Summary of Decisions - May 20, 2024 - May 24, 2024

Hydroelectric Appeal (HEA)

On May 24, 2024, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying an appeal by 3RValve relating to the Maintaining and Enhancing Hydroelectricity Incentives Program (Program) authorized by Section 247 of the Energy Policy Act of 2005. DOE determined that 3RValve's facility was ineligible for the Program because 3RValve failed to provide documentation demonstrating that the facility was licensed or had received an exemption from licensing from FERC nor did it provide documentation of a pre-1920 permit or valid existing right-of­way. 3RValve argued that its facility was not required to be licensed by FERC, the facility used functionally equivalent technology to facilities for which a FERC license is required, and denial of its application would stifle innovation. OHA concluded that DOE's determination that 3RValve was ineligible for the Program was not arbitrary and capricious, and therefore denied the appeal. ( OHA Case No. HEA-24-0005, Harmonick)

Personnel Security Hearing (PSH) 

Access Authorization Not Restored; Guideline F (Financial Considerations) and Guideline E ( Personal Conduct)

On May 21, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. In completing his Questionnaire for Security Positions (QNSP) in 2021 and 2022, the Individual denied that he had outstanding, delinquent debts. At the time the Individual submitted his QNSP in 2021, the Local Security Office (LSO) discovered fourteen collection accounts listed on his credit report. And at the time the Individual submitted his QNSP in 2022, the LSO discovered eleven collection accounts listed on his credit report. Additionally, during the LSO's background investigation, the Individual's former supervisor and a coworker at a prior job stated derogatory information about his performance and attitude at a prior job. The Individual also admitted that he failed to list his employment at a prior job on both his 2021 and 2022 QNSPs. At the time the LSO issued the Summary of Security Concerns (SSC) to the Individual, three collection accounts remained on his credit report. The Individual's former work colleague testified that both herself and Individual had disagreements with management at a prior job, which may have skewed management's perception of him. The Individual and his wife testified that most collection accounts were the result of identity theft, he initiated a repayment plan for one debt, and paid the remaining the two. He also testified that he forgot to list his employment at a prior job on his QNSPs because it was not related to his career field or listed on his resume. The Individual mitigated the concerns under Guideline F, but not Guideline E. The Individual's lack of awareness regarding the collection accounts listed on his credit report at the time he submitted his 2021 and 2022 QNSPs was not a valid excuse, nor was his explanation that his employment at a prior job "slipped [his] mind" when he completed the QNSPs. Accordingly, the Individual was not able to demonstrate that he had resolved the security concerns arising under Guideline E. (OHA Case No. PSH-24-0065, Fishman)

Access Authorization Denied; Guidelines E and G

On May 22, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. 
On January 12, 2018, and on August 8, 2023, the Individual signed and submitted a Questionnaire for National Security Positions (QNSP) to a Local Security Office (LSO), in which the Individual answered the question "in the last seven (7) years, have you illegally used any drugs or controlled substances? " by responding "no." 

On June 29, 2023, police arrested the Individual and charged her with Driving Under the Influence (DUI ). DOE Order 472.2A required that she report this arrest to the LSO. The Individual completed a form reporting her DUI but sent it to the wrong address. Nevertheless, the DOE's continuous monitoring program reported the DUI to the LSO. 

The LSO requested that the Individual be evaluated by a DOE Psychologist because of the DUI .  During a clinical interview of the Individual she disclosed that she had used cannabis in 2017. The Individual also provided information about her alcohol consumption that was inconsistent with other information about her alcohol consumption that she had previously supplied DOE. The Psychologist issued a report in which she concluded that the Individual engages in habitual binge consumption of alcohol to the point of impaired judgment and opined that her omissions and provision of inaccurate information concerning her alcohol consumption raised a concern about her candidness and trustworthiness. 

At the hearing, the Individual was able to resolve the security concerns arising from her failure to report her DUI by showing that she had sent the report to the wrong address. However, the AJ found that the Individual had not provided sufficient evidence to mitigate her omissions from her QNSPs, her provision of inaccurate information concerning her alcohol consumption, and her habitual binge consumption of alcohol to the point of impaired judgment. 
The AJ therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0027, Fine)

Access Authorization Not Granted; Guideline G (Alcohol Consumption)

On May 23, 2024, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office suspended the Individual's security clearance application after it discovered that she had been involved in a number of alcohol-related criminal charges between 2009 and 2015; diagnosed with Alcohol Use Disorder, Moderate; and terminated from a job because she smelled like alcohol at work. 

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G . The AJ also determined that the Individual did not put forth sufficient evidence to resolve the Guideline G security concerns. Accordingly, the AJ concluded that the Individual should not be granted access authorization. (OHA Case No. PSH-24-0059, Thompson) (OHA Case No. PSH-24-0059, Thompson III)