[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Notices]
[Pages 47565-47567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22761]



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DEPARTMENT OF ENERGY
Office of Hearings and Appeals


Notice of Issuance of Decisions and Orders During the Week of May 
29 Through June 2, 1995

    During the week of May 29 through June 2, 1995 the decisions and 
orders summarized below were issued with respect to applications for 
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

Elizabeth H. Donnelly, 6/2/95, VFA-0039

    Elizabeth H. Donnelly filed an Appeal from a determination issued 
to her on April 3, 1995 by the Department of Energy's Nevada Operations 
Office. In that determination, the Nevada Operations Office denied Ms. 
Donnelly's request for information filed pursuant to the Freedom of 
Information Act (FOIA). Specifically, the Nevada Operations Office 
denied Ms. Donnelly's request for information related to a ``hostile 
work environment study'' pursuant to FOIA Exemption 5. In considering 
the Appeal, the DOE found that the determination to withhold the 
requested information pursuant to Exception 5 was consistent with the 
FOIA. Accordingly, the DOE denied Ms. Donnelly's Appeal.

Gayle M. Adams, 6/1/95, VFA-0040

    Gayle M. Adams filed an Appeal from a determination issued to her 
by the Richland Operations Office of a Request for Information which 
she had submitted under the Freedom of Information Act. The Richland 
Operations Office had released responsive documents, but Adams 
challenged the adequacy of the DOE's search. In considering the Appeal, 
the OHA found that the search for responsive documents was adequate.

J. Eileen Price, 6/2/95, VFA-0038

    J. Eileen Price (Price) filed an Appeal from a determination issued 
to her by the Department of Energy's Western Area Power Administration 
(WAPA), that partially denied a Request for Information which Mrs. 
Price submitted under the Freedom of Information Act. Price requested 
copies of all appaisal information in her personnel file and all 
unofficial information pertaining to her employment in WAPA's Loveland 
Area Office beginning in October 1992. In its determination letter, the 
WAPA stated that it had found two documents responsive to Price's 
request, a grievance investigation document (Grievance Document) and a 
chronology of events related to her grievance (Chronology). 
Additionally, WAPA stated that it had found various pages from the day 
planners (Day Planner Notes) of two of her supervisors which were 
potentially responsive to her request. WAPA provided Price with a copy 
of the Chronology but withheld the Grievance Documents claiming that 
the Grievance Document was predecisional and deliberative and thus 
exempt from disclosure under Exemption 5 of the FOIA. Additionally, 
WAPA determined that Day Planner Notes were not agency records for the 
purposes of the FOIA and thus not subject to disclosure. Price argued 
that WAPA improperly withheld the Day Planner Notes and the Grievance 
Document. The DOE determined that, while the Grievance Document was 
predecisional and deliberative, a significant portion of the document 
contained segregable factual material which was improperly withheld 
from Price. The DOE further found that WAPA correctly determined that 
the Day Planner Notes were not agency records subject to disclosure 
under the FOIA. Consequently, Price's Appeal was granted in part.

U.S. Solar Roof, 5/30/95, VFA-0037

    U.S. Solar Roof (Solar Roof) filed an Appeal from a determination 
issued to it on April 4, 1995 by the Director of the Photovoltaic 
Technology Division of the Office of Energy Efficiency and Renewable 
Energy (EE) of the Department of Energy. In that determination, EE 
denied in part a request for information submitted by Solar Roof on 
February 27, 1995 under the Freedom of Information Act (FOIA). The EE 
released two specific items but withheld seven items in their entirety 
pursuant to 5 U.S.C. Sec. 552(b)(5) (Exemption 5). In its Appeal, Solar 
Roof challenged EE's April 4, 1995 determination and asserted that EE 
improperly applied Exemption 5 to the withheld information, and 
requested that the OHA direct EE to release it. In considering the 
Appeal, the Office of Hearings and Appeal (OHA) found EE properly 
applied the threshold requirements of Exemption 5 to the withheld 
information. However, the OHA remanded this Appeal to EE to issue a new 
determination, either releasing the withheld information or providing a 
more adequate consideration of the public interest in its disclosure. 
Therefore, the DOE granted in part and denied in part Solar Roof's 
Appeal.

