[Federal Register Volume 59, Number 209 (Monday, October 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26920]
[[Page Unknown]]
[Federal Register: October 31, 1994]
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DEPARTMENT OF ENERGY
Office of Hearings and Appeals
Notice of Issuance of Decisions and Orders; Week of August 22
Through August 26, 1994
During the week of August 22 through August 26, 1994, the decisions
and orders summarized below were issued with respect to appeals and
applications for other relief 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.
Appeals
Brian P. Conlon, 8/25/94, LFA-0400
Brian P. Conlon filed an Appeal from a determination issued by the
Idaho Operations Office (Idaho) of the Department of Energy (DOE) in
response to a request from Mr. Conlon under the Privacy Act (Privacy
Act). Mr. Conlon sought copies of investigative material contained in
the Personnel Security Clearance System of Records. In considering the
Appeal, the Office of Hearings and Appeals found that the Privacy Act
Officer properly withheld the information contained in a ``system of
records,'' the release of any part of which would reveal the identity
of a confidential source. Accordingly, the Appeal was denied.
Dr. Robert Sanchez, 8/26/94, LFA-0407
Dr. Robert Sanchez filed an Appeal from a determination issued to
him by the Albuquerque Operations Office (AOO) of the Department of
Energy (DOE). The determination partially denied a Request for
Information which Dr. Sanchez submitted under the Freedom of
Information Act. Dr. Sanchez requested various documents relating to
Solicitation for Offers No. TU-0050 (SFO) and an amendment to that
solicitation. In its determination letter, the AOO provided Dr. Sanchez
various documents responsive to his Freedom of Information Act request.
However, Dr. Sanchez, in his Appeal, argued that additional responsive
documents must exist because of various requirements listed in the SFO.
In considering the Appeal, the DOE found that an adequate search had
been conducted in response to Dr. Sanchez's request. Accordingly, Dr.
Sanchez's Appeal was denied.
National Security News Service, 8/22/92, LFA-0402
The National Security News Service (NSNS) filed an Appeal from a
determination issued by the Deputy Assistant Secretary for Military
Application and Stockpile Support, Defense Programs (DP), in response
to a request for information under the Freedom of Information Act
(FOIA). NSNS sought documents relating to ``Exercise Midnight Trail,''
a 1991 military training exercise sponsored by the Department of
Defense (DOD). In considering the Appeal, the DOE found that: (1) DP
properly invoked Exemption 6 in withholding the names of individuals
and identifying information from documents released to NSNS because the
privacy interests of the individuals outweighed the minimal
contribution of disclosure to the public understanding of government
operations and activities; (2) DP did not provide a sufficient basis
for its application of Exemption 6 to the other information withheld
from the appellant; and (3) DP's search for responsive documents should
have included the DOE's Albuquerque Operations Office (DOE/AL). In
addition, DP agreed to forward the appellant's request to seven other
offices at DOE Headquarters. The matter was therefore remanded to DP
for a new determination releasing the information not protected by
Exemption 6 or providing additional justification for its withholding,
and providing to NSNS responsive documents located at DOE/AL and the
other DOE Headquarters offices. In all other respects, the Appeal was
denied.
William H. Payne, 8/22/94, LFA-0405
William H. Payne (Payne) filed an Appeal from two determinations
issued to him on July 26, 1994, by the Deputy Director, Office of
Intergovernmental and External Affairs (Authorizing Official). In those
determinations, the Authorizing official denied requests for
information submitted by Payne under the Freedom of Information Act
(FOIA). In the first determination, the Authorizing Official denied
Payne's request for documents. In the second determination, the
Authorizing Official denied a request for a waiver of fees in
connection with another series of FOIA requests that Payne filed. In
his Appeal, Payne challenged the adequacy of search conducted by the
Office of Intergovernmental and External Affairs. He also asked that
the Office of Hearings and Appeals reverse the second determination,
and grant him a fee waiver. In considering the Appeal, the DOE found
that Payne's request for documents was subjected to a search sufficient
to meet the established standard of reasonableness. The DOE also found
that Payne did not demonstrate that he was entitled to a fee waiver
since he did not show that disclosure of the requested information was
in the public interest. Accordingly, Payne's Appeal was denied.
