s Arguments Against the Application of Res Judicata

a. The Parties in the Present Case are Different

First, Go-Tane contends that res judicata does not apply in the present case “because the parties are not the same. With very limited exceptions, not pertinent here, res judicata requires that the parties be identical.” Objections at 22 (citing Nevada v. United States, 463 U.S. 110, 143 (1983)).

In applying the res judicata doctrine in Nevada, the Supreme Court had to “decide whether the parties in the instant proceeding are identical to or in privity with the parties in” an earlier proceeding. Nevada, 463 U.S. at 130. The court explained that it was attempting to determine “which of the parties before us are bound by the earlier decree. As stated earlier, the general rule is that a prior judgment will bar the ?parties’ to the earlier lawsuit, ?and those in privity with them,’ from relitigating the cause of action.” Id. at 135 (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1876)). Conversely, nonparties to an earlier action are normally not bound by the judgment in the prior case. However, Go-Tane, the only party in the present case, obviously was a party in its section 210 action against Clark, and is therefore barred from relitigating its cause of action here.(16)

Moreover, for all practical purposes, the DOE stands in the shoes of Clark in this Subpart V refund proceeding. Go-Tane relies upon the Restatement of Judgments, which states that the rules of merger and bar extinguish “all rights of the plaintiff to remedies against the defendant . . . .” Restatement (Second) of Judgments § 24(1). Thus, Go-Tane argues that it is “certainly permitted to maintain a claim against the escrow account as it is not a claim against Clark.” However, if we were to approve Go-Tane’s allocation claim “against the escrow account,” we would order that money remitted by Clark be disbursed to Go-Tane. Albeit somewhat indirectly, we would be providing to the section 210 plaintiff Go-Tane a remedy against the section 210 defendant Clark, despite the fact that all rights of Go-Tane to such a remedy were extinguished by the final judgment in the section 210 action. We therefore find, as did the court in Hydrocarbon, that the section of the Restatement relied upon by Go-Tane supports the application of res judicata to a Subpart V refund claim.

b. Standard of Proof is Different Before the OHA

Go-Tane also argues that “res judicata does not apply here because the burden of proof before the jury was different from the burden of proof before OHA.” Objections at 22-23. The applicant uses the following example to illustrate its point:

[A] criminal defendant who is acquitted may later be sued for civil damages because the criminal court verdict meant only that he was not guilty beyond a reasonable doubt. The civil trial may proceed because a court or a jury may find that he is liable for the acts by a preponderance of the evidence.

Id. at 23 (citing Neaderland v. C.I.R., 424 F.2d 639, 642 (2d Cir.), cert. denied, 400 U.S. 827 (1970)).

We agree with Go-Tane generally that res judicata should not apply in a subsequent proceeding where the standard of proof is less stringent than that in the first case. Go-Tane’s example well makes its point. A finding that a defendant in a criminal trial is not guilty beyond a reasonable doubt in not inconsistent with, and therefore should not preclude, a later finding that by a preponderance of the evidence (i.e., it is more likely than not that), the defendant should be held civilly liable. Nonetheless, we reject Go-Tane’s argument that this principle applies in the present case.

Go-Tane notes that in its civil action against Clark, it was required to prove by a preponderance of the evidence that Clark violated the regulations and that Go-Tane was thereby injured. The company asserts that the judgment of the court in that case should not preclude our further consideration of its claim here because “an applicant for a refund before OHA based on a claim that its supplier violated the allocation regulations must only demonstrate that its claim is ?non-spurious.’” Id. (citing Research Fuels, Inc. v. DOE, 977 F.2d 601, 603 (Temp. Emer. Ct. App. 1992)).(17) However, Go- Tane’s argument rests on the erroneous assumption that a claimant can demonstrate that its claim is “non-spurious” based on something less than the preponderance of the evidence, i.e. despite a greater weight of evidence that the claim is in fact spurious.

As TECA has noted, in prior cases we have stated that a “?non-spurious’ claim [i]s one where that claimant ha[s] made a ?reasonable demonstration of an allocation violation.’” Research Fuels, Inc., 977 F.2d at 603 (quoting Marathon Petroleum Co./Research Fuels, Inc. 19 DOE ¶ 85,575 at 89,050 (1989)). We have never quantified the amount of evidence necessary to make such a demonstration, but we certainly would not grant a refund claim if the preponderance of the evidence before us indicated that the claim was without merit. Such was the posture of Go-Tane in its private action. Go-Tane could not recover more than $2.97 million in allocation damages because the jury could not find that it was more likely than not that Go-Tane was injured by any greater amount. We will therefore not revisit the findings of the jury in Go-Tane’s section 210 action and the resulting judgment of the district court, which was affirmed by TECA on appeal.(18)

c. The Statutory Scheme of the ESA and EPAA

Go-Tane further argues that res judicata does not apply because “the statutory scheme embodied in the ESA and the EPAA [Emergency Petroleum Allocation Act] provides for recovery in both a private action and an administrative refund proceeding.” The applicant cites for support the same section of the Restatement of Judgments which we cited in section I.B.2 above in deciding to consider Go-Tane’s overcharge claim, notwithstanding its prior section 210 action. Objections at 20 (citing Restatement (Second) of Judgments § 26 (1982) (“the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant” where “[t]he judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim”)). Go-Tane also cites the opinion of TECA in Bulzan v. ARCO, 620 F.2d 278 (Temp. Emer. Ct. App. 1980), and in particular the court’s statement that “Congress, by fashioning different administrative and private remedies into the ESA and the EPAA, indicated that neither remedy was to be the exclusive recourse for a party who has suffered a legal wrong because of a violation of a FEA and DOE regulations.” Id. at 281.

