[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
