[Federal Register Volume 63, Number 115 (Tuesday, June 16, 1998)]
[Notices]
[Pages 32877-32878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15954]


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DEPARTMENT OF ENERGY

Office of Hearing and Appeals


Notice of Issuance of Decisions and Orders; Week of April 13 
Through April 17, 1998

    During the week of April 13 through April 17, 1998, 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 decision and order are available 
in the Public Reference Room of the Office of Hearings and Appeals, 950 
L'Enfant Plaza, SW, Washington, D.C., Monday through Friday, 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: June 4, 1998.
George B. Breznay,
Director, Office of Hearings and Appeals.

Decision List No. 81: Week of April 13 Through April 17, 1998

Appeals

FAS Engineering, Inc., 4/14/98, VFA-0375

    FAS Engineering, Inc. filed an Appeal from a determination by the 
Department of Energy's (DOE) Golden Field Office, denying a request for 
information under the Freedom of Information Act (FOIA). In its Appeal, 
FAS contended that Golden improperly withheld the requested information 
from disclosure under the deliberative process privilege of FOIA 
Exemption 5. The DOE found that Golden properly applied the threshold 
requirements of Exemption 5 to the requested documents. However, the 
DOE remanded this matter to Golden to issue a new determination, either 
releasing reasonably segregable factual material or explaining the 
reasons for withholding any factual material contained in the requested 
documents. Consequently, the Appeal was granted.

FAS Engineering, Inc., 4/17/98, VFA-0400, VFA-0401

    FAS Engineering Inc. filed two Freedom of Information Act (FOIA) 
Appeals requesting that the Office of Hearings and Appeals of the 
Department of Energy (DOE) release documents it withheld from two FOIA 
requests pursuant to Exemption 5 of the FOIA. In considering the 
Appeals, the DOE determined that many of the documents contained 
segregable factual information that should not have been withheld 
pursuant to Exemption 5. For these reasons, the DOE directed the FOIA 
Official to review all of its withheld information again and either 
release factual information, such as ``rating guidelines,'' headings, 
names of contractor employees and bid proposal submissions contained in 
these documents, or provide a detailed explanation for withholding any 
such information. Thus, the DOE remanded the Appeal to the Idaho 
Operations Office.

    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 4/
15/98, VFA-0396

    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. 
(Appellant), filed an Appeal of a determination issued to it by the 
Department of Energy (DOE) in response to a request under the Freedom 
of Information Act (FOIA). In its request to the Federal Energy 
Technology Center (FETC), the Appellant asked for information 
concerning a Request for Proposal. FETC forwarded the request to the 
Rocky Flats Field Office (RFFO). In its determination, RFFO found that 
it possessed no responsive documents. On appeal, the Appellant argued 
that the search by RFFO had been inadequate. The DOE first found that 
RFFO had never been responsible for overseeing the RFP at issue and 
therefore, possessed no responsive documents. The DOE further noted 
that FETC had conducted a further search for documents once FETC 
realized that it had overseen the RFP at issue. Finally, the DOE noted 
that RFFO was only required to search for documents possessed as of the 
date of the FOIA request. Since the management and operating contractor 
had come into possession of responsive documents after the request 
date, the Appellant could make a new FOIA request for those documents. 
Accordingly, the Appeal of the adequacy of RFFO's search was denied.

    Moore Brower Hennessy & Freeman, P.C., 4/16/98, VFA-0393.

    Moore Brower Hennessy & Freeman, P.C. (Moore) filed an Appeal of a 
determination issued to it by the Department of Energy (DOE) in 
response to a request under the Freedom of Information Act (FOIA). In 
the request, Moore asked for copies of records relating to a 
construction contract that

[[Page 32878]]

Lockheed Martin Information Technologies Company (LMITCO), the 
management and operating contractor of the Idaho National Engineering 
Laboratory, awarded to a construction company. In its determination, 
the Idaho Operations Office (Idaho) stated that it could not release 
the responsive material because the responsive documents were in 
LMITCO's possession. The DOE found that, even though in LMITCO's 
possession, the documents in the current request were nonetheless 
subject to release under the DOE regulations. Accordingly, the Appeal 
was granted.

    Nuclear Control Institute, 4/15/98, VFA-0395

    The DOE issued a decision granting in part a Freedom of Information 
Act (FOIA) Appeal filed by the Nuclear Control Institute (NCI). NCI 
sought the release of information withheld by the Oak Ridge and Oakland 
Operations Offices. In its decision, the DOE found that the Operations 
Offices failed to consider the public interest in disclosure and had 
not articulated any foreseeable harm that would result from the release 
of several documents withheld under FOIA Exemption 5. The DOE also 
found that the Operations Offices had not segregated releasable 
information. Accordingly, the Appeal was remanded to Oak Ridge and 
Oakland.

    The National Security Archive, 4/16/98, VFA-0196

    The National Security Archive filed an Appeal from a denial by the 
Department of the Air Force of a request for information that it filed 
under the Freedom of Information Act (FOIA). Because the withheld 
information was identified as classified under the Atomic Energy Act, 
the Air Force withheld it at the direction of the DOE under Exemption 3 
of the FOIA. In considering the information that was withheld, the DOE 
determined on appeal that a small portion of the document must continue 
to be withheld under Exemption 3, but the remainder could be released. 
Accordingly, the Appeal was granted in part and a newly redacted 
version of the requested information was ordered to be released.

Whistleblower Hearing

    Timothy E. Barton, 4/13/98 VWA-0017

    A Hearing Officer issued an Initial Agency Decision concerning a 
whistleblower complaint. The decision found that, while the employee 
proved that disclosures he had made were protected under 10 C.F.R. Part 
708 and contributed to his termination, the employer demonstrated by 
clear and convincing evidence that it would have terminated the 
complainant in the absence of the protected disclosures.

Personnel Security Hearing

Personnel Security Hearing, 4/17/98, VSO-0179

    A Hearing Officer found that an individual had shown that he is not 
currently suffering from the ``mental illness,'' dysthymia, or from any 
``mental condition'' that would cause a defect in his judgment or 
reliability. Accordingly, the Hearing Officer recommended in the 
Opinion that the individual be granted an access authorization.

Refund Application

Enron Corp./Solar Gas, Inc., 4/17/98, RF340-55

    The DOE granted an Application for Refund submitted by Solar Gas, 
Inc. (Solar Gas) in the Enron Corporation (Enron) special refund 
proceeding. The DOE excluded from Solar Gas' claim the volume of 
propane relating to exchange or buy/sell transactions between Solar Gas 
and Enron. With respect to the firm's other purchases from Enron, the 
DOE found that Solar Gas had demonstrated that the prices it paid to 
Enron for propane resulted in some economic injury to Solar Gas, but 
not a level of injury sufficient to qualify Solar Gas for a full 
volumetric refund. The DOE therefore limited this refund to the 81.5 
percent of the firm's volumetric refund. Accordingly, the DOE granted 
Solar Gas a refund, including interest, of $521,622.

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.

Imogene R. Owens.........................................  RK272-01777                                   4/14/98
Two F Company, L.L.C. ET AL..............................  RK272-04788                                   4/15/98
Union County, NJ.........................................  RC272-00389                                   4/14/98
                                                                                                                

Dismissals

    The following submissions were dismissed.

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                     Name                               Case No.        
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Personnel Security Hearing...................  VSO-0188                 
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[FR Doc. 98-15954 Filed 6-15-98; 8:45 am]
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