Requests for Exception
Farmco, Inc., 8/23/94, LEE-0125
Farmco, Inc., (Farmco) filed an Application for Exception from the
provisions of the Energy Information Administration (EIA) reporting
requirements in which the firm sought temporary relief from filing Form
EIA-782B, entitled ``Resellers'/Retailers' Monthly Petroleum Product
Sales Report.'' The DOE determined that a limited form of exception
relief--to extend until September Farmco's filing deadline for the
Forms for the months of May and June--would be appropriate. However,
Farmco had filed the forms before a Decision had been issued.
Accordingly, the Application for Exception was consequently dismissed.
Kadane Corporation, 8/24/94, LEE-0103
Kadane Corporation filed an Application for Exception from the
requirement that it file Form EIA-23, the ``Annual Survey of Domestic
Oil and Gas Reserves.'' Kadane Corporation claimed that it lacked the
necessary technical personnel to provide the information requested in
Form EIA-23 and that it no longer obtains that information for its own
purposes. In considering the request, the DOE found that there were no
technical personnel required to complete the form other than those
already employed by Kadane. The DOE also concluded that the firm was
not suffering a serious hardship and was not adversely affected by the
reporting requirement in a way that was significantly different from
the burden borne by similar reporting firms. Therefore, the DOE denied
Kadane Corporation's Application for Exception.
Remedial Order
Economic Regulatory Administration, 8/23/94, LCX-0012
The DOE issued a Decision and Order modifying a 1987 Remedial Order
issued to Storey Oil Company, Inc. See Storey Oil Co., Inc., 16 DOE
83,007 (1987) (1987 RO). The 1987 RO had been remanded by the Federal
Energy Regulatory Commission (FERC) for a recalculation of the retail
overcharges based on new evidence introduced in the FERC proceeding.
See Storey Oil Co., Inc., 65 FERC 61,216 (1993). In response to the
remand, the DOE's Economic Regulatory Administration submitted a
recalculation of the retail overcharges for inclusion in a modified
Remedial Order. In considering the ERA's recalculation, the DOE
rejected Storey's various arguments in opposition to the issuance of a
revised remedial order, including Storey's argument that the
recalculation was inconsistent with the reseller-retailer price rule, l
10 CFR 212.93. Accordingly, the DOE modified the 1987 RO to reduce the
retail overcharges from $61,071.48 to $47,549.90.
Refund Applications
Enron Corporation/Aristech Chemical Corporation, 8/24/94, RF340-152
Aristech Chemical Corporation (Aristech) submitted an application
for refund in the Enron Corporation refund proceeding. The DOE
determined that Aristech had acquired the assets, including the right
to refund, of USS Chemicals. The DOE found that USS Chemicals used
Enron propane as a feedstock to produce certain olefins, primarily
ethylene, and therefore that Aristech was entitled to a refund for USS
Chemical's purchases from Enron under the presumption of injury for
end-users of Enron products. The total refund granted to Aristech,
including interest, is $820,193.
Enron Louisiana Energy Co., 8/26/94, RF272-92434
The DOE issued a Decision and Order concerning the Application for
Refund of Enron Louisiana Energy Co. in the Subpart V crude oil
overcharge refund proceeding. The Application for Refund was based on
purchases of petroleum products the applicant used in the processing of
natural gas liquid products (NGLPs). Enron failed to prove it was
injured by crude oil overcharges because it made no demonstration that
it was unable to pass on those overcharges to its customers in its
sales of NGLPs. Accordingly, the Application for Refund was denied.
Texaco, Inc./J&J Oil Co., Inc., 8/22/94, RF321-7211
The DOE issued a Decision and Order concerning an Application for
Refund filed by J&J Oil Co., Inc. (J&J), a petroleum products reseller,
in the Texaco, Inc. special refund proceeding. J&J requested a refund
above the volumetric presumption level of $0.0011 per gallon on the
grounds that it had been disproportionately overcharged by Texaco
during the refund period. In considering the firm's claim, the DOE
found that J&J was likely overcharged by Texaco in the amount of
$0.02778 per gallon of propane purchased during the period September 1,
1973 through December 31, 1978. This determination was based upon the
findings in a Remedial Order issued to Texaco. Although the total
amount of the likely overcharges was $193,277, the DOE found that the
firm's maximum potential refund was $21,440 since its banks of
increased costs indicated that it had passed through the remainder of
the overcharges. The firm also established through the competitive
disadvantage methodology that it was injured by Texaco's likely
overcharges. The DOE also determined that the interest that accrued on
the likely overcharges prior to the effective date of the Texaco
Consent Order should be considered in determining J&J's refund. After
prorating the firm's maximum potential refund plus pre-settlement
interest by the ratio which the Texaco consent order amount bears to
the aggregate overcharge amount alleged by the DOE in all enforcement
proceedings settled by the Texaco Consent Order, the DOE found that J&J
is entitled to a refund of $67,895 (including a pro rata share of the
interest that has accrued since the Texaco settlement funds were
deposited with the DOE).
