[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)]
[Notices]
[Pages 55291-55293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27420]


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DEPARTMENT OF ENERGY

Notice of Issuance of Decisions and Orders During the Week of 
August 19 Through August 23, 1996

    During the week of August 19 through August 23, 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 in Energy 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: October 17, 1996.
George B. Breznay,
Director, Office of Hearings and Appeals.

Decision List No. 986

Appeals

Barton J. Bernstein, 8/23/96, LFA-0108

    Professor Barton J. Bernstein of Stanford University filed an 
Appeal of a determination issued to him by the Albuquerque Operations 
Office of the Department of Energy (DOE) in response to a Request for 
Information submitted under the Freedom of Information Act (FOIA). 
Professor Bernstein had requested information related to the creation 
of the ``super'' (also known as the ``hydrogen'' or ``thermonuclear'') 
bomb and the creation of the ``second lab'' (Lawrence-Livermore 
National Laboratory). After review by the DOE Office of Classification, 
the Albuquerque Operations Office withheld all or part of forty-seven 
responsive documents under Exemption 3 as containing nuclear weapons 
design or stockpile information that qualified as ``Restricted Data'' 
or ``Formerly Restricted Data'' within the meaning of the withholding 
statute, the Atomic Energy Act of 1954. Professor Bernstein appealed 
the withholdings in eight documents. After considering the matter, the 
DOE determined that some additional material now could be declassified 
in six documents. The DOE found the deletions in two of the documents 
were proper. Accordingly, the Appeal was denied in part and granted in 
part, and properly declassified information was released to Professor 
Bernstein.

Cincinnati Gas & Electric Co., 8/19/96, VEA-0002

    Cincinnati Gas & Electric Co. filed an Appeal from a determination 
issued by the Department of Energy's (DOE) Office of Environmental 
Management (OEM). CG&E claimed that: (i) the OEM erroneously determined 
its liability for payment into the Uranium Enrichment Decontamination 
and Decommissioning Fund (the D&D Fund) established under the Energy 
Policy Act of 1992; (ii) Ohio state law would prohibit CG&E from 
passing through its assessment to its ratepayers; (iii) the assessment 
of utilities for payment into the D&D Fund was an unconstitutional 
taking of property. The DOE found that: (i) the firm was properly 
assessed for uranium enrichment services that it purchased from the DOE 
and did not sell in the secondary market; (ii) Ohio state law would be 
preempted by the federal Energy Policy Act; and (iii) while the DOE 
will ultimately defer to the rulings of the federal courts, the 
collection of assessments will continue while the courts are 
considering the constitutionality of the relevant provisions of the 
Energy Policy Act. Accordingly, CG&E's Appeal was denied.

David L. Anderson, 8/20/96, VFA-0197

    David L. Anderson filed an Appeal from a denial by the Department 
of Energy's Bonneville Power Administration (BPA) of a request for 
information which he had submitted under the Freedom of Information Act 
(FOIA). Anderson sought copies of officially written statements, 
complaints and depositions made by certain individuals. BPA identified 
as responsive a report of an investigation conducted on behalf of the 
BPA Office of General Counsel by an outside investigator between 
September 14, 1995, and November 20, 1995. BPA withheld the report in 
its entirety, including the exhibits to the report, pursuant to the 
attorney work product privilege of FOIA Exemption 5. In considering the 
Appeal, the DOE found that: (i) The report in question is precisely the 
type of document meant to be protected by the work product privilege; 
(ii) the existence of tangible risks to the interests protected by the 
work product privilege satisfies the reasonably foreseeable harm 
standard set forth by the Attorney General in 1993; but (iii) to 
identify and, if not otherwise exempt, release certain intra-agency 
documents responsive to the request without indicating which of those 
documents became exhibits to the report will not violate the work 
product privilege. Accordingly, the matter was remanded in part to BPA 
to conduct a search for concerning the appellant and authored by the 
individuals named in his request, and to issue a new

[[Page 55292]]

determination either releasing the documents located or explaining the 
reasons for withholding the information. The Appeal was denied in all 
other respects.

Southwest Research and Information Center, 8/19/96, VFA-0195

    The Southwest Research and Information Center (SRIC) filed an 
Appeal from a determination issued to it by the Department of Energy 
(DOE) Headquarters' Office of the Executive Secretary (ES). In its 
Appeal, SRIC asserted that ES improperly failed to provide it with 
documents regarding several specified meetings it had requested 
pursuant to the FOIA. During the pendency of the Appeal, several 
potentially responsive documents were discovered by ES. Consequently, 
the DOE remanded the matter back to ES so that it could issue a 
determination regarding the documents.

