Summary of Decisions - June 10, 2024 - June 14, 2024

Hydroelectric Appeal (HEA)

On June 13, 2024, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying three appeals by Eagle Creek Hydro Power, LLC (Eagle Creek) relating to the Maintaining and Enhancing Hydroelectricity Incentives Program (Program) authorized by Section 247 of the Energy Policy Act of 2005. DOE denied three applications by Eagle Creek for incentive payments under the Program because the projects in question required approval by the Federal Energy Regulatory Commission (FERC) and Eagle Creek had not provided documentation of FERC authorization. Eagle Creek argued that it was in the process of obtaining FERC authorization for two projects, though it had not yet submitted final applications for approval, and that changed circumstances related to the third project had eliminated the need for FERC authorization. OHA concluded that DOE had not acted arbitrarily or capriciously in denying the applications, and therefore denied the appeals. (OHA Case No. HEA-24-0050)

On June 13, 2024, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying three appeals by Eagle Creek Hydro Power, LLC (Eagle Creek) relating to the Maintaining and Enhancing Hydroelectricity Incentives Program (Program) authorized by Section 247 of the Energy Policy Act of 2005. DOE denied three applications by Eagle Creek for incentive payments under the Program because the projects in question required approval by the Federal Energy Regulatory Commission (FERC) and Eagle Creek had not provided documentation of FERC authorization. Eagle Creek argued that it was in the process of obtaining FERC authorization for two projects, though it had not yet submitted final applications for approval, and that changed circumstances related to the third project had eliminated the need for FERC authorization. OHA concluded that DOE had not acted arbitrarily or capriciously in denying the applications, and therefore denied the appeals. (OHA Case No. HEA-24-0052)

On June 13, 2024, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying three appeals by Eagle Creek Hydro Power, LLC (Eagle Creek) relating to the Maintaining and Enhancing Hydroelectricity Incentives Program (Program) authorized by Section 247 of the Energy Policy Act of 2005. DOE denied three applications by Eagle Creek for incentive payments under the Program because the projects in question required approval by the Federal Energy Regulatory Commission (FERC) and Eagle Creek had not provided documentation of FERC authorization. Eagle Creek argued that it was in the process of obtaining FERC authorization for two projects, though it had not yet submitted final applications for approval, and that changed circumstances related to the third project had eliminated the need for FERC authorization. OHA concluded that DOE had not acted arbitrarily or capriciously in denying the applications, and therefore denied the appeals. (OHA Case No. HEA-24-0053)

Personnel Security Hearing (PSH)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On June 14, 2024, an Administrative Judge determined that the Individual's access authorization should be granted 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 received potentially derogatory information regarding the Individual's alcohol consumption. The Individual, his witness, and the DOE Psychologist testified at the hearing. The Individual presented evidence that he had abstained from alcohol for sixteen months, submitted negative alcohol testing to support his abstinence, and submitted evidence from his treating Substance Abuse Disorder (SUD) psychologist stating that his Alcohol Use Disorder (AUD) is in sustained remission. The Individual also testified that he was participating in a weekly outpatient SUD group treatment, and presented evidence from his SUD psychologist that verified his participation in treatment. The Individual further presented medical evidence from his doctor advising him to stop consuming alcohol to address his liver problems. The Individual testified that after he ceased alcohol use, his liver health improved, and his testimony was supported by two ultrasound test results that he submitted. The DOE Psychiatrist opined that the Individual was rehabilitated and reformed from his AUD. The Administrative Judge concluded that the Individual had mitigated the concerns until Guideline G, and therefore his clearance should be granted. (OHA Case No. PSH-24-0073, Balzon)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline E (Personal Conduct)

On June 11, 2024, an Administrative Judge with the Department of Energy's (DOE) Office of Hearings and Appeals determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. After undergoing a psychological evaluation, the Individual was found to have deliberately underreported his level of alcohol consumption to the DOE consultant psychologist and was diagnosed with Alcohol Use Disorder (AUD), which raised security concerns under Guidelines G and E of the Adjudicative Guidelines. After a hearing, the Administrative Judge found that the Individual had not yet received sufficient treatment to resolve his AUD, and had only been abstinent from alcohol for three months, which was insufficient to demonstrate a clear and established pattern of modified consumption or abstinence in accordance with the psychologist's treatment recommendations. The Administrative Judge also found the Individual that because the Individual had not yet resolved his AUD, his deliberate underreporting of his alcohol consumption was likely to recur, and continued to cast doubt on his reliability, trustworthiness, and judgment. Therefore, the Administrative Judge found the Individual had not mitigated the security concerns arising under Guidelines G and E. (OHA Case No. PSH-24-0088, Fishman)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On June 12, 2024, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed with a DOE Contractor and is moving to a position that requires him to hold a security clearance. The Local Security Office ( LSO) received potentially derogatory information regarding the Individual's failure to file his state and federal income taxes for tax years 2020 and 2021.

The Individual testified at the hearing and submitted fifteen exhibits. Although the Individual submitted copies of tax filings, he could not demonstrate that he had discharged his obligation to file and pay his state and federal income taxes. Accordingly, the Individual failed to mitigate the stated Guideline F concerns. (OHA Case No. PSH-24-0072, Rahimzadeh)

Access Authorization Restored; Guideline G

On June 12, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored.

The Individual has been arrested and charged him with Aggravated Assault (Use of A Deadly Weapon) after incident resulting in part from the Individual's intoxication. A DOE Psychologist evaluated the Individual and found that he met the criteria for Alcohol Use Disorder (AUD), Severe, in early remission, set forth in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition - Text Revision (DSM-5-TR).

The AJ found, that at the time of the hearing, the Individual had abstained from alcohol use for a year and therefore had clearly established a pattern of abstinence. In addition, the AJ found that the Individual had fully complied with the Psychologist's treatment recommendations. Those recommendations included his attendance and completion of an alcohol treatment program. The Individual's hearing testimony has convinced the AJ that the Individual fully understands the effect that alcohol has had on his life, the threat it poses to his future, and the importance of maintaining his sobriety.  Most importantly, the Individual's testimony, and that of the other witnesses at the hearing, have convinced the AJ that the Individual is fully committed to maintaining his sobriety and permanently abstaining from alcohol use.

The AJ therefore concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-24-0048, Fine)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On June 13, 2024, an Administrative Judge determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. The Individual submitted a Questionnaire for National Security Positions (QNSP), disclosing that he voluntarily sought counseling or treatment resulting from his alcohol use in 2019 and had been actively receiving counseling and treatment since 2020. The Individual was subsequently evaluated by a DOE-contracted psychiatrist (DOE Psychiatrist) who determined that the Individual met sufficient diagnostic criteria for Alcohol Use Disorder, Severe, in early remission, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition. At the hearing, the Individual testified that he had been abstinent for over a year, had an active support network, and was working dedicatedly with a clinical pharmacist at a Veterans Affairs facility. She submitted a letter on his behalf attesting to his abstinence and voicing her disagreement with several of the DOE Psychiatrist's recommendations for rehabilitation or reformation. Although the Individual had not complied with all the DOE Psychiatrist's recommendations, the DOE Psychiatrist concluded that the Individual's prognosis was good. After considering all the evidence presented, the Administrative Judge concluded that the Individual had resolved the Guideline G concerns and should be granted access authorization. (OHA Case No. PSH-24-0061, Quintana)