Summary of Decisions - July 10, 2023 - July 14, 2023

Energy Efficiency Enforcement (EEE)

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On July 14, 2023, an Office of Hearings and Appeals’ (OHA) Administrative Law Judge recommended that a civil penalty of $137,696 be assessed against Advanced Insulation Concepts, Inc. (Advanced) for violations of the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. (the EPCA) and its implementing regulations.

Advanced 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 Advanced, 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 $137,696 as an alternative to the maximum allowed civil penalty of $550,785. Advanced failed to provide any response  to the NPCP. Subsequently, OGCE filed a complaint (Complaint) with OHA against Advanced. Advanced failed to file any response to the Complaint.

On March 28, 2023, OGCE filed a Motion for Decision (MFD) regarding its complaint against Advanced. In its Motion, OGCE sought a ruling a ruling deeming each of the allegations set forth in the Complaint as admitted and that Advanced be assessed a civil penalty of  $137,696. Advanced failed to file any response to OGCE’s MFD. Pursuant to the DOE’s Procedures for Administrative Adjudication of Civil Penalty Actions, the ALJ found that by not responding, Advanced 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 Advanced pursuant to 10 C.F.R. §429.102(a)(1). Consequently, the ALJ recommended that Advanced be assessed the requested civil penalty of $137,696.  (OHA Case No. EEE-23-0005, Cronin)

FOIA Appeal (FIA)

On June 13, 2023, Siri Glimstad (Appellant) appealed a Determination Letter issued to it from the Department of Energy's (DOE) Savannah River Operations Office (SRO) regarding Request Nos. HQ- 2023-00697-F and SRO-2023-00712-F. In that determination, SRO responded to a request filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. SRO implied that it did not find any responsive documents. Appellant appealed the adequacy of the determination letter. The appeal was granted because SRO had located the requested record but not explained its reasons for not transmitting it to Appellant. ( (OHA Case No. FIA-23-0021, Martin)

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Bond Amendment, Guideline E (Personal Conduct), Guideline F (Financial Considerations), Guideline H (Drug Involvement and Substance Misuse), Guideline I ( Psychological Conditions), & Guideline J (Criminal Conduct)

On July 10, 2023, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In 2018, the Individual completed a Questionnaire for National Security Positions (QNSP) in connection with a periodic review of his eligibility for access authorization in which he disclosed that he had been arrested for a domestic violence -related offense for the third time in ten years. An investigation revealed that the Individual had failed to disclose significant illegal drug use and treatment, as well as his failure to file personal income tax returns and pay personal income taxes as required, on the QNSP. The Individual subsequently admitted to the local security office (LSO) that he had intentionally failed to disclose this information because he feared losing his job. At the hearing, the Individual presented voluminous drug testing records from his treatment corroborating his claims to have abstained from illegal drug use for over three years . However, the Individual admitted that he had not resolved his unpaid taxes, and record evidence showed that the Individual continued to hide his illegal drug use and treatment from his employer even after it was discovered during the investigation of his eligibility for access authorization. The Administrative Judge concluded that the Individual was not prohibited from holding access authorization pursuant to the Bond Amendment, and that he had resolved the security concerns asserted by the LSO under Guidelines H and I. However, the Administrative Judge concluded that the Individual had not resolved the security concerns asserted by the LSO under Guidelines E, F, or J, and therefore determined that the Individual's access authorization should not be restored. ( OHA Case No. PSH-23-0087, Harmonick)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On July 13, 2023, an Administrative Judge determined that an Individual's access authorization should be granted. The Local Security Office had raised concerns about the Individual's alcohol use. The Individual presented testimonial and documentary evidence that he had stopped consuming alcohol and was engaging robustly with his treatment program. The DOE's Psychologist testified, as an expert, that the Individual was rehabilitated and reformed from his habitual consumption of alcohol to excess. Accordingly, the Administrative Judge determined that the Individual's access authorization should be granted. (OHA Case No. PSH-23-0053, Martin)