Personnel Security (10 CFR Part 710)

On May 2, 2016, an Administrative Judge issued a decision in which he determined that an individual's access authorization should be restored.  According to the Notification Letter, the individual had been arrested in 2013 for an assault of a family member and in 2014 for Driving Under the Influence (DUI).  Required to abstain from alcohol for one year by his probation following his 2013 arrest, he violated that requirement two weeks before the end of his probationary period, resulting in the 2014 DUI arrest.  Although a DOE consultant psychologist determined that the individual did not have an alcohol disorder, the DOE found security concerns in his criminal activity.  The Administrative Judge determined that, by the time of the hearing, the individual had entered into, and completed, nearly two years of abstinence, Alcoholics Anonymous participation, individual counseling, and aftercare.  Because all of the criminal activity was alcohol-related, and because the individual’s strong commitment to abstinence demonstrated that any future use of alcohol was highly unlikely to occur, the Administrative Judge found correspondingly that criminal activity was highly unlikely to recur in the future.  He therefore concluded that the individual had resolved the security concerns raised by his criminal activity.  OHA Case No. PSH-16-0001 (William Schwartz)

Freedom of Information Act (FOIA) Appeal

On May 4, 2016, OHA issued a decision denying a FOIA Appeal filed by Robert Kamansky from a determination issued by the DOE Office of Information Resources (OIR). In the Appeal, the Appellant challenged OIR’s withholdings under FOIA Exemption 6. OHA found that there was a significant privacy interest in the withheld information, which was not outweighed by any public interest. Therefore, OIR properly withheld the information. OHA Case No. FIA-16-0027 

Hydroelectric Production Incentives Appeals

On May 6, 2016, OHA issued a decision denying an appeal filed by the City of Ouray, CO (Ouray) of a notice issued to Ouray by the DOE’s Office of Energy Efficiency and Renewable Energy (EERE). In the notice, EERE found that Ouray was eligible for an incentive payment under the Hydroelectric Production Incentives Program authorized by Section 242 of the Energy Policy Act of 2005. However, the notice found that Ouray was eligible for a payment based on 28,280 kilowatt hours of energy and not 77,021 kilowatt hours as Ouray had requested. In its appeal, Ouray contended that EERE should have determined that it was eligible for an incentive payment based on 77,021 kilowatt hours of energy, which represented the amount of energy its hydroelectric facility generated in 2014. In considering the Appeal, however, OHA concluded that Section 242, as well as a Guidance Document issued by EERE, require that the production incentive be based on the energy that a qualified hydroelectric facility generates and sells, not just the energy the facility generates. OHA found that because Ouray generated and sold to the grid only 28,280 kilowatt hours of energy in 2014, using the rest of the generated energy to power a pump at a municipally-owned pool, Ouray was eligible for a production incentive based on 28,280 kilowatt hours only. OHA therefore found that EERE’s notice had determined the proper basis for an incentive payment. Accordingly, OHA denied the appeal.  OHA Case No. HEA-16-0001 

On May 6, 2016, OHA issued a decision denying an appeal filed by KC Brighton LLC (Brighton) of a notice issued to Brighton by the DOE’s Office of Energy Efficiency and Renewable Energy (EERE).  In the notice dated April 6, 2016, EERE found that Brighton was not eligible for an incentive payment under the Hydroelectric Production Incentives Program authorized by Section 242 of the Energy Policy Act of 2005.  The decision determined that, “[e]lectricity produced from the facility did not result from the addition of a new generator or generation device placed in operation on or after October 1, 2005, as required.  Rather, electricity production resulted from maintenance or rehabilitation of an existing facility.”  In its appeal, Brighton asserted that the automated and remote SCADA controls installed on an existing turbine dramatically increased the amount of energy produced by that facility, and that the company was, therefore, eligible for payment under the program.  Brighton pointed to language in the Guidelines which references potential payments for changes to control equipment.  Brighton asserted that such language rendered them eligible for payment.  However, OHA determined that a reading of the Section as a whole made clear that control equipment was just one of three (3) requirements, all of which must be met in order to qualify for payments.  Because Brighton had failed to demonstrate that it met the other two (2) criteria, OHA denied the appeal.  OHA Case No. HEA-16-0002