Case No. VSO-0051, 25 DOE ¶ 82,784 (H.O. Hochstadt Dec. 28, 1995)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Motion To Strike

Case Name: Personnel Security Hearing

Dates of Filing: August 19, 1995

November 29, 1995

Case Numbers: VSO-0051

VSZ-0005

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the Individual") to retain a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.<1>The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored.

I. BACKGROUND

The Individual has been employed since 1978 by the management and operating contractor of the Department of Energy's XXXXXXXXXXXXXXXXX, currently XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. In 1979, the Individual received a "Q" clearance. On April 3, 1995, the DOE requested that the Individual submit to a random urine screening test. According to the DOE/XXXXX, the Individual's urine tested positive for the presence of cannabinoids.<2>

A DOE security analyst conducted personnel security interviews (PSIs) with the Individual on April 13, 1995, and April 25, 1995 (hereinafter referred to as "the April 13 PSI" and "the April 25 PSI," respectively), in which he was questioned about the positive drug test result. The Individual denied that he had smoked marijuana recently or been in the presence of anyone smoking marijuana. He was unable to explain the result, but asserted that it must be incorrect. See Transcript of April 13 PSI (4/13 PSI Tr.) at 21-22, 27; Transcript of April 25 PSI (4/25 PSI Tr.) at 8-9, 22-26, 38. As possible explanations for the positive result, he said that he took ginseng (until March 1995), as well as two over-the-counter cold medications, Contac and Tylenol. 4/13 PSI Tr. at 42, 61; 4/25 PSI Tr. at 23. He further asserted that his commitment to his family, church and job, as well as the experiences of family members with drug abuse and resulting incarceration, caused him to strictly abstain from illegal drugs. See, e.g., 4/13 PSI Tr. at 58, 61, 64-65, 71. However, the Individual stated that he had smoked marijuana three times in 1974: at a high school senior class picnic, after a concert and at a college party. 4/13 PSI Tr. at 29-41, 48-49; 4/25 PSI Tr. at 13-14. He also stated that at the third incident, the college party, he had gotten so ill from a combination of drugs and alcohol that he had not been intoxicated since that time and certainly had not used illegal drugs. 4/13 PSI Tr. at 40-41.

During the April 25 PSI, the Individual was confronted with the fact that he had responded in the negative to the question regarding illegal drug use on his August 9, 1988 Personnel Security Questionnaire (PSQ). The security analyst asked the Individual to explain the discrepancy between that answer and his admission of 1974 drug use in the April 13 PSI. The Individual first stated that he had wanted to get a good job and felt that if he answered the question in the affirmative, he would not have been hired by the DOE contractor. 4/25 PSI Tr. at 16. He then said that because he had previously admitted to DOE that he had smoked marijuana, he must have unintentionally answered the question, "No." Id. at 16-19, 21-22. When the Individual realized later in the interview that he had signed the 1988 PSQ almost ten years after he had started working for the DOE contractor, he said that he had no explanation for the negative answer, but said that it could have been a mistake due to failure to read the form carefully. Id. at 28. The Individual denied that he would have feared losing his job in 1988 if he had answered the question positively, since he had informed the DOE of his past marijuana use some time prior to completing that form. Id. at 29.

These interviews did not resolve DOE Security's concerns and on May 26, 1995, the Manager of DOE/XXXXX suspended the Individual's access authorization and subsequently obtained authorization from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding. See 10 C.F.R. § 710.9. The administrative review proceeding was commenced by the issuance of a July 14, 1995 letter which notified the Individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (Notification Letter). The Notification Letter was accompanied by an enclosure (Enclosure 1) that detailed the derogatory information possessed by the DOE.<3>The Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, under Criterion F (10 C.F.R. § 710.8(f)), DOE/XXXXX alleges that the Individual "deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire (PSQ)." According to the DOE/XXXXX, this conduct occurred when the Individual, despite having used illegal drugs in 1974, signed the PSQ in 1988 stating that he had not done so.

