Summary of Decisions - March 18, 2024 -March 22, 2024

Energy Efficiency Enforcement (EEE)  

On March 18, 2024, an Administrative Law Judge with 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 May 26, 2023, the DOE's Office of the Assistant General Counsel for Enforcement ( OAGCE) issued a NPCP to a manufacturer, CBHS, 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 September 6, 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 $148,372. 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 $148,372. (OHA Case No. EEE-23-0010, Fine)

ALJ Recommendation for Assessment of Civil Penalty Under the EPCA

On March 18, 2024, an Office of Hearings and Appeals' (OHA) Administrative Law Judge recommended that a civil penalty of $395,660 be assessed against LiWei-shop for violations of the Energy Policy and Conservation Act, 42 U.S.C. § 6291 et seq. (the EPCA) and its implementing regulations.

LiWei-shop is a manufacturer and distributor of showerheads that are covered products under the EPCA and DOE's energy conservation standard regulations. The DOE regulations require that a manufacturer of such showerheads submit to the DOE a report certifying that such showerheads meet the energy conservation standards required under 10 C.F.R. § 102( a)(1) and 10 C.F.R. §429.12.

Upon failure of LeWei-shop to submit energy efficiency reports 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 LiWei-shop. After LiWei shop continued to fail to submit the requested reports, OGCE filed a complaint ( Complaint) with OHA against LiWei-shop. LiWei-shop failed to file any response to the Complaint.

On February 12, 2024, OGCE filed Motions to Deem the Allegations of the Complaint Admitted, and for the issuance of a Decision. 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 LiWei-shop. The ALJ determined that because of LiWei-shop's failure to respond to the Complaint or the Motion for Decision, OGCE's allegations against the Respondents were deemed admitted. The ALJ also found that it was appropriate to assess a civil penalty against LiWei-shop. Therefore, the ALJ recommended that ELT be assessed a civil penalty of $395,660. (OHA Case No. EEE-24-0005, Cronin)

Personnel Security Hearing (PSH)

Personnel Security; Access Authorization Restored; Guideline G (Alcohol Consumption, Guideline J (Criminal Conduct)

On March 21, 2024, an Administrative Judge issued a decision restoring an Individual's security clearance, which had been suspended after he was arrested and charged with Driving Under the Influence of Alcohol (DUI). At the hearing, the Individual presented evidence that he had abstained from alcohol since his arrest, had completed an Intensive Outpatient Program for substance abuse, was attending alcohol education classes, was attending Alcoholics Anonymous and had obtained a sponsor, and was in compliance with the terms of his criminal sentence. A DOE Psychologist who had previously evaluated the Individual opined that the Individual was rehabilitated and reformed and had a good prognosis for remaining abstinent from alcohol. The Administrative Judge found that the Individual had mitigated the concerns raised under Guidelines G and J and, accordingly, found that the Individual's security clearance should be restored. ( PSH-24-0034, Martin) ( OHA Case No. PSH-24-0034, Martin)

Access Authorization Not Restored; Guideline F (Financial Considerations)

On March 18, 2024, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. In completing her Questionnaire for Security Positions (QNSP), the Individual admitted that she had outstanding, delinquent debt and had not filed her 2022 federal or state tax returns. In a Letter of Interrogatory (LOI) from July 2023, the Individual stated that she was waiting to file her tax returns because she was waiting on husband to obtain information from the closing of his business. The Individual and her husband testified that the delinquent debts resulted from the closing of her husband's business due to the COVID pandemic. In the LOI, the Individual indicated that she would pay off all of her debts after her car loan was paid off "in a couple of months." At the hearing, the Individual reiterated that she intended to pay the remaining debts after her car loan was paid off, but she could not say when the loan would be paid off. She did admit that she had filed her federal and state income tax returns and gotten a refund from both entities. The Individual did not mitigate the concerns under any of the conditions listed in the Guidelines. Although she filed her income tax returns, mitigating the concerns raised by her failure to do so, she has made a very limited attempt to satisfy her outstanding debts. She did contact an auto loan lender regarding the outstanding amount for a repossessed company van but did not make any attempt to satisfy the debt .  She did not contact any of the other debtors. Accordingly, the Individual was not able to demonstrate that she had resolved the security concerns arising under Guideline F. ( OHA Case No. PSH-24-0030, Fishman)