[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
