[Federal Register Volume 59, Number 192 (Wednesday, October 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24585]


[[Page Unknown]]

[Federal Register: October 5, 1994]


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DEPARTMENT OF ENERGY
 

 Issuance of Decisions and Orders the Week of July 25 through 
July 29, 1994

Office of Hearings and Appeals
    During the week of July 25 through July 29, 1994, 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

Betty M. Daley, 7/28/94, LFA-0396

    Mrs. Betty M. Daley filed an Appeal of the adequacy of a search for 
the medical records of her husband (a deceased former Oak Ridge 
employee) under a Request for Information which she had submitted under 
the Freedom of Information Act. The late Mr. Daley had been employed at 
Oak Ridge National Laboratory from March 1944 until his retirement in 
September 1985. In considering the Appeal, the DOE found that the Oak 
Ridge Field Office had performed a search reasonably calculated to 
recover responsive materials because records were found from the period 
June 1947 through September 1985, even though no responsive materials 
were found from his initial employment in March 1944 through May 1947.

Beulah B. Carney, 7/29/94, LFA-0401

    Mrs. Beulah B. Carney appealed the adequacy of the search conducted 
by the DOE Oak Ridge Facility for her late husband's personnel records. 
The Authorizing Official subsequently discovered documents proving that 
these personnel records were destroyed as part of routine document 
destruction. The OHA ordered that the documents pertaining to the 
destruction of the records be released to the requester and in all 
other respects denied the request.

Government Accountability Project, 7/29/94, LFA-0398

    The Government Accountability Project (GAP) filed an Appeal from a 
partial denial by the Oak Ridge Operations Office (Oak Ridge) of a 
Request for Information which it had submitted under the Freedom of 
Information Act (FOIA). GAP had requested billing statements submitted 
by outside counsel to DOE contractors. In considering the Appeal, the 
DOE found that while some of the information that had initially been 
withheld under FOIA Exemption 4 should have been released to the 
public, some of the information requested by the Appellant was properly 
withheld under Exemption 4 since it was both privileged and 
confidential. Accordingly, the Appeal was remanded to Oak Ridge for 
further processing.

Marilyn Cribb Stanley, 7/28/94, LFA-0399

    Marilyn Cribb Stanley filed an Appeal from a determination issued 
to her on June 20, 1994, by the Oak Ridge Operations Office (Oak Ridge) 
which denied a request for information which she had submitted under 
the Freedom of Information Act. The request sought records relating to 
the late Mary Avery Cribb, wife of a contractor employee at Oak Ridge 
Laboratory during the 1940s. Oak Ridge stated that it did not possess 
any responsive documents, and the Appeal challenged the adequacy of the 
search. In considering the Appeal, the DOE found that Oak Ridge 
followed procedures which were reasonably calculated to uncover the 
material sought. Accordingly, the Appeal was denied.

Robert Heitmann, 7/29/94, LFA-0397

    Robert Heitmann filed an Appeal from a determination issued to him 
on June 14, 1994, by the Albuquerque Operations Office (AL) which 
denied a request for information which he had submitted under the 
Freedom of Information Act. The request sought records relating to an 
alleged incident at the Travis School involving an airplane crash and 
atomic weaponry. AL stated that it did not possess any responsive 
documents, and the Appeal challenged the adequacy of the search. In 
considering the Appeal, the DOE found that AL followed procedures which 
were reasonably calculated to uncover the material sought. Accordingly, 
the Appeal was denied.

Texas Instruments, Inc., , 7/28/94, LFA-0395

    Texas Instruments, Inc. (TI) filed an Appeal from a determination 
issued by the Oak Ridge Operations Office (Oak Ridge) in response to 
TI's request under the Freedom of Information Act. In the Appeal, TI 
claimed that the search by Oak Ridge was inadequate. TI cited in 
support of its argument an incident in which a TI employee allegedly 
saw a stack of responsive documents that were not released.
    In denying the Appeal, the DOE found that the incident did not 
provide a basis for believing that responsive documents had been 
withheld. The DOE also found that Oak Ridge had adequately searched for 
documents.

