You are here

Summary of Decisions - November 12, 2012 – November 16, 2012

November 16, 2012 - 2:26pm

Addthis

Personnel Security Hearing (10 CFR Part 710)

On November 15, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual should be granted authorization access. A Local Security Office denied the individual a security clearance because (1) during the five-year period that the individual attended a university his use of alcohol regularly resulted in his intoxication, including at least 100 instances in which the individual either passed-out or blacked-out and two instances in which law enforcement officers were involved and (2) the individual had been diagnosed with Alcohol-Related Disorder, Not Otherwise Specified, by a DOE psychologist. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that (1) the individual had modified his pattern of alcohol consumption immediately upon leaving the university setting and entering the workforce (and prior to his employer or the DOE raising concerns about his alcohol consumption), and (2) the individual began to abstain from use of alcohol immediately upon receiving the Notification Letter with the recommendation of the DOE psychologist that the individual abstain from alcohol for six months and such abstinence had not resulted in any symptoms of withdrawal or alcohol cravings. The DOE psychologist opined at the hearing that the individual no longer met the diagnostic criteria of Alcohol-Related Disorder, NOS. OHA Case No. PSH-12-0093 (Wade M. Boswell, H.O.)

On November 13, 2012, an OHA Hearing Officer issued a decision in which she concluded that the DOE should not restore an individual’s suspended access authorization. A DOE Operations Office referred the individual to administrative review, citing the individual’s past outstanding delinquent debts and her pattern of financial responsibility as security concerns. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer concluded that the individual had not resolved the security concerns raised by her pattern of financial irresponsibility. The Hearing Officer found that while the individual had taken some steps to address her outstanding debts, her financial situation remained unstable. OHA Case No. PSH-12-0114 (Diane DeMoura, H.O.)

On November 13, 2012, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored. The individual had a history of criminal conduct including five arrests, two of which were alcohol-related. The individual’s pattern of criminal activity also included a sex offense against a minor, for which he was incarcerated for a period of over one year. In addition, a DOE psychologist diagnosed the individual with Alcohol Dependence. The Hearing Officer found that the individual had not mitigated any of the associated security concerns. OHA Case No. PSH-12-0092 (Steven L. Fine, H.O.)

On November 16, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual should be granted DOE access authorization. A DOE Operations Office referred an applicant for a security clearance to administrative review, citing as security concerns issues pertaining to the individual’s use of alcohol, including the opinion of a DOE consultant-psychiatrist that the individual was a user of alcohol habitually to excess. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the individual mitigated the security concerns. The Hearing Officer found that the individual acknowledged his alcohol problem and demonstrated five and one-half months of abstinence from alcohol, longer than the three months recommended by the DOE psychologist. The Hearing Officer was also unconvinced by the DOE psychologist’s testimony at the hearing regarding whether the individual had demonstrated adequate evidence of rehabilitation and reformation. In this regard, the Hearing Officer was not persuaded by the DOE psychologist’s testimony that (1) the individual had not provided evidence that he could control his drinking because he did not resume drinking alcohol in moderation after three months of abstinence, and (2) two social occasions on which the individual considered drinking but chose not to do so equated to “cravings” indicating that the individual is reliant upon alcohol. OHA Case No. PSH-12-0110 (Diane DeMoura, H.O.)

On November 15, 2012, an OHA Hearing Officer issued a decision in which she determined that an individual’s access authorization should be restored. In reaching this determination, the Hearing Officer found that the individual had resolved the security concerns arising from his alcohol use. The individual was diagnosed by a DOE psychologist with Alcohol-Related Disorder, Not Otherwise Specified. In addition, the Individual had five alcohol-related incidents in his past, including a positive Breath Alcohol Test (BAT) in March 2012. At the hearing, the individual indicated that the day of the positive BAT, he entered an Intensive Outpatient Treatment Program (IOP). He completed the program and is currently going to aftercare and therapy with his psychologist. The individual’s psychologist testified that she agreed with the DOE psychologist’s diagnosis but, at the time of the hearing, believed that the individual was at low risk for relapse. The DOE psychologist did not believe that the individual was rehabilitated or reformed as of the time of the hearing but stated nonetheless that he was a low-risk for relapse. Using the “total person concept,” the Hearing Officer determined that the individual had mitigated the concerns raised by his alcohol use. OHA Case No. PSH-12-0088 (Janet R. H. Fishman, H.O.)

