[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2733]


[[Page Unknown]]

[Federal Register: February 7, 1994]


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DEPARTMENT OF ENERGY
 

Notice of Issuance of Decisions and Orders; Week of December 13 
Through December 17, 1993

    During the week of December 13 through December 17, 1993, the 
decisions and orders summarized below were issued with respect to 
applications for relief filed with the Office of Hearings and Appeals 
of the Department of Energy. The following summary also contains a list 
of submissions that were dismissed by the Office of Hearings and 
Appeals.

Whistleblower Proceeding

Ronald Sorri, 12/16/93, LWA-0001

    Ronald Sorri (Sorri) filed a request for a hearing on June 9, 1993 
under the Department of Energy's Contractor Employee Protection 
Program, 10 C.F.R. Part 708. This case involved a whistleblower 
complaint filed by Sorri under DOE's new Contractor Employee Protection 
Program, charging that reprisals were taken against him after he raised 
safety concerns with Sandia National Laboratories, DOE, and Congressman 
Leon Panetta. The alleged reprisals included removing him from his job 
as a maintenance technician in Sandia's Microelectronics Development 
Laboratory; giving him lowered performance ratings; reassigning him to 
a job as a technical writer; and finally, firing him. DOE's Office of 
Contractor Employee Protection (OCEP) investigated the complaint and 
found that the first three actions were reprisals for Sorri's 
disclosure of safety concerns. However, OCEP concluded the Sorri's 
termination did not constitute a reprisal. Sorri requested a hearing 
before a Hearing Officer with the Office of Hearings and Appeals, 
maintaining that his termination was also a reprisal for his safety 
disclosures. The Hearing Office concluded that Sorri proved by a 
preponderance of the evidence that he engaged in activities protected 
under Part 708 and that these activities were a contributing factor in 
the decision by Sandia and L&M to terminate his employment. The Hearing 
Officer further concluded that Sandia and L&M failed to prove by clear 
and convincing evidence that they would have terminated Sorri's 
employment were it not for his whistleblowing activities. The Hearing 
Officer therefore determined that Sorri's termination violated the 
whistleblower regulations in 10 C.F.R. Part 708. Sorri was awarded 
$5,000 in back pay, plus attorney's fees and costs. Sandia and L&M have 
the right to appeal the Decision to the Secretary or her designee.

Motion for Discovery

Oxy USA Inc., 12/17/93, LRD-0006, LRH-0002

    OXY USA Inc. (OXY) filed Motions for Discovery and Evidentiary 
Hearing in connection with the firm's Statement of Objections to a 
February 1992 Revised Proposed Remedial Order (the Revised PRO) issued 
to the firm by the DOE's Economic Regulatory Administration (ERA). The 
Revised PRO concerns reciprocal crude oil transactions entered into by 
OXY's predecessor in interest, Cities Service Company (Cities). Those 
transactions generally involved the sale by Cities of price-controlled 
crude oil in exchange for its receipt of deeply discounted exempt crude 
oil. The ERA alleges that Cities' reporting of these transactions 
violated the entitlements reporting requirements set forth at 10 C.F.R. 
Sec. 211.67(b), (h), and (j) and the anti-circumvention rule set forth 
at 10 C.F.R. Sec. 205.202.
    In considering the firm's discovery requests, the DOE found that, 
with the exception of privileged material, OXY had already been 
provided with information relevant to the charges in the Revised PRO. 
Accordingly, the discovery motion was denied. In considering the firm's 
evidentiary hearing motion, the DOE held that OXY should be granted an 
evidentiary hearing to support its contentions that (i) Cities' 
officials believed, and had a plausible basis for believing, that 
entitlements-exempt uses, rather than miscertification, explained the 
transactions and (ii) the transactions were not shams. The DOE denied 
OXY's request for an evidentiary hearing on the issues of the scope of 
Cities' court action concerning the transactions and the sufficiency of 
Cities' contemporaneous disclosure concerning the transactions, on the 
ground that those issues should be resolved on the basis of the record 
of the litigation and submissions by Cities to the DOE. Accordingly, 
the evidentiary hearing motion was granted in part.

