[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9818]
[[Page Unknown]]
[Federal Register: April 22, 1994]
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DEPARTMENT OF ENERGY
Issuance of Decisions and Orders; Week of March 14 Through March
18, 1994
During the week of March 14 through March 18, 1994, the decisions
and orders summarized below were issued with respect to appeals and
applications for exception or 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
Lotepro Corporation, 3/15/94, LFA-0356
Lotepro Corporation filed an Appeal from a determination issued to
it on January 14, 1994 by the Superconducting Super Collider Project
Office (SSCPO) of the Department of Energy (DOE). In that
determination, SSCPO partially denied Lotepro's request for information
filed under the Freedom of Information Act (FOIA). SSCPO withheld 39
documents either in their entirety or in part pursuant to 5 U.S.C.
552(b)(5) (Exemption 5) and 5 U.S.C. 552(b)(4) (Exemption 4). In its
Appeal, Lotepro challenged SSCPO's application of Exemption 5 to the
requested documents and requested that the DOE direct SSCPO to release
the documents. In considering the Appeal, the Office of Hearings and
Appeals found that SSCPO did not provide an adequate justification for
withholding documents and did not segregate and release all factual
material from documents it withheld pursuant to the deliberative
process privilege of Exemption 5. The Office of Hearings and Appeals
remanded this Appeal to SSCPO to provide a clearer justification for
withholding documents and to review the documents for segregable
factual information. This Appeal was also remanded to consider the
Department of Justice's new policy which stresses the FOIA's primary
objective of ``maximum responsible disclosure of government
information.'' Therefore, the Department of Energy granted in part and
denied in part Lotepro's Appeal.
Nayar and Company, P.C., 3/17/94, LFA-0352
Nayar and Company, P.C. (Nayar) filed an Appeal from a
determination issued to it on December 30, 1993, by the Western Area
Power Administration (WAPA) in response to a request for information
Nayar submitted under the Freedom of Information Act (FOIA). In that
determination, WAPA released the documents Nayar requested, but
withheld some of the information pursuant to Exemption 4 of the FOIA.
Nayar argued that some of the withheld information had previously been
released or it was not information that would cause harm to the
competitive position of the winning bidder. The DOE determined that
much of the withheld information was exempt from disclosure but
concluded that some information was previously released or could not be
withheld under Exemption 4. Therefore, the Appeal was denied in part
and granted in part.
Ron Vader, 3/14/94, LFA-0357
Ron Vader filed a Motion for Reconsideration from a Decision issued
by the Office of Hearings and Appeals on January 27, 1994. That
Decision considered his Appeal of a determination issued to him on
November 19, 1993, by the Richland Operations Office (Richland) in
response to a request for information he submitted under the Freedom of
Information Act (FOIA). In that determination, Richland concluded that
it did not have information responsive to Vader's request. Vader's
Motion requested that the OHA confirm that a search had been conducted
for a security guard whose employment had been terminated because he
allowed two unauthorized people to enter the Hanford Site. The DOE had
previously determined that the search was adequate and that any
information Richland may have had would have been destroyed pursuant to
the Records Inventory and Disposition Schedule. However, in light of
the additional information, Westinghouse Hanford Company voluntarily
conducted an additional search and was able to uncover information
responsive to the request. Therefore, the Motion was granted and the
matter remanded to Richland for a determination whether or not to
release the information to Vader.
Request for Exception
Paulson Oil Company, 3/18/94, LEE-0060
Paulson Oil Company filed an Application for Exception from the
Energy Information Administration (EIA) requirement that it file Form
EIA-782B, the ``Resellers'/Retailers' Monthly Petroleum Product Sales
Report.'' In considering this request, the DOE found that the firm was
not suffering gross inequity or serious hardship. On January 7, 1994,
the DOE issued a Proposed Decision and Order determining that the
exception request should be denied. No Notice of Objections to the
Proposed Decision and Order was filed at the Office of Hearings and
Appeals of the DOE within the prescribed time period. Therefore, the
DOE issued the Proposed Decision and Order in final form, denying
Paulson's Application for Exception.
Whistleblower Proceedings
David Ramirez, 3/17/94, LWA-0002
David Ramirez (Ramirez), an employee of a DOE subcontractor, filed
a request for hearing under the DOE's Contractor Employee Protection
Program, 10 CFR part 708. Ramirez claimed that he was laid off from his
job by a DOE contractor, Brookhaven National Laboratories/Associated
Universities, Inc. (BNL), in reprisal for his having raised safety
issues with his BNL supervisor. A hearing was held in which witnesses
for Ramirez and BNL testified before an Office of Hearings and Appeals
Hearing Officer. On the basis of the testimony and other evidence in
the record, the Hearing Officer concluded that Ramirez 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 of BNL to lay him off. In his Decision, the Hearing
Officer further concluded that BNL failed to prove by clear and
convincing evidence that it would have taken this action were it not
for Ramirez' safety-related disclosures. The Hearing Officer therefore
determined that BNL's action violated the whistleblower regulations in
10 CFR part 708. Ramirez was awarded back pay, attorney's fees and
costs, the amount of which will be determined in a supplemental
decision. BNL has the right to appeal the Hearing Officer's Decision to
the Secretary of Energy or her designee.