Whistle Blower Proceeding

Francis M. O'Laughlin, 7/29/94, LWA-0005

    Francis M. O'Laughlin (O'Laughlin) filed a complaint under the 
DOE's Contractor Employee Protection Program, 10 C.F.R. Part 708, 
contending that reprisals were taken against him after he raised 
concerns relating to health and safety with Boeing Petroleum Services, 
Inc. (BPS), a DOE contractor. The alleged reprisals included wrongfully 
denying O'Laughlin a management position to which he ostensibly was 
entitled, and later taking adverse personnel action against O'Laughlin 
which included a demotion and corresponding salary reduction. Pursuant 
to O'Laughlin's request under 10 CFR 708.9(a), a hearing in this matter 
was conducted by an Office of Hearings and Appeals Hearing Officer on 
May 18 and 19, 1994, in New Orleans, Louisiana. In considering the 
transcript of testimony taken at the hearing and the pleadings filed on 
behalf of O'Laughlin and BPS, the Hearing Officer determined that 
O'Laughlin had failed to establish that he actually disclosed 
information to BPS which evidenced his good faith belief that there was 
a substantial and specific danger to health or safety. 10 CFR 
708.5(a)(1). Accordingly, in the DOE's Initial Agency Decision, 
O'Laughlin's request for relief under Part 708 was denied.

Request for Exception

R&R Oil, Inc., 7/27/94, LEE-0079

    R&R Oil, Inc. 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. Accordingly, 
exception relief was denied.

Implementation of Special Refund Procedures

Telum, Inc., 7/25/94, LEF-0114

    The DOE issued a Decision and Order setting forth refund procedures 
to distribute $56,149.35 plus interest, received as a result of a 
Consent Order between Telum, Inc. and the DOE. The Decision sets forth 
refund application procedures for the customer who purchased middle 
distillates from Telum, Inc. during the period from December 1, 1973 
through April 30, 1974. Specific information regarding the data to be 
included in the refund application is discussed in the Decision.

Refund applications

Barrick Enterprises, Inc., 7/28/94, RF272-92432

    The DOE issued a Decision and Order concerning the Application for 
Refund of a claimant in the Subpart V crude oil overcharge refund 
proceeding. The DOE determined that the applicant resold the refined 
petroleum products that formed the basis of its application and thus 
passed on the costs of any crude oil overcharges to its customers. 
Therefore, the DOE concluded that the claimant was not injured by any 
of the overcharges associated with the gallons that it purchased. 
Accordingly, the Application for Refund was denied.
Burt County Cooperative Company, et al., 7/28/94, RF272-91445 et al.

    The DOE issued a Decision and Order denying seven Applications for 
Refund filed by the National Bank for Cooperatives (CoBank) in the 
crude oil refund proceeding on behalf of seven local agricultural 
cooperatives no longer in operation. CoBank claimed a right to apply on 
behalf of these cooperatives based on security agreements entered into 
with each of them. These security agreements listed specific assets, 
accounts receivable, equipment and leaseholds as collateral with 
CoBank. However, none of these security agreements listed oil 
overcharge refunds as one of the secured items. The security agreements 
did list deferred patronage refunds from Farmland Industries, a 
regional cooperative, as a secured item, but the Decision determined 
that deferred patronage refunds from a regional cooperative are not oil 
overcharge refunds for which local cooperatives are eligible on behalf 
of their member/owners.

Texaco Inc./Donley's Texaco Service Station, 7/28/94, RF321-16838, 
RF321-21012, RF321-21013

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted by Donley's Service Station (Donley's), an indirect 
purchaser of Texaco motor gasoline. Donley's requested that the refund 
be paid to the firm, which is a partnership currently owned by four 
partners. However, in accordance with prior Decisions, the DOE 
determined that the partners during the refund period were eligible for 
the Donley's refund in proportion to their ownership interest, except 
for those partners who had transferred their right to a refund. One of 
the Donley's partners both currently and during the refund period owns 
75% of the shares of the corporation that supplied gasoline to 
Donley's. The DOE decided not to treat the two firms as a single firm 
for purposes of determining the applicable presumption of injury 
available to Donley's. However, since the supplier had received a 
refund for its direct purchases of Texaco gasoline, the Donley's refund 
for the common owner was reduced by 75% so that he would not receive 
two refunds for the same gallons. The total of the refunds granted to 
the three Donley's partners who had joined in the outlet's refund claim 
was $7,285 ($5,192 principal plus $2,093 interest).

