Summary of Decisions - March 11, 2024 -March 15, 2024

Energy Efficiency Enforcement (EEE)  

On March 12, 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 October 25, 2023, the DOE's Office of the Assistant General Counsel for Enforcement ( OAGCE) issued a NPCP to a manufacturer, Ezelia US, 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 December 4, 2023, after the manufacturer failed to respond to the NPCP, the OAGCE 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-24-0004, Fine)

FOIA Appeal (FIA)

FOIA Appeal, Adequacy of the Search, Denied

On March 12, 2024, the Office of Hearings and Appeals (OHA) denied the Freedom of Information Act (FOIA) Appeal filed by Dustin Slaughter (Appellant) from a determination letter issued by the Department of Energy's Office of Public Information (OPI). In the determination letter, OPI stated that a search was conducted, but no responsive records were found. On appeal, the Appellant challenged the adequacy of the search. After consideration, we found that OPI FOIA staff appropriately relied on the relevant subject matter experts (SMEs) at the DOE's Office of Public Affairs (PA) and Office of the Assistant Secretary for Congressional & Intergovernmental Affairs (CI) to determine where responsive documents were most likely to be located. OPI first conducted an initial search within the relevant email accounts in CI, but the search terms used were too broad and produced wholly unrelated results. OPI then ran a narrower search using terms that were reasonably calculated to uncover any records that would be responsive to the Appellant's FOIA request, but that returned no results. OPI additionally ran two separate searches that also used appropriate search terms, but no responsive documents were found. Therefore, a reasonable search was conducted, and we deny the appeal. (OHA Case No. FIA-24-0015)

Personnel Security Hearing (PSH)

Personnel Security; Access Authorization Restored; Guideline G (Alcohol Consumption)

On March 13, 2024, an Administrative Judge issued a decision restoring a DOE Contractor employee's security clearance, which had been suspended pursuant to Guideline G, Alcohol Consumption, after an alcohol screening revealed that she was intoxicated at work. At the hearing, the Individual presented evidence that she had abstained from alcohol for 18 months, had attended an inpatient program and an Intensive Outpatient Program, and regularly attended a weekly alcohol recovery support group. The Individual testified about the skills she had learned, such as setting clear boundaries, that addressed the reasons she had turned to alcohol, as well as the skills she had learned to deal with alcohol cravings or triggers moving forward. A DOE Contractor Psychologist opined that the Individual was rehabilitated and gave her a good prognosis for remaining abstinent from alcohol, which the Individual testified she intended to do indefinitely. The Administrative Judge found that the Individual had mitigated the concerns under Guideline G and recommended that the Individual's security clearance be restored. (OHA Case No. PSH-23­0107, Martin)

Access Authorization Restored; Guideline H (Drug Involvement and Substance Misuse)

On March 12, 2024, an Administrative Judge determined that the Individual's access authorization should 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. In August 2023, the Individual was randomly selected for a workplace drug test and tested positive for marijuana use. At the hearing, the Individual testified that on three occasions within slightly over a week's timespan, he had consumed CBD gummies to help him cope with anxiety . When he consumed the gummies, he was unaware that they would cause him to test positive for marijuana use. After he tested positive, the Individual complied with all of the requirements of the contractor's EAP program and began to see a therapist who has helped him learn better ways to deal with his anxiety. He stated his use of CBD gummies was his only incident of illegal drug use, and he presented supporting evidence of his past random drug tests which were all negative. He testified that he also has not consumed any marijuana or CBD since his positive test and has no plans to do so in the future. Additionally, the Individual's therapist determined that he has a good prognosis and is at low risk for drug abuse.

The Administrative Judge therefore concluded that the Individual brought forth sufficient evidence to mitigate the Guideline H concerns. Accordingly, she concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-24-0023, Balzon)

Whistleblower Hearing (WBH)

Whistleblower Hearing Substantial and Specific Danger; Complaint Dismissed

On March 14, 2024, the Office of Hearings and Appeals (OHA) denied the complaint filed by John B. Sharpe against United Cleanup of Oak Ridge, LLC (UCOR), and URS/CH2M Oak Ridge, LLC, under the Department of Energy's (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708. In his complaint, Mr. Sharpe alleged that he made protected disclosures of a substantial violation of a law, rule, or regulation and a substantial and specific danger to UCOR leadership and a DOE official. As a result, he alleged that he received a formal written warning and was later terminated. The Administrative Judge (AJ) found that Mr. Sharpe presented sufficient evidence to demonstrate he made a protected disclosure by disclosing a substantial violation of regulations when he reported the electrical condition of a building to UCOR leadership, but he did not disclose a substantial and specific danger. The AJ also found that the disclosures were a contributing factor to Mr. Sharpe's written warning and termination given that the individual's responsible for the adverse employment actions had actual notice of Mr. Sharpe's protected activity and the evidence established temporal proximity between his disclosures and the adverse actions; however, the AJ dismissed the claim for retaliation on the basis of the written warning because it was not timely filed. Regarding the remaining claim, the AJ found that UCOR demonstrated by clear and convincing evidence that it would have terminated Mr. Sharpe irrespective of his protected disclosures. Accordingly, the AJ denied the complaint. (OHA Case No. WBH-23-0002, Thompson III)