[Federal Register Volume 59, Number 45 (Tuesday, March 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5256]


[[Page Unknown]]

[Federal Register: March 8, 1994]


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DEPARTMENT OF ENERGY
 

Issuance of Decisions and Orders; Week of December 6 through 
December 10, 1993

    During the week of December 6 through December 10, 1993 the 
decisions and orders summarized below were issued with respect to 
appeals and applications for other 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.

Appeals

Eugene Maples, 12/08/93; LFA-0335

    Eugene Maples filed an Appeal from a determination issued by the 
DOE's Chicago Operations Office (Chicago Operations) in response to a 
request from Mr. Maples under the Freedom of Information Act (FOIA). 
Mr. Maples sought documents concerning an Inspector General's audit 
entitled Selected Aspects of the State of South Carolina's Management 
of Petroleum Violation Escrow Settlement Funds. In considering the 
Appeal, the DOE found that Chicago Operations did not properly consider 
the public interest in disclosure of the responsive documents. 
Accordingly, the Appeal was granted and the determination remanded to 
Chicago Operations for a new determination.

Jon Berg, 12/06/93; LFA-0330

    Jon Berg filed an Appeal from a partial denial by the DOE's Office 
of Inspector General of a Request for Information which he had 
submitted under the Freedom of Information Act (FOIA). In considering 
the Appeal, the DOE found that some of the information that had 
initially been withheld under Exemptions 6 and 7 should have been 
released to the public. The DOE found that a more selective redaction 
would allow additional information to be released without revealing the 
identities of individuals. The DOE further found that this result was 
supported by an October 4, 1993 Memorandum for Heads of Departments and 
Agencies from Attorney General Janet Reno.

MSE, Incorporated, 12/06/93; LFA-0338

    MSE, Inc., a government contractor, appealed a denial by the DOE's 
Office of Inspector General (OIG) of its request for documents 
pertaining to an OIG investigation into allegations that MSE engaged in 
improper activities. In considering the Appeal, the DOE found that the 
OIG's investigation was ongoing and that its claim of potential witness 
tampering was supported by a deposition from a former MSE employee 
(whistleblower) who maintained that MSE was likely to retaliate against 
witnesses. In view of the allegation of possible reprisals, the DOE 
found that the OIG properly withheld the requested documents pursuant 
to Exemption 7(A) and that release was not in the public interest so 
long as the risks from premature release remain unabated. Accordingly, 
MSE's Appeal was denied.

Westinghouse Hanford Company, 12/09/93; LFA-0336

    Westinghouse Hanford Company (WHC) filed a Motion for 
Reconsideration of the DOE's September 24, 1993 Decision issued to the 
Hanford Education Action League (HEAL), which required the DOE's 
Richland Field Office (Richland) to release WHC Internal Audit Reports 
to HEAL under the Freedom of Information Act (FOIA). In considering the 
Motion, the DOE affirmed its September 24, 1993 determination that the 
Internal Audit Reports were not properly withheld under Exemption 4 and 
therefore should be released to the public. The central issue 
considered in the Decision and Order was whether the Internal Audit 
Reports were voluntarily submitted to the DOE. The DOE found that the 
audit reports were not ``voluntarily'' submitted and therefore applied 
the National Parks test instead of the Critical Mass test in order to 
determine whether the documents were ``confidential'' for the purposes 
of FOIA Exemption 4.

Motion for Discovery

Economic Regulatory Administration, 12/08/93; LRD-0010

    The DOE's Economic Regulatory Administration (ERA) filed a Motion 
for Discovery pursuant to a Decision and Order issued by the DOE on 
August 24, 1993, in connection with a Proposed Remedial Order (PRO) 
proceeding, Case No. LRO-0004, involving Chevron U.S.A. Inc. (Hearing 
Order). In the Hearing Order, the DOE determined that an evidentiary 
hearing should be convened in order to more fully examine a factual 
issue presented in the PRO proceeding involving the amount of revenue 
actually received by Chevron as a result of its participation in the 
DOE Tertiary Incentive Program, 10 CFR 212.78, during the period 
January 1980 through January 27, 1981. In its Motion for Discovery, the 
ERA requested responses to interrogatories and production of documents, 
which it claimed are necessary in order to prepare adequately for the 
evidentiary hearing. In considering the discovery request, the DOE 
determined that a substantial portion of the information sought by the 
ERA is relevant and material, would likely add meaningfully to the 
ERA's cross-examination of the witnesses and, in any event, should be 
included in the record of the PRO proceeding. Accordingly, the ERA's 
Motion for Discovery was granted in part. In addition, the DOE 
determined that certain party intervenors in the PRO proceeding, viz. a 
group of Utilities, Transporters and Manufacturers, and a consortium of 
State governments, should be granted limited participation at the 
evidentiary hearing.

