Notice of Issuance of Decisions and Orders From the Week of March 25 Through March 29, 1996

DEPARTMENT OF ENERGY

Notice of Issuance of Decisions and Orders From the Week of March

25 Through March 29, 1996

During the week of March 25 through March 29, 1996, the decisions

and orders summarized below were issued with respect to appeals,

applications, petitions, or other requests 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.

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. 20585-0107, 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. Some decisions and

orders are available on the Office of Hearings and Appeals World Wide

Web site at http://www.oha.doe.gov.

Dated: September 16, 1996.

George B. Breznay,

Director, Office of Hearings and Appeals.

Decision List No. 965

Week of March 25 Through March 29, 1996

Appeals

Keith E. Loomis, 3/25/96, VFA-0104

Keith E. Loomis filed an Appeal from a denial by the DOE's Office

of Naval Reactors of a request for information that he filed under the

Freedom of Information Act (FOIA). In considering the information that

was withheld, pursuant to a review by the Director of Naval Reactors,

as classified and Naval Nuclear Propulsion Information under Exemptions

1 and 3 of the FOIA, the DOE determined that all of previously withheld

material must continue to be withheld. Accordingly, the Appeal was

denied.

Phoenix Rising Communications, 3/26/96, VFA-0116

Phoenix Rising Communications (Phoenix) filed an Appeal from a

determination issued by the DOE's Oakland Operations Office (Oakland)

in response to a request from Phoenix under the Freedom of Information

Act (FOIA). Phoenix sought documents related to Lawrence Livermore

National Laboratory's Site 300. In considering the Appeal, the DOE

found that Oakland performed an adequate search and followed procedures

which were reasonably calculated to uncover the material sought by

Phoenix. Accordingly, the Appeal was denied.

William H. Payne, 3/26/96, VFA-0128, VFA-0137, VFA-0138, VFA-0139, VFA-

0140, VFA-0141

William H. Payne filed Appeals from three determinations and two

letters, and a Motion for Reconsideration of Decision and Order, all of

which concerned requests under the Freedom of Information Act (FOIA).

In appealing three DOE Albuquerque Operations Office (DOE/AL)

determinations, Mr. Payne challenged (1) the adequacy of the search for

documents containing the names of retired military personnel currently

employed at Sandia National Laboratories (SNL); (2) the adequacy of the

search for husband-wife pairs employed at either SNL or DOE-AL; and (3)

the denial of a requested fee waiver for law firm invoices. Mr. Payne

also sought review of DOE's handling of three requests for information

and a letter issued by the University of California for records

containing the names of husband-wife pairs employed at the Los Alamos

National Laboratory (LANL). Lastly, Mr. Payne sought review of a

Decision and Order concerning retired military personnel currently

employed at LANL. In considering the Appeals, the DOE found that

records which might contain responsive information on husband-wife

pairs and retired military personnel at SNL were not agency records

subject to the FOIA. Moreover, the DOE found that DOE-AL performed an

adequate search of its documents for husband-wife pairs employed at

DOE-AL. Accordingly, these two appeals were denied. With respect to the

fee waiver, the DOE found that Mr. Payne had not demonstrated at least

some capability to disseminate the information received from the law

firm billing invoices to the public. Therefore, Mr. Payne's fee waiver

request was denied. In considering the two letters, the DOE found that

they were not

[[Page 50018]]

determinations with respect to either the three requests for

information or the request for husband-wife pairs employed at LANL.

Thus, the DOE dismissed the Appeals concerning the letters. Lastly, the

DOE found that in his Motion for Reconsideration, Mr. Payne had not

provided any additional information or shown changed circumstances that

would lead the DOE to alter its prior Decision. Accordingly, the Motion

for Reconsideration was denied.

Remedial Order

Chevron U.S.A. Inc., 3/25/96, LRO-0004

Chevron U.S.A. Inc. (Chevron) filed a Statement of Objections to a

Proposed Remedial Order (PRO) issued to Chevron by the Economic

Regulatory Administration (ERA) on March 26, 1992. In the PRO, the ERA

alleged that as a result of its participation in the DOE Tertiary

Incentive Program (TIP), Chevron received excess tertiary incentive

revenue attributable to its first sales of domestically produced crude

oil during the period January 1980 through January 27, 1981, in

violation of 10 C.F.R. Secs. 212.78, 212.73, 212.74 and 205.202. The

PRO required that Chevron make restitution for this alleged violation

in the amount of $124,989,588 (later amended to $167,268,897), plus

interest. In considering the substantial record developed in the

proceeding, the DOE found that although Chevron's TIP reports reflected

the firm's receipt of excess ``tertiary incentive revenue'' by

regulatory definition, the firm had not in fact received any excess

amount of actual revenue as a result of its participation in the TIP.

Accordingly, the PRO was dismissed with prejudice.

Personnel Security Hearing

Albuquerque Operations Office, 3/26/96, VSO-0066

An Office of Hearings and Appeals Hearing Officer issued an opinion

against restoring the security clearance of an individual whose

clearance had been suspended because the Department had obtained

derogatory information that fell within 10 C.F.R. Sec. 710.8 (j) and

(l). In reaching his conclusion, the Hearing Officer found that the

individual had been diagnosed as dependent on alcohol and did not make

an adequate showing of rehabilitation. In addition, the Hearing Officer

found that an incident of domestic violence where the individual left

the scene before law enforcement officers arrived shows a lack of

judgment and reliability within the meaning of 10 C.F.R. Sec. 710.8(l).

Refund Applications

Good Hope Refineries/Marathon Oil Company, 3/25/96, RF339-11

Marathon Oil Company filed an application for refund in the Good

Hope Refineries II Refund Proceeding. The DOE denied Marathon's

application after finding that Marathon was a spot purchaser and failed

to rebut the presumption that spot purchasers were not injured.

Gulf Oil Corp./Hilltop Gulf, 3/27/96, RR300-00268

The DOE dismissed a Motion for Reconsideration filed in the Gulf

Oil Corporation special refund proceeding on behalf of Hilltop Gulf. In

this Motion for Reconsideration, Wilson, Keller & Associates, Inc.

(WKA), a refund filing service, asserted that several facts contained

in the original Application were incorrect. On the basis of the new

information, WKA requested that the Applicant's name be changed and

that gallons purchased under a second Gulf Customer Number be added to

the total gallonage claim. The DOE determined that the Motion for

Reconsideration was fundamentally different from the original

Application and constituted a new application which was barred by the

Gulf deadline. Accordingly, the DOE dismissed the Motion.

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.

Clara B. Hale, et al............. RK272-2249 03/27/96

Gulf Oil Corporation/Newark RR300-0259 03/25/96

Lumber Co./American Home &

Hardware.

Margaret H. Nordquist, et al..... RK272-01526 03/27/96

Dismissals

The following submissions were dismissed:

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Name Case No.

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Airtrails, Inc................................ RF272-98018

American Trans Air, Inc....................... RF272-98744

Bay de Noc Oil Co., Inc....................... RF300-14753

Buffalo Airways, Inc.......................... RF272-98720

Decatur Aviation.............................. RF272-98723

Gulf Air Taxi, Inc............................ RF272-98725

Pem-Air Limited............................... RF272-98727

Ron's Arco.................................... RF304-15343

S&B Go., Inc.................................. RF300-16372

Soneco/Northeastern........................... RG272-00303

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[FR Doc. 96-24395 Filed 9-23-96; 8:45 am]

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