Universities Research Association, Inc., 3/17/94, LWA-0003
The DOE issued an Initial Agency Decision finding that Universities
Research Association, Inc. (URA) had violated provisions of the
Department's Contractor Employee Protection Program, 10 CFR part 708,
in dismissing Dr. Naresh Mehta. The DOE found that Dr. Mehta had made
protected disclosures concerning alleged mismanagement of the hypercube
computer at the Superconducting Super Collider Laboratory, which is
operated by URA. The DOE further found that URA had dismissed Dr. Mehta
in reprisal for his disclosures. Accordingly, the DOE ordered that URA
reinstate Dr. Mehta to his former position, and provide him with
appropriate restitution including back pay and costs and expenses
incurred by him in the proceeding.
Refund Applications
Sears Roebuck & Company, 3/16/94, RF272-90794
An Application for Refund was filed by Sears Roebuck and Company in
the Crude Oil Refund Proceeding. However, Sears had previously filed a
claim from the Retailers Escrow in the Department of Energy Stripper
Well Exemption Litigation, No. MDL-378 (D. Kan.) and that claim was
granted in October 1987. Since Sears signed a waiver in the Stripper
Well proceeding, it is ineligible to receive a second crude oil refund
from the Office of Hearings and Appeals. Accordingly, Sears'
Application was denied.
St. Benedict's Hearth Corp., RC272-232, Dan Branch Mining Co., Inc., 3/
18/94, RC272-233
The Department of Energy (DOE) issued a Decision and Order
rescinding refunds that were granted to St. Benedict's Hearth Corp.
(St. Benedict's) and Dan Branch Mining Co., Inc. and its owner, Harold
Asbury, in the crude oil refund proceeding. The refund was rescinded
after the refund check was returned by the U.S. Postal Service because
it could not be delivered to the firm at the address provided in its
application, and the OHA was unable to locate this applicant.
Wheaton Industries, Inc., 3/18/94, RF272-18882, RD272-18882
The DOE issued a Decision and Order granting an Application for
Refund filed by Wheaton Industries, Inc. in the crude oil refund
proceeding. In considering the Application, the DOE determined that the
company could estimate petroleum purchased using current total kilowatt
hour use. The DOE determined that evidence which had been offered by
the States was insufficient to rebut the presumption of end-user
injury. The DOE also denied the States' Motion for Discovery. The
refund granted was $39,373.
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/Jackson's RF304-13699 03/18/94
Service et al.
Atlantic Richfield Company/Jess Taylor RF304-14130 03/18/94
Management, Inc. et al.
Central Virginia Electric Coop et al..... RF272-90655 03/15/94
City of Baraboo et al.................... RF272-85456 03/16/94
Clark Oil & Refining Corp./Paul's Clark RF342-324 03/14/94
Service.
Eau Claire Transit....................... RC272-228 03/18/94
Elkhorn Valley Cooperative et al......... RF272-90109 03/14/94
Enron Corp./Black Thunder Marketings, Inc RF340-73 03/18/94
Marathon Butane Company.................. RF340-129 ...........
Anco Manufacturing & Supply Co........... RF340-153 ...........
Greenville R II et al.................... RF272-80263 03/16/94
Nostrand Gardens Co-Op et al............. RF272-82008 03/16/94
Sysco Food Systems....................... RC272-217 03/15/94
Texaco Inc./Coan, Inc. et al............. RF321-5747 03/14/94
Texaco Inc./Fred H. Slate Company........ RF321-20952 03/14/94
Texaco Inc./Suttle Texaco................ RF321-10888 03/14/94
Tri-County Co-Op Oil Association et al... RF272-88713 03/16/94
Dismissals
The following submissions were dismissed:
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Name Case no.
------------------------------------------------------------------------
Bill's Beacon Service................................. RF238-132
Borough of Fort Lee................................... RF272-88592
BTL Specialty Resins.................................. RD272-58631
Charles Texaco........................................ RF321-17984
City of Cherryvale.................................... RF272-88544
City of Chowchilla.................................... RF272-88588
City of Galt.......................................... RF272-88595
City of Macedonia..................................... RF272-88507
City of Reedley....................................... RF272-88564
City of Shinnston..................................... RF272-88578
City of Soledad....................................... RF272-88573
Cobre School District................................. RF272-87238
Davis Gas Company, Inc................................ RF304-13583
Elfrida Texaco........................................ RF321-19257
Farrell Area School District.......................... RF272-87526
French's Texaco....................................... RF321-19399
Jose Lobo Texaco...................................... RF321-18462
Les' Beacon........................................... RF238-147
Meridian Public Schools............................... RF272-88525
Morgan County School District......................... RF272-87103
Orange Unified School District........................ RF272-88510
Polar Transport....................................... RF272-91383
Ray White's Texaco #1................................. RF321-16675
Ray White's Texaco #2................................. RF321-16676
Rinks Oil Company..................................... RF304-14339
Rio Bravo-Greeley Union Elementary.................... RF272-88532
Roosevelt Park........................................ RF272-88547
Salisbury R-IV School District........................ RF272-88535
San Jose C U School District 122...................... RF272-88536
Santa Cruz City Elementary............................ RF272-87435
Simmons Meadowbrook Gulf, Inc. RF300-19646
Sun Company........................................... RF304-15235
Tinley Park C.C.S.D. #146............................. RF272-87361
Town of Strasburg..................................... RF272-88567
Village of Mackinaw City.............................. RF272-88506
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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: April 18, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-9818 Filed 4-21-94; 8:45 am]
BILLING CODE 6450-01-P