July 8, 2003

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Firm: Amax Magnesium Company

Dates of Filing: December 7, 1987

February 29, 1988

Case Numbers: RF272-14118

RD272-14118

This Decision and Order considers an Application for Refund filed by Phelps Dodge Corporation (Applicant) on behalf of Amax Magnesium Company (Amax) in the Subpart V crude oil refund proceeding. Amax purchased refined petroleum products during the period August 19, 1973 through January 27, 1981 (refund period). The refund is requested from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). The Applicant relies on the presumption of injury for end-users as the basis for its refund claim. Under this presumption, OHA will presume applicants were injured if they were end-users of petroleum products and were not covered by the DOE or its predecessors’ price controls. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

We have reviewed the information submitted by the Applicant. In its application, the Applicant has submitted a purchase schedule claiming that Amax, an end user mining company, purchased 17,497,631 gallons of petroleum products.(1) The Applicant states that these purchases were derived from cost accounting records. OHA requested a sample of the records that were used to derive Amax’s purchase schedule. However, the Applicant has informed us that no records of any type are available concerning Amax’s business operations. In the crude oil proceeding it is the burden of the applicant to establish its eligibility for a refund. Given the amount of time that has elapsed since the refund period, OHA has been very flexible concerning the type of records that may be used to establish a claim. In this case, however, despite the extensive efforts of the Applicant, no evidence is available. Given the dearth of facts before us, we have concluded that Amax’s application should be denied. (2)

It Is Therefore Ordered That:

(1) The Application for Refund filed by Amax Magnesium Company, Case No. RF272-14118, is hereby denied.

(2) The Motion for Discovery filed by a consortium of States, Case No. RD272-14118, is hereby dismissed.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 8, 2003

(1)Amax went through several mergers after the refund period. We have determined that Phelps Dodge Corporation is the proper successor in interest to Amax.

(2)A consortium of States have filed a Motion for Discovery, Case No. RD272-18873, concerning the Applicant’s Application for Refund. Because we are denying Amax’s Application, we will dismiss the States' Motion for Discovery as moot.