Summary of Decisions - July 03, 2023 - July 07, 2023

Energy Efficiency Enforcement (EEE)

Initial Agency Decision Granting Motion for Decision

On  July 6, 2023, an Administrative Law Judge (ALJ) issued an initial agency decision (Decision) granting a motion for a decision (Motion) filed by the Department of Energy’s Office of the Assistant General Counsel for Enforcement (OGCE) under the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. (EPCA). In January 2022, shenzhenshi xialan keji Youxiangongsi (Respondent) introduced a lavatory faucet into commerce without having first certified that the product met the applicable energy conservation standard pursuant to DOE regulations implementing the EPCA. OGCE served a complaint on Respondent, to which Respondent failed to respond, and on March 21, 2023, OGCE filed the Motion. Respondent failed to respond to the Motion, and accordingly the ALJ deemed all of the allegations set forth in the complaint as admitted. As the complaint alleged sufficient facts to establish that was no genuine issue of material fact and that OGCE was entitled to a decision as a matter of law, the ALJ granted the Motion and ordered Respondent to pay a civil penalty. (OHA Case No. EEE-23-0002, Fine)

Personnel Security Hearing (PSH)

Access Authorization Denied; Guideline I (Psychological Conditions)

On July 3, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In May 2022, during a Triggered Enhanced Subject Interview, conducted as part of the application for a security clearance, the Individual revealed that, in April 2022, he voluntarily hospitalized himself for a mental health condition. As a result of this disclosure, the Individual underwent an evaluation by a DOE consultant psychiatrist (DOE Psychiatrist) in September 2022. After evaluating the Individual, the DOE Psychiatrist diagnosed the Individual with Schizophreniform Disorder, with good prognostic features. At the hearing, the Individual's personal psychiatrist (Personal Psychiatrist) testified that he had diagnosed the Individual with Schizophrenia. The Personal Psychiatrist and the Individual's therapist both testified that the Individual had consistently followed all treatment recommendations. However, despite the positive steps the Individual had taken to manage his condition, he suffered a psychotic episode as recently as November 2022. Due to the difficulty of the Individual's condition as well as the recency of his diagnosis and symptom management, the Administrative Judge found that the Individual had not yet mitigated the Guideline I security concerns. Accordingly, she concluded that the Individual's access authorization should not be granted. (OHA Case No. PSH-23-0040, Quintana)

Access Authorization not restored; Guidelines G (Alcohol Consumption); E (Personal Conduct)

On July 3, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In August 2022, the Individual tested positive on an employer mandated breath alcohol test (BAT). In November 2022, the Individual was evaluated by a DOE Psychologist. During the evaluation, the Individual asserted he had been abstinent from alcohol for two months, however, his Phosphatidylethanol (PEth) test result was positive at a level that reflected significant alcohol consumption. The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate, and found that he engages in habitual and binge consumption of alcohol. She further opined that the Individual attempted to lie by asserting claims of abstinence while consuming alcohol regularly. The DOE Psychologist recommended that the Individual abstain from alcohol for 12 months, participate in a twelve-step program such as Alcoholics Anonymous (AA), and undergo alcohol testing including PEth tests.

