Personnel Security (10 CFR Part 710)

On June 1, 2015, an OHA Administrative Judge (AJ) issued a decision in which he concluded that the DOE should grant a security clearance to an individual.  A DOE Operations Office referred the individual to administrative review under 10 C.F.R. Part 710, citing as security concerns the individual’s misuse of prescription drugs during her suicide attempt. After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the misuse was an isolated event that occurred under unusual circumstances, and was unlikely to recur. As support for this conclusion, the AJ cited the testimony of the individual and her witnesses that she had never used illegal drugs or misused prescription drugs other than during her suicide attempt, the finding of the DOE psychologist that the individual was not suffering from any illness or mental condition that caused, or could cause, a defect in her judgment or reliability, and the positive prognosis of the individual’s therapist. Therefore, the AJ found that the individual had mitigated the DOE’s criterion (k) concerns, and that she was not an illegal user of a controlled substance or an addict within the meaning of the Bond Amendment. Accordingly, he concluded that the DOE should grant the individual access authorization.  OHA Case No. PSH-15-0012 (Robert B. Palmer)

Freedom of Information Act (FOIA) Appeals

On June 1, 2015, OHA denied a FOIA Appeal filed by Mr. Russell Carollo from a determination issued to him by the Office of Headquarters Procurement Services (Procurement Services). In its determination, Procurement Services released four documents to Mr. Carollo in response to his request for records related to contracts involving Google, Inc. However, Procurement Services redacted portions of those documents pursuant to Exemption 5 of the FOIA. In his Appeal, Mr. Russell Carollo challenged Procurement Services’ application of Exemption 5. OHA concluded that the redacted portions consisted of material protected under the deliberative process privilege of Exemption 5, and therefore denied the Appeal.  OHA Case No. FIA-15-0026

On June 5, 2015, OHA denied a FOIA Appeal filed by Environmental Defense Institute from a determination issued to it by the DOE Idaho Operations Office (DOE-ID). In the Appeal, the Appellant challenged the adequacy of DOE-ID’s search for responsive documents.  OHA found, however, that DOE-ID had conducted an adequate search that was reasonably calculated to uncover responsive documents.  OHA Case No. FIA-15-0029

Hydroelectric Production Incentives Appeal (EPAct 2005, § 242)

On June 1, 2015, OHA issued a decision denying an appeal filed by Kane County (Utah) Water Conservancy District (KCWCD) of a notice issued to KCWCD by the DOE Office of Energy Efficiency and Renewable Energy (EERE).  In the notice, EERE denied KCWCD’s application for an incentive payment under the Hydroelectric Production Incentives Program authorized by Section 242 of the Energy Policy Act of 2005 (Section 242 Program).   In its appeal, KCWCD contested EERE’s determination that KCWCD is ineligible to receive a Section 242 Program payment since KCWCD’s hydroelectric facility began to operate outside of the ten-year eligibility window established by the statute.  EPAct 2005, § 242(c), 42 USC § 15881(c).   In considering the appeal, however, OHA determined that since KCWCD’s hydroelectric facility began operation in December 2003, prior to the Section 242 eligibility window, EERE properly denied KCWCD’s application.  Accordingly, the appeal filed by KCWCD was denied.   OHA Case No. HEA-15-0001