Refund Applications

Atlantic Richfield Company/Mission Trail Oil Company, 12/15/93, RF304-
3079

    The DOE issued a Decision and Order granting an Application for 
Refund filed by Mission Trail Oil Company (Mission Trail) in the 
Atlantic Richfield Company Subpart V special refund proceeding. Mission 
Trail is affiliated with Coast Oil Company (Coast), a firm that 
previously received a full small purchaser refund of $5,000 in 
principal in the ARCO proceeding. In the case of multiple refund 
applications filed by affiliated firms in the same proceeding, the 
submissions are consolidated in considering the applicants' eligibility 
for a refund. Therefore, the Mission Trail refund was calculated based 
upon the consolidated Mission Trail and Coast volumes under the mid-
range presumption less the previous refund of $5,000 that had been 
granted to Coast. Thus Mission Trail was granted a refund of $9,194, 
representing $5,463 in principal and $3,731 in interest.

Gulf Oil Corporation/ M.A. and M.T. Moon, 12/17/93, RF300-16446

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted in the Gulf Oil Corporation special refund proceeding 
by Resource Refunds, Inc. on behalf of M.A. and M.T. Moon, operators of 
Moon and Sons Gulf. Under Case No. RF300-10430, Gary Towerville, 
manager of Moon and Sons Gulf and stepson of M.A. Moon, previously 
applied for and received a refund based on estimated purchases of 
2,569,360 gallons. This Application for Refund was granted in full on 
November 9, 1989. Under the Case No. RF300-16446, Resource Refunds, 
Inc. filed an Application for Moon and Sons Gulf, claiming that the 
station should receive a refund based on 2,703,870 gallons. This 
Application incorrectly stated that the applicant had not previously 
filed for a refund in this proceeding. Because the second Application 
claimed a refund for 2,569,360 gallons previously included in the 
earlier filing, it therefore was granted for purchases of only 134,510 
gallons. Furthermore, this Decision discusses the responsibility of 
filing agents to maintain the accuracy of their case files, and it 
reminded Resource Refunds, Inc. of this obligation.

Gulf Oil Corp./Ripley & Fletcher Co. RF300-14073, C.N. Brown Co., 12/
15/93, RF300-16858

    The DOE issued a Decision and Order concerning two affiliated 
Applications for Refund filed by Wilson, Keller & Associates, Inc. in 
the Gulf Oil Corporation special refund proceeding. In the first 
application, Ripley & Fletcher Co. (Ripley) claimed a refund as a 
reseller based on the purchase of 193,564,655 gallons of Gulf petroleum 
product. In the second application, C.N. Brown Co. (CNB) claimed a 
refund based on its purchase of 8,623,679 gallons under consignment. As 
both applicants were under common ownership and control during the Gulf 
refund period, they were considered together and approved for the 
maximum principal amount of $50,000 under the 40 percent presumption. 
Ripley and CNB could not take advantage of the consignee presumption 
because it would have raised their combined principal amount beyond the 
$50,000 limit and both applicants had chosen not to prove injury. 
Accordingly, the DOE granted Ripley a refund of $86,250 ($48,000 
principal plus $38,250 interest and CNB a refund of $3,594 ($2,000 
principal and $1,594 interest).

Gulf Oil Corporation/Southern Jersey Airways, Inc., 12/17/93, RF300-
19732

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted in the Gulf Oil Corporation special refund proceeding 
by LK, Inc. (LK), a filing agency, on behalf of Southern Jersey 
Airways, Inc. (Southern). In considering the refund claim, the DOE 
noted that LK was authorized to represent Southern, a firm in Chapter 7 
bankruptcy, by the U.S. Bankruptcy Court for the District of New 
Jersey. The DOE found that this arrangement would provide restitution 
to Southern's estate. Accordingly, a refund in the amount of $7,716 was 
granted to LK, which will notify the U.S. Bankruptcy Court of its 
receipt of the refund.

