Summary of Decisions - August 28, 2023 - September 01, 2023

Hydroelectric Appeal (HEA)

In the Matter of Summit Hydro, LLC; Denied

On September 1, 2023, the Office of Hearings and Appeals (OHA) denied an Appeal from the Department of Energy's (DOE) determination under the hydroelectric incentive payments program authorized by Section 242 of the Energy Policy Act of 2005. In the Appeal, filed by Summit Hydro, LLC ("Summit"), the Appellant challenged DOE's denial of its applications for incentive payments for the 2021 and 2022 calendar years. DOE denied the incentive payments on the basis that Summit did not demonstrate that it met the definition of a "qualified hydroelectric facility" as defined by DOE's Guidance Document. After review, OHA agreed with DOE's determination and found that Summit was not entitled to incentive payments. Accordingly, OHA denied the Appeal. (OHA Case No. HEA-23-0004, Thompson III)

Personnel Security Hearing (PSH)

Access Authorization not restored; Guidelines G (Alcohol Consumption); E (Personal Conduct); J ( Criminal Conduct)

On August 30, 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 April 2022, the Individual reported to the LSO that his security badge and vehicle were stolen following an incident in which he had consumed significant alcohol. Subsequently, the LSO discovered the Individual had a history of seven offenses involving law enforcement,  six of which were alcohol related incidents including two DUI convictions . In December 2022, the Individual was arrested again for DUI but failed to report his arrest to the LSO . The LSO discovered the arrest through the Continuous Evaluation Program. The Individual underwent an evaluation including a clinical interview (CI) with a DOE consultant  psychologist (DOE Psychologist). During the CI, the Individual asserted that he only consumed alcohol on a monthly basis and last consumed alcohol two weeks prior to his CI. However, the Individual's PEth and EtG alcohol testing results were both positive and the DOE Psychologist concluded that they were suggestive of heavy alcohol consumption and binge drinking, and the DOE Psychologist concluded that the Individual consumes alcohol in excess. The DOE Psychologist recommended that the Individual participate in outpatient alcohol treatment or Alcoholics Anonymous (AA) at least three times weekly and obtain a sponsor and home group, abstain from alcohol, and undergo PEth testing every two months.

At the hearing, the Individual testified that he was still consuming alcohol and had not yet undertaken any of the DOE Psychologist's recommendations. He admitted that he had failed to disclose to the DOE Psychologist that he had consumed significant alcohol three days prior to his evaluation, and he acknowledged during the hearing that he had failed to report his December 2022 DUI arrest. However, his efforts at mitigating his his lack of candor were not supported by evidence and his assertions lacked credibility. As such, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guidelines G, E, and J. Accordingly, she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0084, Balzon)

Access Authorization Restored; Guideline G (Alcohol Consumption), Guideline I ( Psychological Conditions)

On August 30, 2023, an Administrative Judge in the Department of Energy's Office of Hearings and Appeals issued a decision restoring an Individual's access authorization. The Individual had voluntarily entered alcohol treatment and treatment for anxiety and depression. At the hearing, the Individual presented evidence that she had completed her treatment program, remained abstinent for over seven months, and was continuing to address her alcohol issues in ongoing therapy. She also presented evidence that she had learned skills and coping mechanisms to appropriately manage her anxiety and depression and had learned emotional regulation skills. She presented evidence that she continued to pursue treatment and therapy for these mental health conditions. Based on the evidence presented and the Individual's pattern of proactive, thorough candor, the Administrative Judge determined that the Individual had mitigated the Guideline G and Guideline I security concerns and that the Individual's access authorization should be restored. (OHA Case No. PSH-23-0090, Martin)

Access Authorization Not Granted; Guidelines D (Sexual Behavior), E (Personal Conduct), G (Alcohol Consumption), I (Psychological Conditions), and M (Use of Information Technology).

On August 30, 2023, an Administrative Jude 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 the Individual admitted that he would be vulnerable to blackmail because he has been dressing in women's clothing. Further, the LSO alleged that the Individual was terminated from the employ of two different employers for such acts as using a personal computer to work to engage in personal business and leaving work early. The also LSO alleged that the Individual was charged with two previous alcohol -related criminal offenses, that the DOE Psychologist diagnosed him with Alcohol Use Disorder, Mild, and stated that his continued alcohol consumption will likely compromise his judgment, that his employment history evidenced a disregard for the rules, and his inability to accept the gravity of his actions indicates that his judgment and decision making are unreliable.

Based on the evidence provided and the testimony presented, the Administrative Judge determined that Guideline I was improperly invoked and that the computer -related allegations should not have been invoked under Guideline E. The Administrative Judge also determined that the Individual had properly mitigated the Guideline D concerns, but failed to mitigate the Guideline E, G, and M concerns. (OHA Case No. PSH-23-0092, Rahimzadeh)

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

On August 31, 2023, an Administrative Judge determined that the Individual's access authorization should not be restored 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. In August of 2022, the Individual was charged with multiple felonies related to a domestic dispute. As a result of these charges, DOE asked him to complete a letter of interrogatory and undergo a psychiatric evaluation, which resulted in concerns about the Individual's honesty and reliability. At the hearing, the Individual provided medical proof that he had been abstinent from alcohol for a year, but did not provide sufficient evidence to resolve concerns about his honesty or rehabilitate him from the criminal charges.

The Administrative Judge therefore concluded that the Individual had mitigated the Guideline G concerns. However, the Administrative Judge also concluded that the Individual did not bring forth sufficient evidence to mitigate the Guideline E and Guideline J concerns. Accordingly, she concluded that the Individual should not be granted access authorization. (OHA Case No. PSH-23-0098, Rahimzadeh)