In Bulzan, TECA found that even where the plaintiff had obtained prior administrative relief, any such relief “was ?plainly inadequate’ as a substitute for the complainant’s private rights under section 210.” Id. (quoting Evanson v. Union Oil Co. of Cal., 5 CCH Energy Management ¶ 26,056 (D.Minn. 1976)). The court focused on the “different administrative and private remedies,” specifically on the fact that an section 210 action was “potentially more lucrative” because of the availability of an award of treble damages. Id. By contrast, the court found that

the administrative remedies authorized by the ESA are not designed to provide a redress for a victim who has suffered an injury because of a violation of a FEA or DOE regulation; in other words, in contrast to private remedies, administrative remedies are not concerned either with punishing a violator for his illegal conduct or with compensating a victim for his injuries. Rather, the purpose of administrative remedies ". . . is to insure, on a national scale, the enforcement of (the DOE's administrative) regulations."

Id. at 282 (quoting Economic Regulatory Enforcement Manual, § 1.501.00). In other words, the court saw restitution in a public action as merely a by-product of the enforcement of the regulations, as opposed to the more direct and “more lucrative” route to restitution via a private section 210 action. Thus, TECA concluded that the plaintiff should not be barred from pursuing a separate action under section 210.

The converse of the situation in Bulzan is presented in this case. Go-Tane exercised its right to obtain private restitution under section 210, and was compensated in its private action for injuries related to its allocation claim. Indeed, by the measure of injury of the jury in that case, Go-Tane was fully compensated for its injuries. While we found above that the statutory scheme of the PODRA should allow Go-Tane to reassert an overcharge claim that had been dismissed in private litigation due to the statute of limitations, this administrative proceeding is not intended to provide Go-Tane a forum for relitigating its allocation claim using a different methodology in order to obtain substantially more than the $3 million it has already been awarded.

Moreover, providing an additional remedy to a party that has already received full compensation would be contrary to the restitutionary policy of the OHA grounded in the PODRA. First, the PODRA clearly does not contemplate providing a remedy where there is no remaining injury, as where a party has already recovered in a private action. Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93-841, (D.D.C. May 9, 1995) at 12-14. Second, under the statutory scheme, any funds that remain after direct restitution to injured parties are to be used for indirect restitution through the states. Thus, any additional damages paid to Go-Tane from the Clark escrow fund would come at the expense of those injured non-claimants designated by the PODRA to receive indirect restitution. Denny Klepper Oil Co. v. DOE, 598 F. Supp. 522, 527 n. 11 (D.D.C. 1984). Accordingly, Go-Tane’s allocation claim should be denied.

C. Legal and Accounting` Fees

Finally, Go-Tane seeks $900,000 in reimbursement for legal and accounting fees expended in pursuing its §210 action against Clark. The applicant argues that its private action “established the nature and extent of Clark’s regulatory violations, which essentially cleared the way for DOE’s enforcement proceeding” against Clark, and thereby “conferred a substantial benefit on all of Clark’s customers.” Application at 26.

Like all other parts of Go-Tane’s allocation action against Clark, however, the issue of its entitlement to the recovery of attorney’s fees was merged in the judgment of that case. That claim is therefore barred here under the Hydrocarbon decision. Moreover, there is no precedent for refunding legal or accounting fees in Subpart V proceedings. As discussed above, the PODRA authorizes the OHA to identify parties “injured by any actual or alleged violation of the petroleum pricing and allocation regulations,” to establish “the amount of any injury incurred,” and to make restitution to those parties. 15 U.S.C. § 4502(b) (emphasis added). We would be exceeding our statutory authority under the PODRA if we were to award a refund for something other than an injury caused by an actual or alleged violation of the regulations, e.g., the legal and accounting fees of an applicant. Moreover, such an award would necessarily contravene the restitutionary purposes of the PODRA by diverting funds from injured non-claimants designated by the PODRA to receive indirect restitution through the states. See 15 U.S.C. § 4502(c), (d).