Refund Applications

Browning-Ferris, Inc., 12/07/93; RF272-56110, RD272-56110

    The DOE issued a Decision and Order concerning an Application for 
Refund filed by Browning-Ferris, Inc. (BFI), in the subpart V crude oil 
refund proceeding. The DOE determined that the refund claim be denied, 
because BFI's parent corporation, Browning-Ferris Industries, Inc., 
executed a Claim Form and Waiver in connection with the Surface 
Transporters Escrow proceeding. By executing the Claim Form and Waiver, 
Browning-Ferris Industries, Inc., waived its rights and those of its 
subsidiaries and affiliates, including BFI, to seek a refund in any 
subpart V proceedings, including the crude oil proceeding. Therefore, 
the DOE determined the BFI's right to seek a refund in the subpart V 
crude oil proceeding had been waived and DOE denied the BFI 
Application. In addition, a consortium of States and Territories of the 
United States (States) filed a Statement of Objections to the 
Application. The DOE did not consider the Objections because the 
Application was denied. The DOE dismissed as moot the Motion for 
Discovery filed by the States.

Eastman Kodak Co., 12/07/93; RF272-21246, RD272-21246

    The DOE issued a Decision and Order granting an Application for 
Refund filed by Eastman Kodak Co., in the subpart V crude oil refund 
proceeding. The DOE determined that the refund claim was meritorious 
and granted a refund of $2,318,850. In granting the Application, the 
DOE determined that paraxylene, mineral oil and heptane were covered 
products eligible for a refund. The DOE also found that Kodak's 
presumption of end-user injury was rebutted with respect to its 
purchases of propane derived from natural gas. The DOE determined that 
the evidence offered by the States was insufficient to rebut the 
presumption of end-user injury with respect to the remainder of the 
Application. The DOE also denied the States' Motion for Discovery, 
finding that discovery was not warranted where the States had not 
presented evidence sufficient to rebut the applicant's presumption of 
injury.

Quintana Energy Corp./Texas Utilities Fuel Company, 12/06/93; RF332-11

    Texas Utilities Fuel Company (TUFCO) submitted an Application for 
Refund in the Quintana Energy Corporation refund proceeding. The DOE 
determined that TUFCO was entitled to a refund of $155,179 under the 
presumption of injury for public utilities for Quintana product that it 
purchased and consumed. This refund was subject to reporting 
requirements and a dollar-for-dollar passthrough. With respect to 
Quintana product that it resold, the DOE found that the public 
utilities' presumption of injury does not apply. However, the DOE found 
that TUFCO had proved that it was injured with respect to Quintana 
product that it purchased and resold during the period February 1975 
through June 1976. Accordingly, the DOE granted TUFCO an additional 
refund of $317,397 for this product. The total refund granted to TUFCO 
was $472,576.

Texaco Inc. A & W Texaco, 12/07/93; RR321-135

    The DOE issued a Decision and Order denying a Motion for 
Reconsideration filed by Warren Valenta, the owner of A & W Texaco, in 
the Texaco Inc. special refund proceeding. In a Decision and Order 
issued on September 15, 1993, the DOE granted Mr. Valenta a refund of 
$2,243 based on fifty percent of A & W's allocable share from March 
1973 through June 1978, the period during which Mr. Valenta operated 
the business as an equal partner, and one hundred percent of its 
allocable share for the remainder of the consent order period. In his 
Motion for Reconsideration, Mr. Valenta argued that because the July 
1978 partnership dissolution agreement assigned all of A & W's assets, 
accounts receivable and liabilities to him, he should be entitled to 
the entirety of any refund granted for A & W's purchases prior to the 
dissolution agreement. Because the DOE distributes refunds in order to 
remedy the effects of alleged regulatory violations, it presumes that 
the owner or owners of businesses that purchased product from a consent 
order firm directly experienced the impact of any overcharges. The DOE 
found that Mr. Valenta had not submitted any evidence that challenged 
its presumption, or that demonstrated that Mr. Valenta's partner 
divested himself of the right to a refund.

Texaco Inc./Energy Sales, Inc., 12/10/93; RF321-19989

    On November 18, 1993, the DOE issued a Decision and Order in the 
Texaco Inc. special refund proceeding concerning an Application for 
Refund filed by David Montgomery on behalf of Energy Sales, Inc. (ESI), 
a Texaco jobber. ESI is dissolved and Mr. Montgomery claimed to own 75 
percent of its corporate stock at the time of dissolution. Accordingly, 
the DOE granted Mr. Montgomery 75 percent of ESI's refund. 
Subsequently, another individual informed DOE that he owns some of the 
ESI stock that Mr. Montgomery claims to own. Under these circumstances, 
the DOE found that the refund granted to Mr. Montgomery on behalf of 
ESI should be rescinded until the ownership of the firm can be 
clarified.

