[Federal Register Volume 59, Number 192 (Wednesday, October 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24585]
[[Page Unknown]]
[Federal Register: October 5, 1994]
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DEPARTMENT OF ENERGY
Issuance of Decisions and Orders the Week of July 25 through
July 29, 1994
Office of Hearings and Appeals
During the week of July 25 through July 29, 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
Betty M. Daley, 7/28/94, LFA-0396
Mrs. Betty M. Daley filed an Appeal of the adequacy of a search for
the medical records of her husband (a deceased former Oak Ridge
employee) under a Request for Information which she had submitted under
the Freedom of Information Act. The late Mr. Daley had been employed at
Oak Ridge National Laboratory from March 1944 until his retirement in
September 1985. In considering the Appeal, the DOE found that the Oak
Ridge Field Office had performed a search reasonably calculated to
recover responsive materials because records were found from the period
June 1947 through September 1985, even though no responsive materials
were found from his initial employment in March 1944 through May 1947.
Beulah B. Carney, 7/29/94, LFA-0401
Mrs. Beulah B. Carney appealed the adequacy of the search conducted
by the DOE Oak Ridge Facility for her late husband's personnel records.
The Authorizing Official subsequently discovered documents proving that
these personnel records were destroyed as part of routine document
destruction. The OHA ordered that the documents pertaining to the
destruction of the records be released to the requester and in all
other respects denied the request.
Government Accountability Project, 7/29/94, LFA-0398
The Government Accountability Project (GAP) filed an Appeal from a
partial denial by the Oak Ridge Operations Office (Oak Ridge) of a
Request for Information which it had submitted under the Freedom of
Information Act (FOIA). GAP had requested billing statements submitted
by outside counsel to DOE contractors. In considering the Appeal, the
DOE found that while some of the information that had initially been
withheld under FOIA Exemption 4 should have been released to the
public, some of the information requested by the Appellant was properly
withheld under Exemption 4 since it was both privileged and
confidential. Accordingly, the Appeal was remanded to Oak Ridge for
further processing.
Marilyn Cribb Stanley, 7/28/94, LFA-0399
Marilyn Cribb Stanley filed an Appeal from a determination issued
to her on June 20, 1994, by the Oak Ridge Operations Office (Oak Ridge)
which denied a request for information which she had submitted under
the Freedom of Information Act. The request sought records relating to
the late Mary Avery Cribb, wife of a contractor employee at Oak Ridge
Laboratory during the 1940s. Oak Ridge stated that it did not possess
any responsive documents, and the Appeal challenged the adequacy of the
search. In considering the Appeal, the DOE found that Oak Ridge
followed procedures which were reasonably calculated to uncover the
material sought. Accordingly, the Appeal was denied.
Robert Heitmann, 7/29/94, LFA-0397
Robert Heitmann filed an Appeal from a determination issued to him
on June 14, 1994, by the Albuquerque Operations Office (AL) which
denied a request for information which he had submitted under the
Freedom of Information Act. The request sought records relating to an
alleged incident at the Travis School involving an airplane crash and
atomic weaponry. AL stated that it did not possess any responsive
documents, and the Appeal challenged the adequacy of the search. In
considering the Appeal, the DOE found that AL followed procedures which
were reasonably calculated to uncover the material sought. Accordingly,
the Appeal was denied.
Texas Instruments, Inc., , 7/28/94, LFA-0395
Texas Instruments, Inc. (TI) filed an Appeal from a determination
issued by the Oak Ridge Operations Office (Oak Ridge) in response to
TI's request under the Freedom of Information Act. In the Appeal, TI
claimed that the search by Oak Ridge was inadequate. TI cited in
support of its argument an incident in which a TI employee allegedly
saw a stack of responsive documents that were not released.
In denying the Appeal, the DOE found that the incident did not
provide a basis for believing that responsive documents had been
withheld. The DOE also found that Oak Ridge had adequately searched for
documents.
Whistle Blower Proceeding
Francis M. O'Laughlin, 7/29/94, LWA-0005
Francis M. O'Laughlin (O'Laughlin) filed a complaint under the
DOE's Contractor Employee Protection Program, 10 C.F.R. Part 708,
contending that reprisals were taken against him after he raised
concerns relating to health and safety with Boeing Petroleum Services,
Inc. (BPS), a DOE contractor. The alleged reprisals included wrongfully
denying O'Laughlin a management position to which he ostensibly was
entitled, and later taking adverse personnel action against O'Laughlin
which included a demotion and corresponding salary reduction. Pursuant
to O'Laughlin's request under 10 CFR 708.9(a), a hearing in this matter
was conducted by an Office of Hearings and Appeals Hearing Officer on
May 18 and 19, 1994, in New Orleans, Louisiana. In considering the
transcript of testimony taken at the hearing and the pleadings filed on
behalf of O'Laughlin and BPS, the Hearing Officer determined that
O'Laughlin had failed to establish that he actually disclosed
information to BPS which evidenced his good faith belief that there was
a substantial and specific danger to health or safety. 10 CFR
708.5(a)(1). Accordingly, in the DOE's Initial Agency Decision,
O'Laughlin's request for relief under Part 708 was denied.