Texaco Inc./Lehigh Service & Supply, 7/29/94, RF321-19561, RF321-19562, 
RF321-19563, RF321-19564

    The DOE issued a Decision and Order concerning four Applications 
for Refund filed in the Texaco Inc. special refund proceeding by four 
partners on behalf of Lehigh Service & Supply, a reseller located in 
Hazleton, Pennsylvania. Two of these partners had previously received a 
refund for purchase made by Lehigh Gas & Oil, the firm that supplied 
Lehigh Service & Supply with Texaco product. The DOE determined that 
these two partners were ineligible for a refund for purchases made by 
Lehigh Service & Supply because they had already received a refund for 
these gallons, and accordingly, these two Applications for Refund were 
denied. The other two applicants received refunds in proportion to 
their ownership interest in Lehigh Service & Supply. The total amount 
of refunds granted in this Decision was $2,366 ($1,686 principal plus 
$680 interest).

Texaco Inc./Ryder Energy Distribution, 7/29/94,RF321-14683

     The DOE issued a Decision and Order concerning an Application for 
Refund filed in the Texaco Inc. special refund proceeding on behalf of 
Ryder Energy Distribution (Ryder). Ryder is the fuel purchasing and 
distribution subsidiary of Ryder Systems, a nationwide truck leasing 
company. In its application, Ryder requested a refund based on the end-
user presumption of injury for its Texaco purchases which were consumed 
by its own fleet of trucks. It also claimed a refund under the medium-
range presumption of injury based on the purchases it made from Texaco 
which it later resold to its leasing customers. The DOE determined 
that, in accordance with Gulf Oil Corp./Ryder Energy Distribution, 21 
DOE 85,345 (1991), Ryder must be considered a retailer, since as a 
vehicle rental firm, it was involved in the retail sale of petroleum 
products. Furthermore, the DOE determined that it would be inconsistent 
with the adoption of a $50,000 maximum refund under the medium-range 
presumption of injury for Ryder to receive in excess of that amount 
without having to prove injury. Accordingly, Ryder was awarded $50,000, 
plus interest, under the medium-range presumption of injury.

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.

