Summary of Decisions - May 06, 2024 -May 10, 2024

Energy Efficiency Enforcement (EEE)  

On May 6, 2024, an Administrative Law Judge with the DOE's Office of Hearings and Appeals (OHA) issued an Initial Agency Decision under the DOE's Procedures for Administrative Adjudication of Civil Penalty Actions (the Administrative Procedures). The Energy Policy and Conservation Act (EPCA) established water and energy conservation standards for a variety of covered products, including large diameter ceiling fans. The DOE Energy Conservation Regulations implementing the EPCA require that manufacturers of covered products submit reports to DOE certifying that the covered product complies with the ECPA's conservation standards before they begin distributing it in commerce in the United States. The Regulations further provide for the assessment of civil penalties for noncompliance with this requirement. Under the regulations, the General Counsel may initiate a civil penalty action by issuing a notice of proposed civil penalty (NPCP) to a manufacturer who has failed to comply with the regulations, notifying them of the DOE's intent to access a civil penalty. That manufacturer can elect to either comply with the NPCP or have a hearing before an Administrative Law Judge. If the NPCP recipient fails to respond to the NPCP, the regulations require the General Counsel to refer the civil penalty action to an Administrative Law Judge for a hearing . The DOE has issued the Administrative Procedures to provide procedural guidance for those hearings. On November 9, 2023, the DOE's Office of the Assistant General Counsel for Enforcement (OGCE) issued a NPCP to a manufacturer, SR Sunrise Sanitary, Inc., alleging that it had distributed three basic models of showerheads (Showerheads) into commerce in the United States without having certified that they met the ECPA's conservation standard. On January 8, 2024, after the manufacturer failed to respond to the NPCP, the OGCE filed a Complaint with OHA alleging that the manufacturer had introduced the Showerheads into commerce in the United States without having certified that the Showerheads met the ECPA's conservation standard and seeking an assessment of a civil penalty in the amount of $ 593,490. OHA's Director appointed an Administrative Law Judge to conduct a hearing under the Administrative Procedures.

The Administrative Law Judge found that the allegations in the Complaint were valid, and that the manufacturer violated the Energy Policy and Conservation Act by knowingly distributing the Showerheads in the United States for at least 365 days without first certifying that they met the applicable energy conservation standard, in violation of the regulations. The Administrative Law Judges decision recommended that the manufacturer be accessed a civil penalty of $ 593,490. (OHA Case No. EEE-24-0006, Fine)

Personnel Security Hearing (PSH)

Access Authorization Granted; Guideline F (Financial Considerations)

On May 7, 2024, an Administrative Judge determined that an Individual should granted access authorization under 10 C.F.R. Part 710. The Individual signed and submitted a Questionnaire for National Security Positions (QNSP) in connection with seeking access authorization. The Individual disclosed on the QNSP that he had not filed federal or state personal income tax returns for the 2021 tax year. A background investigation of the Individual additionally revealed that a consumer debt on which he owed $2,450 had been referred to collections. At the hearing, the Individual brought forth evidence demonstrating that he had filed federal and state personal income tax returns for the 2021 tax year and paid his delinquent debt. The Administrative Judge concluded that the Individual had resolved the security concerns asserted by the local security office under Guideline F, and therefore determined that the Individual should be granted access authorization. (OHA Case No. PSH-24-0062, Harmonick)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On May 8, 2024, an Administrative Judge with the Department of Energy's (DOE) Office of Hearings and Appeals determined that the Individual's access authorization should not be restored under 10 C.F .R. Part 710. In June 2023, the Individual was arrested and charged with Boating Under the Influence ( DUI). DOE asked the Individual to undergo a psychological evaluation with a DOE-contracted psychologist (the Psychologist). The Psychologist opined that the Individual habitually binge consumed alcohol to intoxication and that he was not rehabilitated or reformed. The Individual presented testimony and evidence that he began attending Alcoholics Anonymous twice per week in June 2023 and had seen a therapist three times. He did not have future therapy appointments scheduled. He also presented testimony and evidence that he had not consumed alcohol since his November 2023. However, he had begun abstaining in July 2023 and relapsed three times between July and November. He testified that he intended to abstain from alcohol indefinitely. The DOE Psychologist opined at the hearing that the Individual was not rehabilitated or reformed. She opined that the Individual now met the criteria for an alcohol use disorder because of his failed attempts at sobriety and that her prognosis for the Individual remaining abstinent was moderate. Based on the testimony and evidence, the Administrative Judge found that the Individual had not mitigated the concerns arising from Guideline G. Accordingly, she found that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0033, Martin)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On May 8, 2024, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. The Individual is seeking employment with a DOE Contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's alcohol consumption. Regarding the Guideline G allegations, the LSO alleged that the Individual was diagnosed with Alcohol Use Disorder and that he was charged with Driving While Impaired.

