[Federal Register Volume 63, Number 115 (Tuesday, June 16, 1998)]
[Notices]
[Pages 32877-32878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15954]
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DEPARTMENT OF ENERGY
Office of Hearing and Appeals
Notice of Issuance of Decisions and Orders; Week of April 13
Through April 17, 1998
During the week of April 13 through April 17, 1998, 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 decision and order are available
in the Public Reference Room of the Office of Hearings and Appeals, 950
L'Enfant Plaza, SW, Washington, D.C., Monday through Friday, 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: June 4, 1998.
George B. Breznay,
Director, Office of Hearings and Appeals.
Decision List No. 81: Week of April 13 Through April 17, 1998
Appeals
FAS Engineering, Inc., 4/14/98, VFA-0375
FAS Engineering, Inc. filed an Appeal from a determination by the
Department of Energy's (DOE) Golden Field Office, denying a request for
information under the Freedom of Information Act (FOIA). In its Appeal,
FAS contended that Golden improperly withheld the requested information
from disclosure under the deliberative process privilege of FOIA
Exemption 5. The DOE found that Golden properly applied the threshold
requirements of Exemption 5 to the requested documents. However, the
DOE remanded this matter to Golden to issue a new determination, either
releasing reasonably segregable factual material or explaining the
reasons for withholding any factual material contained in the requested
documents. Consequently, the Appeal was granted.
FAS Engineering, Inc., 4/17/98, VFA-0400, VFA-0401
FAS Engineering Inc. filed two Freedom of Information Act (FOIA)
Appeals requesting that the Office of Hearings and Appeals of the
Department of Energy (DOE) release documents it withheld from two FOIA
requests pursuant to Exemption 5 of the FOIA. In considering the
Appeals, the DOE determined that many of the documents contained
segregable factual information that should not have been withheld
pursuant to Exemption 5. For these reasons, the DOE directed the FOIA
Official to review all of its withheld information again and either
release factual information, such as ``rating guidelines,'' headings,
names of contractor employees and bid proposal submissions contained in
these documents, or provide a detailed explanation for withholding any
such information. Thus, the DOE remanded the Appeal to the Idaho
Operations Office.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 4/
15/98, VFA-0396
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
(Appellant), filed an Appeal of a determination issued to it by the
Department of Energy (DOE) in response to a request under the Freedom
of Information Act (FOIA). In its request to the Federal Energy
Technology Center (FETC), the Appellant asked for information
concerning a Request for Proposal. FETC forwarded the request to the
Rocky Flats Field Office (RFFO). In its determination, RFFO found that
it possessed no responsive documents. On appeal, the Appellant argued
that the search by RFFO had been inadequate. The DOE first found that
RFFO had never been responsible for overseeing the RFP at issue and
therefore, possessed no responsive documents. The DOE further noted
that FETC had conducted a further search for documents once FETC
realized that it had overseen the RFP at issue. Finally, the DOE noted
that RFFO was only required to search for documents possessed as of the
date of the FOIA request. Since the management and operating contractor
had come into possession of responsive documents after the request
date, the Appellant could make a new FOIA request for those documents.
Accordingly, the Appeal of the adequacy of RFFO's search was denied.
Moore Brower Hennessy & Freeman, P.C., 4/16/98, VFA-0393.
Moore Brower Hennessy & Freeman, P.C. (Moore) filed an Appeal of a
determination issued to it by the Department of Energy (DOE) in
response to a request under the Freedom of Information Act (FOIA). In
the request, Moore asked for copies of records relating to a
construction contract that
[[Page 32878]]
Lockheed Martin Information Technologies Company (LMITCO), the
management and operating contractor of the Idaho National Engineering
Laboratory, awarded to a construction company. In its determination,
the Idaho Operations Office (Idaho) stated that it could not release
the responsive material because the responsive documents were in
LMITCO's possession. The DOE found that, even though in LMITCO's
possession, the documents in the current request were nonetheless
subject to release under the DOE regulations. Accordingly, the Appeal
was granted.
Nuclear Control Institute, 4/15/98, VFA-0395
The DOE issued a decision granting in part a Freedom of Information
Act (FOIA) Appeal filed by the Nuclear Control Institute (NCI). NCI
sought the release of information withheld by the Oak Ridge and Oakland
Operations Offices. In its decision, the DOE found that the Operations
Offices failed to consider the public interest in disclosure and had
not articulated any foreseeable harm that would result from the release
of several documents withheld under FOIA Exemption 5. The DOE also
found that the Operations Offices had not segregated releasable
information. Accordingly, the Appeal was remanded to Oak Ridge and
Oakland.
The National Security Archive, 4/16/98, VFA-0196
The National Security Archive filed an Appeal from a denial by the
Department of the Air Force of a request for information that it filed
under the Freedom of Information Act (FOIA). Because the withheld
information was identified as classified under the Atomic Energy Act,
the Air Force withheld it at the direction of the DOE under Exemption 3
of the FOIA. In considering the information that was withheld, the DOE
determined on appeal that a small portion of the document must continue
to be withheld under Exemption 3, but the remainder could be released.
Accordingly, the Appeal was granted in part and a newly redacted
version of the requested information was ordered to be released.
Whistleblower Hearing
Timothy E. Barton, 4/13/98 VWA-0017
A Hearing Officer issued an Initial Agency Decision concerning a
whistleblower complaint. The decision found that, while the employee
proved that disclosures he had made were protected under 10 C.F.R. Part
708 and contributed to his termination, the employer demonstrated by
clear and convincing evidence that it would have terminated the
complainant in the absence of the protected disclosures.
Personnel Security Hearing
Personnel Security Hearing, 4/17/98, VSO-0179
A Hearing Officer found that an individual had shown that he is not
currently suffering from the ``mental illness,'' dysthymia, or from any
``mental condition'' that would cause a defect in his judgment or
reliability. Accordingly, the Hearing Officer recommended in the
Opinion that the individual be granted an access authorization.
Refund Application
Enron Corp./Solar Gas, Inc., 4/17/98, RF340-55
The DOE granted an Application for Refund submitted by Solar Gas,
Inc. (Solar Gas) in the Enron Corporation (Enron) special refund
proceeding. The DOE excluded from Solar Gas' claim the volume of
propane relating to exchange or buy/sell transactions between Solar Gas
and Enron. With respect to the firm's other purchases from Enron, the
DOE found that Solar Gas had demonstrated that the prices it paid to
Enron for propane resulted in some economic injury to Solar Gas, but
not a level of injury sufficient to qualify Solar Gas for a full
volumetric refund. The DOE therefore limited this refund to the 81.5
percent of the firm's volumetric refund. Accordingly, the DOE granted
Solar Gas a refund, including interest, of $521,622.
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.
Imogene R. Owens......................................... RK272-01777 4/14/98
Two F Company, L.L.C. ET AL.............................. RK272-04788 4/15/98
Union County, NJ......................................... RC272-00389 4/14/98
Dismissals
The following submissions were dismissed.
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Name Case No.
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Personnel Security Hearing................... VSO-0188
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[FR Doc. 98-15954 Filed 6-15-98; 8:45 am]
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