Second, the Notification Letter presents allegations under Criterion K (10 C.F.R. § 710.8(k)). DOE/XXXXX charged that the Individual had "trafficked in, sold, transferred, possessed, used or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970." The DOE/XXXXX stated that both the initial laboratory analysis and confirmatory analysis of the Individual's April 3, 1995 urine sample were positive for cannabinoids. On April 10, 1995, the Individual signed an "Acknowledgment of Positive Drug Screen" in which, according to DOE/XXXXX, he acknowledged that he had received the confirmed positive test result for cannabinoids and that the drug screen confirmed that he had used cannabinoids. Then, at the Individual's request, a retest was performed by an independent certified laboratory. This retest also had a positive result. DOE/XXXXX further supported its Criterion K charge by referring to the Individual's statements in the April 13 PSI that he had used marijuana three times in 1974.

Third, the DOE/XXXXX charged under Criterion L (10 C.F.R. § 710.8(l)) that the Individual has "engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation or duress which may cause him to act contrary to the best interests of the national security." In support of that charge, DOE/XXXXX noted that during the April 13 PSI, the Individual had stated that he was aware of XXXXXXXXXXXX's drug policy. However, he had tested positive for cannabinoids and was unable to provide any explanation for the positive drug screens.

On July 26, 1995, the Individual, represented by counsel, filed a general denial of the allegations contained in the Notification Letter and requested a hearing. The Individual's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals (OHA) on August 19, 1995, together with a copy of the Notification Letter. I was appointed the Hearing Officer in this matter on August 21, 1995. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference was held on October 12, 1995. The hearing was convened in XXXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXX. At the hearing, the DOE presented six witnesses: (i) XXXXXXXXXXXXX, DOE/XXXXX personnel security specialist; (ii) XXXXXXXXXXXXXX, DOE/XXXXX personnel security analyst; (iii) XXXXXXXXXXXXXXXXX, Chief of Policy and Operations Division, Office of Personnel Management (via telephone); (iv) XXXXXXXXXXXXXX, XXXXXXXXXXXX medical technologist; (v) Dr. XXXXXXXXXXXXX, XXXXXXXXXXXX staff physician; and (vi) XXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, toxicology laboratory supervisor. The Individual testified on his own behalf and called five further witnesses: (i) his supervisor, (ii) and (iii) two longtime friends and colleagues, (iv) his wife, and (v) Dr. XXXXXXXXXXXXXX, a professor at the XXXXX College of Pharmacy.

During the course of this proceeding, 52 exhibits have been submitted by the parties. See List of Exhibits. In accordance with OHA practice, all exhibits sent directly to the OHA became part of the record automatically.<4>All exhibits submitted at the hearing became part of the record when admitted by the Hearing Officer.<5>On XXXXXXXXXXXXXXXXX, the OHA received a copy of the transcript of the hearing, see Transcript of Hearing, Case No. VSO-0051 (hereinafter cited as "Hearing Tr.") and on November 28, 1995, the date of the final submission to the OHA, the record was closed.

II. FINDINGS OF FACT AND ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Among the factors I have considered in rendering this Opinion concerning the Individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these criteria to the testimony and exhibits presented by both sides in this case.

A. Criterion F

It is important to note at the outset that Criterion F does not apply to all misstatements and omissions, but only those that are deliberate and involve significant information. See Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 at 85,665 (1995), request for review pending (Case No. VSA-0041). The basis for DOE/XXXXX's allegation under this criterion is the Individual's answer of "No" to Question 11A of his August 9, 1988 PSQ (Ex. 4), which asks, "Are you now, or have you been a user of . . . cannabis (to include marijuana and/or hashish), except as provided by a licensed physician?" At the hearing, the Individual asserted that he had been confused by the wording of the question. He stated that when he read the term "user," his association was with a person who habitually used drugs, such as his brother or brother-in-law. Hearing Tr. at 33. Even currently, he does not consider himself to have been a drug "user" in 1974. Id. Thus, he stated that when he read the question in 1988, he did not associate the term with his experimental use fourteen years earlier. Alternatively, the Individual claims that he thought that he only had to report drug use during the preceding five years, i.e., since his prior PSQ, because the word "ever" was not used<6>and because other questions on the form referred to a five-year block of time. Hearing Tr. at 31, 50.

