Summary of Decisions - February 12, 2024 -February 16, 2024

Energy Efficiency Enforcement (EEE)  

On February 13, 2024, Administrative Law Judge, Steven L. Fine of 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 August 23, 2023, the DOE's Office of the Assistant General Counsel for Enforcement (OAGCE) issued a NPCP to a manufacturer, Kale Environmental Technology (Shanghai) Corporation, alleging that it had distributed three basic models of large diameter ceiling fans (the Subject Models) into commerce in the United States without having certified that they met the ECPA's conservation standard. On November 22, 2023, after the manufacturer failed to respond to the NPCP, the OAGCE filed an amended Complaint with OHA alleging that the manufacturer had introduced three models of large diameter ceiling fans into commerce in the United States without having certified that the Subject Models met the ECPA's conservation standard and seeking an assessment of a civil penalty in the amount of $1,780,470. 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 three basic models of large diameter ceiling fans in the United States for at least 1,095 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 $1,780,470. (OHA Case No. EEE-24-0003, Fine)

Exceptions (EXC)

On February 14, 2024, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying a Motion for Reconsideration (Motion) of a Decision and Order (Decision) denying an application by R.E. Hansen Industries, Inc. d/b/a Islandaire (Islandaire) for exception relief from the applicable provisions of the Energy Conservation Program: Test Procedure for Single Package Vertical Air Conditioners and Single Package Vertical Heat Pumps (Final Rule) published on December 7, 2022, at 87 Fed. Reg. 75,144 and the energy conservation standards and test procedures applicable to central air conditioners (CACs) codified at 10 C.F.R. Part 430 (the CAC Standards). In it Motion, Islandaire asserted that OHA erred in finding that Islandaire failed to establish a special hardship claim and a basis for relief under the unfair distribution standard . Following a review of the Motion, DOE's response, and comments from an interested party, OHA found that there was no error in the Decision that materially impacted the outcome of the case. (OHA Case No. EXC-24-0002)

FOIA Appeal (FIA)

FOIA Appeal, Expedited Processing, Fee Waiver, Denied

On February 12, 2024, the Office of Hearings and Appeals (OHA) denied a Freedom of Information ( FOIA) appeal filed by Tracy A. Wellons (Appellant) from an interim response issued by the Department of Energy's (DOE) Office of Science. The Appellant submitted a FOIA request seeking to confirm the existence of a contract, between the DOE and two of its laboratories, to conduct human radiation experiments on her and her child. The Appellant challenged the DOE's denial of her requests for expedited processing and a waiver of fees. After reviewing the appeal, OHA concluded the Appellant did not establish she intended, or was able, to disseminate information obtained from the records to the public, or that disclosure of the records would significantly contribute to the public's understanding of government operations or activities. OHA also found the Appellant did not establish that a failure to receive the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or that there was an urgency to inform the public of the subject of human radiation experiments. Accordingly, the Appellant's appeal was denied. (OHA Case No. FIA-24-0011)

Personnel Security Hearing (PSH)

Access Authorization Granted; Guideline F (Financial Considerations)

On February 16, 2024, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires her to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information. Regarding the Guideline F allegations, the LSO alleged that the Individual failed to file her federal and state income taxes for tax year 2019. At the hearing, it was revealed that the Individual had filed her federal and state income taxes for tax year 2019 in May 2020 , but she mistakenly believed that she had failed to do so while she was completing the 2022 Questionnaire for National Security Positions. The Individual filed her income taxes for tax year 2019 a second time in September 2023. She provided a tax transcript from the Internal Revenue Service confirming that she had filed her taxes for tax year 2019 in May 2020, and a submitted a screenshot of a bank statement indicating that she had received a refund from the state tax authority in May 2020 . Accordingly, the Individual mitigated the stated concerns pursuant to mitigating factor (g). (OHA Case No. PSH-24-0013, Rahimzadeh)