Personnel Security (10 CFR Part 710)

On August 31, 2016, an OHA Administrative Judge issued a decision in which he concluded that an individual should not be granted access authorization. The LSO alleged security concerns arising under Criterion L based upon the individual’s purported financial irresponsibility and non-compliance with tax laws. Although the individual had made a significant effort to resolve his financial and tax matters following receipt of the Notification Letter, as of the date of the hearing the individual continued to have: (1) five collection accounts outstanding, (2) known federal tax debt in the amount of $56,000 (with no payment plan negotiated), (3) unquantified federal and state tax debt for the five-year period (including for three years in which he had not yet filed his tax returns), and (4) a financial judgment relating to a repossessed car, which judgment was only partially paid (in an amount that the individual could not specify) through the garnishment of the individual’s wages at a prior place of employment. The Administrative Judge acknowledged that the individual’s financial situation had been exacerbated by a divorce and two substantial periods of unemployment, but noted that, in the years prior to the individual first losing his job and first separating from his then-wife, the individual had filed bankruptcy petitions twice (and had had his debts discharged in bankruptcy once). Additionally, the individual offered no explanation for not filing three years of tax returns, including a tax return which was due during the period in which the individual was an applicant for access authorization. Under these circumstances, the Administrative Judge concluded that the individual had not sufficiently mitigated the Criterion L security concerns. OHA Case No. PSH-16-0035 (Wade M. Boswell)

On August 31, 2016, an Administrative Judge issued a decision in which he found that individual’s access authorization should be restored. In reaching this determination, the Administrative Judge found that the individual had resolved security concerns under Criteria H, J, and L regarding 2012 and 2015 arrests for Driving Under the Influence of Alcohol (DUI) and a report from a DOE psychologist (DOE Psychologist) opining that the individual was a user of alcohol habitually to excess. The individual submitted evidence that he had completed the treatment program recommended by the DOE Psychologist. Additionally, the individual submitted evidence that he had totally abstained from alcohol consumption since his 2015 DUI arrest. This exceeded the DOE Psychologist’s recommendation that the individual demonstrate a pattern of responsible alcohol consumption for a period of five months. The DOE Psychologist, after reviewing the testimony at the hearing, opined that she believed that the individual had demonstrated adequate evidence of rehabilitation and reformation from his prior misuse of alcohol. Given the evidence and testimony offered during the hearing, the Administrative Judge found that the individual had resolved the Criteria H, J, and K concerns arising from his DUI arrests and his misuse of alcohol. Consequently, the Administrative Judge found that the individual’s security clearance should be restored. OHA Case No. Case No. PSH-16-0054 (Richard Cronin)

On August 31, 2016, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The individual had: (1) submitted a signed Questionnaire for National Security Positions (QNSP) in which she failed to disclose several outstanding financial delinquencies, including a state tax lien, and five collection accounts; (2) falsely denied having any bills or debt turned over to a collection agency during the past seven years during a Personnel Security Interview (PSI), and (3) three unpaid collection accounts totaling $1,779, and one past due account totaling $471. The individual presented evidence showing that she had satisfied all of her outstanding debts and that her monthly income now exceeded her expected monthly expenses by a considerable margin. Accordingly, the Administrative Judge concluded that she had resolved the security concerns arising from her outstanding debt.  The Administrative Judge, however, found that the security concerns raised by the individual’s failure to disclose her financial difficulties and her false statements during the PSI were intentional.  Accordingly, the Administrative Judge found that the security concerns arising from them remain unresolved.  Therefore, the Administrative Judge found that the individual had not resolved all of the security concerns raised by DOE.  OHA Case No. PSH-16-0050 (Steven L. Fine)

On September 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 2015 for Driving Under the Influence (DUI) of alcohol.  He was also arrested for DUI in 2009 and received a citation for Minor in Possession of alcohol at age 18 or 19.  A DOE psychologist determined that the individual used alcohol habitually to excess, but did not meet the criteria for any of the recognized alcohol-related diagnoses.  She recommended eight months of abstinence and the completion of an outpatient alcohol program (IOP).  The Local Security Office determined that security concerns fell under Criteria H and J, as well as Criterion L for the pattern of criminal activity represented by the three arrests. By the time of the hearing, the individual had been abstinent for nine months, entered into a two-year abstinence agreement, had been subject to random urinalysis testing for several months, had attended six Alcoholics Anonymous meetings, had met with an EAP counselor 13 times, intended to continue meeting with her for the duration of his two-year abstinence agreement and possibly longer, and had voluntarily made a life-long commitment to remain abstinent.  At the hearing, the DOE psychologist determined that the individual had been adequately rehabilitated from his former relationship with alcohol. The Administrative Judge therefore found that the concerns about his alcohol consumption were resolved.  Furthermore, he found that the individual had resolved the security concerns raised by his criminal activity, all alcohol-related, because the alcohol consumption concerns had been resolved.  OHA Case No. PSH-16-0052 (William Schwartz)