If the only document signed by the Individual on August 9, 1988 was the PSQ, I might be willing to accept his statement that he thought "user" referred to one who habitually used a drug and not to his isolated, experimental use. His personal experience, including family members who were "users," could reasonably lead him to conclude that Question 11A did not apply to isolated, casual use. I believe that most people's common sense association with the word "user" is that of a person who has reached that status or category by the regular use of illegal drugs.<7>Moreover, the distinction drawn by the Individual appears to be reflected in 10 C.F.R. § 710.8(k), which refers to one who has "used, or experimented with a drug . . . " (emphasis added).

However, the letter of instruction from the Director of the Security Division that accompanied the PSQ (Ex. 5) made it clear that even "one-time or experimental use of marijuana" should be reported. The Individual signed the statement at the bottom of that letter: "I have read the above letter of instruction and fully understand its contents." There is nothing in the letter of instruction or PSQ from which he could conclude that there was a five-year time limitation with respect to drug use. Further, contrary to his testimony, no question on the 1988 PSQ contained a five-year limitation.<8>Accordingly, I find that the Individual's response to Question 11A was a deliberate falsification and raises a legitimate security concern. As the security specialist, Ms. XXXXX, testified, a clearance holder who deliberately falsifies, misrepresents or omits significant information may be unwilling to adhere to an obligation of honesty and could subject himself to pressure, coercion or duress. Hearing Tr. at 67-68.

Nevertheless, there are mitigating factors that lead me to conclude that the Individual's falsification should not be the basis for a revocation of the Individual's security clearance. First, from all the evidence in the record, it appears to have been an isolated incident. No other falsification or misrepresentation has been alleged by DOE and there was considerable testimony at the hearing about the Individual's truthfulness. This testimony was not only by the Individual's wife and longtime friends but also by the Individual's supervisor. Hearing Tr. at 220, 227, 233, 384, 390. Even Mr. Sandoval, the security analyst, stated that he believes the Individual to be truthful. Hearing Tr. at 106, 120-21. Furthermore, the falsification occurred in 1988 and thus was not recent. Also, the Individual subsequently provided correct information during the April 13 PSI. From my reading of both the transcript of that PSI and Mr. Sandoval's testimony, this information was provided voluntarily and not in response to any direct question. Hearing Tr. at 164; 4/13 PSI Tr. at 17, 29. It is unlikely the DOE would have discovered this information without the Individual having volunteered it during that PSI, as the Individual must have realized. Finally, the Individual took positive steps to significantly reduce or eliminate vulnerability to pressure, coercion, or exploitation with respect to the 1974 drug use by his admission of drug use to FBI agents investigating other employees.<9> Accordingly, I find that the Individual has mitigated the security concerns that Ms. XXXXXXX testified to with regard to Criterion F.

B. Criterion K

1. Acknowledgment of Positive Drug Screen

As an initial matter, I do not consider the Individual's Acknowledgment of Positive Drug Screen (Ex. 9) to constitute derogatory information under Criterion K. The signing of this document by the Individual is not evidence of drug use because the Individual was told to either sign this document or be fired. Hearing Tr. at 243-44 (Dr. XXXXX); 4/13 PSI Tr. at 69; 4/25 PSI Tr. at 7, 32-36. Although the Individual did not write anything on the form to dispute the allegation, in a contemporaneous talk with Dr. XXXXX, he denied use so persuasively that Dr. XXXXX was unwilling to indicate on the form his belief that the Individual had used marijuana. See Ex. 16; see also Hearing Tr. at 242-43 (Dr. XXXXX). Even DOE Counsel described the situation in which the Individual found himself as a "bind." Hearing Tr. at 56. Clearly, it would be an unfair and unacceptable "Catch-22" to use a document signed only because of threat of termination as an admission of marijuana use.<10>

2. Positive Drug Test

Two of the four allegations made by the DOE under Criterion K concern the positive results the Individual received on the drug test performed by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and a retest done by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Employee urine samples are required to be analyzed pursuant to procedures set out in the Mandatory Guidelines for Federal Workplace Drug Testing Programs promulgated by the U.S. Department of Health and Human Services (Mandatory Guidelines), 59 Fed. Reg. 29,908 (June 9, 1994). See 10 C.F.R. § 707.5(a) (requiring DOE contractors to establish drug-testing programs consistent with the Mandatory Guidelines).

