Summary of Decisions - October 16, 2023 - October 20, 2023

Energy Efficiency Enforcement (EEE)
 

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On October 19, 2023, an Office of Hearings and Appeals' (OHA) Administrative Law Judge recommended that a civil penalty of $137,696 be assessed against E.L.T. Custom Coolers, LLC (ELT) for violations of the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. (the EPCA) and its implementing regulations.

ELT is a manufacturer of doors for coolers and walk -in freezers which are covered industrial products under the EPCA and DOE's energy conservation standard regulations. The DOE regulations require that manufacturers of such doors submit to the DOE a report certifying that such doors meet the energy conservation standards required under 10 C.F.R. § 102(a)(1) and 10 C.F.R. §429.12.

Upon failure of its model doors to pass the energy efficiency standards or to submit mandated at 10 C.F.R. Part 429., the Office of the Assistant General Counsel for Enforcement (OGCE) issued a Notice of Proposed Civil Penalty (NPCP) to ELT. An ELT representative requested and was granted an extension to comply with the certification requirement. After the 45-day extension expired without the requested reports, OGCE filed a complaint (Complaint) with OHA against ELT. ELT failed to file any response to the Complaint.

On June 3, 2023, OGCE filed Motions to Deem the Allegations of the Complaint Admitted, and  for the issuance of a Decision. The Motions sought rulings deeming each of the allegations set forth in the Complaint as admitted and requested that the ALJ issue a decision against ELT. The ALJ determined that because of the Respondents failure to respond to the Complaint or the Motion for Decision, OGCE's allegations against the Respondents were deemed admitted. The ALJ also found that it was appropriate assess a civil penalty against ELT. Therefore, the ALJ recommended that ELT be assessed a civil penalty of $137,696. (OHA Case No. EEE-23-0007, Cronin)

FOIA Appeal (FIA)

On October 20, 2023, the Office of Hearings and Appeals (OHA) granted in part and denied in part a Freedom of Information Act (FOIA) appeal filed by Petty, Livingston, Dawson & Richards P .C. ( Appellant) concerning a request made to the Department of Energy's (DOE) Office of Public Information (OPI) and Office of Inspector General (OIG) for records related to reported misconduct by DOE employees, OIG's investigation of such reports, and mitigation plans related to a potential conflict of interest by DOE employees. OIG indicated that it was unable to locate responsive records related to portions of Appellant's FOIA request, and provided Glomar responses pursuant to Exemption 7 with respect to other portions of the request. OPI indicated that it was unable to locate responsive records. On appeal, Appellant alleged that OPI and OIG had not conducted adequate searches for responsive records and that OIG had not sufficiently justified its Glomar responses. OIG decided to conduct additional searches for records responsive to portions of Appellant's request. OHA determined that OIG had conducted adequate searches for the remaining portions of Appellant's request, and that it had sufficiently justified its Glomar responses. However, OHA determined that OPI had not referred the request to a DOE office reasonably likely to possess responsive records . Therefore, OHA dismissed as moot Appellant's appeal as it pertained to the portions of the request for which OIG had agreed to perform additional searches, granted Appellant's appeal as to the adequacy of OPI's search, denied the appeal in all other respects, and remanded the matter to OPI and OIG to conduct additional searches. (OHA Case No. FIA-24-0002)

Personnel Security (PSH)

Access Authorization Not Granted; Guidelines E (Personal Conduct), H (Drug Involvement and Substance Misuse), and I (Psychological Conditions)

On October 19, 2023, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. In April 2022, the Individual completed a Questionnaire for National Security Positions (QNSP) in which he reported that he had been reprimanded at work in two previous positions, had been terminated from four previous positions, had consumed marijuana weekly until 2019, had been involuntarily hospitalized for a mental health condition in 2017, and had been diagnosed with bipolar disorder in 2016. In response, the Local Security Office (LSO) sent the Individual to a Psychologist, who after evaluating him opined that the Individual had untreated bipolar disorder and ADHD. In addition, she wrote that he had a history of marijuana, but that there was no evidence of current drug use or abuse. She continued that many of his employment problems resulted from his marijuana use and he had an increased risk of returning to marijuana use because of his untreated bipolar disorder and ADHD. The Individual's father testified that the Individual was diagnosed with ADHD in "grade school," but the doctor wanted the Individual to cease taking the prescription medication. The Individual also testified about the Individual's involuntary hospitalization, stating that the Individual was sad because he had broken up with a long -term girlfriend. The DOE Psychologist testified that the Individual's untreated bipolar illness and ADHD create a potential for problems in judgment or reliability.  The Administrative Judge determined that the Individual had not mitigated the Guidelines E, H, or I concerns. Accordingly, the Individual was not able to demonstrate that he had resolved the security concerns arising under Guidelines E, H, or I. ( OHA Case No. PSH-23-0114, Fishman)

Access Authorization Restored; Guidelines E (Personal Conduct) and H (Drug Involvement and Substance Abuse)

On October 20, 2023, an Administrative Judge determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. On his Questionnaire for National Security Positions ( QNSP), the Individual admitted that he used THC socially between 2001 and 2013.  He reported that he did not intend to use THC again. In January 2023, the Individual ingested a marijuana edible at a party, when an out-of-state friend convinced him to try an edible the friend had brought to the party . When called for a random drug test 10 days later, the Individual informed his supervisor of his ingestion of the edible. He tested negative on the random test. The Individual was sent, by his employer, to a Substance Abuse Professional (Sap)contested positive on a random breath alcohol test (BAT) at work. In response, the Local Security Office (LSO) sent the Individual to a Substance Abuse Professional (SAP) who determined that the Individual did not have any issues with illegal substances. The Individual's partner and father testified at the hearing.  The partner stated that they do not have any contact with the friend who provided the edible and that the Individual does not use marijuana but admitted to her that he used previously. The Individual submitted evidence that he attended AA/NA meetings on the recommendation of the SAP.  He was remorseful that he had ingested the edible.  The Administrative Judge determined that the Individual had mitigated the Guideline E and H concerns because acknowledged his error and took positive steps to alter his behavior. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guidelines E and H. (OHA Case No. PSH-23-0100, Fishman)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On October 16, 2023, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. In September 2022, the Individual completed a Questionnaire for National Security Positions (QNSP) in which he disclosed that he had fallen into delinquency on child support obligations, owed over $ 2,000 in unpaid taxes, and had not filed Federal or state personal income tax returns for the 2020 or 2021 tax years. A background investigation of the Individual revealed that the Individual had numerous consumer debts referred to collections which he had not disclosed on the QNSP. At the hearing, the Individual testified and provided corroborating evidence to establish that he had filed all required Federal and state personal income tax returns, resolved some of his delinquent debts, and made progress in paying back child support. However, the Individual remained behind on his child support obligations, had not complied with a payment plan to resolve his unpaid taxes, and had not resolved his largest delinquent consumer debts. Therefore, the Administrative Judge determined that the Individual had not fully resolved the security concerns under Guideline F and should not be granted access authorization. (OHA Case No. PSH-23-0111, Harmonick)