Go-Tane argues that whether or not the issue of attorney’s fees was merged in the judgment of its private action, the standards in the present proceeding are different. Objections at 26. Go-Tane notes that in a “civil matter, a party must bear its own fees under the American Rule.” Id. at 27. However, Go-Tane acknowledges that an award of legal and accounting fees in a Subpart V refund proceeding would be “unprecedented.” Transcript of Informal Hearing at 76 (April 2, 1996). Nonetheless, the applicant argues that we should break with precedent because “DOE’s enforcement actions against Clark relied heavily on Go-Tane’s efforts,” and thereby Go-Tane’s efforts “benefitted all Clark customers.” Objections at 27-28. However, it was not unusual for the DOE to be aided in its enforcement efforts by information provided by private companies. The applicant also argues that “[w]ithout an award of legal and accounting fees, Go-Tane will not be made whole or restored to the position it would have occupied but for Clark’s violation.” Id. at 27. Of course, the same could be said of all other refund claimants, who invariably incur costs in seeking a remedy, and yet we have never fashioned a Subpart V remedy that would reimburse an applicant for such costs. In sum, Go- Tane offers no compelling argument that would convince us to depart from our precedent by finding that legal and accounting fees “should be included in the ?amount of any injury incurred’ which OHA should recognize under the PODRA. . . .” Id. (quoting 15 U.S.C. §4502(b)). We will therefore deny Go-Tane’s request for legal and accounting fees.

III. Conclusion

For the foregoing reasons, we will deny Go-Tane’s request for a refund based on alleged Clark allocation violations and for reimbursement of legal and accounting fees, but will approve a refund of $432,497 for injury suffered by Go-Tane as a result of alleged Clark overcharges, as well as a pro rata share of the interest that has accrued on the principal since the settlement fund was placed in the appropriate DOE deposit fund escrow account. The total refund amount granted to Go-Tane is $726,354 (comprised of $432,497 in principal and $293,857 in interest).

It Is Therefore Ordered That:

(1) The Application for Refund filed by Go-Tane Service Stations, Inc., Case No. RF342-278, is hereby granted as set forth in paragraph (2) below.

(2)The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller, the Department of Energy, shall take appropriate action to disburse from the DOE deposit fund escrow account maintained at the Department of the Treasury for this purpose and funded by AOC Acquisition Corporation, Consent Order No. RCKH016A1Z,$726,354 (comprised of $432,497 in principal and $293,857 in interest) to:

Go-Tane Service Stations, Inc.

c/o Collier, Shannon, Rill & Scott

3050 K Street, N.W.

Washington, DC 20007

(3)The determination made in this Decision and Order is based on the presumed validity of statements and documentary material submitted by the applicant. This determination may be revoked or modified at any time upon a determination that the factual basis underlying any Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 7, 1998

(1)In 1981, Apex Oil Company (Apex) acquired the Clark Oil & Refining Corporation (Clark) through its wholly-owned subsidiary, Apex Holding Company, a Missouri Corporation. AOC, the one-time successor to Apex, was the entity that actually agreed to the settlement with the DOE. Pursuant to the settlement, AOC remitted a total of $15,000,000 to the DOE. Separate provision was made in Apex/Clark for the distribution of the crude oil portion ($3,620,649) of the AOC settlement fund. See Apex Oil Co., 21 DOE ¶ 85,341 at 89,017-20 (1991).

(2)Apex/Clark at 89,021. We derived this figure by dividing the refined product portion of the settlement fund, $11,379,351, by 10,506,641,585 gallons, the volume of covered refined products which Clark sold from August 19, 1973 through the date of decontrol of the various products.

(3)Claimants who have previously relied upon their banked costs in order to obtain refunds in other special refund proceedings must subtract those refunds from any cost banks submitted in this refund proceeding. See Husky Oil Co./Metro Oil Products, Inc., 16 DOE ¶ 85,090 at 88,179 (1987). Additionally, a claimant attempting to show injury may not receive a refund for any month in which it has a negative accumulated cost bank (for the particular petroleum product) or for any prior month. See Standard Oil Co. (Indiana)/Suburban Propane Gas Corp., 13 DOE ¶ 85,030 at 88,082 (1985). If a claimant no longer has records showing its banked costs, the OHA may use its discretion to permit the claimant to approximate those cost banks. See, e.g., Gulf Oil Corp./Sturdy Oil Co., 15 DOE ¶ 85,187 (1986).

(4)See Fed R. Civ. P. 41(b) (“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”)

(5)Allowing the applicant this opportunity does not frustrate the policy underlying the statute of limitations that barred Go-Tane’s claim in federal court. “Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, . . .” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 352 (1983). These purposes would be defeated, for example, if a plaintiff were allowed to bring a second action in the same forum by basing its claim on a different theory in order to circumvent the statute of limitations that led to the dismissal of the first action.

(6)"Class of purchaser" was defined in 10 C.F.R. § 212.31 as "purchasers to whom a person has charged a comparable price for a comparable property or service pursuant to customary price differentials between those purchasers and other purchasers."