XXXXX performed the initial immunoassay to screen the specimen involved in this case for illegal drugs. Ex. 10. XXXXX's test result revealed the presence of cannabinoid metabolites at an unspecified level above 50 nanograms/milliliter (ng/ml), the initial test cutoff level set in Section 2.4(e) of the Mandatory Guidelines. Id. XXXXX then performed a confirmatory gas chromatography/mass spectrometry (GC/MS) test. While the immunoassay screens for all cannabinoid metabolites, GC/MS tests for the major cannabinoid metabolite, carboxy delta-9-tetrahydrocannabinol (9-carboxy-THC). In this case, XXXXX discovered 9-carboxy-THC to be present in the Individual's urine at a level of 23 ng/ml, which is above the cutoff value for that test, 15 ng/ml. Id. The second laboratory, XXX, also performed a GC/MS test for 9-carboxy-THC and discovered it to be a level of 21.049 ng/ml. Ex. 46.

At the hearing, the Individual primarily contended that passive inhalation of marijuana smoke at a club he attended caused these positive results.<11> He and his wife testified that they went to a club called Camelia's on the Saturday before his drug test on Monday, April 3. Hearing Tr. at 38, 63-64, 385. They stated that they spent approximately three and a half hours at this small and busy club. Id. at 38, 386. The Individual's wife also noted that he ate and drank that night. Id. at 385-86. According to the Individual, people at the club were smoking cigarettes and cigars, creating a hazy atmosphere. Id. at 39. Although the Individual did not smell marijuana smoke, both he and his wife testified that, after he tested positive, she told him that she had smelled it that night. Id. at 39-40, 385.

The Individual also presented an expert witness, Dr. XXXXXXXXXXXXXX, who is a professor of toxicology, pharmacy and pharmacology at the St. Louis College of Pharmacy. Dr. XXXXXXXXX testified that, given the Individual's testimony, it is impossible to find to a reasonable degree of scientific certainty that the Individual smoked marijuana in 1995. He further opined that the levels reported in the Individual's urine test are "easily within the range" of passive inhalation of marijuana smoke. Hearing Tr. at 347-48, 361-62. In support of those opinions, he discussed articles written in the mid- 1980s regarding passive inhalation of marijuana smoke. See, e.g., Exs. 30, 39. These articles, which found that side stream marijuana smoke would be unlikely under realistic conditions to produce a positive result with current screening levels, reported on studies that used the type of cigarettes furnished by the National Institute on Drug Abuse (NIDA), which contain 2.8 percent THC.<12>Hearing Tr. at 346-47; see also Ex. 30 at 37, Ex. 39 at 89. But, according to statistics that Dr. Martinez cited, the marijuana cigarettes currently prevalent "on the street" have between six and eight percent THC, with some cigarettes having as much as 30 percent THC. Hearing Tr. at 346-47, 363; Ex. 42 at 309-310, 317. Because the Individual spent well over three hours at XXXXXXX's, and because THC accumulates in the body, Dr. XXXXXXXXXX was confident that passive inhalation to these types of high-THC cigarettes could have resulted in a 23 nanogram per milliliter reading on the GC/MS. Hearing Tr. at 348-49, 361-62. Dr. XXXXXXXX believed that the Individual did not smell marijuana smoke because it was covered up by the cigarette smoke, alcohol, perfume and food smells likely found at XXXXXXX's, id. at 349, 367, and because cigarette smokers such as the Individual have notoriously bad senses of smell. Id. at 368. He also suggested that the Individual could have ingested about one-third of any THC that fell on his food and beverages. Id. at 372; see also Ex. 41 at 255. Further, he criticized the Mandatory Guidelines screening level cutoff of 50 ng/ml as being unreasonably low and noted that the industry standard for marijuana screening tests is 100 ng/ml. Hearing Tr. at 358.

