[Federal Register Volume 59, Number 209 (Monday, October 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26920]


[[Page Unknown]]

[Federal Register: October 31, 1994]


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DEPARTMENT OF ENERGY
Office of Hearings and Appeals

 

Notice of Issuance of Decisions and Orders; Week of August 22 
Through August 26, 1994

    During the week of August 22 through August 26, 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

Brian P. Conlon, 8/25/94, LFA-0400

    Brian P. Conlon filed an Appeal from a determination issued by the 
Idaho Operations Office (Idaho) of the Department of Energy (DOE) in 
response to a request from Mr. Conlon under the Privacy Act (Privacy 
Act). Mr. Conlon sought copies of investigative material contained in 
the Personnel Security Clearance System of Records. In considering the 
Appeal, the Office of Hearings and Appeals found that the Privacy Act 
Officer properly withheld the information contained in a ``system of 
records,'' the release of any part of which would reveal the identity 
of a confidential source. Accordingly, the Appeal was denied.

Dr. Robert Sanchez, 8/26/94, LFA-0407

    Dr. Robert Sanchez filed an Appeal from a determination issued to 
him by the Albuquerque Operations Office (AOO) of the Department of 
Energy (DOE). The determination partially denied a Request for 
Information which Dr. Sanchez submitted under the Freedom of 
Information Act. Dr. Sanchez requested various documents relating to 
Solicitation for Offers No. TU-0050 (SFO) and an amendment to that 
solicitation. In its determination letter, the AOO provided Dr. Sanchez 
various documents responsive to his Freedom of Information Act request. 
However, Dr. Sanchez, in his Appeal, argued that additional responsive 
documents must exist because of various requirements listed in the SFO. 
In considering the Appeal, the DOE found that an adequate search had 
been conducted in response to Dr. Sanchez's request. Accordingly, Dr. 
Sanchez's Appeal was denied.

National Security News Service, 8/22/92, LFA-0402

    The National Security News Service (NSNS) filed an Appeal from a 
determination issued by the Deputy Assistant Secretary for Military 
Application and Stockpile Support, Defense Programs (DP), in response 
to a request for information under the Freedom of Information Act 
(FOIA). NSNS sought documents relating to ``Exercise Midnight Trail,'' 
a 1991 military training exercise sponsored by the Department of 
Defense (DOD). In considering the Appeal, the DOE found that: (1) DP 
properly invoked Exemption 6 in withholding the names of individuals 
and identifying information from documents released to NSNS because the 
privacy interests of the individuals outweighed the minimal 
contribution of disclosure to the public understanding of government 
operations and activities; (2) DP did not provide a sufficient basis 
for its application of Exemption 6 to the other information withheld 
from the appellant; and (3) DP's search for responsive documents should 
have included the DOE's Albuquerque Operations Office (DOE/AL). In 
addition, DP agreed to forward the appellant's request to seven other 
offices at DOE Headquarters. The matter was therefore remanded to DP 
for a new determination releasing the information not protected by 
Exemption 6 or providing additional justification for its withholding, 
and providing to NSNS responsive documents located at DOE/AL and the 
other DOE Headquarters offices. In all other respects, the Appeal was 
denied.

William H. Payne, 8/22/94,  LFA-0405

    William H. Payne (Payne) filed an Appeal from two determinations 
issued to him on July 26, 1994, by the Deputy Director, Office of 
Intergovernmental and External Affairs (Authorizing Official). In those 
determinations, the Authorizing official denied requests for 
information submitted by Payne under the Freedom of Information Act 
(FOIA). In the first determination, the Authorizing Official denied 
Payne's request for documents. In the second determination, the 
Authorizing Official denied a request for a waiver of fees in 
connection with another series of FOIA requests that Payne filed. In 
his Appeal, Payne challenged the adequacy of search conducted by the 
Office of Intergovernmental and External Affairs. He also asked that 
the Office of Hearings and Appeals reverse the second determination, 
and grant him a fee waiver. In considering the Appeal, the DOE found 
that Payne's request for documents was subjected to a search sufficient 
to meet the established standard of reasonableness. The DOE also found 
that Payne did not demonstrate that he was entitled to a fee waiver 
since he did not show that disclosure of the requested information was 
in the public interest. Accordingly, Payne's Appeal was denied.