The Individual, his witnesses, and the DOE expert testified at the hearing. The Individual was able to demonstrate that he attended and completed an inpatient treatment program, attends aftercare and one-on-one therapy, attends Alcoholics Anonymous meetings, and has a good support system. He was abstinent for twelve consecutive months and corroborated his claim of abstinence with testing. (OHA Case No. PSH-24-0050, Rahimzadeh)

Access Authorization Not Restored; Guideline I (Psychological Conditions)

On May 8, 2024, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In June 2023, the Individual reported having discovered a bullet on her desk and expressed that she believed that someone was trying to intimidate her. An investigation of the incident concluded that the Individual was most likely the source of the bullet. The Individual was subsequently evaluated by a DOE-contracted psychologist (DOE Psychologist) who determined that the Individual met sufficient diagnostic criteria for a diagnosis of Paranoid Personality Disorder (PPD) under the Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition. The Individual was evaluated by two psychologists she retained in connection with this matter, both of whom opined that the Individual did not have a psychological condition that could impair her judgment, reliability, or trustworthiness. The Administrative Judge concluded that none of the psychologists' opinions was fully convincing, and that the Individual had not met her burden to establish the applicability of any of the mitigating conditions under Guideline I. Accordingly, the Administrative Judge concluded that the Individual had not resolved the security concerns, and therefore determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0046, Harmonick)

Access Authorization Granted; Guideline I (Psychological Conditions)

On May 9, 2024, an Administrative Judge determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. In December 2022, the Individual submitted a Questionnaire for National Security Positions, disclosing his untreated Bipolar II Disorder diagnosis. The Individual was subsequently evaluated by a DOE-contracted psychologist (DOE Psychologist) in October 2023 who determined that the Individual met sufficient diagnostic criteria for Bipolar II Disorder, most recent episode depressed, with rapid cycling, under the Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition (DSM-5), and that this condition can impair his judgment, stability, reliability, or trustworthiness. Since November or December 2023, the Individual began regularly seeing a psychiatrist and psychotherapist and strictly complied with their treatment recommendations, including medication management and attendance of scheduled sessions. The Individual testified at the hearing that his episodes have stabilized and that he planned to continue taking medication and working with his clinicians. Given the Individual's participation in treatment, the stabilization of his condition, and his intention to continue with treatment, the DOE Psychologist concluded that the Individual's prognosis for managing his condition is good. Accordingly, the Administrative Judge concluded that the Individual had resolved the Guideline I concerns and therefore determined that the Individual should be granted access authorization. (OHA Case No. PSH-24-0036, Harmonick)

Access Authorization Not Restored; Guideline G (Alcohol Consumption); Guideline J (Criminal Conduct)

On May 9, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The DOE Local Security Office suspended the Individual's security clearance after it discovered that the Individual had been charged with Driving While Intoxicated and subsequently diagnosed with Alcohol Use Disorder, Mild.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guidelines G and J. The AJ also determined that the Individual did not put forth sufficient evidence to resolve the Guideline G and J security concerns. Accordingly, the AJ concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0054, Thompson III)

Access Authorization Not Restored; Guideline F (Financial Considerations)

On May 9, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires him to hold a security clearance. The Individual self -reported several delinquent debts to the Local Security Office (LSO). After further investigation, the LSO alleged that the Individual failed to file his federal and state income taxes for tax years 2020 through 2022, the Individual was delinquent on four consumer debts on which he owed a cumulative $63,586, and that gambling contributed to the Individual's financial problems. 
At the hearing, the Individual provided evidence that he had filed his outstanding federal and state tax returns, however, he owed approximately $25,000 to the IRS and had not entered into a payment plan . The Individual also provided testimony that, in the time since he first reported his delinquent debts, he had not made payments or contacted the creditors. The Individual further testified that he no longer gambles with his own funds and currently seeks counseling to help manage his anxiety. The Administration Judge found that the Individual had not mitigated the Guideline F concerns and, accordingly, concluded that Individual's access authorization should not be restored. (OHA Case No . PSH-24-0057, Balzon)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline E ( Personal Conduct), Guideline I (Psychological Conditions)

On May 9, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed with a DOE Contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's alcohol consumption, personal conduct, and psychological conditions.

The Individual, his witness, and the DOE expert testified at the hearing. The Individual failed to mitigate the Guideline E concerns, as he was under a direct duty to report mental health hospitalizations. The Individual did not show adequate evidence of rehabilitation or reformation from his AUD diagnosis, and because his AUD diagnosis was closely linked to the Guideline I concerns, the Individual also failed to mitigate the Guideline G and I concerns. (OHA Case No. PSH-24-0067, Rahimzadeh)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct)

On May 6, 2024, an Administrative Judge with the Department of Energy's (DOE) Office of Hearings and Appeals determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual had a history of criminal arrests, including a March 2023, arrest for Felony Aggravated Assault with a Deadly Weapon, before which the Individual admitted to consuming four shots of alcohol and being intoxicated. The Individual underwent a psychological evaluation with a DOE-contracted psychologist, who diagnosed the Individual with Unspecified Alcohol Related Disorder, without evidence of rehabilitation or reformation. At the hearing, the Individual submitted evidence that he completed eighteen weeks of alcohol treatment, and abstained from alcohol for ten months. The psychologist opined the Individual was rehabilitated from his Alcohol Related Disorder . However, the Individual did not resolve the inconsistencies related to his March 2023, arrest, and he did not put forth sufficient evidence to mitigate the security concerns related to his criminal conduct . Therefore, the Administrative Judge found the Individual mitigated the security concerns arising under Guidelines G, but did not mitigate the security concerns arising under Guideline J. (OHA Case No . PSH-24-0037, Balzon)