The two scientific witnesses presented by DOE opined that passive inhalation could not have produced the positive results in this case. XXXXXXXXXXXXXXX, the XXX toxicology laboratory supervisor, testified that although passive inhalation could cause a positive result if the initial immunoassay screen was at 20 ng/ml, it could not create a positive result at the Mandatory Guidelines cutoff level, 50 ng/ml. Hearing Tr. at 307. Although she acknowledged that an increase in THC could increase the exposure of passive inhalers to marijuana, she stated that this still could not produce screening test levels over 50 ng/ml. Id. at 328-29. Ms. XXXXXXX also strongly asserted that a GC/MS result of 23 ng/ml was not obtainable through passive inhalation. Hearing Tr. at 323. She agreed that it would be possible for a person to ingest THC through eating and drinking, though not at significant levels. Id. at 337. Dr. XXXXX, the Medical Review Officer for the DOE contractor, noted that the question of whether passive inhalation could produce a positive urine test result is "hotly debated." Hearing Tr. at 252. He did not feel that a GC/MS result of 23 ng/ml was likely to be obtained through passive inhalation, although he conceded it was not impossible. Hearing Tr. at 254, 266, 273. He also thought it unlikely one could unknowingly passively inhale marijuana to the extent of producing a positive result. Id. at 271.

As Ms. XXXXXXX testified, an allegation of marijuana use is a very serious matter, as this activity indicates a disregard for the law and could subject a clearance holder to pressure, coercion and exploitation. Hearing Tr. at 71-72. Once there is a positive drug test, I believe that the test is presumptively correct and the burden should be on an individual to establish that he did not knowingly ingest an illegal drug. See generally Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995). Mere denial, no matter how often or how sincerely stated, is not sufficient to meet that burden. However, I realize how extremely difficult it is for an individual who is in fact drug-free to refute a positive drug test and how unfair it is to require such a person to "prove a negative," i.e., to demonstrate that he did not ingest illegal drugs. Therefore, this fact-finding, as well as my ultimate opinion, must be based on a "comprehensive common-sense judgment of all the relevant information, favorable or unfavorable." 10 C.F.R. §710.7(a). After carefully examining all of the exhibits and testimony in this case, the only reasonable explanation that I can find for the positive drug test is that the Individual knowingly and willingly ingested cannabis in or about early April 1995.

Initially, however, I recognize that the Individual has repeatedly denied using or being involved in any way with drugs since 1974, Hearing Tr. at 25-26, 34; 4/13 PSI Tr. at 21, 26, 41, 46, 49-50, 70- 71; 4/25 PSI Tr. at 10, 13-14, and has been willing to take a polygraph examination to support his denial of use. Hearing Tr. at 26; 4/13 PSI Tr. at 75. Even the security analyst found the Individual to be truthful and honest, including his denial of marijuana use. Hearing Tr. at 97, 106. I further note Dr. XXXXX's unwillingness to label the Individual as a drug abuser. Hearing Tr. at 242-43; Ex. 16. Also, no one has testified to seeing the Individual possessing or using marijuana.

Nevertheless, I am unwilling to decide in the Individual's favor without a reasonable explanation for the positive test. While I am persuaded by Dr. XXXXXXX's testimony that because of the generally higher THC content of currently available marijuana, see infra note 13, it is possible to have a positive drug test from passive inhalation in some real world situations, there simply is not enough credible information in the record for me to make such a finding in this case. First, there is no disinterested, objective evidence that anyone was smoking marijuana at XXXXXXX's on the evening when the Individual and his wife state that they were there. Even the testimony of the interested parties is not very convincing on whether anyone was actually smoking marijuana at the club. For instance, the Individual says that he did not smell marijuana smoke. Although I accept Dr. XXXXXXXX's statement that people such as the Individual who smoke cigarettes frequently have a decreased sense of smell, the Individual himself acknowledged that he had smelled marijuana in public on other occasions, Hearing Tr. at 37, 56; see also 4/13 PSI Tr. at 58 (once a person has smelled marijuana, "you don't mistake it"). While the cigarette smoke may to some extent have covered the marijuana smoke, as Dr. XXXXXXXX opined, it is inconceivable that the Individual would not have either smelled and/or observed marijuana cigarettes if they were being consumed in the manner hypothesized by Dr. XXXXXXXX - - over the course of the evening "in reasonable proximity." Hearing Tr. at 349. (If marijuana cigarettes were being smoked, but not within a reasonable proximity, or continuously throughout the evening, it is much less likely that the Individual would have had a positive drug test as a result of side stream smoke.) Furthermore, although the Individual's wife stated that she smelled marijuana smoke, I am unwilling to give much weight to that statement because of inconsistencies between the statements made at the hearing and during the PSIs. As indicated above, both the Individual and his wife testified at the hearing that she told him that she had smelled marijuana smoke at XXXXXXX's. While not totally unambiguous, the testimony of both husband and wife appears to indicate that that conversation occurred on or shortly after April 10, when the Individual received news of the positive drug test. However, in the first PSI, 4/13 PSI Tr. at 21, and even more emphatically in the second PSI, 4/25 PSI Tr. at 26-27, the Individual indicated that his wife told him that she had not smelled marijuana: "I even asked her if, did she notice any . . . smell of marijuana at the club we went to and she said, ?No.'" Id.

