[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2733]
[[Page Unknown]]
[Federal Register: February 7, 1994]
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DEPARTMENT OF ENERGY
Notice of Issuance of Decisions and Orders; Week of December 13
Through December 17, 1993
During the week of December 13 through December 17, 1993, the
decisions and orders summarized below were issued with respect to
applications for 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.
Whistleblower Proceeding
Ronald Sorri, 12/16/93, LWA-0001
Ronald Sorri (Sorri) filed a request for a hearing on June 9, 1993
under the Department of Energy's Contractor Employee Protection
Program, 10 C.F.R. Part 708. This case involved a whistleblower
complaint filed by Sorri under DOE's new Contractor Employee Protection
Program, charging that reprisals were taken against him after he raised
safety concerns with Sandia National Laboratories, DOE, and Congressman
Leon Panetta. The alleged reprisals included removing him from his job
as a maintenance technician in Sandia's Microelectronics Development
Laboratory; giving him lowered performance ratings; reassigning him to
a job as a technical writer; and finally, firing him. DOE's Office of
Contractor Employee Protection (OCEP) investigated the complaint and
found that the first three actions were reprisals for Sorri's
disclosure of safety concerns. However, OCEP concluded the Sorri's
termination did not constitute a reprisal. Sorri requested a hearing
before a Hearing Officer with the Office of Hearings and Appeals,
maintaining that his termination was also a reprisal for his safety
disclosures. The Hearing Office concluded that Sorri proved by a
preponderance of the evidence that he engaged in activities protected
under Part 708 and that these activities were a contributing factor in
the decision by Sandia and L&M to terminate his employment. The Hearing
Officer further concluded that Sandia and L&M failed to prove by clear
and convincing evidence that they would have terminated Sorri's
employment were it not for his whistleblowing activities. The Hearing
Officer therefore determined that Sorri's termination violated the
whistleblower regulations in 10 C.F.R. Part 708. Sorri was awarded
$5,000 in back pay, plus attorney's fees and costs. Sandia and L&M have
the right to appeal the Decision to the Secretary or her designee.
Motion for Discovery
Oxy USA Inc., 12/17/93, LRD-0006, LRH-0002
OXY USA Inc. (OXY) filed Motions for Discovery and Evidentiary
Hearing in connection with the firm's Statement of Objections to a
February 1992 Revised Proposed Remedial Order (the Revised PRO) issued
to the firm by the DOE's Economic Regulatory Administration (ERA). The
Revised PRO concerns reciprocal crude oil transactions entered into by
OXY's predecessor in interest, Cities Service Company (Cities). Those
transactions generally involved the sale by Cities of price-controlled
crude oil in exchange for its receipt of deeply discounted exempt crude
oil. The ERA alleges that Cities' reporting of these transactions
violated the entitlements reporting requirements set forth at 10 C.F.R.
Sec. 211.67(b), (h), and (j) and the anti-circumvention rule set forth
at 10 C.F.R. Sec. 205.202.
In considering the firm's discovery requests, the DOE found that,
with the exception of privileged material, OXY had already been
provided with information relevant to the charges in the Revised PRO.
Accordingly, the discovery motion was denied. In considering the firm's
evidentiary hearing motion, the DOE held that OXY should be granted an
evidentiary hearing to support its contentions that (i) Cities'
officials believed, and had a plausible basis for believing, that
entitlements-exempt uses, rather than miscertification, explained the
transactions and (ii) the transactions were not shams. The DOE denied
OXY's request for an evidentiary hearing on the issues of the scope of
Cities' court action concerning the transactions and the sufficiency of
Cities' contemporaneous disclosure concerning the transactions, on the
ground that those issues should be resolved on the basis of the record
of the litigation and submissions by Cities to the DOE. Accordingly,
the evidentiary hearing motion was granted in part.
Refund Applications
Atlantic Richfield Company/Mission Trail Oil Company, 12/15/93, RF304-
3079
The DOE issued a Decision and Order granting an Application for
Refund filed by Mission Trail Oil Company (Mission Trail) in the
Atlantic Richfield Company Subpart V special refund proceeding. Mission
Trail is affiliated with Coast Oil Company (Coast), a firm that
previously received a full small purchaser refund of $5,000 in
principal in the ARCO proceeding. In the case of multiple refund
applications filed by affiliated firms in the same proceeding, the
submissions are consolidated in considering the applicants' eligibility
for a refund. Therefore, the Mission Trail refund was calculated based
upon the consolidated Mission Trail and Coast volumes under the mid-
range presumption less the previous refund of $5,000 that had been
granted to Coast. Thus Mission Trail was granted a refund of $9,194,
representing $5,463 in principal and $3,731 in interest.
