March 25, 2003

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Terminix International Company, L.P.

Date of Filing: June 17, 1994

Case Number: RR272-00134

The Office of Hearings and Appeals (OHA) of the Department of Energy received a Motion for Reconsideration of a dismissal of an Application for Refund in the Subpart V crude oil overcharge refund proceeding(1) filed by Terminix International Company, L.P. (Terminix). The refund application was dismissed Terminix did not respond to our requests for additional information necessary to support its claim. Dismissal Letter dated April 7, 1992, from Richard T. Tedrow, Deputy Director, OHA, DOE, to Lomax Springfield, Terminix.

I. Motion for Reconsideration

The Motion, filed on behalf of Terminix by the filing service of William L. Walton & Associates, Inc., asks for a reconsideration of that dismissal. The Motion states that during the four year period between the filing of the claim and OHA’s request for information, Terminix reduced and changed its staff. The individuals who filed the original Application were no longer with the company and the files were in storage. In the past, the OHA has granted Motions for Reconsideration if the applicant present additional information which was unavailable at the time of its original filing or a compelling reason why the prior Decision should be modified. See, e.g., Mobile Oil Corp./Larko, Inc., 17 DOE ¶ 85205 (1988). Given the change in personnel and the fact that Terminix has provided all the additional information we previously requested, we will grant its Motion for Reconsideration.

II. Analysis

In the past, purchasers of refined petroleum products could apply for refund from crude oil overcharge funds collected by the DOE from firms that sold crude oil during the price control period. Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986); 10 C.F.R. Part 205. The OHA has established refund procedures for these funds. E.g., Barry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987). The refund procedures presume applicants were injured if they were end-users of petroleum products and were not covered by the DOE’s or its predecessors’ price controls. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987).

Terminix used gasoline in its pest control business. Terminix is an end-user of refined petroleum products. Terminix’s estimated claim of 19,622,047 gallons of gasoline is based on the number of gallons of gasoline it used for each dollar of revenue in 1995. Terminix than multiplied the 1995 gallons per dollars of revenue figure by two for mileage improvements in its fleet of vehicles and by two again to compensate for the density of branches in 1995 versus the density of branches in the 1970s. After examining Terminix’s estimation method, we find that it overstates its petroleum product usage during the price control period. Specifically, Terminix has not substantiated its adjustments to its estimated usage based on vehicle milage improvements or branch density.

Terminix has provided no documentation supporting its estimation methodology that the lower branch density during the price control period would justify increasing the estimated gallonage by two. We also find Terminix’s gallonage adjustment to be suspect. Terminix has not provided any evidence that its vehicles were twice as efficient in 1995 as during the period of the price controls. In fact, figures from the Bureau of Transportation Statistics show that light duty vehicles are not twice as efficient. See Bureau of Transportation Statistics, Average Fuel Efficiency of United States Passenger Cars, Light Trucks, and Light Duty Vehicles, Table 4-22 <http://www.bts.gov/btsprod/nts/chp4/tbl4x22.html> (visited April 9, 2001) (passenger cars 1975-13.9 mpg/1995-21.1 mpg; other 2-axle 4-tire vehicle 1975-10.5 mpg/1995- 17.3 mpg). After considering the Application, we have concluded that the claimed volume must be reduced by three quarters, i.e., from 19,622,047 to 4,905,511, to account for the inflated multiplication factor Terminix used for branch density and mileage improvement in its vehicles. A refund of $7,848 is warranted ($0.0016 x 4,905,511 = $7,848). It is the policy of the DOE to pay all crude oil refund claims that were filed by June 30, 1995, the final deadline for the crude oil proceeding, at the rate of $.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants at a later date.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Terminix International, L.P., Case No. RR272-00134, is hereby approved 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 of the Department of Energy, shall take appropriate action to disburse a total of $7,848 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury. The check should be made payable to “Terminix International, L.P. or William L. Walton & Associates, Inc.” and shall be sent to:

William L. Walton & Associates, Inc.

Attn: Mr. William L. Walton

10550 Wilshire Boulevard, #501

Los Angeles, CA 90024

(3) To facilitate the payment of future refunds, the Applicant shall notify the Office of Hearings and Appeals in the event that there is a change of address, or if an address correction is necessary. Such notification shall be sent to:

Director of Management Information

Office of Hearings and Appeals

Department of Energy

Washington, D.C. 20585-0107

(4) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary materials submitted by the Applicant. These determinations may be revoked or modified at any time upon a finding that the basis underlying this refund application is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date:March 25, 2003

(1)Purchasers of refined petroleum products were allowed to apply to OHA for a refund from crude oil overcharge funds collected by the DOE from firms that sold crude oil during the price control period. Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).