On November 15, 2012, an OHA Hearing Officer issued a decision in which he concluded the DOE should not restore an individual’s access authorization. A Local Security Office (LSO) raised certain concerns regarding the individual’s use of alcohol, citing a recent arrest for Aggravated Driving Under the Influence (DUI) and a diagnosis by a DOE psychologist that the individual suffered from Alcohol Dependence. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to mitigate these security concerns. The individual had abstained from the use of alcohol in the seven months since the DUI arrest, had completed a 10-week Intensive Outpatient Program, was attending three Alcoholics Anonymous meetings per week and an aftercare program including monthly meetings with a therapist, and is subject to twice monthly unannounced drug and alcohol tests. Having heard the testimony and other evidence presented by the individual, the DOE psychologist testified that he could have a high degree of confidence in a prognosis of a low risk of relapse only after the individual had been abstinent from alcohol use for one full year. The Hearing Officer agreed with this assessment and concluded that the individual had not resolved the security concerns raised in the case. OHA Case No. PSH-12-0100 (Steven J. Goering, H.O.)

On November 14, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should be restored. A Local Security Office suspended the individual’s security clearance for failing to comply with rules regarding the handling of classified information and conduct within limited access areas and for failing to report such non-compliance. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had presented sufficient evidence to resolve these security concerns. Specifically, he found that the individual had demonstrated a very positive history of complying with rules and regulations despite the isolated errors, had worked in a culture, now changing, that discouraged reporting non-compliance, and remains fully engaged in protecting classified information. As a result, the Hearing Officer was convinced that the likelihood that such incidents will recur is low. OHA Case No. PSH-12-0083 (William M. Schwartz, H.O.)

On November 16, 2012, a Hearing Officer determined that an individual’s security clearance should not be restored. In reaching this determination, the Hearing Officer found that the individual had not successfully addressed the DOE’s security concerns regarding his finances. Specifically, the Hearing Officer concluded that the individual’s four months of responsible financial behavior were insufficient to demonstrate a sustained pattern of responsibility given an eight year pattern of irresponsible spending. The Hearing Officer also found that the number and the extent of the discrepancies between the individual’s testimony at the hearing and his statements during his earlier Personnel Security Interviews cast serious doubt on his honesty and reliability. OHA Case No. PSH-12-0089 (Robert B. Palmer, H.O.)

Freedom of Information Act (FOIA) Appeals

On November 16, 2012, OHA issued a decision denying an appeal (Appeal) from a Privacy Act determination issued by the DOE’s Oak Ridge Office (ORO). Specifically, the Appellant, Mary Ann Parker, contested the adequacy of the ORO’s search in response to her Privacy Act request, contending that additional records should have been provided and that records from a plant that she previously worked at, the Pinellas Plant, should have been sent to the Albuquerque Office. The OHA reviewed the ORO’s description of its search and determined that the ORO conducted an adequate search for responsive documents. Moreover, the OHA informed the Appellant that her records that were previously located at the Albuquerque Office were subsequently transferred to Legacy Management. Hence, the Albuquerque Office did not have her records, and accordingly, her Privacy Act request was also being fulfilled by Legacy Management. OHA Case No. FIA-12-0069

On November 14, 2012, OHA issued a decision denying a FOIA Appeal of a determination issued by the Idaho Operations Office (IOO). The Appellant appealed the IOO’s decision not to release the requested records. The IOO stated that the requested records were the property of its contractor, Battelle Energy Alliance, LLC (BEA), as they were created as part of a “Work for Others” project with the Department of Homeland Security. Thus, the OHA determined that the requested records were not agency records and denied the Appeal. OHA Case No. FIA-12-0070