Gulf Oil Corporation/ M.A. and M.T. Moon, 12/17/93, RF300-16446
The DOE issued a Decision and Order concerning an Application for
Refund submitted in the Gulf Oil Corporation special refund proceeding
by Resource Refunds, Inc. on behalf of M.A. and M.T. Moon, operators of
Moon and Sons Gulf. Under Case No. RF300-10430, Gary Towerville,
manager of Moon and Sons Gulf and stepson of M.A. Moon, previously
applied for and received a refund based on estimated purchases of
2,569,360 gallons. This Application for Refund was granted in full on
November 9, 1989. Under the Case No. RF300-16446, Resource Refunds,
Inc. filed an Application for Moon and Sons Gulf, claiming that the
station should receive a refund based on 2,703,870 gallons. This
Application incorrectly stated that the applicant had not previously
filed for a refund in this proceeding. Because the second Application
claimed a refund for 2,569,360 gallons previously included in the
earlier filing, it therefore was granted for purchases of only 134,510
gallons. Furthermore, this Decision discusses the responsibility of
filing agents to maintain the accuracy of their case files, and it
reminded Resource Refunds, Inc. of this obligation.
Gulf Oil Corp./Ripley & Fletcher Co. RF300-14073, C.N. Brown Co., 12/
15/93, RF300-16858
The DOE issued a Decision and Order concerning two affiliated
Applications for Refund filed by Wilson, Keller & Associates, Inc. in
the Gulf Oil Corporation special refund proceeding. In the first
application, Ripley & Fletcher Co. (Ripley) claimed a refund as a
reseller based on the purchase of 193,564,655 gallons of Gulf petroleum
product. In the second application, C.N. Brown Co. (CNB) claimed a
refund based on its purchase of 8,623,679 gallons under consignment. As
both applicants were under common ownership and control during the Gulf
refund period, they were considered together and approved for the
maximum principal amount of $50,000 under the 40 percent presumption.
Ripley and CNB could not take advantage of the consignee presumption
because it would have raised their combined principal amount beyond the
$50,000 limit and both applicants had chosen not to prove injury.
Accordingly, the DOE granted Ripley a refund of $86,250 ($48,000
principal plus $38,250 interest and CNB a refund of $3,594 ($2,000
principal and $1,594 interest).
Gulf Oil Corporation/Southern Jersey Airways, Inc., 12/17/93, RF300-
19732
The DOE issued a Decision and Order concerning an Application for
Refund submitted in the Gulf Oil Corporation special refund proceeding
by LK, Inc. (LK), a filing agency, on behalf of Southern Jersey
Airways, Inc. (Southern). In considering the refund claim, the DOE
noted that LK was authorized to represent Southern, a firm in Chapter 7
bankruptcy, by the U.S. Bankruptcy Court for the District of New
Jersey. The DOE found that this arrangement would provide restitution
to Southern's estate. Accordingly, a refund in the amount of $7,716 was
granted to LK, which will notify the U.S. Bankruptcy Court of its
receipt of the refund.
Gulf Oil Corporation/Transportation Supplies, Inc., 12/15/93, RF300-
16200
The DOE issued a Decision and Order concerning an Application for
Refund filed in the Gulf Oil Corporation special refund proceeding by
Stanley Cofall on behalf of Transportation Supplies, Inc. (TSI). The
Application for Refund was submitted by Energy Refunds, Inc., a private
filing service. The applicant claimed that TSI purchased 28,243,240
gallons of Gulf petroleum products and asked that the refund check be
made payable to Stanley Cofall. Mr. Cofall could not demonstrate that
he was presently eligible to receive a refund on behalf of this
corporation. In addition, under Case No. RF300-10119, Leaseway
Transportation Corporation was granted a refund based on purchases of
40,933,031 gallons of Gulf products made by the corporation and its
subsidiaries which include Transportation Supplies, Inc. Mr. Cofall was
therefore denied a refund in this proceeding.
Gulf Oil Corporation/West Penn Power Company, 12/17/94, RF300-20131
The DOE issued a Decision and Order concerning an Application for
Refund submitted in the Gulf Oil Corporation special refund proceeding
by West Penn Power Company. In considering the claim, the DOE noted
that pursuant to Pennsylvania regulations for public utilities, West
Penn Power Company did not employ a monthly fuel adjustment clause
during the refund period. The DOE found that the company therefore
could not pass through Gulf's alleged overcharges to its customers on a
dollar for dollar basis. Accordingly, West Penn Power Company was
treated as an end-user in this proceeding and was granted a total
refund of $9,238.
Quantum Chemical Corp./Wilcox Oil Company, 12/17/94, RR330-1
Bill T. Wilcox submitted a Motion for Reconsideration of the DOE's
denial of an Application for Refund that he had submitted on behalf of
Wilcox Oil Company (WOC) in the Quantum Chemical Corporation Refund
proceeding. In its denial of the original application, the DOE found
that the WOC was a corporation whose stock had been sold, and that the
right to a refund had transferred to the purchaser of the stock.
However, based on information submitted by Mr. Wilcox in his Motion for
Reconsideration, the DOE found that the WOC functioned as a sole
proprietorship of Mr. Wilcox prior to its incorporation. Accordingly,
the DOE found that Mr. Wilcox was the proper recipient of a refund for
WOC's purchases from Quantum that occurred prior to the incorporation
of WOC in December 1979. Mr. Wilcox was therefore granted a refund of
$109.