Requests for Exception

Farmco, Inc., 8/23/94, LEE-0125

    Farmco, Inc., (Farmco) filed an Application for Exception from the 
provisions of the Energy Information Administration (EIA) reporting 
requirements in which the firm sought temporary relief from filing Form 
EIA-782B, entitled ``Resellers'/Retailers' Monthly Petroleum Product 
Sales Report.'' The DOE determined that a limited form of exception 
relief--to extend until September Farmco's filing deadline for the 
Forms for the months of May and June--would be appropriate. However, 
Farmco had filed the forms before a Decision had been issued. 
Accordingly, the Application for Exception was consequently dismissed.

Kadane Corporation, 8/24/94, LEE-0103

    Kadane Corporation filed an Application for Exception from the 
requirement that it file Form EIA-23, the ``Annual Survey of Domestic 
Oil and Gas Reserves.'' Kadane Corporation claimed that it lacked the 
necessary technical personnel to provide the information requested in 
Form EIA-23 and that it no longer obtains that information for its own 
purposes. In considering the request, the DOE found that there were no 
technical personnel required to complete the form other than those 
already employed by Kadane. The DOE also concluded that the firm was 
not suffering a serious hardship and was not adversely affected by the 
reporting requirement in a way that was significantly different from 
the burden borne by similar reporting firms. Therefore, the DOE denied 
Kadane Corporation's Application for Exception.

Remedial Order

Economic Regulatory Administration, 8/23/94, LCX-0012


    The DOE issued a Decision and Order modifying a 1987 Remedial Order 
issued to Storey Oil Company, Inc. See Storey Oil Co., Inc., 16 DOE 
83,007 (1987) (1987 RO). The 1987 RO had been remanded by the Federal 
Energy Regulatory Commission (FERC) for a recalculation of the retail 
overcharges based on new evidence introduced in the FERC proceeding. 
See Storey Oil Co., Inc., 65 FERC 61,216 (1993). In response to the 
remand, the DOE's Economic Regulatory Administration submitted a 
recalculation of the retail overcharges for inclusion in a modified 
Remedial Order. In considering the ERA's recalculation, the DOE 
rejected Storey's various arguments in opposition to the issuance of a 
revised remedial order, including Storey's argument that the 
recalculation was inconsistent with the reseller-retailer price rule, l 
10 CFR 212.93. Accordingly, the DOE modified the 1987 RO to reduce the 
retail overcharges from $61,071.48 to $47,549.90.

Refund Applications

Enron Corporation/Aristech Chemical Corporation, 8/24/94, RF340-152

    Aristech Chemical Corporation (Aristech) submitted an application 
for refund in the Enron Corporation refund proceeding. The DOE 
determined that Aristech had acquired the assets, including the right 
to refund, of USS Chemicals. The DOE found that USS Chemicals used 
Enron propane as a feedstock to produce certain olefins, primarily 
ethylene, and therefore that Aristech was entitled to a refund for USS 
Chemical's purchases from Enron under the presumption of injury for 
end-users of Enron products. The total refund granted to Aristech, 
including interest, is $820,193.

Enron Louisiana Energy Co., 8/26/94, RF272-92434

    The DOE issued a Decision and Order concerning the Application for 
Refund of Enron Louisiana Energy Co. in the Subpart V crude oil 
overcharge refund proceeding. The Application for Refund was based on 
purchases of petroleum products the applicant used in the processing of 
natural gas liquid products (NGLPs). Enron failed to prove it was 
injured by crude oil overcharges because it made no demonstration that 
it was unable to pass on those overcharges to its customers in its 
sales of NGLPs. Accordingly, the Application for Refund was denied.

Texaco, Inc./J&J Oil Co., Inc., 8/22/94, RF321-7211

    The DOE issued a Decision and Order concerning an Application for 
Refund filed by J&J Oil Co., Inc. (J&J), a petroleum products reseller, 
in the Texaco, Inc. special refund proceeding. J&J requested a refund 
above the volumetric presumption level of $0.0011 per gallon on the 
grounds that it had been disproportionately overcharged by Texaco 
during the refund period. In considering the firm's claim, the DOE 
found that J&J was likely overcharged by Texaco in the amount of 
$0.02778 per gallon of propane purchased during the period September 1, 
1973 through December 31, 1978. This determination was based upon the 
findings in a Remedial Order issued to Texaco. Although the total 
amount of the likely overcharges was $193,277, the DOE found that the 
firm's maximum potential refund was $21,440 since its banks of 
increased costs indicated that it had passed through the remainder of 
the overcharges. The firm also established through the competitive 
disadvantage methodology that it was injured by Texaco's likely 
overcharges. The DOE also determined that the interest that accrued on 
the likely overcharges prior to the effective date of the Texaco 
Consent Order should be considered in determining J&J's refund. After 
prorating the firm's maximum potential refund plus pre-settlement 
interest by the ratio which the Texaco consent order amount bears to 
the aggregate overcharge amount alleged by the DOE in all enforcement 
proceedings settled by the Texaco Consent Order, the DOE found that J&J 
is entitled to a refund of $67,895 (including a pro rata share of the 
interest that has accrued since the Texaco settlement funds were 
deposited with the DOE).