Personnel Security Hearing

Albuquerque Operations Office, 8/23/96, VSO-0084

    A OHA Hearing Officer issued an opinion regarding the continued 
eligibility of an individual for access authorization under the 
provisions of 10 C.F.R. Part 710. After considering the record of the 
proceeding, the Hearing Officer found that: (i) the individual has two 
related mental conditions--exhibitionism and voyeurism--that, in the 
opinion of a board-certified psychiatrist, cause him to have a 
significant defect in his judgment and reliability; (ii) the individual 
had a ten-year history of arrests for sex offenses; (iii) the 
individual failed to show that he was rehabilitated to such an extent 
that he would be unlikely to engage in exhibitionism and voyeurism 
again; and (iv) in view of his mental condition and his lengthy history 
of arrests for sex offenses, the individual presented an unacceptably 
high risk of vulnerability of pressure, exploitation and coercion that 
might lead him to act contrary to the best interests of the national 
security. Accordingly, the Hearing Officer recommended that the 
individual's access authorization not be restored.

Request for Exception

Lee Oil Company, 8/20/96, VEE-0030

    Lee Oil Company (Lee) 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.'' The Secretary/Treasurer of Lee requested relief from the EIA 
reporting requirement because he believed the requirement was unduly 
burdensome to the company. In considering this request, the DOE found 
that the burden placed upon Lee, due to the temporary unavailability of 
personnel to complete the form, was greater than that encountered by 
other firms required to complete Form EIA-782B. Accordingly, Lee was 
granted temporary relief from its obligation to file Form EIA-782B.

Supplemental Order

META, Inc., 8/22/96, VWZ-0006

    A Hearing Officer from the Office of Hearings and Appeals denied a 
Motion to Dismiss filed by Maria Elena Torano Associates, Inc. (META). 
In its Motion, META sought the dismissal of a complaint filed by C. 
Lawrence Cornett under the DOE's Contractor Employee Protection 
Program, 10 C.F.R. Part 708. META alleged that it did not perform work 
at DOE sites as defined by Section 708.4 and thus it was not subject to 
Part 708 jurisdiction. After conducting a hearing on the Motion and 
considering all of the evidence, the Hearing Officer determined that 
despite the relatively limited amount of time META employees spent on 
DOE sites, the employees performed work activities on the DOE sites 
which were directly related the primary purposes of the META-DOE 
contract at issue. Further, the Hearing Officer found that because 
META's work concerned waste management and environmental restoration, 
META was the type of contractor which the DOE intended to cover under 
the part 708 regulations. Therefore, the Hearing Officer determined 
that META employees had performed work at DOE sites as defined by Part 
708 and thus denied META's Motion.

Refund Application

Eason Oil Co./ Farmland Industries, Inc., 8/21/96, RF352-1

    The DOE issued a Decision and Order concerning a refund application 
that Farmland Industries, Inc. (Farmland) had submitted in the Eason 
Oil Company (Eason) special refund proceeding. The DOE found that 
Farmland is a regional cooperative operating for the benefit of its 
agricultural cooperative members and their common shareholder/patrons. 
Farmland claimed a refund for volumes of Eason products that it resold 
to its member cooperatives. The DOE determined that 96% of Eason 
products that Farmland sold to its member cooperatives ultimately were 
sold to and used by member farmers and ranchers. Accordingly, the DOE 
granted Farmland a refund of $791,853 based on the 96% of its total 
purchases from Eason that were resold to cooperative farmers and 
ranchers, and required Farmland to pass through this refund to its 
member cooperatives on a dollar for dollar basis.

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.

ARMELLINI EXPRESS LINES, INC.............................  RG272-00937                                  08/20/96
BURNHAM SERVICE COMPANY..................................  RG272-00955                                  08/20/96
ELECTROLUX CORPORATION...................................  RG272-00975                                  08/22/96
HUB TRANSPORTATION SERVICES CORP./HUB TRUCK RENTAL CORP..  RG272-00953                                  08/20/96
KENTILE, INC.............................................  RK272-2203                                   08/19/96
MRS. G.E. KING, JR. ET AL................................  RK272-00361                                  08/21/96
PELHAM COUNTRY CLUB ET AL................................  RG272-00505                                  08/23/96
RAYBURN, INC. ET AL......................................  RF272-97809                                  08/21/96
SAFETY BUS SERVICE.......................................  RG272-00867                                  08/20/96
SAMUEL CABOT, INC. ET AL.................................  RF272-95105                                  08/21/96
SPECIALIZED TRUCKING SERVICE.............................  RG272-00931                                  08/20/96
TRI-STATE FARMERS COOP ET AL.............................  RF272-99000                                  08/23/96
                                                                                                                

Dismissals

    The following submissions were dismissed:

[[Page 55293]]



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                     Name                               Case No.        
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BELLAIR INC..................................  RF272-97986              
FARMERS UNION OIL CO.........................  RG272-0005               
GEORGIA-PACIFIC CORPORATION..................  VFA-0198                 
GERALD KELLY.................................  VWA-0011                 
K & H COOPERATIVE OIL COMPANY................  RF272-89391              
SWEETHEART CUP COMPANY, INC..................  RG272-980                
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[FR Doc. 96-27420 Filed 10-24-96; 8:45 am]
BILLING CODE 6450-01-P