Issuance of Decisions and Orders During the Week of May 2 Through May 6, 1994

DEPARTMENT OF ENERGY

Office of Hearings and Appeals

Issuance of Decisions and Orders During the Week of May 2 Through

May 6, 1994

During the week of May 2 through May 6, 1994 the decisions and

orders summarized below were issued with respect to appeals and

applications for exception or 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.

Appeal

The National Security Archive, 5/3/94, LFA-0365

The National Security Archive (NSA) filed an Appeal from a

determination issued to it on March 18, 1994 by the Office of

Resource Management (ORM), Office of Policy, Planning, and Program

Management of the Department of Energy which denied a request for

information it had filed under the Freedom of Information Act

(FOIA). The request sought information concerning the export of 4.3

tons of heavy water from the U.S. to Israel in 1963. The ORM 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 NSA's FOIA request may not have been subjected to

a search sufficiently thorough and conscientious to meet the

established standard of reasonableness. Accordingly, the Appeal was

granted and remanded to the FOI Branch for further action.

Requests for Exception

Carson Petroleum Co., 5/4/94, LEE-0055

Carson Petroleum Co. (Carson) 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 Carson's request, the DOE

found that the firm was not experiencing a gross inequity or serious

hardship. On March 10, 1994, the DOE issued a Proposed Decision and

Order determining that the exception request should be denied. No

Notice of Objection to the Proposed Decision and Order was filed

within the prescribed time period. Therefore, the DOE issued the

Proposed Decision and Order in final form, denying Carson's

Application for Exception.

Dick's Oil Co., 5/3/94, LEE-0067

Dick's Oil Co. 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.

Friendly Service Stations, Inc., 5/3/94, LEE-0070

Friendly Service Stations, Inc. (Friendly) filed an Application

for Exception from the Energy Information Administration (EIA)

requirement that it file Form EIA-82B, the ``Resellers'/Retailers'

Monthly Petroleum Product Sales Report.'' Friendly showed that it

had been forced by financial difficulties to reduce its staff to

such an extent that complying with the reporting requirement would

impose an inordinate burden on the firm. DOE therefore determined

that exception relief should be granted. Friendly hopes that its

current difficulties will prove temporary. The exception relief

granted will therefore be effective for a period of nineteen months,

ending April 30, 1995. If Friendly wishes to receive continued

exemption from filing requirements after that time, it must then

reapply with the DOE. Accordingly, the Application was granted in

part.

Raymer Oil Company, 5/3/94, LEE-0095

Raymer Oil Company (Raymer) 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.

On March 24, 1994, the DOE issued a Proposed Decision and Order

determining that the exception request should be denied. No Notice

of Objections to the Proposed Decision and Order was filed at the

Office of Hearings and Appeals of the DOE within the prescribed time

period. Therefore, the DOE issued the Proposed Decision and Order in

final form, denying Raymer's Application for Exception.

Rockford Grain Growers, 5/4/94, LEE-0064

Rockford Grain Growers (Rockford) 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 experiencing a serious

hardship, gross inequity, or unfair distribution of burdens arising

from this filing requirement. On February 10, 1994, the DOE issued a

Proposed Decision and Order determining that the exception request

should be denied. A Notice of Objections (Objections) to the

Proposed Decision and Order was filed at the Office of Hearings and

Appeals of the DOE on March 14, 1994. In the Objections, Rockford

submitted additional information which demonstrated that the firm's

precarious financial situation was exacerbated by the requirement to

file EIA-782B. Since Rockford demonstrated in its Objections that it

was experiencing an unfair distribution of burdens, the DOE issued a

Decision and Order, granting Rockford's Application for Exception.

V.W. Smith Oil, Inc., 5/3/94, LEE-0081

V.W. Smith Oil, Inc. (V.W. Smith) 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. On February 28, 1994, the DOE issued a

Proposed Decision and Order determining that the exception request

should be denied. No Notice of Objections to the Proposed Decision

and Order was filed at the Office of Hearings and Appeals of the DOE

within the prescribed time period. Therefore, the DOE issued the

Proposed Decision and Order in final form, denying V.W. Smith's

Application for Exception.

