Decisions were issued on: - Personnel Security - Energy Efficiency Enforcement
Office of Hearings and Appeals
April 12, 2024
minute read time
Energy Efficiency Enforcement (EEE)
ALJ Recommendation for Assessment of Civil Penalty Under the EPCA
On April 11, 2024, an Office of Hearings and Appeals' (OHA) Administrative Law Judge recommended that a civil penalty of $296,745 be assessed against Ningbo Xingtai Technology Co., Ltd. (Respondent) for violations of the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. (the EPCA) and its implementing regulations.
Respondent is a manufacturer of ceiling fans which are covered industrial products under the EPCA and DOE's energy conservation standard regulations. The DOE regulations require that manufacturers of such fans submit to the DOE a report certifying that such fans meet the energy conservation standards required under 10 C.F.R. § 102(a)(1) and 10 C.F.R. §429.12.
Upon failure of six models of ceiling fans to pass the energy efficiency standards or to submit a compliance report mandated at 10 C.F.R. Part 429, the Office of the Assistant General Counsel for Enforcement (OGCE) issued a Notice of Proposed Civil Penalty (NPCP) to the Respondent. OGCE filed a complaint (Complaint) with OHA against the Respondent. The Respondent failed to file any response to the NPCP or the Complaint.
On March 4, 2024, OGCE filed a Motion to Deem the Allegations of the Complaint Admitted, and a Motion for Decision (collectively MFD) regarding its Complaint against the Respondent. The Motions sought rulings deeming each of the allegations set forth in the Complaint as admitted and requested that the ALJ issue a decision against the Respondent. The Respondent failed to reply to the MFD. The ALJ determined that because of the Respondent's failure to respond to the Complaint or the MFD, OGCE's allegations against the Respondents were deemed admitted and that the Motion for Decision be granted. The ALJ also found that it was appropriate assess a civil penalty against the Respondent and recommended that the Respondent be assessed a civil penalty of $296,745. (OHA Case No. EEE-24-0009, Cronin)
Personnel Security Hearing (PSH)
Access Authorization Not Restored; Guideline E (Personal Conduct); Guideline H (Drug Involvement and Substance Misuse); and Guideline J (Criminal Conduct).
On January 11, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual signed and submitted a Questionnaire for National Security Positions (QNSP) in connection with seeking access authorization in September 2019 and was granted a security clearance in November 2019. He certified and submitted another QNSP in March 2023. In both his QNSP forms, he certified that in the last seven years he had not illegally used any drugs or controlled substances. The Local Security Office (LSO) later determined that the Individual had omitted information in both his QNSPs and during his ESI regarding his prior use of marijuana. In his Amended LOI response and during the hearing, the Individual admitted that he had used marijuana approximately five times between spring 2018 and May 2019. He testified that he had not disclosed his marijuana use due to his misinterpretation of the question regarding drug use and his belief that marijuana was not a drug or controlled substance that needed to be disclosed on the QNSP. To support his claims of abstinence since May 2019, the Individual submitted copies of negative drug tests. His testimony regarding his dates of prior marijuana use was also corroborated by the source that reported his prior drug use to the DCSA investigator, and was consistent with his disclosures that he made during a prior military investigation. The Administrative Judge found that the Individual had mitigated the Guidelines H and J concerns regarding his prior marijuana use. However, the Administrative Judge concluded that the Individual's explanations for his conduct had not mitigated the Guideline E security concerns, and therefore determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0040, Balzon)
Access Authorization Not Restored; Guideline J (Criminal Conduct)
On April 10, 2024, an Administrative Judge determined that the Individual's access authorization should not 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. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's criminal conduct. Regarding these allegations, the LSO alleged that the Individual was arrested and charged with Aggravated Battery, Child Abuse, and Misdemeanor Interference with Communications in July 2023. The LSO also alleged a number of other criminal charges, including traffic-related matters, a 2020 Driving Under the Influence, Domestic Violence in 2017 and 2018, and Aggravated Assault and Negligent use of a Deadly Weapon in 2016.
At the hearing, the Individual presented the testimony of four witnesses, including that of the alleged victim in the 2023 criminal matter. The Individual also presented evidence that he had taken alcohol education courses through is employer's Employee Assistance Program and participated in one-on-one counseling for nine weeks. Although the Individual mitigated the concerns related to the traffic-related charges and the 2020 DUI, the Individual failed to mitigate the aforementioned 2016, 2017, 2018, and 2023 charges. (OHA Case No. PSH-24-0039, Rahimzadeh)