Second, even assuming that there was some marijuana being smoked at XXXXXXX's, there are too many unknown factors present for me to accept the Individual's position. The number and THC content of any marijuana cigarettes that may have been smoked is unknown and thus cannot be compared to the number and THC content of cigarettes in the studies relied upon by Dr. XXXXXXXX.<13> Similarly, I do not know the dimensions of the club,<14>but it must be larger than the rooms used in the studies cited by Dr. XXXXXXXX. See Ex. 30 at 37 (8 feet x 8 feet x 10 feet); Ex. 39 at 95-96 (bathroom size); Ex. 40 at 998 (small car). While the Individual testified that the club was smoky, Hearing Tr. at 39, and Dr. Martinez thought this was significant, Hearing Tr. at 366, during the April 25 PSI, the Individual said that the club was "well-ventilated." 4/25 PSI Tr. at 27. Even viewing the Individual's testimony in the most favorable light, there is no doubt that the smoke that he and his wife referred to was predominantly tobacco cigarette smoke. Hearing Tr. at 39, 385. In contrast, the rooms used in the studies submitted by Dr. XXXXXXXX were described as being filled with marijuana cigarette smoke. E.g., Ex. 39 at 95-96. Therefore, despite Dr. XXXXXXXX's testimony, I find that there is no meaningful way to apply and adjust the results of the studies to the unknown actual conditions that existed at the club. Accordingly, I am unable to find that the Individual's positive drug test results were caused solely by passive ingestion of marijuana. Nor does the record contain any other reasonable exculpatory explanation for the positive drug test.<15>

3. Positive Retest

The positive retest by PRL indicates that, despite some of the problems at XXXXX mentioned by Ms. XXXXXXX, the XXXXX drug test result was accurate.<16>Ms. XXXXXXX testified that the retest was not based on a split sample i.e., where the urine sample is split up into two bottles, only one of which is tested at the first laboratory. Hearing Tr. at 295-96. According to Ms. XXXXXXX, using a split sample was the "best choice" for donors, since this method "raises the level of confidence" that the retest would not be affected by any contamination by the initial testing laboratory. Id. at 331. Nevertheless, Section 2.2(h) of the Mandatory Guidelines states that the use of a split sample is not mandatory. 59 Fed. Reg. at 29,919. Since there is no evidence that the original sample was contaminated or otherwise tampered with at XXXXX, I have no basis for not accepting the retest. Thus, the retest confirms the Individual's use of cannabis.

4. Mitigating Factors

Since the only reasonable explanation for the positive drug test and retest is that the Individual knowingly ingested cannabis, the security concerns raised by Ms. XXXXX are present. This is so despite the fact that there is no evidence, nor does the DOE claim, that the Individual ever ingested, or was under the influence of, cannabis while at work. Cf. Cole v. Young, 351 U.S. 536, 550 n. 13 (1956). At the hearing, the Individual's counsel argued that because of the presence of mitigating factors, the Individual's security clearance should not be revoked despite the positive drug test. Specifically he relied on the following mitigating factors in Section H.4 of the DOE's Adjudicative Guidelines for Determining Eligibility for Access to Classified Matter and/or Special Nuclear Material (April 1994) (Adjudicative Guidelines):

a. The drug involvement was within the past 12 months but an isolated incident or an infrequent enough event as to warrant acceptance of the individual's assurance that he/she will not be involved with drugs while holding a DOE access authorization.

