Summary of Decisions - December 11, 2023 -December 15, 2023

Hydroelectric Appeal (HEA)

On December 12, 2023, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) issued a decision denying an appeal by NorthWestern Corp., dba NorthWestern Energy (NWE) relating to the Hydroelectric Production Incentive Program (Program) authorized by Section 243 of the Energy Policy Act of 2005. DOE determined that NWE was ineligible for the Program because NWE failed to provide required information in its application and in response to a request by DOE for additional information. NWE argued that it had accidentally omitted the information from its application and that DOE's request for information was insufficiently clear to put it on notice as to the nature of the deficiency in its application. OHA determined that DOE's determination that NWE was ineligible for the Program was not arbitrary and capricious, and therefore denied the appeal. (OHA Case No. HEA-24-0001)

Personnel Security Hearing (PSH)

Access Authorization Restored; Guideline E (Personal Conduct) & Guideline H (Drug Involvement and Substance Misuse)

On December 14, 2023, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. In May 2023, the Individual suffered a medical event in the workplace and was transported to a hospital where he tested positive for marijuana use. The Individual subsequently learned that he had consumed an entire package of his daughter's THC gummies -about 20 times the recommended serving size -without knowing that they contained THC. The Individual promptly disclosed the details of the incident to the local security office (LSO). The Individual subsequently underwent drug testing which was negative for traces of illegal drug use, attended online classes related to drug awareness and education, signed a statement of intent declaring his intention to abstain from illegal drug use in the future, underwent a psychological examination which found no indications that the Individual suffered from psychological conditions related to substance misuse, and directed his daughter not to bring any items that could affect his clearance status into the family home again. The Administrative Judge concluded that the Individual had resolved the security concerns asserted by the LSO under Guidelines E and H, and therefore determined that his access authorization should be restored. (OHA Case No. PSH-24-0002, Harmonick)

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

On December 15, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In November 2022, DOE notified the Individual that, as part of its Continuous Evaluation System, it discovered that "a protection order was placed on " him in October 2022. The Individual subsequently revealed that, in July 2022, he was arrested for Driving While Intoxicated (DWI). He also stated that, while in police custody, he told a law enforcement officer "just kill me." As a result of this statement, he was transported to a hospital for an evaluation, and law enforcement "executed a warrant to take [his] firearms." The Individual did not report these events to DOE at the time they occurred. The DOE also discovered that the Individual did not provide candid answers during national security investigative processes spanning back over a decade. Due to the alcohol related concerns, the Individual underwent a psychological assessment with a DOE consultant psychologist (DOE Psychologist) in April 2023. The DOE Psychologist ultimately determined that the Individual engaged in habitual or binge consumption of alcohol to the point of impaired judgment and was underreporting his alcohol consumption.

At the hearing, the Individual sought to explain circumstances surrounding his failure to report the 2022 DWI, and the resulting consequences, as well as his failure to provide candid answers during national security review processes. He also testified that he had been abstinent from alcohol and participating in Alcoholic Anonymous for approximately three months. The DOE Psychologist testified that the Individual had not yet established adequate evidence of rehabilitation or reformation regarding his habitual or binge consumption to the point of impaired judgment. Ultimately, the Administrative Judge determined that the Individual had failed to mitigate the Guideline E and Guideline G security concerns, and she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0144, Quintana)

Access Authorization Denied; Guidelines E (Personal Conduct) and H (Drug Involvement and Substance Misuse)

On December 13, 2023, an Administrative Judge issued a decision finding that an Individual's application for a security clearance should be denied. The Individual had omitted his prior marijuana use on Questionnaires for National Security Positions in 2018 and 2022. He used marijuana occasionally from 2016 to 2018 and once in early 2021. 
At the hearing, the Individual testified that he had made a mistake by omitting the information and now knew that such omissions were considered to be a lack of candor. He testified that in the future, he would not "put his own spin" on paperwork. He credibly testified that he had not used marijuana since 2021. The Individual did not present evidence that his judgment and decision -making skills had improved. He presented testimony from a witness and testified on his own behalf that his illegal drug use "didn't matter" and was a normal part of growing up. The Administrative Judge found that the Individual had mitigated the Guideline H concerns regarding his drug use, largely based on how long he had abstained from all drugs. The Administrative Judge found that the Individual had not mitigated the Guideline E concerns because doubt remained about the Individual's truthfulness in situations where the truth may affect him negatively and because the Individual had not shown improvement in his judgment since making the omissions. Accordingly, the Administrative Judge found that the Individual's application for access authorization should be denied. (OHA Case No. PSH-23-0143, Martin)

Access Authorization Not Granted; Guideline E (Personal Conduct)

On December 12, 2023, 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 by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information indicating that the Individual had failed to disclose his illicit drug use in the Questionnaire for National Security Positions (QNSP). 
The Individual testified on his own behalf as to the circumstances. The record revealed that although he disclosed some drug use to the investigator during the Enhanced Subject Interview (ESI), he did not full disclose the totality of his drug involvement until he sent a letter to the investigator following the ESI. As the Individual failed to promptly disclose the omissions, the Administrative Judge could not conclude that the Individual had mitigated the stated Guideline E concerns (OHA Case No. PSH-23-0135, Rahimzadeh)