[Federal Register Volume 62, Number 16 (Friday, January 24, 1997)]
[Notices]
[Pages 3679-3681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1732]


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DEPARTMENT OF ENERGY

Notice of Issuance of Decisions and Orders; Week of December 16 
Through December 20, 1996

    During the week of December 16 through December 20, 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, SW., 
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: January 16, 1997.
George B. Breznay,
Director, Office of Hearings and Appeals.

Decision List No. 12--Week of December 16 Through December 20, 1996

Appeals

Benton County, Washington, 12/19/96, LPA-0001

    The Office of Hearings and Appeals (OHA) issued a decision on an 
appeal that Benton County, Washington filed on November 4, 1993, under 
the Notice of Interpretation and Procedures (NOIP) implementing the 
``payments-equal-to-taxes'' (PETT) provisions of the Nuclear Waste 
Policy Act of 1982, as amended (NWPA), 42 U.S.C. Sec. 10101 et seq. 
Under the NOIP, the Department of Energy (DOE) will grant, to a county 
in which a candidate site for a high-level nuclear waste repository is 
located, a payment equal to the amount that county would receive if it 
were authorized to tax site characterization activities at that site. 
See 56 Fed. Reg. 42314 (August 27, 1991). The payment authorized by the 
NWPA is known as a ``PETT grant.'' Benton County submitted to DOE's 
Richland Operations Office (DOE/RL) an estimate of $45.7 million as the 
PETT grant amount it should receive for site characterization 
activities at the Basalt Waste Isolation Project (BWIP) on the Hanford 
Nuclear Reservation. DOE/RL issued an initial DOE determination which 
denied Benton County's PETT claim, except for approximately $440,000. 
In its appeal, Benton County challenged the amount of the PETT grant 
awarded to it by DOE/RL. During the course of the appeal, OHA permitted 
the parties detailed pre-hearing discovery, a four-day evidentiary 
hearing held in Seattle, Washington in January 1995, extensive 
briefing, post hearing depositions, and an oral argument held in 
Washington, DC in October 1995.
    The OHA addressed the following issues in its decision on the 
Benton County appeal: (1) the starting date for Benton County's PETT 
eligibility under the NWPA; (2) the authority of the County under the 
NWPA to assess interest penalties against the DOE for late payment of 
the PETT amounts for the tax years involved; (3) the authority of the 
County to collect personal property taxes for the 1986 tax year; (4) 
when the BWIP should have been appraised; (5) the DOE Nevada Operations 
Office's (DOE/NV) approach to its PETT obligation vis-'a-vis Nye 
County, Nevada, specifically, whether DOE/NV properly considered the 
appraised value of the Yucca Mountain real estate at the beginning of 
the PETT eligibility period; (6) generally-accepted principles of real 
estate appraisal relevant to the Benton County appeal; (7) the highest 
and best use of the BWIP site; (8) the proper appraisal of one portion 
of the bare land on the BWIP site; and (9) the proper appraisal of the 
improvements to real estate on the BWIP site.
    In resolving these issues, the OHA made the following 
determinations: (1) DOE/RL was correct in beginning with May 28, 1986 
in calculating the amount of Benton County's PETT grant; (2) DOE/RL was 
correct in excluding statutory interest penalties calculated under 
Washington State law from the amount of Benton County's PETT grant; (3) 
DOE/RL was correct in excluding personal property taxes for 1986 from 
the amount of Benton County's PETT grant; (4) DOE/RL erred in basing 
its PETT determination on an appraisal of the BWIP through hindsight as 
it existed in 1993, rather than on a retrospective appraisal of the 
BWIP as it existed during the period of PETT eligibility (May 28, 1986 
through March 21, 1988); (5) DOE/RL erred in determining that the 
highest and best use of the BWIP was other than ``industrial use'' for 
site characterization as a potential high level nuclear waste 
repository; (6) DOE/RL correctly determined that the purported 
``Maximum Potential Underground Facility'' was only a theoretical 
concept during the PETT eligibility period, and should not have been 
appraised on the basis of properties sold for landfills and related 
uses in nearby areas of the Pacific Northwest; (7) DOE/RL erred in 
failing to measure properly the residual value of improvements to the 
BWIP under the cost approach to real estate appraisal as of the 
beginning of the period of PETT eligibility; and (8) DOE/RL erred in 
failing to treat the determination of Benton County's PETT amount for 
the BWIP site characterization in the same general manner as DOE's 
Nevada Operations Office treated the determination of Nye County's PETT 
amount for the Yucca Mountain site characterization. Accordingly, the 
Benton County appeal was denied in part, and granted in part.
    OHA concluded the decision by directing DOE/RL to confer in good 
faith with Benton County and apply the approach used to negotiate the 
Nye County PETT settlement to resolve this case within a specified time 
period, according to principles of alternative dispute resolution 
applicable to government agencies. The parties are

[[Page 3680]]

directed to submit a detailed report to the OHA appeal panel at the 
expiration of the remand period, if they are unable to reach a 
resolution by that time. In the event that the parties fail to resolve 
the case through a negotiated settlement on remand, the OHA will issue 
a supplemental order fixing the amount of Benton County's PETT grant.