. . .

c. There is documented evidence of satisfactory completion by the individual of a drug treatment or rehabilitation program and the individual is willing to offer assurance that he/she will not be involved with drugs while holding a DOE access authorization.

Ex. 21 at 21, cited in Hearing Tr. at 406.

While the Adjudicative Guidelines are only guidelines and are not binding on me, the mitigating factors with respect to drug use are certainly consistent with a number of factors that I am required to consider under Section 710.7(c). Thus, I have taken into consideration the fact that the evidence against the Individual in this case, even at its most detrimental, establishes only one drug incident within the past 12 months. Moreover, the Individual successfully completed the Employee Assistance Program that he was required to attend after receiving the positive drug test. See Ex. 19; see also supra note 10. The Individual has also asserted that he will not be involved with drugs while holding a DOE access authorization. E.g., 4/13 PSI at 56. However, under the circumstances of this case, I cannot accept the Individual's assurances about future drug use. If, as I have found, the positive drug test was accurate and cannot be explained by passive inhalation, then the Individual has in fact, contrary to his denials, voluntarily ingested cannabis. Since I cannot accept his denials about past use, I am unable to accept his assurances about future non-use. Accordingly, I am unable to find that the DOE's security concerns have been mitigated in this case.<17>Compare Personnel Security Hearing (Case No. VSO-0045), 25 DOE ¶ 82,774 (1995) (restoration of clearance recommended where admitted one-time recent drug use).

C. Criterion L

The derogatory information alleged under this criterion is based on the same positive drug tests that serve as the basis for two of the Criterion K allegations. Having found that these allegations establish a basis for revoking the Individual's clearance under that criterion, and that there are insufficient mitigating factors, I make a similar finding with respect to Criterion L. That criterion refers to information that an individual has "[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security." 10 C.F.R. 710.8(l). If, as the evidence shows, the Individual did voluntarily ingest cannabis in or about early April 1995, then he knowingly engaged in an illegal activity. This raises significant doubts as to his trustworthiness. Moreover, because he has not admitted to this drug use, the Individual would be subject to coercion or duress and his assurances that he will eschew drug use in the future cannot be accepted.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has shown mitigating circumstances with respect to the Criterion F allegation. However, the Individual has failed to convince me that the positive drug test and retest in April 1995 were inaccurate or were caused by passive inhalation of THC. Accordingly, I conclude that DOE/XXXXX had a sufficient basis for invoking Criteria K and L and that the Individual has not demonstrated that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the Individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the Individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The

party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

<1>"/ An "access authorization" is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>/ Cannabinoids are the psychoactive substances found in the common hemp plant, Cannabis sativa (marijuana). The primary psychoactive cannabinoid is

tetrahydrocannabinol (THC). See Ex. 42 at 9.

<3>/ All subsequent references to the Notification Letter also include Enclosure 1.

<4>/ On November 28, 1995, the Individual's counsel moved to strike Ex. 52, a response by DOE witness XXXXXXXXXXXXXXX to written comments by Dr. XXXXXXXX (Ex. 51) pertaining to three scientific studies that I had permitted Ms. XXXXXXX to submit after the hearing (Exs. 48-50). This motion was assigned Case No. VSZ-0005. I granted the motion in part and struck two paragraphs from Ms. XXXXXXX's submission because they were outside the scope of the letter in which I had earlier granted DOE's request that Ms. XXXXXXX be permitted to respond to Ex. 51. See Letter from Ted Hochstadt, Hearing Officer, to XXXXXXXXXXXX, Individual's counsel, and Laura Kilpatrick, DOE Counsel (December 4, 1995).

<5>/ One exhibit, No. 33, was admitted into the record over the objection of the Individual's counsel. Transcript of Hearing at 60-61, 176, Case No. VSO-0051.

<6>/ "Ever" was used nine times elsewhere on that page of the PSQ.

