Notice of Issuance of Decisions and Orders; Week of August 22 Through August 26, 1994

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:

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Name Case No.

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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

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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, 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]

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