Applications for Exception

On November 15, 2012, OHA issued a decision granting an Application for Exception filed by Ascent Battery Supply, LLC (Ascent) for relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program: Energy Conservation Standards and Test Procedures for General Service Fluorescent Lamps and Incandescent Reflector Lamps (Lighting Efficiency Standards). In its exception request, Ascent asserted that it will suffer a serious hardship, gross inequity and an unfair distribution of burdens if required to adhere to the new Lighting Efficiency Standards, effective July 14, 2012 (2009 Final Rule), with respect to its 700 series T8 General Service Fluorescent Lamps (GSFL). Specifically, Ascent cited a previous OHA decision in which OHA granted exception relief to Philips Lighting Company (Philips), GE Lighting (GE) and OSRAM SYLVANIA, Inc. (OSI), as well as several subsequent cases granting similar relief to other manufacturers, and maintained that Ascent will be at an unfair competitive disadvantage if relief is granted to Philips, GE, and OSI, and other manufacturers, but not to Ascent. In this case, OHA determined that the rare earth market remains volatile, and, as a result, domestic manufacturers remain subject to fluctuations in rare earth supply and prices for the foreseeable future. OHA further concluded that these circumstances, which compelled our initial approval of exception relief for Philips, GE, and OSI, have by consequence created a gross inequity for domestic manufacturers like Ascent because the three companies may continue to market 700 series T8 GSFLs for a period of two years while other manufacturers may not do so. This would give Philips, GE, and OSI an additional competitive advantage over smaller domestic manufacturers, an unintended consequence of both the existing regulations and of our subsequent exception relief to the three companies. Therefore, OHA determined that granting Ascent exception relief was warranted in order to prevent inequities among the domestic lighting manufacturers. Accordingly, OHA granted exception relief to the Applicant authorizing it to continue to manufacture 700 series T8 GSFLs subject to the currently applicable efficiency standards for a period of two years from the effective date of the regulations, until July 14, 2014. OHA Case No. EXC-12-0012

On November 16, 2012, OHA issued a decision granting an Application for Exception filed by EiKO, Ltd. (EiKO) for relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program: Energy Conservation Standards and Test Procedures for General Service Fluorescent Lamps and Incandescent Reflector Lamps (Lighting Efficiency Standards). In its exception request, EiKO asserted that it will suffer a serious hardship, gross inequity and an unfair distribution of burdens if required to adhere to the new Lighting Efficiency Standards, effective July 14, 2012 (2009 Final Rule), with respect to its 700 series T8 General Service Fluorescent Lamps (GSFL). Specifically, EiKO cited a previous OHA decision in which OHA granted exception relief to Philips Lighting Company (Philips), GE Lighting (GE) and Osram Sylvania, Inc. (OSI), as well as several subsequent cases granting similar relief to other manufacturers, and maintained that EiKO will be at an unfair competitive disadvantage if relief is granted to Philips, GE, and OSI, and other manufacturers, but not to EiKO. In this case, OHA determined that the rare earth market remains volatile, and, as a result, domestic manufacturers remain subject to fluctuations in rare earth supply and prices for the foreseeable future. OHA further concluded that these circumstances, which compelled our initial approval of exception relief for Philips, GE, and OSI, have by consequence created a gross inequity for domestic manufacturers like EiKO because the three companies may continue to market 700 series T8 GSFLs for a period of two years while other manufacturers may not do so. This would give Philips, GE, and OSI an additional competitive advantage over smaller domestic manufacturers, an unintended consequence of both the existing regulations and of our subsequent exception relief to the three companies. Therefore, OHA determined that granting EiKO exception relief was warranted in order to prevent inequities among the domestic lighting manufacturers. Accordingly, OHA granted exception relief to the Applicant authorizing it to continue to manufacture 700 series T8 GSFLs subject to the currently applicable efficiency standards for a period of two years from the effective date of the regulations, until July 14, 2014. OHA Case No. EXC-12-0013

Addthis