<7>/ Webster's New World Dictionary, Third College Edition, contains a similar "Americanism" definition of the word "user": "a person who uses drugs; addict."

<8>/ The current Questionnaire for Sensitive Position form asks only about illegal drug involvement within last five years.

<9>/ There were conflicting statements regarding whether the Individual thought that the FBI agents would report his statements to the DOE. See Hearing Tr. at 46, 64-65; see also 4/25 PSI at 29, where the Individual indicated that he had previously informed DOE about his drug use. Regardless, the point still holds that the Individual volunteered these statements to FBI agents, as he did to Mr. Sandoval.

<10>/ Similarly, the fact that the Individual attended the Employee Assistance Program upon threat of termination is not evidence of his having recently smoked marijuana.

<11>/ During the course of the proceeding, other possible explanations have been presented for the positive results, such as the ingestion of ginseng and cold medicines, as well as the external use of certain chemicals at work on the date of the urine test. See Hearing Tr. at 36, 54-55. There was essentially uncontested testimony that these substances would not have caused the results in this case. Id. at 241, 280-81. Therefore, no further discussion about these substances is necessary.

<12>/ One of these articles was cited specifically in the preface to the Mandatory Guidelines as a reason for lowering the screening level cutoff from 100 ng/ml to 50 ng/ml. See 59 Fed. Reg. at 29,912 (citing "Passive Inhalation of Marijuana Smoke: Urinalysis and Room Air Levels of Delta-9- Tetrahydrocannabinol", Edward J. Cone et al., Journal of Analytical Toxicology, Vol. 11, May/June 1987 (Ex. 39; see also Ex. 41)). In the Cone study experiments, positive results were reached when sixteen lower THC content marijuana cigarettes were passively inhaled in a very small room, but negative results occurred when only four such cigarettes were passively inhaled.

<13>/ According to a recent textbook, sinsemilla, a more potent form of marijuana that averages six to ten percent THC content, represented slightly over half (53 percent) of the forms of cannabis that were discovered and destroyed in 1988, an eleven percent increase over the previous year. Ex. 42 at 310, 317. This trend of higher THC content has probably continued since 1988. See id. at 317. While it is clear that sinsemilla is likely a majority of currently available marijuana, it is obvious that non-sinsemilla marijuana must also still be available. Non-sinsemilla marijuana averaged only about 3.5 percent THC in 1992. Id. at 310.

<14>/ In the final paragraph of Ex. 52, Ms. XXXXXXX specifies the purported dimensions of

XXXXXXX's. However, this paragraph was stricken, see supra note 4, in part because there is nothing in the record that indicates the dimensions of the club or the basis for Ms. XXXXXXX's statement.

<15>/ There was a problem with one of the chain of custody documents at XXXXX. See Hearing Tr. at 286-87 (Ms. XXXXXXXr) (referring to Ex. 35 at 10/33 ("Specimen Batch Chain of Custody (Bottle)"). Specifically, one XXXXX employee did not make a proper entry when he received and released the Individual's urine specimen bottle. Although I would not be inclined to accept a positive drug test if there were a serious defect in the chain of custody, I do not believe that this is the case here. Moreover, I accept the testimony of Ms. XXXXXXX that this particular problem was adequately addressed by the affidavit of XXXXXXXXXXXXXXX, Associate Lab Director of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. See id. at 286 (referring to Ex. 35 at 12/33).

<16>/ In addition to the chain of custody problem mentioned in the prior footnote, Ms. XXXXXXX stated that XXXXXe failed to provide the "Auto 2" data defining how well the GC/MS testing system was operating on the day the Individual's urine was tested. Hearing Tr. at 282-84. Nevertheless, she concluded that the information submitted by XXXXX indicated that the system was operating acceptably on that day. Id. at 284.

<17>/ If the only proven allegation under Criterion K was the Individual's admitted 1974 drug use, I would find that there are mitigating factors; namely, that use was clearly experimental and occurred more than 20 years ago. Further, aside from the positive April 1995 test, there is no allegation of drug use since that time. The Individual testified that his prior drug tests were negative, Hearing Tr. at 40-41, and this was not disputed by DOE.