[Federal Register Volume 61, Number 182 (Wednesday, September 18, 1996)]
[Notices]
[Pages 49132-49133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23889]


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DEPARTMENT OF ENERGY

Notice of Issuance of Decisions and Orders; Week of May 13 
Through May 17, 1996

    During the week of May 13 through May 17, 1996, the decisions and 
orders summarized below were issued with respect to appeals, 
applications, petitions, or other requests 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.
    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. 20585-0107, Monday through Friday, between the hours 
of 1:00 p.m. and 5:00 p.m., except federal holidays. They are also 
available inEnergy Management: Federal Energy Guidelines, a 
commercially published loose leaf reporter system. Some decisions and 
orders are available on the Office of Hearings and Appeals World Wide 
Web site at http://www.oha.doe.gov.

    Dated: September 5, 1996.
George B. Breznay,
Director, Office of Hearings and Appeals.

Appeals

Glen M. Jameson, 5/13/96, VFA-0147

    Glen M. Jameson filed an Appeal from a determination issued to him 
on March 5, 1996, by the DOE's Oak Ridge Operations Office (Oak Ridge) 
in response to a request for information that Mr. Jameson submitted 
under the Freedom of Information Act (FOIA). In that determination, Oak 
Ridge released the documents Mr. Jameson requested, but withheld 
portions on the basis that they were exempt from disclosure pursuant to 
Exemption 4 of the FOIA. Mr. Jameson argued that (i) PAI Corporation, 
whose contract and invoices he was requesting, should not have been 
permitted to have any input in the response to his request; (ii) the 
contract is not a prospective procurement; (iii) DOE procurement has 
been greatly curtailed, therefore, PAI is winding down and does not 
have a competitive advantage to be protected; (iv) he does not work in 
or with anybody in the federal contracting arena, and is in no position 
to divulge the information to any of PAI's competitors; and (v) the 
information that has been withheld is not privileged or confidential. 
The DOE determined that the withheld information was exempt from 
disclosure under Exemption 4, because the information was privileged or 
confidential. Furthermore, the DOE indicated that (i) PAI's opportunity 
to comment on the releasability of the requested information was 
required by Executive Order No. 12,600, (ii) Mr. Jameson's identity and 
whether he works in the contracting arena are irrelevant and (iii) even 
though more information may be released after a contract is awarded, 
the DOE must consider whether Exemption 4 applies. Accordingly, the 
Appeal was denied.

James Minter, 5/16/96, VFA-0153

    On April 19, 1996, James Minter filed an Appeal from a 
determination issued to him on April 3, 1996, by the Director of the 
Office of Public Affairs of the (DOE's) Albuquerque Operations Office. 
In that determination, the Director partially denied a request for 
information filed by Mr. Minter under the Freedom of Information Act 
(FOIA). In his Appeal, Mr. Minter contends that additional responsive 
information may exist. In considering the Appeal, the DOE confirmed 
that the Director followed procedures reasonably calculated to uncover 
any responsive information. Accordingly, the Appeal was denied.

Martha Julian, 5/14/96, VFA-0121

    Martha Julian filed an Appeal from a determination issued to her 
daughter, Lisa Doyle, by the DOE's Albuquerque Operations Office, in 
response to a Request for Information submitted under the Freedom of 
Information Act (FOIA). In considering the Appeal, the DOE found that 
the Albuquerque Operations Office performed an adequate search for 
radiation and other records of Mrs. Julian's father who worked at the 
Sandia Laboratory from 1951 to his death in 1958. Accordingly, the 
Appeal was denied.

Personnel Security Appeal

Albuquerque Operations Office, 5/17/96, VSA-0051

    An individual whose access authorization was suspended filed a 
Request for Review of a DOE Hearing Officer's recommendation against 
restoration of the access authorization. The individual's access 
authorization was suspended by the DOE's Albuquerque Operations Office 
upon its receipt of derogatory information indicating that the 
individual had a drug test that was positive for the use of marijuana. 
The Hearing Officer rejected the individual's position that the 
positive drug test was caused by inhaling second hand marijuana smoke 
in a night club. In the request for review, the individual stated that 
the Hearing Officer did not give proper weight to the testimony of an 
expert witness, who stated that it was possible for the individual to 
have a positive drug test based on passive inhalation of marijuana. In 
his Opinion, the Director of the Office of Hearings and Appeals found 
that even if it is theoretically possible to have a positive drug test 
through passive inhalation, it was proper for the Hearing Officer to 
require corroborating evidence showing that the positive drug test in 
this case resulted from second hand marijuana smoke. Accordingly, the 
Director did not recommend that the individual access authorization be 
restored.

Whistleblower Proceeding

Daniel L. Holsinger K-Ray Security, Inc., 5/16/95, VWA-0005; VWA-0009

    Daniel L. Holsinger filed a whistleblower complaint against Watkins 
Security Agency, Inc. (WSA) in which he alleged that the contractor 
retaliated against him for making disclosures concerning possible 
thefts of DOE property by another WSA employee at the DOE's Morgantown 
Energy Technology Center. After investigating the complaint, the Office 
of Contractor Employee Protection (OCEP) found that Holsinger had made 
a protected disclosure and that thereafter the contractor had 
retaliated against him by suspending him and by terminating his 
employment as a part-time security guard. At the same time, OCEP found 
that Holsinger had not shown that WSA had retaliated against him with 
regard to two other disciplinary actions. OCEP proposed that WSA 
provide Holsinger with lost pay and legal fees and that the current 
contractor, K-Ray Security, Inc. (K-Ray), be required to reinstate 
Holsinger to his former position as a security guard.