 Gulf Oil Corporation/Transportation Supplies, Inc., 12/15/93, RF300-
16200

    The DOE issued a Decision and Order concerning an Application for 
Refund filed in the Gulf Oil Corporation special refund proceeding by 
Stanley Cofall on behalf of Transportation Supplies, Inc. (TSI). The 
Application for Refund was submitted by Energy Refunds, Inc., a private 
filing service. The applicant claimed that TSI purchased 28,243,240 
gallons of Gulf petroleum products and asked that the refund check be 
made payable to Stanley Cofall. Mr. Cofall could not demonstrate that 
he was presently eligible to receive a refund on behalf of this 
corporation. In addition, under Case No. RF300-10119, Leaseway 
Transportation Corporation was granted a refund based on purchases of 
40,933,031 gallons of Gulf products made by the corporation and its 
subsidiaries which include Transportation Supplies, Inc. Mr. Cofall was 
therefore denied a refund in this proceeding.

Gulf Oil Corporation/West Penn Power Company, 12/17/94, RF300-20131

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted in the Gulf Oil Corporation special refund proceeding 
by West Penn Power Company. In considering the claim, the DOE noted 
that pursuant to Pennsylvania regulations for public utilities, West 
Penn Power Company did not employ a monthly fuel adjustment clause 
during the refund period. The DOE found that the company therefore 
could not pass through Gulf's alleged overcharges to its customers on a 
dollar for dollar basis. Accordingly, West Penn Power Company was 
treated as an end-user in this proceeding and was granted a total 
refund of $9,238.

Quantum Chemical Corp./Wilcox Oil Company, 12/17/94, RR330-1

    Bill T. Wilcox submitted a Motion for Reconsideration of the DOE's 
denial of an Application for Refund that he had submitted on behalf of 
Wilcox Oil Company (WOC) in the Quantum Chemical Corporation Refund 
proceeding. In its denial of the original application, the DOE found 
that the WOC was a corporation whose stock had been sold, and that the 
right to a refund had transferred to the purchaser of the stock. 
However, based on information submitted by Mr. Wilcox in his Motion for 
Reconsideration, the DOE found that the WOC functioned as a sole 
proprietorship of Mr. Wilcox prior to its incorporation. Accordingly, 
the DOE found that Mr. Wilcox was the proper recipient of a refund for 
WOC's purchases from Quantum that occurred prior to the incorporation 
of WOC in December 1979. Mr. Wilcox was therefore granted a refund of 
$109.

 Texaco Inc./Ronnie's Texaco et al., 12/15/93, RF321-14226 et al.

    The DOE issued a Decision and Order concerning seven Applications 
for Refund filed in the Texaco Inc. Subpart V special refund 
proceeding. The application for purchases made by Art Cement Products, 
Inc. (Art) (Case No. RF321-16588), was filed by RECOLL Management Corp. 
(RECOLL). Art is in bankruptcy, and the New Bank of New England is one 
of its creditors. RECOLL is acting on behalf of the Federal Deposit 
Insurance Corporation, the bank's receiver. The trustee in the Art 
bankruptcy case stated that the bank has a security interest in all of 
Art's assets, and he requested that the refund due Art be made payable 
to RECOLL. The DOE has previously indicated that where a firm is in 
bankruptcy, the refund will be paid to a creditor if the creditor 
demonstrates a clear right to the refund. See Texaco Inc./General Gas & 
Oil Co., 22 DOE  85,130 (1992). That is the case here. Accordingly, 
Art's refund was granted to RECOLL.

Refund Applications

    The Office of Hearings and Appeals issued the following Decisions 
and Orders concerning refund applications, which are not summarized. 
Copies of the full texts of the Decisions and Orders are available in 
the Public Reference Room of the Office of Hearings and Appeals.