On August 29, 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 used marijuana on one occasion in 2014.  When completing his QNSP in August 2015, he certified that he had not used drugs illegally in the past seven years nor at any time while holding a security clearance.  During his OPM background investigation interview and, later, at his Personnel Security Interview, he admitted that he had used marijuana one time in 2014.  The Local Security Office found that the individual’s behavior raised security concerns under Criteria F, K, and L, and the Bond Amendment.  At the hearing, the individual testified that he had taken one inhalation of marijuana while visiting an old friend in a distant city; it was his first and, because he decided then to abstain from marijuana in the future, his last use of the drug.  He also explained his reasoning for denying illegal use of drugs on his QNSP.  While not condoning the individual’s behavior, the Administrative Judge found that the individual’s one-time marijuana use and one-time misrepresentation did not cast disqualifying doubt on his reliability, trustworthiness, or good judgment.  The Administrative Judge consequently found that the individual had resolved the DOE’s security concerns.  OHA Case No. PSH-16-0048 (William Schwartz)

On September 1, 2016, an OHA Administrative Judge issued a decision in which she determined that an individual’s access authorization should be restored.  In reaching this determination, the Administrative Judge found that the individual had resolved the security concerns arising from diagnosis of alcohol dependence and three alcohol-related incidents.  The individual testified that he completed an Intensive Outpatient Treatment Program (IOP) and that, since his release from the IOP, he had been going to the Veterans Administration (VA) for counseling.  His VA psychiatrist and VA counselor both sent letters indicating that the individual is doing everything they have asked of him.  The Employee Concerns Program Counselor testified that the individual has made an amazing change in the past year.  The individual’s supervisor testified that the individual is more energetic and interested in his job.  After hearing all the testimony, the DOE psychiatrist testified that the individual had a low risk of relapse and that he considers the individual rehabilitated and reformed.  Therefore, the Administrative Judge found that the individual had resolved the Criteria H and J concerns.  OHA Case No. PSH-16-0057 (Janet R. H. Fishman)

On September 1, 2016, an OHA Administrative Judge issued a decision in which she determined that an individual’s access authorization should be restored.  In reaching this determination, the Administrative Judge found that the individual had resolved the security concerns arising from his August 2016 arrest for Driving Under the Influence (DUI) and diagnosis of alcohol dependence.  The individual and his wife testified that he entered an Intensive Inpatient Treatment Program (ITP) within two weeks of his DUI.  Since his release from the ITP, he has been attending Alcoholics Anonymous (AA) regularly.  His AA sponsor testified that the individual has been working the steps and is presently on step three.  The individual’s psychologist, who he began seeing after the DUI but prior to attending the ITP, testified that the individual has a low risk of relapse.  After hearing all the testimony, the DOE psychiatrist testified that the individual had a very low risk of relapse and that he considers the individual rehabilitated and reformed.  Therefore, the Administrative Judge found that the individual had resolved the Criteria H and J concerns.  OHA Case No. PSH-16-0047 (Janet R. H. Fishman)

Hydroelectric Power Incentive Program

On August 30, 2016, OHA issued a decision denying an appeal filed by Steels Pond Hydro Inc. (Steels Pond) of a notice issued to Steels Pond by the DOE’s Office of Energy Efficiency and Renewable Energy (EERE). In the notice, the EERE found that Steels Pond was not eligible for an incentive payment under the Hydroelectric Production Incentive Program authorized by Section 242 of the Energy Policy Act of 2005. In response to the appeal, the EERE explained to OHA that it denied Steels Pond’s application for an incentive payment because none of the turbines that Steels Pond installed meet the definition of “qualified hydroelectric facility” as defined in a DOE Guidance Document regarding Section 242. In particular, the EERE found that the turbines installed by Steels Pond did not qualify as “added” turbines, as specified in that definition, because those turbines had not been offline for five consecutive years immediately prior to October 1, 2005. After verifying that Steels Ponds could not establish that any of its turbines had been offline in the five years immediately prior to October 1, 2005, OHA agreed with the EERE that Steels Pond did not install equipment meeting the Guidance Document’s definition of “qualified hydroelectric facility.” Accordingly, OHA denied the appeal.  OHA Case No. HEA-16-0003