Argyle Ranch, Inc.........................................................  RF272-48097                 07/29/94
Atlantic Richfield Company:                                                                                     
    Nycrest Corporation...................................................  RF304-13463                 07/27/94
    Newman Oil Co., Inc...................................................  RF304-13464           ..............
    Minuteman Fuels, Inc..................................................  RF304-13465           ..............
Atlantic Richfield Company:                                                                                     
    Ray's Arco et al......................................................  RF304-14625                 07/27/94
Atlantic Richfield Company:                                                                                     
    Town and Country Gas, Inc et al.......................................  RF304-14225                 07/29/94
Atlantic Richfield Company:                                                                                     
    W.L. Mazzia...........................................................  RF304-13999                 07/25/94
    Berrien County Farm Bureau Oil Co. et al..............................  RF272-91282                 07/25/94
Clark Oil and Refining Corp.:                                                                                   
    Midwest Petroleum Company.............................................  RF342-173                   07/29/94
    Earle's Clark Super 100...............................................  RF342-304             ..............
    Cobitco, Inc..........................................................  RF272-94577                 07/26/94
    Forward Corp. et al...................................................  RF272-77612                 07/29/94
    Golden State Foods....................................................  RF272-94818                 07/26/94
Gulf Oil Corporation:                                                                                           
    Sylvester's Crill and Palm Ave........................................  RF300-15573                 07/27/94
    Crill and Palm Gulf...................................................  RF300-21787           ..............
Metropolitan Petroleum and Fuel:                                                                                
    Jorge R. Ruiz.........................................................  RF349-8                     07/29/94
    Oasis Truck Stop......................................................  RF349-10              ..............
    Alfaro 66.............................................................  RF349-11              ..............
    Penske Truck Leasing Co., L.P.........................................  RF272-92418                 07/26/94
    Rock County Buick Company.............................................  RF272-90801                 07/26/94
Shell Oil Company:                                                                                              
    Kennel's Service Station..............................................  RR315-8                     07/29/94
Texaco's, Inc.:                                                                                                 
    B and H Texaco et al..................................................  RF321-7698                  07/27/94
Texaco, Inc.:                                                                                                   
    Cloninger Texaco Service..............................................  RF321-9036                  07/27/94
Texaco, Inc.:                                                                                                   
    D.A. Kessler Construction Co. et al...................................  RF321-7400                  07/29/94
Texaco, Inc.:                                                                                                   
    J&M Self-Serv Unit 1..................................................  RF321-14095                 07/27/94
    J&M Self-Serv Unit 2..................................................  RF321-14096           ..............
    J&M Self-Serv Unit 3..................................................  RF321-14097           ..............
    J&M Self-Serv Unit 4..................................................  RF321-14098           ..............
Texaco, Inc.:                                                                                                   
    Mobil Oil Corporation.................................................  RF321-17122                 07/29/94
Texaco, Inc.:                                                                                                   
    Roy's Food Market et al...............................................  RF321-459                   07/29/94
Texaco's, Inc.:                                                                                                 
    Smith Texaco et al....................................................  RF321-508                   07/26/94
Texaco, Inc.:                                                                                                   
    Stan's Texaco et al...................................................  RF321-18307                 07/27/94
Township of Florence et al................................................  RF272-94816                 07/26/94
W.H. Kneas Lumber Company.................................................  RF272-82421                 07/26/94
Walsh Moving Service et al................................................  RF272-94814                 07/29/94
                                                                                                                

Dismissals

    The following submissions were dismissed:

------------------------------------------------------------------------
                         Name                               Case No.    
------------------------------------------------------------------------
Avacado Texaco........................................  RF321-7179      
Carroll County........................................  RF272-85932     
Crain Texaco..........................................  RF321-8231      
Esch & Associates.....................................  RF300-19297     
Fitzpatrick Oil Co....................................  RR315-9         
Glen Petroleum Corporation............................  RF336-43        
Joe Rainer's Texaco...................................  RF321-11350     
Joe's Texaco..........................................  RF321-7161      
John Papadopoulos.....................................  RF321-7383      
Leyden Texaco Service.................................  RF321-9278      
M S D Decatur Township................................  RF272-96470     
Miller's Texaco.......................................  RF321-13624     
Missouri Pacific Railroad.............................  RF321-12844     
Missouri Pacific Railroad.............................  RF321-12843     
North Main Texaco.....................................  RF321-7378      
Parry Tire Co.........................................  RF321-19968     
Parry Tire Co.........................................  RF321-19969     
Penske Truck Leasing Co., L.P.........................  RF321-19913     
Post Office Texaco....................................  RF321-7379      
R & W Gas Co., Inc....................................  RF321-1751      
Ram Tire Co., Inc.....................................  RF321-6388      
Randy Pate............................................  RF321-9369      
Rinker Materials Corp.................................  RF321-20102     
Riverton Corporation..................................  RF272-93342     
Ron's North Texaco....................................  RF321-13622     
Roscoe's Texaco.......................................  RF321-12539     
Smith International, Inc..............................  RF272-93004     
Thom Zinson & McWhite.................................  RF300-16773     
Troiano Fuel Oil Co., Inc.............................  RF321-19950     
Trombly Motor Coach Service...........................  RF272-94731     
Union County..........................................  RF272-85389     
Village of Union......................................  RF272-85917     
Woods' Seacrest Texaco................................  RF321-12136     
------------------------------------------------------------------------

    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: September 27, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-24585 Filed 10-4-94; 8:45 am]
BILLING CODE 6450-01-P