(7)Go-Tane contends that under the methodology for computing overcharges approved in Dyke, the defendant Gulf was not given credit for costs unrecovered in prior months in determining the Gulf’s “undercharges” in a given month. Transcript of Informal Hearing at 68-69 (April 2, 1996). Go-Tane contrasts this with the methodology used in its section 210 action against Clark, where costs not recovered in one month were carried over and included in the amount of increased costs available for recovery in subsequent months. Id.; see Letter from John B. Williams and J. Keith Ausbrook; Collier, Shannon, Rill & Scott; to Thomas O. Mann; OHA (July 16, 1993) at Exhibit 1 (Clark’s calculation of overcharge). We disagree with Go-Tane that this is an accurate representation of the methodology employed in Dyke. In Dyke, “where Gulf did not charge Dyke the full amount of increased costs available . . . Gulf was given credit for these undercharges to Dyke in computing total overcharges.” Dyke at 29,518. The “full amount of increased costs available” would have included unrecovered costs carried over from prior months. Our interpretation is bolstered by the fact that TECA immediately goes on to say that “the findings sufficiently found all of the elements of the maximum allowable price calculations as a basis for determining that sales exceeded the ?maximum allowable prices’ permitted under the governing Refiner Price Rule.” Id. Thus, contrary to the assertions of Go-Tane, Transcript of Informal Hearing at 64 (April 2, 1996), the methodology used in Dyke to compute overcharges was essentially the same as that used in Go-Tane’s section 210 action, i.e. the extent to which the prices charged exceeded the maximum allowable price.

(8)TECA contrasted Dyke to an earlier case it had decided, Longview Refining Co. v. Shore, 554 F.2d 1006 (Temp. Emer. Ct. App. 1977). The court noted that the district court's "findings which supposedly established the maximum allowable price in Longview were 'defectively general and all-inclusive.'" Dyke at 29,517. In Longview, TECA explained why knowing the seller's correct ceiling price was necessary to calculate overcharges:

Mere failure of a defendant to perform mechanical calculations under the formula in arriving at the price charged for covered products does not in and of itself result in an overcharge, i.e., the sale of a covered product at a price which "exceeds the applicable ceiling" [§ 210(c)] price. The price actually charged (however arrived at) may be below the ceiling price, so a plaintiff would suffer no legal wrong entitling him to relief under § 210 . . . .

Longview, 554 F.2d at 1017.

(9)In the Texaco Inc. Subpart V refund proceeding, above-volumetric refunds have been granted based on the difference between the May 15, 1973 price incorrectly used by Texaco in calculating its MAPs and the correct May 15 price. See, e.g., Texaco Inc./Time Oil Company, 23 DOE ¶ 85,115 (1993). However, the overcharges calculated in those cases were based on specific findings as to the “excess revenues” received by Texaco from the refund applicants as set forth in a Notice of Probable Violation (NOPV) issued to Texaco by the Economic Regulatory Administration (ERA). Id. at 88,296. These overcharge calculations were then adopted in a Proposed Remedial Order issued by the ERA, and in a Remedial Order issued by this office. Id. No such specific findings with respect to Go-Tane were adopted in the PROs issued to Clark, and no Remedial Order was issued by the OHA prior to Clark’s settlement with the DOE. Moreover, in a case where the Texaco Remedial Order’s calculation with respect to one of the refund applicants was based on “the difference between Texaco’s lawful selling price to [the applicant] and the price actually charged,” the refund amount granted was based on this calculation. Texaco Inc/Guttman Oil Co., 24 DOE ¶ 85,116 at 88,363 (1994).

Go-Tane states in its Post-Conference Submission that the Texaco/Time Oil and Texaco/Guttman Oil cannot be relied upon by the OHA as cases where claims similar to Go-Tane’s have been denied. Post-Conference Submission at 9. However, we do not cite these cases as direct support for denying Go-Tane’s overcharge calculation. The only purpose of our reference to the Texaco proceeding is to offer an explanation, which Go-Tane does not challenge, of the distinction between the overcharge methodology used in that proceeding and our findings in the present case.

(10)We assume that Go-Tane had the opportunity at the trial of its private action to question the reliability of this data. If this had been an issue at trial, any factual dispute would have been left for resolution by the jury, which apparently accepted both the underlying data and Go-Tane’s MAP calculations.

(11)Go-Tane’s assertion in its Objections that its “claim that it was overcharged and injured in the amount of about $.08/gallon was fully presented to and accepted by the District Court” in its section 210 action simply has no support in the record. Objections at 8. Indeed, on the prior page of its Objections, Go-Tane itself states that at trial it “was never permitted to prove that it was overcharged in the amount of $.08 per gallon.” Id. at 7.

(12)Go-Tane states in its Objections that the “OHA is wrong in its assertion that the Mobil decision forbids retroactive application of the rule.” Objections at 10. We made no such assertion in the PD&O.