J.E. Dewitt, Inc., 8/23/94, RF321-17022
The DOE issued a Decision and Order concerning an Application for
Refund filed in the Texaco Inc. special refund proceeding on behalf of
J.E. Dewitt, Inc. (Dewitt), a reseller of Texaco products. Dewitt
sought a refund equal to 60 percent of its full allocable share based
on its purchases of Texaco motor gasoline. In support of its claim of
injury above the medium-range presumption level, the firm submitted
reconstructed cumulative banked gasoline costs. However, rather than
demonstrating inquiry by the competitive disadvantage methodology, as
would typically be the case, the firm attempted to show that it failed
to achieve a historic profit margin based on its average margin in
1971. The DOE determined that Dewitt's inability to sell gasoline at
its 1971 margin during a portion of the refund period may have resulted
from a variety of factors unrelated to Texaco's alleged overcharges.
Thus, Dewitt's profit margin data did not constitute a conclusive
showing of injury. However, because the evidence did not show that the
firm was not injured, Dewitt was granted a refund based on the medium-
range presumption of injury.
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.
Anheuser-Busch, Inc.......................................................... RF272-92419 08/22/94
City of Espanola............................................................. RR272-115 08/24/94
Coleman Company Heating & Air-Conditioning................................... RF272-67180 08/24/94
Coleman Company Material Services............................................ RF272-67181
Gulf Oil Corporation/Crescent Refining & Oil Co.............................. RF300-13473 08/22/94
Gulf Oil Corporation/Decatur County Board of Commissioners et al............. RF300-21332 08/24/94
Gulf Oil Corporation/Lyday's Gulf Service.................................... RF300-16069 08/22/94
Gulf Oil Corporation/Waterman & Sons, Inc.................................... RF300-20146 08/24/94
Gulf Oil Corporation/Wilcox & Holt Corporation............................... RF300-16108 08/23/94
Olathe Potato Growers Co-op et al............................................ RF272-94810 08/26/94
Sause Bros. Ocean Towing Co., Inc............................................ RF272-90161 08/26/94
Southside Farm Supply........................................................ RC272-251 08/25/94
Testers Inc. et al........................................................... RF272-93614 08/25/94
Texaco Inc./Elf Asphalt, Inc................................................. RF321-19942 08/26/94
Bituminous Materials, Inc.................................................... RF321-21017
Riffe Petroleum Co........................................................... RF321-21018
Thorn EMI Malco, Inc. et al.................................................. RF272-92407 08/26/94
Dismissals
The following submissions were dismissed:
------------------------------------------------------------------------
Name Case No.
------------------------------------------------------------------------
A.W. Logan, Inc..................................... RF272-69297
Alvin Hollis & Co., Inc............................. RF321-20055
Clarke County Board of Commissioners................ RF272-97037
Dawn Fuel, Inc...................................... RF300-20879
Ermis Texaco........................................ RF321-16338
Leo's Texaco........................................ RF321-19342
Liebermans Service Center, Inc...................... RF321-19603
Lottie Gulf......................................... RF300-20831
Louisiana-Pacific Corp.............................. RF321-20039
Pro Fuels, Inc...................................... LEE-0124
Seibertis Service Stations.......................... LEE-0140
Town of Leicester Highway Department................ RF272-97043
Unified School District 307......................... RF272-97022
Wilson of Wallingford, Inc.......................... RF321-20050
------------------------------------------------------------------------
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, 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.
Dated: October 25, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-26920 Filed 10-28-94; 8:45 am]
BILLING CODE 6450-01-P