[[Page 49133]]

WSA, K-Ray and Holsinger all requested a hearing to challenge these 
findings and conclusions.
    Prior to the hearing, Holsinger and WSA entered into a monetary 
settlement concerning Holsinger's claims against WSA. As a result, WSA 
did not participate in the hearing and was later dismissed as a party 
to the proceeding, and Holsinger dropped his objections to the findings 
in OCEP's Report and Proposed Disposition. The hearing focused on the 
issue of Holsinger's reinstatement by K-Ray.
    The OHA Hearing Officer found that a violation of 10 C.F.R. 
Sec. 708.5 had occurred. Specifically, he found that Holsinger had 
proven by a preponderance of the evidence that he engaged in protected 
activity under 10 C.F.R. Part 708 and that this activity was a 
contributing factor to his suspension and his dismissal from employment 
by WSA. He also found that WSA and K-Ray had failed to prove by clear 
and convincing evidence that WSA would have taken these adverse 
personnel actions absent Holsinger's protected activity. The Hearing 
Officer evaluated the arguments presented by K-Ray and Holsinger and 
concluded that reinstatement of Holsinger by K-Ray was a necessary and 
appropriate action to effect full relief for Holsinger. He therefore 
ordered K-Ray to reinstate Holsinger.

Implementation of Special Refund Procedures

Gil-Mc Oil Corporation, et al., 5/16/96, LEF-0054 ET AL.

    The DOE issued a Decision and Order implementing procedures for the 
distribution of $1,140,553 (plus accrued interest) obtained from Gil-Mc 
Oil Corporation, LeClair Operating Company, SRG Corporation, Petroleum 
Carrier Company, and Dane Energy Company. These funds were remitted by 
each firm to the DOE to settle possible pricing violations with respect 
to sales of crude oil. The DOE determined that these monies will be 
distributed in accordance with the DOE's Modified Statement of 
Restitutionary Policy Concerning Crude Oil Overcharges, 51 Fed. Reg. 
27,899 (August 4, 1986). Under that policy, 20% will be reserved for 
injured purchasers of refined products, 40% will be distributed to the 
federal government, and 40% of the states.

Texas American Oil Corp., 5/14/96, VEF-0019

    The DOE issued a Decision and Order implementing procedures for 
disbursement of $48,307.13 in crude oil overcharge funds obtained from 
the bankrupt estate of Texas American Oil Corporation. The DOE ordered 
that these funds, plus accrued interest, be disbursed to individual 
claimants. The DOE determined that this allocation is required by the 
decision of the United States Court of Appeals for the Federal Circuit 
in Texas American Oil Corp. v. DOE, 44 F.3d 1557 (Fed. Cir. 1995) (en 
banc). In that case, the court held that the DOE's claim in the Texas 
American bankruptcy proceeding on behalf of individual claimants should 
have a higher priority than its claim on behalf of the states and 
federal government. Pursuant to that decision, the bankruptcy court 
distributed to the DOE an amount equivalent to 20 percent of its 
liquidated claim in the Texas American bankruptcy proceeding, since 
under the DOE's Modified Statement of Restitutionary Policy in Crude 
Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986), a maximum of 20 per 
cent of the crude oil overcharge funds remitted to the DOE is reserved 
for injured purchasers of refined petroleum products.

Request for Exception

Jacobs Oil Company, 5/13/96 VEE-0021

    Jacobs Oil Company filed an Application for Exception from the 
provisions of the Energy Information Administration (EIA) reporting 
requirements in which the firm sought relief from filing Form EIA-782B 
entitled ``Resellers'/Retailers' Monthly Petroleum Product Sales 
Report.'' Jacobs argued that filing these surveys was time consuming 
and onerous. However, the DOE determined that Jacobs was not suffering 
a special hardship, inequity or unfair distribution of burdens. 
Accordingly, exception relief was denied.

Refund Application

State Escrow Distribution, 5/17/96, RF302-18

    The Office of Hearings and Appeals ordered the DOE's Office of the 
Controller to distribute $44,100,000 to the State Governments. The use 
of the funds by the States is governed by the Stripper Well Settlement 
Agreement.

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.

BAYLY CORP...............................................  RC272-0335                                   05/15/96
CITY OF NORTH EASTON ET AL...............................  RF272-98102                                  05/15/96
CRUDE OIL SUPPLE REF DIST................................  RB272-00076                                  05/17/96
GULF OIL CORPORATION/EDDY GALLUCCI'S GULF................  RF300-19982                                  05/16/96
IRENE VORA...............................................  RJ272-00008                                  05/17/96
MOTOR TRANSPORT CO. ET AL................................  RF272-78490                                  05/17/96
TOWNSEND BROS. ET AL.....................................  RK272-02405                                  05/16/96
                                                                                                                

Dismissals

    The following submissions were dismissed:

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                          Name                               Case No.   
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ALBUQUERQUE OPERATIONS OFFICE...........................        VSO-0086
CHESAPEAKE & OHIO RAILROAD..............................      RF272-3439
CINTAS CORP.............................................      RK272-3499
KONCZAL ENTERPRISES, INC................................     RF304-15007
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[FR Doc. 96-23889 Filed 9-17-96; 8:45 am]
BILLING CODE 6450-01-P