(13)In applying this analysis, we have previously relied on Platt's Oil Price Handbook and Oilmanac (Platt's) as the source of regional average market price data for the purpose of determining whether and when an applicant purchased refined products as prices higher than the regional average. Go-Tane originally submitted the average prices listed in Platt's for Go-Tane's market area, Chicago, Illinois. In its Objections, Go-Tane now argues that our analysis should use as a benchmark Platt’s low price in order to reflect Go-Tane’s position in the market as an independent unbranded marketer. Objections at 15-18. We have considered Go-Tane’s new submission and agree that using Platt’s low price would more accurately measure the extent of the competitive disadvantage experienced by Go-Tane. Finally, Platt's did not begin reporting market prices for unleaded gasoline until 1981. In order to approximate average area prices for unleaded gasoline, Go-Tane has added $0.01 per gallon to the Platt's price for regular gasoline for each month. This method of estimating area price figures for unleaded gasoline is consistent with the petroleum price regulations and has been previously accepted by this Office. See 39 Fed. Reg. 24923 (July 8, 1974) (regulatory preamble and amendment to 10 C.F.R. § 212.112(b)(1)); see, e.g., Texaco Inc./Cook & Cooley, Inc., 23 DOE ¶ 85,158 at 88,416 (1993).

(14)Go-Tane argues that we are required to apply the methodology set forth in Panhandle E. Pipeline Co./Western Petroleum Co., 19 DOE ¶ 85,705 (1989), because we cited this case in a footnote to the Implementation Order in stating the general proposition that an above-volumetric claim will be granted if the claimant makes a persuasive showing that it was "overcharged" by a specific amount, and that it absorbed those overcharges. Apex/Clark at 89,020 n.2. However, in the text of the same decision, the specific methodology we cited was the competitive disadvantage analysis which has been approved by TECA, and which we use in this decision. See National Helium Co./Atlantic Richfield Co., 11 DOE ¶ 85,257 (1984), aff'd sub nom. Atlantic Richfield Co. v. DOE, 618 F. Supp. 1199 (D. Del. 1985). In any event, the result sought by Go-Tane, “a refund equal to the alleged overcharges,” is the same under either methodology applied to the present case.

(15)The OHA has consistently held that refund applicants who have already been made whole by a previous remedy are ineligible to receive additional restitution under Subpart V. Exxon Corp./Hydrocarbon Trading & Transp. Co., Inc., 22 DOE ¶ 85,140 at 88,407 (1992) (allocation refund claim denied on basis of alternative holding that the applicant had already settled its claim with Exxon), aff’d sub nom, Hydrocarbon Trading & Transp. Co., Inc. v. Department of Energy, No. 93- 841, (D.D.C. May 9, 1995); Saber Energy, Inc./Duquesne Light Co., 17 DOE ¶ 85,378 (1988) (refund application denied because applicant had already received more than a volumetric refund from a direct payment mandated by Saber's consent order with DOE); Beacon Oil Co./Golden Gate Petroleum Co., 16 DOE ¶ 85,240 (1987) (applicant ineligible to receive refund for certain refined products since it had already received a credit mandated by the Beacon consent order before decontrol, and had failed to prove injury by an amount in excess of that credit).

(16)The fact that Clark is not a party in the present case does not preclude the application of res judicata, as Go-Tane implies in its Objections. The rule that the parties in a case must be identical to the parties in the prior proceeding clearly does not mean that all the parties to the prior action must be present in the subsequent case for res judicata to apply. For example, a judgment on a class action binds all members of the class, and thus would bar subsequent litigation by any individual member of the class against the same defendant, the absence of the other class members notwithstanding. See C. Wright & A. Miller, Federal Practice and Procedure § 1751 (1986). Similarly, a defendant could raise a valid res judicata defense with reference to a prior judgment in its favor (and against the same plaintiff), despite the absence of any other defendants who may have been joined in the prior action.

(17)Go-Tane also argues that under the “substantial evidence” standard of review used by the federal courts in reviewing OHA decisions, it “is required to provide less evidence to support its claim before OHA than was required at trial.” Objections at 22-23. We fail to see how this (or any other) standard of review has any relevance to the amount of evidence required of a refund claimant. We therefore reject this argument, which is comparable to a plaintiff arguing to a trial court that it should prevail unless its case is shown to be “clearly erroneous.”

(18)Moreover, the principle of res judicata is not overcome by the fact that Go-Tane wishes now to use “a different methodology to calculate its allocation injury” from the one used at trial. Letter from John B. Williams and J. Keith Ausbrook; Collier, Shannon, Rill & Scott; to Steven J. Goering; OHA (August 4, 1994). The following examples are presented in the Restatement (Second) of Judgments § 18 comment b, illustrations 1 and 2 (1982):

  1. A brings an action against B for negligently causing injury to A. At the trial A is unable to prove any serious injury to his person. Verdict is given for A for $100 and judgment is entered thereon. Thereafter it appears that A's injuries are more serious than proved at the trial. A is precluded by the judgment from maintaining a second action against B for the collision.
  2. The facts are the same as stated in Illustration 1, except that at the trial of the first action A offers evidence of nervous shock, and the court erroneously excludes such evidence. A is precluded by the judgment from maintaining a second action against B for the collision.

