Summary of Decisions - July 31, 2023 - August 04, 2023

Energy Efficiency Enforcement (EEE)

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On August 3, 2023, an Office of Hearings and Appeals' (OHA) Administrative Law Judge recommended that a civil penalty of $1,285,165 be assessed against Shangdong Huajing Glass Co ., Ltd. (Shangdong) for violations of the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. ( the EPCA) and its implementing regulations.

Shangdong 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 to receive the mandatory report from Shangdong, the Office of the Assistant General Counsel for Enforcement (OGCE) issued a Notice of Proposed Civil Penalty (NPCP) to the Respondent, which offered a settlement of $642,538 as an alternative to the maximum allowed civil penalty of $1,285,165. Shangdong failed to provide any response to the NPCP. Subsequently, OGCE filed a complaint (Complaint) with OHA against Shangdong. Shangdong failed to file any response to the Complaint.

On April 21, 2023, OGCE filed a Motion  to Deem the Allegations  of the Complaint as Admitted ( MCA)  along with a Motion for Decision (MFD) regarding its Complaint against Shangdong. In its Motion, OGCE sought a ruling a ruling deeming each of the allegations set forth in the Complaint as admitted and that Shangdong be assessed a civil penalty of $ 1,285,165. Shangdong failed to file any response to OGCE's MCA or MFD. Pursuant to the DOE's Procedures for Administrative Adjudication of Civil Penalty Actions, the ALJ found that by not responding, Shangdong was deemed to have admitted all of the allegations referenced in the Complaint. After reviewing the admitted allegations, the ALJ found that OGCE was entitled to seek a civil penalty from Shangdong pursuant to 10 C.F.R.

§429.102(a)(1). Consequently, the ALJ recommended that Shangdong be assessed the requested civil penalty of $1,285,165. (OHA Case No. EEE-23-0003, Cronin)

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On August 3, 2023, 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 industrial equipment, including walk -in freezer and refrigerator doors. The DOE Energy Conservation Regulations implementing the EPCA require that manufacturers of industrial equipment submit reports to DOE certifying that the industrial equipment 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 December 19, 2022, the DOE's Office of the Assistant General Counsel for Enforcement (OAGCE) issued a NPCP to a manufacturer, MYRA Custom Coolers, A Division of Refrigeration Gaskets of Texas, Inc., alleging that it had distributed two basic models of walk -in cooler and freezer doors (the Subject Models) into commerce in the United States without having certified that it met the ECPA's conservation standard.  On February 17, 2023, after the manufacturer failed to respond to the NPCP, the OAGCE filed a Complaint with OHA alleging that the manufacturer had introduced a faucet 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 $ 91,798. 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 walk -in freezer or refrigerator doors 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 $ 91,798. ( OHA Case No. EEE-23-0006, Fine)

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On August 3, 2023, 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 industrial equipment, including walk -in freezer and refrigerator doors. The DOE Energy Conservation Regulations implementing the EPCA require that manufacturers of covered industrial equipment submit reports to DOE certifying that the covered industrial equipment complies with the ECPA's conservation standards before they begin distributing the industrial equipment 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 December 20, 2022, the DOE's Office of the Assistant General Counsel for Enforcement (OAGCE) issued a NPCP to a manufacturer, Global Insulated Doors, alleging that it had distributed three basic models of walk-in cooler or freezer doors (the Subject Models) into commerce in the United States without having certified that they met the ECPA's conservation standard.  On February 13, 2023, after the manufacturer failed to respond to the NPCP, the OAGCE filed a Complaint with OHA alleging that the manufacturer had introduced covered industrial equipment into commerce in the United States without having certified that the three Subject Models met the ECPA's conservation standard and seeking an assessment of a civil penalty in the amount of $ 137,696. 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 walk -in freezer or refrigerator doors 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 $ 137,696. ( OHA Case No. EEE-23-0004, Fine)

FOIA Appeal (FIA)

FOIA; Appeal Granted in Part, Denied in Part

On August 4, 2023, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by the Epoch Times (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Public Information (OPI). On appeal, the Appellant challenged the redaction of responsive documents pursuant to Exemption 6. The Appellant also challenged whether certain redacted information was reasonably segregable. After reviewing the responsive documents, we found that the redactions made pursuant to Exemption 6 were appropriate, but OPI had failed to segregate some nonexempt information. Therefore, we remand to OPI, which shall review the documents for nonexempt information that is reasonably segregable and release it. (OHA Case No. FIA-23-0025)

FOIA; Appeal Granted

On August 1, 2023, the Office of Hearings and Appeals (OHA) granted the Freedom of Information ( FOIA) Appeal filed by Savannah River Site Watch (Appellant) from a determination letter issued by the Department of Energy's (DOE) Savannah River Field Office (SRO). On appeal, the Appellant challenged the redaction of portions of an email provided with the second determination letter and the adequacy of the search in regard to its request for communications. After reviewing the redacted records, we found that there was no justification for the redaction of the email. After reaching out to SRO and the SMEs who completed the search, we also determined that they had not conducted a search reasonably calculated to uncover all relevant documents. Therefore, we remand to SRO, which shall reconsider the redactions made in the released email, clarify the scope of the request with the Appellant, conduct a new search, and issue a new determination. (OHA Case No. FIA-23-0022)

Personnel Security Hearing (PSH)

Access Authorization Not Granted; Guidelines G (Alcohol Consumption)

On July 31, 2023, an Administrative Jude determined that the Individual's access authorization should not be granted 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 Local Security Office (LSO) received potentially derogatory information indicating that the DOE Psychologist opined that the Individual was drinking habitually and binge drinking, and that as a result, the Individual was placing himself in a position of compromised judgment or reliability on a regular basis. The LSO also alleged that the results of a blood alcohol test performed in conjunction with the psychological evaluation showed evidence of moderate to heavy alcohol consumption, and that in 2019, the Individual was charged with alcohol-related offenses after consuming alcohol and failing a breathalyzer test.

The Individual and DOE Psychologist testified. The record established that although the Individual had made an appointment to receive therapy for his alcohol consumption, he had not yet received treatment and he had not attended any self-help groups, like Alcoholics Anonymous. The Individual stated his belief that his consumption was not problematic and testified that he had engaged in short periods of abstinence. He did not state a specific intention to remain abstinent in the future. The DOE Psychologist testified that the Individual had not shown adequate evidence of rehabilitation or reformation. Accordingly, the Administrative Judge could not conclude that the Individual had mitigated the stated Guideline G concerns. (OHA Case No. PSH-23-0091, Rahimzadeh)

Access Authorization Granted; Guideline E (Personal Conduct), Guideline H (Drug Involvement and Substance Misuse), Guideline J (Criminal Conduct), Guideline I (Psychological Condition)

On July 31, 2023, an Administrative Judge found that an Individual's security clearance should be granted. The Individual had used three types of illegal drugs about two years prior to the hearing while in an unhealthy relationship and had reported her use on her QNSP. A DOE Psychologist diagnosed her with several psychological conditions and opined that she had a submissive personality that could affect her judgment, reliability, and trustworthiness. At the hearing, the Individual presented evidence of personal growth and maturity stemming from therapy, appropriate psychiatric medications, and --as she was quite young when the precipitating events occurred --growing up and learning from her mistakes. The Psychologist opined that the Individual's conditions were under control and gave the Individual a good prognosis. The Individual had no desire to use illegal drugs in the future and intended to remain abstinent from them indefinitely. The Administrative Judge found that the security concerns were mitigated under the Adjudicative Guidelines and found that the Individual's security clearance should be granted. (OHA Case No. PSH-23-0079, Martin)