J.E. Dewitt, Inc., 8/23/94, RF321-17022

    The DOE issued a Decision and Order concerning an Application for 
Refund filed in the Texaco Inc. special refund proceeding on behalf of 
J.E. Dewitt, Inc. (Dewitt), a reseller of Texaco products. Dewitt 
sought a refund equal to 60 percent of its full allocable share based 
on its purchases of Texaco motor gasoline. In support of its claim of 
injury above the medium-range presumption level, the firm submitted 
reconstructed cumulative banked gasoline costs. However, rather than 
demonstrating inquiry by the competitive disadvantage methodology, as 
would typically be the case, the firm attempted to show that it failed 
to achieve a historic profit margin based on its average margin in 
1971. The DOE determined that Dewitt's inability to sell gasoline at 
its 1971 margin during a portion of the refund period may have resulted 
from a variety of factors unrelated to Texaco's alleged overcharges. 
Thus, Dewitt's profit margin data did not constitute a conclusive 
showing of injury. However, because the evidence did not show that the 
firm was not injured, Dewitt was granted a refund based on 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. 

Anheuser-Busch, Inc..........................................................  RF272-92419              08/22/94
City of Espanola.............................................................  RR272-115                08/24/94
Coleman Company Heating & Air-Conditioning...................................  RF272-67180              08/24/94
Coleman Company Material Services............................................  RF272-67181                      
Gulf Oil Corporation/Crescent Refining & Oil Co..............................  RF300-13473              08/22/94
Gulf Oil Corporation/Decatur County Board of Commissioners et al.............  RF300-21332              08/24/94
Gulf Oil Corporation/Lyday's Gulf Service....................................  RF300-16069              08/22/94
Gulf Oil Corporation/Waterman & Sons, Inc....................................  RF300-20146              08/24/94
Gulf Oil Corporation/Wilcox & Holt Corporation...............................  RF300-16108              08/23/94
Olathe Potato Growers Co-op et al............................................  RF272-94810              08/26/94
Sause Bros. Ocean Towing Co., Inc............................................  RF272-90161              08/26/94
Southside Farm Supply........................................................  RC272-251                08/25/94
Testers Inc. et al...........................................................  RF272-93614              08/25/94
Texaco Inc./Elf Asphalt, Inc.................................................  RF321-19942              08/26/94
Bituminous Materials, Inc....................................................  RF321-21017                      
Riffe Petroleum Co...........................................................  RF321-21018                      
Thorn EMI Malco, Inc. et al..................................................  RF272-92407              08/26/94
                                                                                                                

Dismissals

    The following submissions were dismissed: 

------------------------------------------------------------------------
                        Name                               Case No.     
------------------------------------------------------------------------
A.W. Logan, Inc.....................................  RF272-69297       
Alvin Hollis & Co., Inc.............................  RF321-20055       
Clarke County Board of Commissioners................  RF272-97037       
Dawn Fuel, Inc......................................  RF300-20879       
Ermis Texaco........................................  RF321-16338       
Leo's Texaco........................................  RF321-19342       
Liebermans Service Center, Inc......................  RF321-19603       
Lottie Gulf.........................................  RF300-20831       
Louisiana-Pacific Corp..............................  RF321-20039       
Pro Fuels, Inc......................................  LEE-0124          
Seibertis Service Stations..........................  LEE-0140          
Town of Leicester Highway Department................  RF272-97043       
Unified School District 307.........................  RF272-97022       
Wilson of Wallingford, Inc..........................  RF321-20050       
------------------------------------------------------------------------

    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, D.C. 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: October 25, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-26920 Filed 10-28-94; 8:45 am]
BILLING CODE 6450-01-P