A
          Above/(Below)      
Date Terminal Product Clark Price Platt's Price Market Gallons Gross Excess Cost Net Excess Cost
                 
09/73 Blue Island Regular $0.214400 $0.157500 $0.056900 620,626 35,313.62 35,313.62
      $0.234400 $0.177500 $0.056900 134,796 7,669.89 7,669.89
              0.00 0.00
10/73 Blue Island Regular $0.207300 $0.168387 $0.038913 760,824 29,605.94 29,605.94
    Premium $0.227300 $0.188387 $0.038913 179,640 6,990.33 6,990.33
      $0.000000   $0.000000   0.00 0.00
11/73 Blue Island Regular $0.203300 $0.187333 $0.015967 541,749 8,650.11 8,650.11
    Premium $0.223300 $0.207333 $0.015967 251,785 4,020.18 4,020.18
          $0.000000   0.00 0.00
12/73 Blue Island Regular $0.215000 $0.208065 $0.006935 229,845 1,593.98 1,593.98
    Premium $0.235000 $0.228065 $0.006935 62,606 434.17 434.17
          $0.000000   0.00 0.00
01/74 Blue Island Regular $0.231000 $0.210000 $0.021000 67,770 1,423.17 1,423.17
    Premium $0.251000 $0.230000 $0.021000 27,881 585.50 585.50
          $0.000000   0.00 0.00
02/74 Blue Island Regular $0.231000 $0.210000 $0.021000 100,357 2,107.50 2,107.50
    Regular $0.286000 $0.210000 $0.076000 874,473 66,459.95 66,459.95
    Premium $0.251000 $0.230000 $0.021000 34,224 718.70 718.70
    Premium $0.306000 $0.230000 $0.076000 371,571 28,239.40 28,239.40
  Peoria Regular $0.286500 $0.210000 $0.076500 36,512 2,793.17 2,793.17
    Premium $0.311500 $0.230000 $0.081500 7,658 624.13 624.13
          $0.000000   0.00 0.00
03/74 Blue Island Regular $0.349000 $0.246129 $0.102871 506,126 52,065.69 52,065.69
    Premium $0.369000 $0.266129 $0.102871 135,255 13,913.82 13,913.82
  Peoria Regular $0.349500 $0.246129 $0.103371 4,087 422.48 422.48
          $0.000000   0.00 0.00
04/74 Blue Island Regular $0.349000 $0.250000 $0.099000 1,052,508 104,198.29 104,198.29
    Regular $0.343000 $0.250000 $0.093000 1,148,744 106,833.19 106,833.19
    Premium $0.369000 $0.270000 $0.099000 486,909 48,203.99 48,203.99
    Premium $0.363000 $0.270000 $0.093000 251,742 23,412.01 23,412.01
  Hammond Regular $0.349000 $0.250000 $0.099000 5,038 498.76 498.76
    Regular $0.343000 $0.250000 $0.093000 11,042 1,026.91 1,026.91
    Premium $0.369000 $0.270000 $0.099000 2,843 281.46 281.46
    Premium $0.363000 $0.270000 $0.093000 4,245 394.79 394.79
  Peoria Regular $0.343500 $0.250000 $0.093500 17,943 1,677.67 1,677.67
    Premium $0.368500 $0.270000 $0.098500 4,911 483.73 483.73
          $0.000000   0.00 0.00
05/74 Blue Island Regular $0.343000 $0.250000 $0.093000 12,062 1,121.77 1,121.77
    Regular $0.333000 $0.250000 $0.083000 1,611,839 133,782.64 133,782.64
    Premium $0.363000 $0.270000 $0.093000 3,590 333.87 333.87
    Premium $0.353000 $0.270000 $0.083000 224,053 18,596.40 18,596.40
  Peoria Regular $0.333500 $0.250000 $0.083500 29,998 2,504.83 2,504.83
  Wood River Regular $0.327000 $0.250000 $0.077000 1,680,000 129,360.00 129,360.00
    Premium $0.352000 $0.270000 $0.082000 420,000 34,440.00 34,440.00
              0.00 0.00
06/74 Blue Island Regular $0.333000 $0.250000 $0.083000 136,234 11,307.42 11,307.42
    Regular $0.363000 $0.250000 $0.113000 137,193 15,502.81 15,502.81
    Premium $0.353000 $0.270000 $0.083000 20,440 1,696.52 1,696.52
    Premium $0.383000 $0.270000 $0.113000 34,338 3,880.19 3,880.19
  Wood River Regular $0.327000 $0.250000 $0.077000 31,558 2,429.97 2,429.97
          $0.000000   0.00 0.00
07/74 Blue Island Regular $0.333000 $0.270000 $0.063000 427,887 26,956.88 26,956.88
    Low Lead $0.343000 $0.280000 $0.063000 62,960 3,966.48 3,966.48
    Premium $0.353000 $0.300000 $0.053000 83,093 4,403.93 4,403.93
          $0.000000   0.00 0.00
08/74 Blue Island Regular $0.333000 $0.274194 $0.058806 720,983 42,398.13 42,398.13