Atlantic Richfield Company/B&P Motor Express..............................  RF304-12218                 12/15/93
Atlantic Richfield Company/Bohemian Distributing Co. et al................  RF304-13428                 12/15/93
B & B Trucking Company....................................................  RF272-75997                 12/15/93
Browning-Ferris Industries of K.C.........................................  RC272-218                   12/15/93
Clear Lake School District et al..........................................  RF272-80733                 12/15/93
Gulf Oil Corporation/Bronx River Gulf Service.............................  RF300-14412                 12/15/93
Kearney & Trecker Corp. et al.............................................  RF272-80140                 12/15/93
Lindsley Lumber Company...................................................  RF272-77206                 12/17/93
Pearl River County........................................................  RF272-87015                 12/15/93
Sandoz Chemicals Corp. et al..............................................  RF272-66502                 12/17/93
Sandoz Chem. Corporation..................................................  RD272-66502           ..............
Lockheed Aeronautical Sys. Co.............................................  RD272-66674           ..............
Holland Corp..............................................................  RD272-67236           ..............
DBJ Equipment Co..........................................................  RD272-67759           ..............
Caribbean Marine Service Co...............................................  RD272-69699           ..............
Shell Oil Company/509 BMW/LGSF............................................  RF315-1791                  12/17/93
Shell Oil Company/Cleofe Rivera Rosado....................................  RF315-9350                  12/17/93
Jose Martorell Otero......................................................  RF315-9351            ..............
Shell Oil Company/Lectronostic Servicenter, Inc...........................  RF315-736                   12/15/93
Texaco Inc./Deal's Texaco #1..............................................  RF321-19374                 12/17/93
Jack's Texaco #1..........................................................  RF321-19982           ..............
Texaco Inc./Leo Charest's Texaco et al....................................  RF321-11150                 12/17/93
Texaco Inc./Pop's Oasis Truck Stop et al..................................  RF321-19068                 12/15/93
Texaco Inc./Texaco Food Mart #1 et al.....................................  RF321-11566                 12/17/93
                                                                                                                

Dismissals

    The following submissions were dismissed:

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                       Name                               Case No.      
------------------------------------------------------------------------
A. Wimpfheimer & Bro., Inc........................  RF272-91984         
Arledge Transfer, Inc.............................  RF272-86035         
Borough of Alpha..................................  RF272-88404         
City of Grove.....................................  RF272-83083         
City of Huron.....................................  RF272-88492         
City of Independence..............................  RF272-88493         
City of Ithaca....................................  RF272-88495         
City of Jacksboro.................................  RF272-88496         
Coca-Cola Bottling Co. of New England.............  RF272-93538         
Dept. of the Army Corps of Engineers..............  RF272-93950         
Doug's Spur Station...............................  RF309-1254          
Falls County......................................  RF272-88408         
Hardeman County...................................  RF272-88414         
John W. Beauchamp.................................  RF321-2665          
Keppley's Texaco..................................  RF321-11496         
Liggett's Texaco..................................  RF321-14479         
Minidoka County...................................  RF272-88416         
Mohenis Services, Inc.............................  RF272-03538         
Municipality of Metro. Seattle....................  RF272-92504         
Robert H. Oaks....................................  RF321-13439         
Saint Bernard Par. Sch. Bd........................  RF272-88449         
Sanitary Linen Service, Inc.......................  RF272-94482         
Seehuus Associates................................  LFA-0337            
Sharon City Sch. Dist.............................  RF272-88437         
Skaneateles Central School........................  RF272-88440         
Skokie School District 73-5.......................  RF272-88441         
Slocum Independent School District................  RF272-88442         
South Haven School District.......................  RF272-88446         
Thompson Public Sch. Dist 61......................  RF272-88455         
Town of Longboat Key..............................  RF272-88435         
Township of Hopewell..............................  RF272-88489         
Virginia Linen Services, Inc......................  RF272-94492         
W.C. & D.L Cullipher..............................  RF300-19995         
Woodbridge Texaco.................................  RF321-13731         
------------------------------------------------------------------------

    Copies of the full text of these decisions and orders are available 
in the Public Reference Room of the Office of Hearings and Appeals, 
Room 1E-234, Forrestal Building, 1000 Independence Avenue, SW., 
Washington, DC 20585, Monday through Friday, between the hours of 1:00 
p.m. and 5:00 p.m., except federal holidays. They are also available in 
Energy Management: Federal Energy Guidelines, a commercially published 
loose leaf reporter system.

    Dated: February 1, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-2733 Filed 2-4-94; 8:45 am]
BILLING CODE 6450-01-P