Home Oil Co., Inc., 6/1/95, LEE-0135

    Home Oil Co., Inc., (Home Oil) filed an Application for Exception 
from the requirement to file Form EIA-782B, ``Resellers'/Retailers' 
Monthly Petroleum Product Sales Report.'' If granted, Home Oil would no 
longer be required to file Form EIA-782B. On consideration, the DOE 
denied Home Oil's Application for Exception. In denying the exception 
request, the DOE considered that Home Oil had not shown that filing 
Form EIA-782B constituted an undue hardship, gross inequity, or unfair 
distribution of burdens.

Refund Applications

Atlantic Richfield Co./Seago Enterprises, Inc., 6/1/95, RF304-13736

    The DOE issued a Decision and Order partially granting an 
Application for 

[[Page 47566]]
Refund filed by Seago Enterprises, Inc., in the ARCO special refund 
proceeding. The firm had applied for a refund based upon product 
purchased during 1973 and 1974, part of which was resold to ARCO. 
Seago's 1973 ARCO purchases were subject to a fixed-price contract 
based upon January 1973 prices. Seago's purchases were therefore at 
prices significantly below prevailing market prices, and the DOE found 
that Seago was not injured with respect to these purchases. With 
respect to the product that was resold to ARCO, because the contracts 
guaranteed Seago a fixed profit margin, the firm was also not injured 
with respect to those purchases. Therefore, the DOE determined that 
Seago was entitled to a refund only for its 1974 purchases that were 
not resold to ARCO.

Gulf Oil Corporation/Hinds Gulf, 5/30/95, RR300-253

    The DOE issued a Decision and Order concerning a Motion for 
Reconsideration filed in the Gulf Oil Corporation special refund 
proceeding by Roger C. Hinds, on behalf of Hinds Gulf. In its Motion, 
Hinds requested that the DOE reconsider a May 5, 1993 Decision and 
Order dismissing the refund application of Hinds Gulf on the ground 
that it was filed after the March 1, 1993 deadline for the Gulf 
proceeding. See Gulf Oil Corp./Hind's Gulf, Case No. RF300-21736 (May 
5, 1993) (unpublished decision).
    In considering the Motion, the DOE determined that Hinds had not 
presented any compelling reason that would warrant acceptance of the 
late application. Specifically, the DOE determined that lack of 
knowledge concerning the deadline did not provide a compelling reason 
for acceptance of a late application. Accordingly, the Motion for 
Reconsideration was denied.

Gulf Oil Corporation/Moore's Fuel Service, 5/30/95, RF300-13106, RF300-
19809, RF300-21827

    The DOE issued a Decision and Order resolving competing 
Applications for Refund filed in the Gulf Oil Corporation special 
refund proceeding for Moore's Fuel Service. The DOE granted the claim 
of the owner during the refund period, and denied the claim of the 
current owner, on the ground that the asset sales agreement at issue 
did not include the right to the refund. In addition, the DOE issued a 
Supplemental Order, rescinding an excessive refund that the former 
owner of Moore's Fuel Service had received in an earlier Gulf 
proceeding. As a result, the former owner, as well as his counsel in 
the earlier Gulf proceeding, was required to refund $7,675, an amount 
equal to the excessive refund received in the earlier Gulf proceeding 
minus the refund granted in this Decision and Order.

Gulf Oil Corporation/Red Carpet Car Wash, 6/1/95, RF300-20452

    Petroleum Management, Inc. (PMI) filed an Application for Refund in 
the Gulf Oil Corporation (Gulf) refund proceeding, based on the 
purchases of three Red Carpet Car Wash locations. In considering the 
application, the DOE noted that it had already held, in connection with 
another refund application filed by PMI, that PMI did not have the 
right to a refund for the car washes. See Shell Oil Co./Red Carpet Car 
Wash, Case No. RF315-10003 (January 11, 1994) (unpublished decision). 
Specifically, the DOE noted that the agreement transferring the stock 
of Red Carpet Car Wash, Inc., the owner of the car washes did not 
reserve for PMI the right to any refund due Red Carpet. In addition, 
the DOE determined that PMI was not entitled to a refund for certain 
PMI outlets because PMI had advised the DOE that those outlets did not 
purchase Gulf product. Accordingly, the Application was denied.

R. Cali and Brothers, 6/1/95, RF272-97287

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted in the Subpart V crude oil refund proceeding by R. 
Cali and Brothers. The decision declared June 30, 1995 as the final 
deadline for the crude oil refund proceeding. The DOE also stated that 
it would decide if there are sufficient funds available for additional 
refunds after the resolution of a few outstanding enforcement 
proceedings.