Request for Exception
R&R Oil, Inc., 7/27/94, LEE-0079
R&R Oil, Inc. 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.'' In considering this request, the DOE found that the firm was
not suffering gross inequity or serious hardship. Accordingly,
exception relief was denied.
Implementation of Special Refund Procedures
Telum, Inc., 7/25/94, LEF-0114
The DOE issued a Decision and Order setting forth refund procedures
to distribute $56,149.35 plus interest, received as a result of a
Consent Order between Telum, Inc. and the DOE. The Decision sets forth
refund application procedures for the customer who purchased middle
distillates from Telum, Inc. during the period from December 1, 1973
through April 30, 1974. Specific information regarding the data to be
included in the refund application is discussed in the Decision.
Refund applications
Barrick Enterprises, Inc., 7/28/94, RF272-92432
The DOE issued a Decision and Order concerning the Application for
Refund of a claimant in the Subpart V crude oil overcharge refund
proceeding. The DOE determined that the applicant resold the refined
petroleum products that formed the basis of its application and thus
passed on the costs of any crude oil overcharges to its customers.
Therefore, the DOE concluded that the claimant was not injured by any
of the overcharges associated with the gallons that it purchased.
Accordingly, the Application for Refund was denied.
Burt County Cooperative Company, et al., 7/28/94, RF272-91445 et al.
The DOE issued a Decision and Order denying seven Applications for
Refund filed by the National Bank for Cooperatives (CoBank) in the
crude oil refund proceeding on behalf of seven local agricultural
cooperatives no longer in operation. CoBank claimed a right to apply on
behalf of these cooperatives based on security agreements entered into
with each of them. These security agreements listed specific assets,
accounts receivable, equipment and leaseholds as collateral with
CoBank. However, none of these security agreements listed oil
overcharge refunds as one of the secured items. The security agreements
did list deferred patronage refunds from Farmland Industries, a
regional cooperative, as a secured item, but the Decision determined
that deferred patronage refunds from a regional cooperative are not oil
overcharge refunds for which local cooperatives are eligible on behalf
of their member/owners.
Texaco Inc./Donley's Texaco Service Station, 7/28/94, RF321-16838,
RF321-21012, RF321-21013
The DOE issued a Decision and Order concerning an Application for
Refund submitted by Donley's Service Station (Donley's), an indirect
purchaser of Texaco motor gasoline. Donley's requested that the refund
be paid to the firm, which is a partnership currently owned by four
partners. However, in accordance with prior Decisions, the DOE
determined that the partners during the refund period were eligible for
the Donley's refund in proportion to their ownership interest, except
for those partners who had transferred their right to a refund. One of
the Donley's partners both currently and during the refund period owns
75% of the shares of the corporation that supplied gasoline to
Donley's. The DOE decided not to treat the two firms as a single firm
for purposes of determining the applicable presumption of injury
available to Donley's. However, since the supplier had received a
refund for its direct purchases of Texaco gasoline, the Donley's refund
for the common owner was reduced by 75% so that he would not receive
two refunds for the same gallons. The total of the refunds granted to
the three Donley's partners who had joined in the outlet's refund claim
was $7,285 ($5,192 principal plus $2,093 interest).
Texaco Inc./Lehigh Service & Supply, 7/29/94, RF321-19561, RF321-19562,
RF321-19563, RF321-19564
The DOE issued a Decision and Order concerning four Applications
for Refund filed in the Texaco Inc. special refund proceeding by four
partners on behalf of Lehigh Service & Supply, a reseller located in
Hazleton, Pennsylvania. Two of these partners had previously received a
refund for purchase made by Lehigh Gas & Oil, the firm that supplied
Lehigh Service & Supply with Texaco product. The DOE determined that
these two partners were ineligible for a refund for purchases made by
Lehigh Service & Supply because they had already received a refund for
these gallons, and accordingly, these two Applications for Refund were
denied. The other two applicants received refunds in proportion to
their ownership interest in Lehigh Service & Supply. The total amount
of refunds granted in this Decision was $2,366 ($1,686 principal plus
$680 interest).
Texaco Inc./Ryder Energy Distribution, 7/29/94,RF321-14683
The DOE issued a Decision and Order concerning an Application for
Refund filed in the Texaco Inc. special refund proceeding on behalf of
Ryder Energy Distribution (Ryder). Ryder is the fuel purchasing and
distribution subsidiary of Ryder Systems, a nationwide truck leasing
company. In its application, Ryder requested a refund based on the end-
user presumption of injury for its Texaco purchases which were consumed
by its own fleet of trucks. It also claimed a refund under the medium-
range presumption of injury based on the purchases it made from Texaco
which it later resold to its leasing customers. The DOE determined
that, in accordance with Gulf Oil Corp./Ryder Energy Distribution, 21
DOE 85,345 (1991), Ryder must be considered a retailer, since as a
vehicle rental firm, it was involved in the retail sale of petroleum
products. Furthermore, the DOE determined that it would be inconsistent
with the adoption of a $50,000 maximum refund under the medium-range
presumption of injury for Ryder to receive in excess of that amount
without having to prove injury. Accordingly, Ryder was awarded $50,000,
plus interest, under 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.