Texaco Inc./Ronnie's Texaco et al., 12/15/93, RF321-14226 et al.
The DOE issued a Decision and Order concerning seven Applications
for Refund filed in the Texaco Inc. Subpart V special refund
proceeding. The application for purchases made by Art Cement Products,
Inc. (Art) (Case No. RF321-16588), was filed by RECOLL Management Corp.
(RECOLL). Art is in bankruptcy, and the New Bank of New England is one
of its creditors. RECOLL is acting on behalf of the Federal Deposit
Insurance Corporation, the bank's receiver. The trustee in the Art
bankruptcy case stated that the bank has a security interest in all of
Art's assets, and he requested that the refund due Art be made payable
to RECOLL. The DOE has previously indicated that where a firm is in
bankruptcy, the refund will be paid to a creditor if the creditor
demonstrates a clear right to the refund. See Texaco Inc./General Gas &
Oil Co., 22 DOE 85,130 (1992). That is the case here. Accordingly,
Art's refund was granted to RECOLL.
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.
Atlantic Richfield Company/B&P Motor Express.............................. RF304-12218 12/15/93
Atlantic Richfield Company/Bohemian Distributing Co. et al................ RF304-13428 12/15/93
B & B Trucking Company.................................................... RF272-75997 12/15/93
Browning-Ferris Industries of K.C......................................... RC272-218 12/15/93
Clear Lake School District et al.......................................... RF272-80733 12/15/93
Gulf Oil Corporation/Bronx River Gulf Service............................. RF300-14412 12/15/93
Kearney & Trecker Corp. et al............................................. RF272-80140 12/15/93
Lindsley Lumber Company................................................... RF272-77206 12/17/93
Pearl River County........................................................ RF272-87015 12/15/93
Sandoz Chemicals Corp. et al.............................................. RF272-66502 12/17/93
Sandoz Chem. Corporation.................................................. RD272-66502 ..............
Lockheed Aeronautical Sys. Co............................................. RD272-66674 ..............
Holland Corp.............................................................. RD272-67236 ..............
DBJ Equipment Co.......................................................... RD272-67759 ..............
Caribbean Marine Service Co............................................... RD272-69699 ..............
Shell Oil Company/509 BMW/LGSF............................................ RF315-1791 12/17/93
Shell Oil Company/Cleofe Rivera Rosado.................................... RF315-9350 12/17/93
Jose Martorell Otero...................................................... RF315-9351 ..............
Shell Oil Company/Lectronostic Servicenter, Inc........................... RF315-736 12/15/93
Texaco Inc./Deal's Texaco #1.............................................. RF321-19374 12/17/93
Jack's Texaco #1.......................................................... RF321-19982 ..............
Texaco Inc./Leo Charest's Texaco et al.................................... RF321-11150 12/17/93
Texaco Inc./Pop's Oasis Truck Stop et al.................................. RF321-19068 12/15/93
Texaco Inc./Texaco Food Mart #1 et al..................................... RF321-11566 12/17/93
Dismissals
The following submissions were dismissed:
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Name Case No.
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A. Wimpfheimer & Bro., Inc........................ RF272-91984
Arledge Transfer, Inc............................. RF272-86035
Borough of Alpha.................................. RF272-88404
City of Grove..................................... RF272-83083
City of Huron..................................... RF272-88492
City of Independence.............................. RF272-88493
City of Ithaca.................................... RF272-88495
City of Jacksboro................................. RF272-88496
Coca-Cola Bottling Co. of New England............. RF272-93538
Dept. of the Army Corps of Engineers.............. RF272-93950
Doug's Spur Station............................... RF309-1254
Falls County...................................... RF272-88408
Hardeman County................................... RF272-88414
John W. Beauchamp................................. RF321-2665
Keppley's Texaco.................................. RF321-11496
Liggett's Texaco.................................. RF321-14479
Minidoka County................................... RF272-88416
Mohenis Services, Inc............................. RF272-03538
Municipality of Metro. Seattle.................... RF272-92504
Robert H. Oaks.................................... RF321-13439
Saint Bernard Par. Sch. Bd........................ RF272-88449
Sanitary Linen Service, Inc....................... RF272-94482
Seehuus Associates................................ LFA-0337
Sharon City Sch. Dist............................. RF272-88437
Skaneateles Central School........................ RF272-88440
Skokie School District 73-5....................... RF272-88441
Slocum Independent School District................ RF272-88442
South Haven School District....................... RF272-88446
Thompson Public Sch. Dist 61...................... RF272-88455
Town of Longboat Key.............................. RF272-88435
Township of Hopewell.............................. RF272-88489
Virginia Linen Services, Inc...................... RF272-94492
W.C. & D.L Cullipher.............................. RF300-19995
Woodbridge Texaco................................. RF321-13731
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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 1:00
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: February 1, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 94-2733 Filed 2-4-94; 8:45 am]
BILLING CODE 6450-01-P