    Low Lead $0.343000 $0.284194 $0.058806 31,428 1,848.15 1,848.15
    Premium $0.353000 $0.304194 $0.048806 162,727 7,942.05 7,942.05
  Peoria Regular $0.333500 $0.274199 $0.059301 22,318 1,323.47 1,323.47
          $0.000000   0.00 0.00
09/74 Blue Island Regular $0.333000 $0.275000 $0.058000 510,714 29,621.41 29,621.41
    Premium $0.353000 $0.305000 $0.048000 112,224 5,386.75 5,386.75
  Peoria Regular $0.333500 $0.275000 $0.058500 5,986 350.18 350.18
          $0.000000   0.00 0.00
10/74 Blue Island Regular $0.313000 $0.270484 $0.042516 30,782 1,308.73 1,308.73
    Premium $0.333000 $0.300484 $0.032516 7,268 236.33 236.33
          $0.000000   0.00 0.00
11/74 Blue Island Regular $0.313000 $0.265000 $0.048000 35,992 1,727.62 1,727.62
    Regular $0.303000 $0.265000 $0.038000 12,097 459.69 459.69
    Premium $0.333000 $0.295000 $0.038000 10,341 392.96 392.96
    Premium $0.323000 $0.295000 $0.028000 4,048 113.34 113.34
    S. Unlead $0.343000 $0.275000 $0.068000 7,961 541.35 541.35
          $0.000000   0.00 0.00
12/74 Blue Island Regular $0.303000 $0.265000 $0.038000 423,756 16,102.73 16,102.73
    Premium $0.323000 $0.295000 $0.028000 115,424 3,231.87 3,231.87
          $0.000000 0 0.00 0.00
01/75 Blue Island Regular $0.303000 $0.265000 $0.038000 866,347 32,921.19 32,921.19
    Premium $0.323000 $0.295000 $0.028000 240,882 6,744.70 6,744.70
  Peoria Regular $0.303500 $0.265000 $0.038500 16,304 627.70 627.70
          $0.000000   0.00 0.00
02/75 Blue Island Regular $0.303000 $0.265000 $0.038000 569,236 21,630.97 21,630.97
    Premium $0.323000 $0.295000 $0.028000 183,247 5,130.92 5,130.92
          $0.000000   0.00 0.00
03/75 Blue Island Regular $0.303000 $0.265000 $0.038000 66,562 2,529.36 2,529.36
    Premium $0.323000 $0.295000 $0.028000 11,572 324.02 324.02
          $0.000000   0.00 0.00
04/75 Blue Island Regular $0.303000 $0.279000 $0.024000 139,384 3,345.22 3,345.22
    Premium $0.323000 $0.309000 $0.014000 43,450 608.30 608.30
          $0.000000   0.00 0.00
05/75 Blue Island Regular $0.303000 $0.291210 $0.011790 305,912 3,606.70 3,606.70
    Regular $0.313000 $0.291210 $0.021790 1,356,055 29,548.44 29,548.44
    Premium $0.323000 $0.321210 $0.001790 41,886 74.98 74.98
    Premium $0.333000 $0.321210 $0.011790 313,950 3,701.47 3,701.47
  Peoria Regular $0.313500 $0.291210 $0.022290 38,446 856.96 856.96
  Wood River Regular $0.307000 $0.291210 $0.015790 5,437 85.85 85.85
    Low Lead $0.317000 $0.301210 $0.015790 2,475 39.08 39.08
          $0.000000   0.00 0.00
06/75 Blue Island Regular $0.313000 $0.310417 $0.002583 70,160 181.22 181.22
    Regular $0.343000 $0.310417 $0.032583 367,610 11,977.84 11,977.84
    Premium $0.333000 $0.340417 ($0.007417) 16,331 0.00 (121.13)
    Premium $0.363000 $0.340417 $0.022583 92,803 2,095.77 2,095.77
  Wood River Regular $0.327000 $0.310417 $0.016583 53,771 891.68 891.68
    Low Lead $0.337000 $0.320417 $0.016583 2,470 40.96 40.96
    Premium $0.352000 $0.340417 $0.011583 2,485 28.78 28.78
          $0.000000   0.00 0.00
07/75 Blue Island Regular $0.343000 $0.325080 $0.017920 37,280 668.06 668.06
    Regular $0.373000 $0.325080 $0.047920 1,032,077 49,457.13 49,457.13
    Premium $0.363000 $0.355080 $0.007920 8,886 70.38 70.38
    Premium $0.393000 $0.355080 $0.037920 183,370 6,953.39 6,953.39
    S. Unlead $0.413000 $0.335080 $0.077920 31,225 2,433.05 2,433.05
  Peoria Regular $0.353500 $0.325080 $0.028420 22,774 647.24 647.24
  Wood River Regular $0.357000 $0.325080 $0.031920 38,368 1,224.71 1,224.71
    Low Lead $0.367000 $0.335080 $0.031920 23,917 763.43 763.43
    Premium $0.382000 $0.355080 $0.026920 2,976 80.11 80.11
          $0.000000   0.00 0.00
08/75 Blue Island Regular $0.373000 $0.332016 $0.040984 571,747 23,432.48 23,432.48