Argyle Ranch, Inc......................................................... RF272-48097 07/29/94
Atlantic Richfield Company:
Nycrest Corporation................................................... RF304-13463 07/27/94
Newman Oil Co., Inc................................................... RF304-13464 ..............
Minuteman Fuels, Inc.................................................. RF304-13465 ..............
Atlantic Richfield Company:
Ray's Arco et al...................................................... RF304-14625 07/27/94
Atlantic Richfield Company:
Town and Country Gas, Inc et al....................................... RF304-14225 07/29/94
Atlantic Richfield Company:
W.L. Mazzia........................................................... RF304-13999 07/25/94
Berrien County Farm Bureau Oil Co. et al.............................. RF272-91282 07/25/94
Clark Oil and Refining Corp.:
Midwest Petroleum Company............................................. RF342-173 07/29/94
Earle's Clark Super 100............................................... RF342-304 ..............
Cobitco, Inc.......................................................... RF272-94577 07/26/94
Forward Corp. et al................................................... RF272-77612 07/29/94
Golden State Foods.................................................... RF272-94818 07/26/94
Gulf Oil Corporation:
Sylvester's Crill and Palm Ave........................................ RF300-15573 07/27/94
Crill and Palm Gulf................................................... RF300-21787 ..............
Metropolitan Petroleum and Fuel:
Jorge R. Ruiz......................................................... RF349-8 07/29/94
Oasis Truck Stop...................................................... RF349-10 ..............
Alfaro 66............................................................. RF349-11 ..............
Penske Truck Leasing Co., L.P......................................... RF272-92418 07/26/94
Rock County Buick Company............................................. RF272-90801 07/26/94
Shell Oil Company:
Kennel's Service Station.............................................. RR315-8 07/29/94
Texaco's, Inc.:
B and H Texaco et al.................................................. RF321-7698 07/27/94
Texaco, Inc.:
Cloninger Texaco Service.............................................. RF321-9036 07/27/94
Texaco, Inc.:
D.A. Kessler Construction Co. et al................................... RF321-7400 07/29/94
Texaco, Inc.:
J&M Self-Serv Unit 1.................................................. RF321-14095 07/27/94
J&M Self-Serv Unit 2.................................................. RF321-14096 ..............
J&M Self-Serv Unit 3.................................................. RF321-14097 ..............
J&M Self-Serv Unit 4.................................................. RF321-14098 ..............
Texaco, Inc.:
Mobil Oil Corporation................................................. RF321-17122 07/29/94
Texaco, Inc.:
Roy's Food Market et al............................................... RF321-459 07/29/94
Texaco's, Inc.:
Smith Texaco et al.................................................... RF321-508 07/26/94
Texaco, Inc.:
Stan's Texaco et al................................................... RF321-18307 07/27/94
Township of Florence et al................................................ RF272-94816 07/26/94
W.H. Kneas Lumber Company................................................. RF272-82421 07/26/94
Walsh Moving Service et al................................................ RF272-94814 07/29/94
Dismissals
The following submissions were dismissed:
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Name Case No.
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Avacado Texaco........................................ RF321-7179
Carroll County........................................ RF272-85932
Crain Texaco.......................................... RF321-8231
Esch & Associates..................................... RF300-19297
Fitzpatrick Oil Co.................................... RR315-9
Glen Petroleum Corporation............................ RF336-43
Joe Rainer's Texaco................................... RF321-11350
Joe's Texaco.......................................... RF321-7161
John Papadopoulos..................................... RF321-7383
Leyden Texaco Service................................. RF321-9278
M S D Decatur Township................................ RF272-96470
Miller's Texaco....................................... RF321-13624
Missouri Pacific Railroad............................. RF321-12844
Missouri Pacific Railroad............................. RF321-12843
North Main Texaco..................................... RF321-7378
Parry Tire Co......................................... RF321-19968
Parry Tire Co......................................... RF321-19969
Penske Truck Leasing Co., L.P......................... RF321-19913
Post Office Texaco.................................... RF321-7379
R & W Gas Co., Inc.................................... RF321-1751
Ram Tire Co., Inc..................................... RF321-6388
Randy Pate............................................ RF321-9369
Rinker Materials Corp................................. RF321-20102
Riverton Corporation.................................. RF272-93342
Ron's North Texaco.................................... RF321-13622
Roscoe's Texaco....................................... RF321-12539
Smith International, Inc.............................. RF272-93004
Thom Zinson & McWhite................................. RF300-16773
Troiano Fuel Oil Co., Inc............................. RF321-19950
Trombly Motor Coach Service........................... RF272-94731
Union County.......................................... RF272-85389
Village of Union...................................... RF272-85917
Woods' Seacrest Texaco................................ RF321-12136
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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, DC 20585, Monday through Friday, between the hours of 1
p.m. and 5 p.m., except federal holidays. They are also available in
Energy Management: Federal Energy Guidelines, a commercially published
loose leaf reporter system.
Dated: September 27, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-24585 Filed 10-4-94; 8:45 am]
BILLING CODE 6450-01-P