Texaco Inc./Dow Chemical Co., 6/1/95, RR321-096

    The DOE issued a Decision and Order granting a Motion for 
Reconsideration filed on behalf of Dow Chemical Company in the Texaco 
Inc. special refund proceeding. The DOE had previously granted Dow a 
refund based upon its purchases of 1,293,189 gallons of Texaco refined 
products during the period covered by the Texaco consent order. DOE 
agreed to consider a supplemental Dow refund claim based upon Dow's 
additional purchase of 12,978,088 gallons of Texaco propane during the 
same period. Dow became aware of these purchases upon its review of DOE 
enforcement documents which stem from a DOE audit of Texaco's business 
records. In addition, Dow requested an above-volumetric refund for 
these volumes and presettlement interest on the amount by which it was 
overcharged by Texaco. DOE found that Dow satisfied the criteria for an 
above-volumetric refund by demonstrating that it was in all likelihood 
overcharged by a specific amount. Since Dow was an end-user of the 
Texaco propane, the firm did not have to demonstrate that it was 
injured by Texaco's alleged overcharges. DOE also found that Dow's 
claim to prejudgment interest was meritorious on equitable grounds 
noting that the DOE/Texaco consent order settlement amount included 
interest on Texaco's alleged overcharges as a major component. Dow was, 
therefore, granted a refund of $261,782 ($178,120 principal plus 
$83,662 interest).

The Waggoners Trucking Co., 5/30/95, RC272-295

    The DOE issued a Decision and Order concerning an Application for 
Refund submitted in the Subpart V crude oil refund proceeding by The 
Waggoners Trucking Co. (Waggoners). The OHA previously granted a crude 
oil refund to Waggoners. Waggoners, however, was subsequently found to 
have filed a refund claim in the Surface Transporters Stripper Well 
proceeding. In doing so, Waggoners properly executed a waiver and 
release waiving its right and the rights of its affiliates on August 7, 
1986, to receive Subpart V crude oil overcharge refunds. Although 
Waggoners' Stripper Well refund claim was denied, its waiver is 
nevertheless binding on its Subpart V crude oil refund Application. 
Accordingly, this Decision rescinded the original refund granted to 
Waggoners.
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.

                                                                        
                  Name                         Case No.           Date  
                                                                        
Armour Food Company....................  RF272-78056            05/30/95
The Dial Corporation...................  RC272-292                      
Texas, New Mexico & Oklahoma Coaches,    RC272-293                      
 Inc.                                                                   

[[Page 47567]]
                                                                        
Armour & Company.......................  RC272-294                      
Atlantic Richfield Company/Gordon H.     RF304-4951             05/30/95
 Dunker.                                                                
Atlantic Richfield Company/Massillon     RF304-14144            06/01/95
 Supersonic Car Wash et al.                                             
Clarkson Brothers Machinery Haulers....  RF272-97192            05/30/95
Farmers Union Oil Company..............  RF272-92111            06/01/95
Howard County Equity Coop Assn.........  RF272-92392                    
Farmers Coop Oil Assn..................  RF272-92465                    
Gulf Oil Corporation/Energy Supply       RF300-18181            05/30/95
 Propane.                                                               
Gulf Oil Corporation/Henderson Clay      RF300-18185            05/30/95
 Products.                                                              
Gulf Oil Corporation/Point Gasoline      RF300-21828            05/30/95
 Corporation.                                                           
Roofing Wholesale Company, Inc.........  RF272-67965            06/01/95
Roofing Wholesale Company, Inc.........  RD272-67965                    
Texaco Inc./Duval Corporation..........  RF321-7899             05/30/95
Texaco Inc./Gartin's Texaco............  RF321-20154            06/01/95
Texaco Inc./Midway Texaco..............  RF321-10554            05/30/95
Texaco Inc./Studebaker's Texaco et al..  RF321-19313            05/30/95
Tidewater Transit Co. et al............  RF272-85000            06/01/95
Turkey Hill Dairy, Inc. et al..........  RF272-84642            06/01/95
                                                                        



Dismissals

    The following submissions were dismissed:

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                       Name                               Case No.      
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Dolese Concrete Company...........................  RF272-97227         
Ethyl Corporation.................................  RF321-19622         
Gabig Texaco......................................  RF321-7296          
Patterson & Brasher Texaco........................  RF321-20624         
Shaffer's Texaco at Princeton.....................  RF321-9511          
Shankles Texaco...................................  RF321-18087         
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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, S.W., 
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: September 5, 1995.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 95-22761 Filed 9-12-95; 8:45 am]
BILLING CODE 6450-01-P