Notice of Issuance of Decisions and Orders; Week of December 16 Through December 20, 1996

DEPARTMENT OF ENERGY

Notice of Issuance of Decisions and Orders; Week of December 16

Through December 20, 1996

During the week of December 16 through December 20, 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: January 16, 1997.

George B. Breznay,

Director, Office of Hearings and Appeals.

Decision List No. 12--Week of December 16 Through December 20, 1996

Appeals

Benton County, Washington, 12/19/96, LPA-0001

The Office of Hearings and Appeals (OHA) issued a decision on an

appeal that Benton County, Washington filed on November 4, 1993, under

the Notice of Interpretation and Procedures (NOIP) implementing the

``payments-equal-to-taxes'' (PETT) provisions of the Nuclear Waste

Policy Act of 1982, as amended (NWPA), 42 U.S.C. Sec. 10101 et seq.

Under the NOIP, the Department of Energy (DOE) will grant, to a county

in which a candidate site for a high-level nuclear waste repository is

located, a payment equal to the amount that county would receive if it

were authorized to tax site characterization activities at that site.

See 56 Fed. Reg. 42314 (August 27, 1991). The payment authorized by the

NWPA is known as a ``PETT grant.'' Benton County submitted to DOE's

Richland Operations Office (DOE/RL) an estimate of $45.7 million as the

PETT grant amount it should receive for site characterization

activities at the Basalt Waste Isolation Project (BWIP) on the Hanford

Nuclear Reservation. DOE/RL issued an initial DOE determination which

denied Benton County's PETT claim, except for approximately $440,000.

In its appeal, Benton County challenged the amount of the PETT grant

awarded to it by DOE/RL. During the course of the appeal, OHA permitted

the parties detailed pre-hearing discovery, a four-day evidentiary

hearing held in Seattle, Washington in January 1995, extensive

briefing, post hearing depositions, and an oral argument held in

Washington, DC in October 1995.

The OHA addressed the following issues in its decision on the

Benton County appeal: (1) the starting date for Benton County's PETT

eligibility under the NWPA; (2) the authority of the County under the

NWPA to assess interest penalties against the DOE for late payment of

the PETT amounts for the tax years involved; (3) the authority of the

County to collect personal property taxes for the 1986 tax year; (4)

when the BWIP should have been appraised; (5) the DOE Nevada Operations

Office's (DOE/NV) approach to its PETT obligation vis-'a-vis Nye

County, Nevada, specifically, whether DOE/NV properly considered the

appraised value of the Yucca Mountain real estate at the beginning of

the PETT eligibility period; (6) generally-accepted principles of real

estate appraisal relevant to the Benton County appeal; (7) the highest

and best use of the BWIP site; (8) the proper appraisal of one portion

of the bare land on the BWIP site; and (9) the proper appraisal of the

improvements to real estate on the BWIP site.

In resolving these issues, the OHA made the following

determinations: (1) DOE/RL was correct in beginning with May 28, 1986

in calculating the amount of Benton County's PETT grant; (2) DOE/RL was

correct in excluding statutory interest penalties calculated under

Washington State law from the amount of Benton County's PETT grant; (3)

DOE/RL was correct in excluding personal property taxes for 1986 from

the amount of Benton County's PETT grant; (4) DOE/RL erred in basing

its PETT determination on an appraisal of the BWIP through hindsight as

it existed in 1993, rather than on a retrospective appraisal of the

BWIP as it existed during the period of PETT eligibility (May 28, 1986

through March 21, 1988); (5) DOE/RL erred in determining that the

highest and best use of the BWIP was other than ``industrial use'' for

site characterization as a potential high level nuclear waste

repository; (6) DOE/RL correctly determined that the purported

``Maximum Potential Underground Facility'' was only a theoretical

concept during the PETT eligibility period, and should not have been

appraised on the basis of properties sold for landfills and related

uses in nearby areas of the Pacific Northwest; (7) DOE/RL erred in

failing to measure properly the residual value of improvements to the

BWIP under the cost approach to real estate appraisal as of the

beginning of the period of PETT eligibility; and (8) DOE/RL erred in

failing to treat the determination of Benton County's PETT amount for

the BWIP site characterization in the same general manner as DOE's

Nevada Operations Office treated the determination of Nye County's PETT

amount for the Yucca Mountain site characterization. Accordingly, the

Benton County appeal was denied in part, and granted in part.

OHA concluded the decision by directing DOE/RL to confer in good

faith with Benton County and apply the approach used to negotiate the

Nye County PETT settlement to resolve this case within a specified time

period, according to principles of alternative dispute resolution

applicable to government agencies. The parties are

[[Page 3680]]

directed to submit a detailed report to the OHA appeal panel at the

expiration of the remand period, if they are unable to reach a

resolution by that time. In the event that the parties fail to resolve

the case through a negotiated settlement on remand, the OHA will issue

a supplemental order fixing the amount of Benton County's PETT grant.

