Case No. RR340-00003
October 22, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Motion for Reconsideration
Name of Applicant: Enron Corp./W. Jayson Tusing
Date of Filing: September 20, 1995
Case Number: RR340-3
This Decision and Order concerns a Motion for Reconsideration filed with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). The Motion concerns an application for refund filed in the Enron Corporation (Enron) refund proceeding, based on purchases of Enron product by Jaysons Bottled Gas (Jaysons). The applicant, Mr. W. Jayson Tusing, claimed that he was entitled to the refund. When Mr. Tusing failed to document that contention, the OHA dismissed the application. Enron Corp./Jaysons Bottled Gas, Case No. RF340-111 (December 19, 1994) (Enron/Jaysons). In the Motion, Mr. Tusing documents his relationship to Jaysons. Based on Mr. Tusings documentation, we have determined that the Motion should be granted and that Mr. Tusing should receive an Enron refund.
I. The Enron Proceeding
On September 14, 1988, the DOEs Economic Regulatory Administration filed a Petition with the OHA requesting that the OHA formulate and implement procedures for distributing funds obtained through a consent order with Enron. See 10 C.F.R. Part 205, Subpart V. The consent order resolved DOE allegations that Enron and all of its subsidiaries, affiliates, prior subsidiaries, predecessors and successors in interest violated the mandatory petroleum regulations in their sales of crude oil and refined petroleum products from January 1, 1973 through January 27, 1981 (the consent order period). On July 10, 1991, the OHA issued a Decision and Order setting forth final procedures for disbursing the portion of the Enron settlement fund attributable to various Enron entities' sales of NGLs and NGLPs. Enron Corp., 21 DOE ¶ 85,323 (1991) (Enron). These covered Enron entities are UPG, Inc., Northern Propane Gas Company (Northern), and Florida Hydrocarbons Company. In accordance with the goals of 10 C.F.R. Part 205, Subpart V, Enron implements a process for refunding the consent order funds to purchasers of Enron NGLs and NGLPs who are able to demonstrate that
they were injured as a result of the covered entities' alleged overcharges.
In Enron we adopted a presumption that the alleged overcharges attributable to NGLs and NGLPs had been dispersed equally in all sales of refined product made by the covered entities during the consent order period. Enron, 21 DOE at 88,959. We stated that, in the absence of a demonstration of a disproportionate overcharge, a claimant would be allocated a share of the consent order funds on a volumetric basis. We provided that eligible claimants would receive $.00601 per gallon of covered Enron product purchased.(1)Id. We refer to the dollar amount derived by multiplying an applicant's purchase volume by the per gallon refund amount as the applicant's allocable share.
Enron generally requires a claimant to demonstrate that it was injured by Enron's alleged overcharges. However, in Enron, we adopted several presumptions of injury that would allow certain types of claimants to receive a refund without a detailed demonstration of injury.
In Enron, we established a presumption that resellers, retailers and refiners seeking volumetric refunds of $10,000 or less were injured by Enron's pricing practices. Enron at 88,960. Under this "small claim" presumption of injury, an applicant whose total Enron purchases correspond to an allocable share of $10,000 or less need only document its purchases of covered Enron products in order to receive a refund of its full allocable share. Id.
II. The Merits of the Application for Refund
The application requests a refund based on purchases of propane from Northern during the last year of the refund period. The application lists purchases of propane totalling 61,211 gallons. Accordingly, a grant of the application would result in a principal refund of $368 under the small claim presumption of injury (61,211 gallons x $.00601 per gallon = $368) plus interest.
Mr. Tusing has made a reasonable demonstration of a right to a refund of $368 plus interest. Mr. Tusing provided a letter from a Northern distributor stating that Jaysons purchased Enron propane during the refund period. Mr. Tusing stated that (i) although he subsequently sold the assets of the business, he did not sell the right to the refund, and (ii) he was the sole shareholder of Jaysons at the time of its dissolution. In the Motion, Mr. Tusing submits information to support his contention that he owned Jaysons at the time of its dissolution. Accordingly, Mr. Tusing has made a reasonable demonstration of his right to the Jaysons refund. See Enron/Jaysons, slip op. at 3 and cases cited therein. The interest on a $368 refund is $272.(2) Accordingly, Mr. Tusing is entitled to a total refund of $640.
It Is Therefore Ordered That:
(1) The Motion for Reconsideration filed by W. Jayson Tusing is hereby granted as specified in paragraph (2).
(2) The Director of Special Accounts and Payroll, Office of the Controller of the Department of Energy shall take appropriate action to disburse a total of $640 ($368 principal and $272 interest) from the DOE deposit fund escrow account maintained at the Department of the Treasury and funded by Enron Corp., Consent Order No. 730V00221Z, to:
W. Jayson Tusing OR
Energy Refunds, Inc.
PO Box 656
Hardin, KY 42048
(3) The determination made in this Decision and Order is based on the presumed validity of the statements and documentary material submitted by the applicant. The determination may be revoked or modified at any time upon a determination that the factual basis underlying the 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: October 22, 1998
(1)1/ This amount was derived by dividing the fund received from Enron allocable to refined products ($43,200,000) by the estimated volume of refined products sold by Enron from June 13, 1973 through the date of decontrol of the relevant product (7,186,265,624 gallons). Id. at n.8.
(2)Interest is paid on Enron refunds at the rate of $0.7398 per dollar of refund.