Interim Order

Hunt Oil Co., 5/3/94, LEN-0086

Hunt Oil Co. filed an Application for Exception from the

provisions of the requirement to file Form EIA-782B in which the

firm sought relief from filing the form. In considering the request,

the DOE found that interim exception relief was necessary to

alleviate a serious hardship to the reporting firm. Accordingly,

interim exception relief was granted. Although the reporting

requirement did not create the hardship, it aggravated the situation

faced by Hunt.

Refund Applications

ASARCO Incorporated--Ray Unit ASARCO Incorporated, 5/3/94, RF272-

13526, RD272-13526, RF272-25467

The DOE issued a Decision and Order concerning two Applications

for Refund filed on behalf of ASARCO Incorporated--Ray Unit and

ASARCO Incorporated in the crude oil special refund proceeding being

disbursed by the DOE under 10 C.F.R. Part 205, Subpart V. The DOE

determined that the refund claims were meritorious and granted a

refund of $175,157. However, the DOE denied a portion of the claim,

because it was based on gallons of petroleum products covered by

price escalator clauses. The DOE also denied a Motion for Discovery

filed by a consortium of States and two Territories and rejected

their challenge to the claim. The DOE denied the States' Objections,

finding that the industry-wide econometric data submitted by the

States did not rebut the presumption that the Applicant was injured

by the crude oil overcharges.

Standard Oil Co. (Indiana)/Idaho, 5/4/94, RM21-268

The DOE issued a Decision and Order approving a Motion for

Modification of a previously-approved second-stage refund plan filed

by the State of Idaho (Idaho). In its Motion, Idaho requested the

authority to use $175,096.29 of its uncommitted Standard Oil Co.

(Indiana) second-stage refund monies to fund four projects in

Idaho's State Energy Conservation Program. The DOE affirmed the

timely restitutionary benefits of the plan to promote the efficient

use to energy in Idaho. The DOE also identified the proposed

recipients of those benefits (the people of Idaho) as a substantial

segment of injured consumers of refined petroleum products. The

Idaho plan was thus found to satisfy the criteria for a second-stage

refund restitutionary program. Accordingly, Idaho's Motion for

Modification was approved.

Texaco Inc./Dental's Automotive Center, 5/5/94, RR321-56

The DOE issued a Decision and Order granting a Motion for

Reconsideration filed by R.W. Dental, the owner of Dental's

Automotive Center (Dental's), in the Texaco Inc. special refund

proceeding. Mr. Dental's refund application had been denied because

the DOE determined that the business was not a purchaser of Texaco

products, but a consignee of an independent Texaco distributor. In

the Motion, Mr. Dental demonstrated that, because the per gallon

margin Dental's received for sales of Texaco products fluctuated,

the business was susceptible to Texaco price increases and market

pressures. Accordingly, the DOE granted Mr. Dental a total refund of

$13,908 under the medium-range presumption of injury.

Texaco Inc./Houston & Davidson Texaco, 5/3/94, RF321-20557

The DOE issued a Decision and Order denying an Application for

Refund filed by Mr. William E. Davidson on behalf of Houston &

Davidson Texaco in the Texaco Inc. special refund proceeding. The

DOE found that the applicant had not shown that he had had any

ownership interest in the outlet located at 300 N. Euclid St.,

Fullerton, California, either as a partner or otherwise, and

therefore concluded that he was not eligible for a refund based on

the purchases made by that outlet.

Texaco Inc./Jerry's Texaco, Kelly's Texaco, 5/4/94, RF321-19200,

RF321-19308

Applications for Refund were filed by Jerry Mittler on behalf of

Jerry's Texaco (Case No. RF321-19200) and by Jack Fensterheim on

behalf of Kelly's Texaco (Case No. RF321-19308) requesting refunds

based on purchases of Texaco petroleum products. Each applicant

estimated that he purchased 32,000 gallons of Texaco motor gasoline

each month he was in business, and requested that his refund be

based on this estimate. In considering this request, the DOE found

that this estimate was not reliable, since it was based solely on

the applicants' recollection of the size and frequency of gasoline

deliveries. Accordingly, the DOE issued a Decision and Order denying

the Applications for Refund filed by Jerry Mittler and Jack

Fensterheim.