At the hearing, the Individual's testimony included several inconsistencies regarding his alcohol use which he did not resolve, and he did not fully acknowledge his untruthfulness regarding his alcohol consumption. Moreover, the Individual also testified that he had not yet undertaken any of the recommendations by the DOE Psychologist but he stated that he intended to seek help for his AUD soon after the hearing.  As such, the Administrative Judge found that the Individual had not mitigated the Guideline E and Guideline G security concerns. Accordingly, she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0067, Balzon)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On July 6, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In October 2021, as part of the security clearance application process, the Individual completed a Questionnaire for National Security Positions (QNSP). In the section entitled "Employment Activities," the Individual affirmatively answered a question regarding whether, in the last seven years, he had received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace. He elaborated noting that, in approximately 2019, he was "warned, reprimanded, suspended, or disciplined" when he "showed up hungover to work." Following his disclosures on the QNSP, the Individual underwent a psychological evaluation with a DOE-consultant psychiatrist (DOE Psychiatrist) in June 2022. After evaluating the Individual, the DOE Psychiatrist concluded that the Individual was habitually consuming alcohol to the point of impaired judgment and had not shown adequate evidence of rehabilitation or reformation. At the hearing, the Individual testified that he had successfully completed a 12-week long substance abuse course, been consistently participating in Alcoholics Anonymous, and had been abstinent from alcohol for over six months. He further provided laboratory evidence supporting his sobriety and demonstrated active and consistent participation in Alcoholics Anonymous. After considering the evidence in the record and testimony presented at the hearing, a DOE -consultant psychiatrist opined that the Individual had demonstrated adequate evidence of rehabilitation and reformation. The Administrative Judge ultimately determined that the Individual had resolved the security concerns associated with Guideline G. Accordingly, she concluded that the Individual's access authorization should be granted. (OHA Case No. PSH-23-0014, Quintana)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On July 6, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored.

On July 15, 2022, the subject was arrested for Battery on a Household Member and Destruction of Private Property. The subject admitted to drinking and got into an argument with his wife. During the argument, he grabbed two dresser drawers and threw them to the ground - one of which allegedly knocked over his wife. The Local Security Office (LSO) then issued the Individual a Letter of Interrogatory inquiring about the Individual's arrest and his alcohol consumption. The Individual was later referred for an examination to a DOE-contractor psychologist who issued a report (Report) that found that the Individual had been habitually consuming alcohol to the point of impaired judgment and that there was no evidence that the Individual had demonstrated rehabilitation or reformation from his alcohol misuse problem.

While in jail pursuant to his arrest, the Individual had an "epiphany" that he needed to permanently abstain from alcohol consumption. When he was released from jail, he reported his arrest to the LSO . At work, he was referred to the facility's EAP and spoke to the EAP psychologist on four occasions who gave him suggestions regarding treatment such as attending Alcoholics Anonymous (AA), obtaining counselling and submitting to PEth tests to confirm his abstinence.

The Individual testified that his approach to treatment changed when in mid -February 2023 he received a copy of the DOE psychologist's Report, and his clearance was suspended.  Additionally, the Individual was required to sign a contract concerning certain workplace requirements to remain at work, such as entering into an agreement to remain sober and submitting to random urine analysis test for alcohol. Consequently, on March 6, 2023, he began individual therapy from the Therapist and began to obtain PEth tests to confirm his sobriety. The Individual attends church twice a week and has had "nine or ten" meetings with the Therapist.

The Individual's therapist (Therapist) testified as to the changes she has observed in the Individual during counselling the Therapist believes that the Individual's prognosis is "good", and his risk of relapse is close to "low." Since the original DOE psychologist was not available to testify another DOE Psychologist testified in his stead. The DOE Psychologist found the Individual had substantially complied with the requirement for regular alcohol testing from the date the Individual received the Report in February 2023. As for the other elements of the Report's recommendations regarding treatment, the DOE Psychologist found that the Individual had complied with the requirement that he be abstinent from alcohol; that, after reviewing the Individual's PEth tests and the testimony presented at the hearing, the Individual began his abstinence on July 16, 2022; and that he has essentially complied with the Report's recommendation that the Individual be abstinent for 12 months, even though as of the date of the hearing the Individual has been abstinent for ten and one -half months. This was especially true given the fact that the DOE psychologist did not diagnose the Individual as suffering from the more severe diagnosis of alcohol use disorder.

In light of the testimony and the other evidence presented at the hearing, the Administrative Judge found that the Individual had offered sufficient evidence from which the Administrative Judge concluded that the Guideline G security concerns had been resolved. Consequently, the Administrative Judge found that that the Individual's clearance should be restored. (OHA Case No. PSH-23-0072, Cronin)