[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:
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Name Case no
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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
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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