PSH-23-0054 - In the Matter of Personnel Security Hearing

On May 16, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a contractor at a DOE facility and is required to possess a security clearance. When selected for a random urine drug test in March 2022, the Individual tested positive for marijuana. The test result level was only a small amount over the standard for a positive test. As a result of the positive test, and the fact that he had been initially placed on administrative leave by his employer, the DOE terminated his security clearance. Subsequently, the Individual's employer then sought another security clearance for the Individual.

Because of fractured heel, the Individual experienced significant amounts of pain such that the pain would cause him trouble with sleeping. Id. The Individual had been prescribed pain killing narcotic medication, but the Individual did not want to overuse these drugs and, as a result, researched other ways of relieving his pain. His research indicated that CBD oil could relieve pain. Other individuals advised him to use only CBD oil derived from hemp plants since it did not have significant amounts of the active (and illegal) substance of tetrahydrocannabinol (THC) found in marijuana. Consequently, the Individual purchased products that were hemp based and would use the CBD oil typically three times a day. After the positive test result, the Individual stopped his use of CBD oil.

As a requirement to continue at work after being reinstated, the Individual was required to complete a drug abuse assessment. The treatment facility that conducted the assessment found that the Individual was a "high functioning, responsible and trustworthy employee" who did not meet any of the criteria for a diagnosis of substance abuse or addiction.

The Individual submitted into the record a statement from the Medical Review Officer at the DOE facility where he worker who opined that the Individual screened positive for THC with an exceptionally low level and that it was likely that the positive test was caused by the Individual's use of CBD oil. The Individual also submitted copies of his negative drug tests results before and after the single test, all of which were negative for marijuana.

The Administrative Judge found that there was no evidence that, outside his use of CBD oil, the Individual has ever used marijuana, and the finding was supported by the Individual's negative urine tests from the past five years. The Administrative Judge also found that the MRO's statement regarding the probable cause of the positive test for marijuana was convincing. Consequently, the Administrative Judge found that the Individual had resolved Guideline H security concern raised by his one positive test for marijuana and found that the Individual should have his clearance granted. ( OHA Case No. PSH-23-0054, Cronin)