    Regular $0.383000 $0.332016 $0.050984 303,908 15,494.45 15,494.45
    Premium $0.393000 $0.362016 $0.030984 131,665 4,079.51 4,079.51
    Premium $0.403000 $0.362016 $0.040984 61,998 2,540.93 2,540.93
  Peoria Regular $0.353500 $0.332016 $0.021484 5,931 127.42 127.42
    Regular $0.363500 $0.332016 $0.031484 12,855 404.73 404.73
    Low Lead $0.373500 $0.342016 $0.031484 1,979 62.31 62.31
    Low Lead $0.383500 $0.342016 $0.041484 2,956 122.63 122.63
  Wood River Regular $0.357000 $0.332016 $0.024984 9,859 246.32 246.32
    Regular $0.367000 $0.332016 $0.034984 32,495 1,136.81 1,136.81
    Low Lead $0.377000 $0.342016 $0.034984 19,231 672.78 672.78
          $0.000000   0.00 0.00
09/75 Blue Island Regular $0.383000 $0.337500 $0.045500 290,747 13,228.99 13,228.99
    Regular $0.363000 $0.337500 $0.025500 89,061 2,271.06 2,271.06
    Premium $0.403000 $0.367500 $0.035500 51,377 1,823.88 1,823.88
    Premium $0.383000 $0.367500 $0.015500 21,035 326.04 326.04
    S. Unlead $0.423000 $0.347500 $0.075500 2,470 186.49 186.49
  Peoria Regular $0.363500 $0.337500 $0.026000 7,932 206.23 206.23
  Wood River Regular $0.367000 $0.337500 $0.029500 22,290 657.55 657.55
    Low Lead $0.377000 $0.347500 $0.029500 8,876 261.84 261.84
          $0.000000   0.00 0.00
10/75 Blue Island Regular $0.363000 $0.335726 $0.027274 201,528 5,496.47 5,496.47
    Premium $0.383000 $0.365726 $0.017274 33,839 584.53 584.53
  Peoria Regular $0.361500 $0.335726 $0.025774 8,019 206.68 206.68
  Wood River Regular $0.367000 $0.335726 $0.031274 25,777 806.15 806.15
    Low Lead $0.377000 $0.345726 $0.031274 13,601 425.36 425.36
          $0.000000   0.00 0.00
11/75 Blue Island Regular $0.363000 $0.330500 $0.032500 73,720 2,395.90 2,395.90
    Regular $0.343000 $0.330500 $0.012500 578,317 7,228.96 7,228.96
    Regular $0.353000 $0.330500 $0.022500 31,986 719.68 719.68
    Premium $0.383000 $0.360500 $0.022500 28,496 641.16 641.16
    Premium $0.363000 $0.360500 $0.002500 139,047 347.62 347.62
    Premium $0.373000 $0.360500 $0.012500 6,950 86.88 86.88
  Peoria Regular $0.361500 $0.330500 $0.031000 11,033 342.02 342.02
    Regular $0.341500 $0.330500 $0.011000 18,160 199.76 199.76
    Low Lead $0.381500 $0.340500 $0.041000 5,018 205.74 205.74
    Low Lead $0.361500 $0.340500 $0.021000 6,059 127.24 127.24
  Wood River Regular $0.347000 $0.330500 $0.016500 10,771 177.72 177.72
    Low Lead $0.357000 $0.340500 $0.016500 5,001 82.52 82.52
          $0.000000   0.00 0.00
12/75 Blue Island Regular $0.353000 $0.323468 $0.029532 780,602 23,052.74 23,052.74
    Premium $0.373000 $0.353468 $0.019532 199,499 3,896.61 3,896.61
  Wood River Regular $0.357000 $0.323468 $0.033532 22,628 758.76 758.76
    Low Lead $0.367000 $0.333468 $0.033532 13,652 457.78 457.78
          $0.000000   0.00 0.00
01/76 Blue Island Regular $0.353000 $0.323500 $0.029500 419,092 12,363.21 12,363.21
    Premium $0.373000 $0.352500 $0.020500 136,249 2,793.10 2,793.10
  Wood River Regular $0.357000 $0.323500 $0.033500 19,119 640.49 640.49
    Low Lead $0.367000 $0.333500 $0.033500 12,794 428.60 428.60
          $0.000000   0.00 0.00
02/76 Blue Island Regular $0.353000 $0.320862 $0.032138 32,625 1,048.50 1,048.50
    Regular $0.343000 $0.320862 $0.022138 17,991 398.28 398.28
    Premium $0.373000 $0.350862 $0.022138 7,828 173.30 173.30
    Premium $0.363000 $0.350862 $0.012138 30,285 367.60 367.60
  Hammond Regular $0.343000 $0.320862 $0.022138 9,500 210.31 210.31
    Premium $0.363000 $0.350862 $0.012138 6,500 78.90 78.90
  Wood River Regular $0.357000 $0.320862 $0.036138 5,046 182.35 182.35
    Low Lead $0.367000 $0.330862 $0.036138 2,852 103.07 103.07
          $0.000000   0.00 0.00
03/76 Blue Island Regular $0.343000 $0.312258 $0.030742 15,467 475.49 475.49


Last Updated on 6/9/98
By Marcia Carlson