Notice of Issuance of Decisions and Orders During the Week of February 27 Through March 3, 1995

DEPARTMENT OF ENERGY

Office of Hearings and Appeals

Notice of Issuance of Decisions and Orders During the Week of

February 27 Through March 3, 1995

During the week of February 27 through March 3, 1995, the decisions

and orders summarized below were issued with respect to 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.

Appeals

Cowles Publishing Company, 2/28/95, VFA-0010

Cowles Publishing Company (Cowles) filed an Appeal from a denial by

the DOE's Richland Operations Office (Richland) of a request for

information submitted under the Freedom of Information Act (FOIA).

Cowles sought three legal memoranda written in 1963 by an attorney

employed by General Electric d/b/a Hanford Atomic Products Operation

(GE/Hanford). The three memoranda concerned GE's potential liability

for ``Voluntary and Planned'' human radiation experiments. GE/Hanford

was the management and operations contractor at DOE's Hanford,

Washington facility from the 1940s until the mid 1960s when Battelle

Memorial Institute (Battelle) assumed GE/Hanford's research and

development functions. The three withheld records had been transferred

to Battelle during the transition period between the two contractors.

The memoranda were withheld by Richland because they were not ``agency

records'' and, even if ``agency records'', were protected by the

attorney-client privilege component of FOIA Exemption 5. On appeal, the

DOE found that the memoranda are neither ``agency records'' within the

meaning of the FOIA, nor subject to the FOIA under a new DOE contractor

records regulation at 10 CFR 1004.3(e), 59 FR 63,884 (December 12,

1994). Although the DOE found that it owns the documents under the DOE/

GE contract and the DOE/Battelle contract, it concluded that the

documents are protected by the attorney-client communications privilege

and the attorney work product privilege. The DOE also found that

because the DOE, GE and Battelle share a ``common legal interest'' in

the documents and because the requirements for finding waiver were not

met, the documents have maintained their privileged status.

Accordingly, the DOE denied Cowles' FOIA Appeal.

Kenneth W. Warden, 3/1/95, VFA-0023

Kenneth W. Warden filed an Appeal from a partial denial by the

DOE's Oak Ridge Operation's Office of a Request for Information that he

had submitted under the Freedom of Information Act (FOIA). Two

documents had been withheld pursuant to Exemption 6. In considering the

Appeal, the DOE found that the public's interest in disclosure of the

documents was slight in comparison with the privacy interest of the

individuals mentioned in the documents. Accordingly, the Appeal was

denied.

Request for Exception

Commonwealth Oil Refining Company, Inc., 2/27/95, LEE-0002

Commonwealth Oil Refining Company, Inc. filed an Application for

Exception in which the firm requested relief based on the delay in its

receipt of exception relief pursuant to a 1978 exception application.

In considering the request, the DOE found that Corco's claim did not

form the basis for an independent grant of exception relief. The DOE

further found that modification of the original grant of relief was

unwarranted on the grounds, inter alia, that the delays in the case

were largely the result of Corco's litigation strategy, that the

receipt of relief in 1978 would not have permitted the survival of

Corco's refinery and petrochemical operations, and that Corco was

actually better off as the result of its receipt of relief in 1989 and

1994. Accordingly, exception relief was denied.

Refund Applications

County of Los Angeles CAO/Purchasing and Stores Department, et al., 3/

3/95, RF272-29545, et al.

The DOE issued a Decision and Order concerning seven Applications

for Refund filed by various departments of the County of Los Angeles in

the crude oil special refund proceeding being conducted by the DOE

under 10 CFR part 205, subpart V. The DOE rejected

[[Page 20263]] comments filed by a group of Utilities, Transporters,

and Manufacturers, finding that the arguments presented were without

merit. The DOE then determined, after adjustment for overlapping volume

claims, that the corrected claims were meritorious and granted a refund

of $64,302.

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.

Air Molokai, Ltd.......................................................... RC272-283 03/03/95

Baltimore Storage Company................................................. RA272-68 03/03/95

City of Burnsville et al.................................................. RF272-97501 03/03/95

Continental Grain Company................................................. RC272-282 03/03/95

Continental Grain Company................................................. RC272-281 03/03/95

Frontier Airlines......................................................... RC272-280 03/03/95

G & J Freight, Inc........................................................ RA272-66 03/03/95

Gulf Oil Corporation/Southeastern Freight Lines Inc et al................. RF300-21305 02/27/95

Hamilton Hybar Inc........................................................ RF272-92579 03/01/95

Adhesives & Chemicals, Inc................................................ RF272-92776

Hudson River & Conf. Ctr.................................................. RA272-67 03/03/95

Lambert Oil Co., Inc...................................................... RR272-180 02/27/95

Moran Coal Co., Inc....................................................... RF272-91542 03/01/95

Red Top Coach, Inc........................................................ RF272-91665

Container Corp. of America................................................ RF272-98199

Mort Hall Ford, Inc....................................................... RC272-284 03/03/95

Rhea County Dept. of Education et al...................................... RF272-86753 03/03/95

Roundy's, Inc............................................................. RF272-97218 03/03/95

Superior Water, Light and Power Company................................... RF272-96593 02/27/95

Texaco Inc./Doug's Texaco................................................. RF321-21059 03/03/95

Texaco Inc./Valley Seeding Co., Inc. et al................................ RF321-12851 02/27/95

Texaco Inc./Wiesenthal's Texaco Service et al............................. RF321-20522 03/03/95

Town of North Hempstead et al............................................. RF272-96544 02/27/95

Wilkinson County et al.................................................... RF272-86105 03/03/95

Dismissals

The following submissions were dismissed:

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Name Case No.

------------------------------------------------------------------------

A.J. Cole & Sons, Inc............................. RF315-9584

Albuquerque Operations Office..................... VSO-0017

Albuquerque Operations Office..................... VSO-0004

Chicago West Pullman & Southern Railroad.......... RF321-19762

Doan's Texaco..................................... RF321-20519

Food Services, Inc................................ RF272-93662

Givens Texaco..................................... RF321-6740

Hill Aircraft & Leasing Corp...................... RF351-00030

Kevork Texaco..................................... RF321-9622

Stofa's Texaco.................................... RF321-7238

W. & J. Propane Gas, Inc.......................... RF304-14999

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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.

George B. Breznay,

Director, Office of Hearings and Appeals.

[FR Doc. 95-10158 Filed 4-24-95; 8:45 am]

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