Texaco Inc./Wathke's Interstate Texaco, Haak's Texaco, 5/3/94,

RF321-20937, RF321-20965

The DOE issued a Decision and Order concerning two Applications

for Refund filed on behalf of Wathke's Interstate Texaco (Wathke)

and Haak's Texaco (Haak) in the Texaco Inc. special refund

proceeding. Both applications were postmarked after the February 28,

1994 deadline for submitting applications in the Texaco proceeding.

The applicant's representative, Resource Refunds, Inc. (RRI), argued

that Wathke's application should be considered as filed timely

because Wathke mailed RRI its application in an envelope postmarked

February 24, 1994 and that RRI did not receive Wathke's application

until March 2, 1994. RRI argued that Haak's application should be

considered timely because Haak mailed material needed to complete

its application to the wrong address. The DOE held that, with

respect to Wathke, it was immaterial that its application was

delayed in its transmission to RRI since Wathke itself elected to

send its application to RRI by mail instead of sending it to the DOE

directly, and that RRI could not be considered an agent of the DOE

for purposes of satisfying the deadline. In addition, the DOE held

that Haak's negligence in sending information to the wrong address

was not a sufficient excuse to justify its late application. Because

Wathke's and Haak's applications were filed after the February 28

deadline and no equitable considerations existed in excusing their

lateness, the DOE dismissed both applications.

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/Ed Yee, Inc. et al............................. RF304-14396 05/03/94

Atlantic Richfield Company/Fox Hills Services, Inc. et al................. RF304-14350 05/03/94

Atlantic Richfield Company/H.C. Rineer & Sons, Inc........................ RF304-13486 05/03/94

Atlantic Richfield Company/Horry N. & Larry L. Brock et al................ RF304-13181 05/06/94

Atlantic Richfield Company/P&H Gas Company................................ RF304-13021 05/05/94

Atlantic Richfield Company/Rich & Horton Oil Co. et al.................... RF304-13756 05/05/94

Beacon Oil Company/San Lucas Truck Stop................................... RR238-1 05/06/94

Central Soya Feed Co., Inc................................................ RF272-93829 05/04/94

Central Soya Co., Inc..................................................... RF272-93882

Cherokee Brick and Tile Co. et al......................................... RF272-93805 05/03/94

Eau Claire Transit........................................................ RC272-236 05/03/94

Enron Corp./K.C. Sales Company, Inc....................................... RF340-102 05/06/94

Eastwin Bottle Gas Service................................................ RF340-143

Famous Lubricants, Inc.................................................... RF272-93317 05/03/94

Gulf Oil Corp./Mr. Best Car Wash Systems, Inc............................. RF300-20155 05/03/94

Gulf Oil Corp./Yorktown Gulf II........................................... RF300-21790 05/06/94

Inwood Heights et al...................................................... RF272-56902 05/03/94

Lompoc Unified School District............................................ RF272-79166 05/04/94

Luke Oil Company, Inc..................................................... RF272-94743 05/03/94

C. Jim Spence Oil Company, Inc............................................ RF272-94744

Kramer Tire Company....................................................... RF272-94760

Shell Oil Company/Ingram Shell Service.................................... RF315-10285 05/04/94

Texaco Inc./Tom Lacaze Texaco............................................. RF321-20453 05/03/94

Dismissals

The following submissions were dismissed:

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Name Case No.

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Bill Louie's Arco.................................... RF304-14283

Dohrn Transfer Co., Inc.............................. RF272-78472

Jay F. Darrenogue.................................... RF321-17070

Muscogee County Air Service.......................... RF300-20747

Myers Chevron........................................ LEE-0089

Native Americans for a Clean Environment............. LFA-0367

Northeast Utilities Service Co....................... RF321-20936

Reynolds Electrical & Engineering Co., Inc........... LWA-0007

T.W. Brown Oil Co., Inc.............................. RF321-19146

Westinghouse Hanford Company......................... LWZ-0030

Windsor Service, Inc................................. RF321-20010

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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 6, 1994.

George B. Breznay,

Director, Office of Hearings and Appeals.

[FR Doc. 94-22506 Filed 9-9-94; 8:45 am]

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