Texaco Inc./Vancouver Oil Co., 12/10/93; RF321-4174

    The DOE issued a Decision and Order denying an Application for 
Refund filed on behalf of Vancouver Oil Co. in the Texaco Inc. special 
refund proceeding. The DOE found that the applicant, the ``new'' 
Vancouver Oil Co., purchased only specifically enumerated assets from 
the ``old'' Vancouver Oil Co., the entity in operation during the price 
control period. Since the applicant did not purchase the stock of the 
``old'' Vancouver Oil Co., and a potential oil overcharge refund was 
not listed amongst the assets purchased, the DOE found that the 
applicant, Vancouver Oil Co., had not obtained the right to a refund 
from the original corporation and consequently was not entitled to a 
refund in the Texaco proceeding.

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. 

Andrew Southern.......................  RC272-221               12/09/93
Atlantic Richfield Company/Frank Smets  RF304-14035             12/08/93
 et al.                                                                 
Atlantic Richfield Company/Regional     RF304-15410             12/10/93
 Transit Service, Inc.                                                  
Atlantic Richfield Company/Superior     RF304-14457             12/08/93
 Tire, Incorporated et al.                                              
Browning-Ferris Industries of TN......  RC272-219               12/10/93
Camp Hill School District et al.......  RF272-83055             12/09/93
Continental Cheese Co., Inc...........  RC272-220               12/09/93
E.I. Dupont De Nemours & Co., Inc.--    RF272-91302             12/06/93
 Cape Fear Plant.                                                       
Farmers Co-op Oil Co..................  RF272-88686             12/10/93
Farmers Union Oil Co..................  RF272-88698                     
Gulf Oil Corporation/Harry's Gulf.....  RF300-14351             12/06/93
Gulf Oil Corporation/Tiger Oil &        RF300-21202             12/06/93
 Heating Company et al.                                                 
J. Blanton............................  RC272-222               12/10/93
Port Authority of New York and New      RF272-63670             12/09/93
 Jersey.                                                                
Shell Oil Company/Andy Saberi.........  RF315-8435              12/06/93
Moffet Shell..........................  RF315-8436                      
Delaware Shell........................  RF315-8437                      
Ralston Shell.........................  RF315-8438                      
Clark Shell...........................  RF315-8439                      
Folsom Shell..........................  RF315-8440                      
Bay Shell.............................  RF315-8441                      
Andy's Shell #1.......................  RF315-8442                      
Andy's Shell #1.......................  RF315-8443                      
St. Cabrini Nursing Home et al........  RF272-90005             12/06/93
Texaco Inc./Callis Texaco et al.......  RF321-14591             12/09/93
Texaco Inc./College Texaco et al......  RF321-18866             12/07/93
Texaco Inc./Sorrells Texaco et al.....  RF321-6517             12/10/93 

Dismissals

    The following submissions were dismissed: 

------------------------------------------------------------------------
                       Name                               Case no       
------------------------------------------------------------------------
Apex Management...................................  RF321-12883         
Apex Management...................................  RF321-12884         
Delavan Darien School District....................  RF272-81232         
Duane's Texaco....................................  RF321-16190         
Earl L. Elliott Co., Inc..........................  RF321-2586          
Farris Texaco.....................................  RF321-3481          
Gold Beach UHS District 001.......................  RF272-80721         
Grubbs Texaco.....................................  RF321-16187         
H&B Texaco Service #1.............................  RF321-16317         
H&B Texaco Service #2.............................  RR321-77            
H&B Texaco Service #3.............................  RF321-16318         
Holyoke School District...........................  RF272-81663         
Horton's Service Station..........................  RF321-8500          
Iuka Separate School District.....................  RF272-80066         
John Massey Service Station.......................  RF321-8469          
Karnack ISD.......................................  RF272-81261         
Kirksville School District R-III..................  RF272-80727         
Lakeland School Corp..............................  RF272-81353         
Letchworth Central School--Gainesville............  RF272-81761         
Lexington R-V School District.....................  RF272-81749         
Lofton's Texaco...................................  RF321-16185         
Lynn School District..............................  RF272-81661         
Man's Texaco......................................  RF321-16930         
Mid-Continent Truck Stop..........................  RF321-19082         
Milton-Union Ex. Vill. School District............  RF272-81759         
Orange Grove ISD..................................  RF272-81230         
Owens Cartage Company.............................  RF321-15587         
Roanoke County Public Schools.....................  RF272-81617         
Roseland Elementary...............................  RF272-81568         
Sach's Texaco.....................................  RF321-16931         
Simpson County Schools............................  RF272-81685         
Sujdak's Bottled Gas Co...........................  RF272-91509         
Uinta County School District No 4.................  RF272-81373         
Whitener Gulf Service.............................  RF300-15821         
------------------------------------------------------------------------

    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 
p.m. and 5 p.m., except federal holidays. They are also available in 
Energy Management: Federal Energy Guidelines, a commercially published 
loose leaf reporter system.

    Dated: March 1, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-5256 Filed 3-7-94; 8:45 am]
BILLING CODE 6450-01-P