William H. Payne, 12/16/96, VFA-0243

    William H. Payne filed an Appeal from a FOIA and Privacy Act 
determination in which the Office of the Inspector General refused to 
confirm or deny the existence of records which would reflect whether a 
named individual was the target of an OIG investigation. In considering 
the Appeal, the DOE found that the refusal to confirm or deny the 
existence of these records was proper because the records, if they 
exist, would be exempt from disclosure under FOIA Exemption 7(C) and 
the confirmation of the existence of such records would itself involve 
the disclosure of exempt information. DOE also remanded the matter to 
the Headquarters' FOIA Office to conduct an additional search for 
records.

Whistleblower Hearings

C. Lawrence Cornett Maria Elena Torano Associates, Inc., 12/19/96, VWA-
0007, VWA-0008

    C. Lawrence Cornett (Complainant), an employee of a DOE/Argonne 
National Laboratory (ANL) subcontractor, Maria Elena Torano Associates, 
Inc. (META), filed a request for a hearing under the DOE's Contractor 
Employee Protection Program, 10 CFR Part 708. Complainant claimed that 
he suffered from various forms of reprisal culminating in his layoff 
from his job as a result of his raising issues with his superiors 
regarding public health and safety issues pertaining to the DOE's Waste 
Management Programmatic Environmental Impact Statement. A hearing was 
held in which witnesses for Complainant and META testified before an 
Office of Hearings and Appeals Hearing Officer. On the basis of the 
testimony and other evidence in the record, the Hearing Officer 
concluded that Complainant proved by a preponderance of the evidence 
that he had made disclosures protected by Part 708 and that these 
activities were a contributing factor in the decision of META to lay 
him off. In his Decision, the Hearing Officer further concluded that 
META had failed to prove by clear and convincing evidence that it would 
have taken this action were it not for Complainant's disclosures. The 
Hearing Officer therefore determined that META's actions violated the 
whistleblower regulations in 10 CFR Part 708. Complainant was awarded 
back pay, attorneys fees and costs, the amount of which will be 
determined in a supplemental decision. Complainant's request for front 
pay and compensation for Individual Retirement Account tax penalties 
and lost interest were denied. META has the right to appeal the Hearing 
Officer's Decision to the Secretary of Energy or her designee.

Ronny J. Escamilla, 12/20/96, VWA-0012

    Ronny J. Escamilla filed a whistleblower complaint against Systems 
Engineering & Management Associates, Inc. (SEMA), a DOE subcontractor, 
at DOE's Rocky Flats Plant (Rocky Flats). Escamilla alleged that he 
made disclosures of waste and mismanagement to various managers at 
Rocky Flats. He also alleged that he made a protected disclosure that 
he filed a complaint to management at Rocky Flats. Escamilla asserted 
that these disclosures resulted in his being harassed in the workplace 
and ultimately terminated. After investigating the Complaint, the 
Office of Contractor Employee Protection found that Escamilla had not 
met his regulatory burden as required by 10 CFR Part 708 and, as a 
consequence, was entitled to no relief. The OHA Hearing Officer found 
that: (1) Escamilla failed to show by a preponderance of evidence that 
he disclosed information which he, in good faith, believed evidenced 
mismanagement or waste associated with the computer system he was hired 
to support; (2) Escamilla proved by a preponderance of evidence that he 
disclosed to SEMA the fact he had filed a complaint with DOE and he 
also proved that the disclosure relating to the filing of his complaint 
was a contributing factor to his termination; and (3) SEMA proved by 
clear and convincing evidence that it would have terminated Escamilla 
absent his disclosure. Accordingly, the OHA Hearing Officer found that 
Escamilla failed to establish the existence of any violations of the 
DOE's Contractor Employee Protection Program for which relief is 
warranted under 10 CFR Part 708.10.

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.

AMKOTA COOP ET AL......................................  RF272-94715                                    12/19/96
BERMAN'S MOTOR EXPRESS.................................  RR272-195                                ..............
BLACKDUCK CO-OP AG SERVICES, INC. ET AL................  RG272-603                                      12/17/96
BULK TRANSPORT, INC....................................  RF272-97377                                    12/19/96
CRUDE OIL SUPPLE REF DIST..............................  RB272-00095                                    12/17/96
CYRUS TRUCK LINES, INC.................................  RF272-99112                                    12/17/96
KHS AIR FREIGHT, INC...................................  RF272-99114                              ..............
GOOD HOPE REFINERIES/AMERADA HESS CORPORATION..........  RF339-1                                        12/17/96
MOHAVE VALLEY SCHOOL DISTRICT ET AL....................  RF272-79157                                    12/17/96
STAVOLA ASPHALT CO., INC. ET AL........................  RG272-00802                                    12/19/96
                                                                                                                

Dismissals

    The following submissions were dismissed.

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                     Name                               Case No.        
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ARAWAK PAVING CO., INC.......................  RG272-991                
BOUNDS OIL COMPANY...........................  RF300-16969              
COFFEE CONSTRUCTION CO.......................  RG272-993                
HAROLD & J.E. LAYTON.........................  RG272-994                
HOLMES TRANSPORTATION INC....................  RR272-196                
J&S SERVICES.................................  RG272-265                
LAS VEGAS PAVING CORP........................  RG272-376                
LAUREL COUNTY FISCAL COURT...................  RF272-95282              

[[Page 3681]]

                                                                        
POE ASPHALT PAVING, INC......................  RG272-990                
SANKEY CONSTRUCTION, INC.....................  RG272-992                
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[FR Doc. 97-1732 Filed 1-23-97; 8:45 am]
BILLING CODE 6450-01-P