William H. Payne, 12/16/96, VFA-0243

William H. Payne filed an Appeal from a FOIA and Privacy Act

determination in which the Office of the Inspector General refused to

confirm or deny the existence of records which would reflect whether a

named individual was the target of an OIG investigation. In considering

the Appeal, the DOE found that the refusal to confirm or deny the

existence of these records was proper because the records, if they

exist, would be exempt from disclosure under FOIA Exemption 7(C) and

the confirmation of the existence of such records would itself involve

the disclosure of exempt information. DOE also remanded the matter to

the Headquarters' FOIA Office to conduct an additional search for

records.

Whistleblower Hearings

C. Lawrence Cornett Maria Elena Torano Associates, Inc., 12/19/96, VWA-

0007, VWA-0008

C. Lawrence Cornett (Complainant), an employee of a DOE/Argonne

National Laboratory (ANL) subcontractor, Maria Elena Torano Associates,

Inc. (META), filed a request for a hearing under the DOE's Contractor

Employee Protection Program, 10 CFR Part 708. Complainant claimed that

he suffered from various forms of reprisal culminating in his layoff

from his job as a result of his raising issues with his superiors

regarding public health and safety issues pertaining to the DOE's Waste

Management Programmatic Environmental Impact Statement. A hearing was

held in which witnesses for Complainant and META testified before an

Office of Hearings and Appeals Hearing Officer. On the basis of the

testimony and other evidence in the record, the Hearing Officer

concluded that Complainant proved by a preponderance of the evidence

that he had made disclosures protected by Part 708 and that these

activities were a contributing factor in the decision of META to lay

him off. In his Decision, the Hearing Officer further concluded that

META had failed to prove by clear and convincing evidence that it would

have taken this action were it not for Complainant's disclosures. The

Hearing Officer therefore determined that META's actions violated the

whistleblower regulations in 10 CFR Part 708. Complainant was awarded

back pay, attorneys fees and costs, the amount of which will be

determined in a supplemental decision. Complainant's request for front

pay and compensation for Individual Retirement Account tax penalties

and lost interest were denied. META has the right to appeal the Hearing

Officer's Decision to the Secretary of Energy or her designee.

Ronny J. Escamilla, 12/20/96, VWA-0012

Ronny J. Escamilla filed a whistleblower complaint against Systems

Engineering & Management Associates, Inc. (SEMA), a DOE subcontractor,

at DOE's Rocky Flats Plant (Rocky Flats). Escamilla alleged that he

made disclosures of waste and mismanagement to various managers at

Rocky Flats. He also alleged that he made a protected disclosure that

he filed a complaint to management at Rocky Flats. Escamilla asserted

that these disclosures resulted in his being harassed in the workplace

and ultimately terminated. After investigating the Complaint, the

Office of Contractor Employee Protection found that Escamilla had not

met his regulatory burden as required by 10 CFR Part 708 and, as a

consequence, was entitled to no relief. The OHA Hearing Officer found

that: (1) Escamilla failed to show by a preponderance of evidence that

he disclosed information which he, in good faith, believed evidenced

mismanagement or waste associated with the computer system he was hired

to support; (2) Escamilla proved by a preponderance of evidence that he

disclosed to SEMA the fact he had filed a complaint with DOE and he

also proved that the disclosure relating to the filing of his complaint

was a contributing factor to his termination; and (3) SEMA proved by

clear and convincing evidence that it would have terminated Escamilla

absent his disclosure. Accordingly, the OHA Hearing Officer found that

Escamilla failed to establish the existence of any violations of the

DOE's Contractor Employee Protection Program for which relief is

warranted under 10 CFR Part 708.10.

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.

AMKOTA COOP ET AL...................................... RF272-94715 12/19/96

BERMAN'S MOTOR EXPRESS................................. RR272-195 ..............

BLACKDUCK CO-OP AG SERVICES, INC. ET AL................ RG272-603 12/17/96

BULK TRANSPORT, INC.................................... RF272-97377 12/19/96

CRUDE OIL SUPPLE REF DIST.............................. RB272-00095 12/17/96

CYRUS TRUCK LINES, INC................................. RF272-99112 12/17/96

KHS AIR FREIGHT, INC................................... RF272-99114 ..............

GOOD HOPE REFINERIES/AMERADA HESS CORPORATION.......... RF339-1 12/17/96

MOHAVE VALLEY SCHOOL DISTRICT ET AL.................... RF272-79157 12/17/96

STAVOLA ASPHALT CO., INC. ET AL........................ RG272-00802 12/19/96

Dismissals

The following submissions were dismissed.

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Name Case No.

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ARAWAK PAVING CO., INC....................... RG272-991

BOUNDS OIL COMPANY........................... RF300-16969

COFFEE CONSTRUCTION CO....................... RG272-993

HAROLD & J.E. LAYTON......................... RG272-994

HOLMES TRANSPORTATION INC.................... RR272-196

J&S SERVICES................................. RG272-265

LAS VEGAS PAVING CORP........................ RG272-376

LAUREL COUNTY FISCAL COURT................... RF272-95282

[[Page 3681]]

POE ASPHALT PAVING, INC...................... RG272-990

SANKEY CONSTRUCTION, INC..................... RG272-992

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[FR Doc. 97-1732 Filed 1-23-97; 8:45 am]

BILLING CODE 6450-01-P