Case No. VSO-0109, 26 DOE ¶ 82,783 (H.O. Tedrow July 7, 1997)

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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 XXXXXXX's.

July 7, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: August 15, 1996

Case Number: VSO-0109

This Opinion concerns whether XXXXXXXXXXXXXXXXX (the Individual) should be allowed to retain an 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." DOE suspended his access authorization because of evidence that he had used illegal drugs. Based upon the documentary evidence submitted to the record and oral testimony given received at the hearing I held on this matter, I have concluded that the Individual's access authorization should not be restored.

The regulatory provisions that frame the issues in this case are found in 10 C.F.R. Part 710. The Individual was issued a Notification Letter on July 11, 1996, that enumerates DOE's concerns. The Notification Letter recites three different types of security concerns. First, under Criterion K,(1) the Notification Letter alleges that the Individual used marijuana as demonstrated

by the positive drug test. Second, under Criterion F,(2) the Notification Letter alleges that the Individual did not tell the truth at a February 2, 1996 Personnel Security Interview during which he denied using marijuana despite the presence of a positive drug test. Third, under Criterion L,(3) the Notification Letter alleges unusual conduct that indicates a lack of trustworthiness, honesty, and reliability in that the Individual violated a drug certification he signed in 1984 as proven by the positive drug screen, used marijuana in college, was in the possession of marijuana in 1990, and refused to take a random drug test in 1992 when he held a Testing Designated Position. Because the Notification Letter invokes three separate criteria, almost all of which turn on the positive drug test, I will consider all of the criteria together insofar as they relate to the positive drug test.

I. BACKGROUND

The Individual has been a DOE employee for many years, during which time he has been examined several times concerning his eligibility for an access authorization. In a 1984 Questionnaire for Sensitive Position, the Individual noted as a young man he had used marijuana. As a result, he was asked to sign a drug certification form in which he promised that he would

not buy, sell, accept as a gift, experiment with, traffic in, use or be involved with illegal drugs (narcotics, hallucinogens, and other drugs listed in the Controlled Substances Act) at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance.

Exh. 13.

In 1990, he was stopped for Driving Under the Influence of Alcohol (DUI). During that stop, a search of his vehicle uncovered a film canister containing marijuana, and he was arrested for possession of that substance as well as for the DUI charge. Exh. 17 at 23-26. He was convicted of DUI. Exh. 17 at 36-37. However, the marijuana possession charge was dropped. Exh. 14 at 7, 9; Exh. 17 at 39. In January 1991 the Individual signed an acknowledgment that he was subject to random testing because he was in a Testing Designated Position under the DOE's Drug Free Workplace Program. Exh 9 at 5. In February 1992, he received a thirty-day advance notice of random drug testing. Exh. 15; 16. On July 15, 1992, the Individual was selected for a random drug test, but he refused to submit himself to the test. Exh. 9 at 6. As a result, the Individual was suspended from his job, a matter that he grieved. Tr. at 28-29. A settlement was later reached between the DOE and the Individual in which he agreed to drop his grievance, stay in a Testing Designated Position for one year, and submit to random drug testing. Exh. O. Pursuant to the agreement, the Individual was removed from the Testing Designated Position in March 1994. Exh. P.

The Individual also has a long history of difficulties with alcohol. This history need not be repeated in detail since the Notification Letter did not allege any security concerns related to the Individual's alcohol use. Nonetheless, as a result of the Individual's history of alcohol-related problems, the DOE referred him for evaluation by a consulting psychiatrist who recommended participation in the Employee Assistance Program Referral Option (EAPRO). See Tr. at 27; Exh. 5 at 10-14; Exh. 7 at 7-14. Under the EAPRO agreement, the Individual agreed to attend regular counseling sessions, to abstain from alcohol use, and to submit to random drug/alcohol testing for two years from the date of his last use of alcohol, i.e., December 1993. Exhs. 1; 6B. This EAPRO agreement expired in December 1995. Exh. 1.

The present administrative review proceeding was triggered near the end of the Individual's two year random alcohol testing under his 1993 EAPRO agreement. On December 14, 1995, the Individual received notice requiring him to submit that day to an unannounced urinalysis for alcohol screening pursuant to the 1993 EAPRO agreement. Exhs. D; E. A sample was taken, Exhs. 3D; 3I, and sent for laboratory analysis. Exhs. 3E; 3F; 11 at 13. However, the cover sheet that conveyed the Individual's urine sample to the laboratory did not request a test for alcohol as specified by the notice. Instead, the cover sheet requested a test for "THC, Cocaine, PCP, Opiates, and Amphetamines." Exhs. 3E; 11 at 13. When this error was discovered, an alcohol test was requested. Exhs. 3G; 11 at 15; G. The result of the alcohol test was negative. Exhs. I; 3D; 3H; 11 at 16. The drug screen, however, registered positive for a marijuana metabolite during an immunoassay screening test. Exhs. 3I; 11 at 24-33. That test was confirmed by the results of a much more sophisticated gas chromatography/mass spectrometry test which registered forty-eight nanograms per milliliter of the drug metabolite 11-nor-9-carboxyl- delta 9-tetrahydrocannabinol (commonly known as THC), the active ingredient in marijuana. Exhs. 3J; 11 at 34-64. When asked to explain this test, the Medical Review Officer reports that the Individual stated that perhaps he inhaled marijuana smoke at a concert in Oklahoma. Tr. at 150; Exh. 3C. The Individual does not make that claim in this proceeding.

Throughout the course of this proceeding, the Individual has steadfastly denied that he ingested marijuana prior to the 1993 test (other than his previously disclosed college experimentation nearly twenty years before). He further alleges that there were irregularities in the testing protocol. He also asserts that the drug test results must be erroneous because at the time of the drug test he was taking "Rid-a-Pain," an over-the-counter analgesic containing codeine. Although the test supposedly screened for opiates such as codeine, it was negative for this drug. Because the test did not show positive for codeine, the Individual asserts that there was some unidentified problem with the drug test that also involves the positive test result for marijuana. He further claims that because the wrong test was performed, i.e., one for drugs rather than for alcohol, there was some problem with the testing procedure. He also alleges a deficiency in the urine sample collection system, in particular that he was not given the opportunity before the test to disclose his ingesting Rid-a-Pain or the other drugs he was taking.

At the hearing I convened on this matter, the DOE presented the testimony of three witnesses: the Individual, the Medical Review Officer, and a Security Specialist. For the Individual, I heard from five witnesses: the Individual, a former supervisor, two current supervisors, and a former co-worker, supervisor, and friend. In addition, I received thirty-five exhibits into evidence, eighteen for the DOE (these exhibits are numbered) and seventeen for the individual (these exhibits are lettered).

II. ANALYSIS

The applicable DOE 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 to be considered in reaching a determination concerning the Individual's eligibility for an access authorization are the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his 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. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that I considered and which guided my evaluation of whether the Individual should have his access authorization restored.

Since there is a facially valid positive drug test, it is up to the Individual to come forward with information demonstrating that allowing him to hold an access authorization is clearly consistent with the national interest and would not endanger the common defense and security. Personnel Security Review, VSA-0087, 26 DOE ¶ 83,001 at 86,506 (1996); Personnel Security Review, VSA-0051, 25 DOE ¶ 83,012 at 86,558-59 (1996). Where, as in this case, the Individual denies drug use in the face of positive test results for prohibited substances, the burden is on the individual to demonstrate through evidence another credible explanation for the positive screen. VSA-0051 25 DOE at 86,559; Personnel Security Review, VSA-0088, 26 DOE ¶ 83,003 at 86,517 (1996); Personnel Security Hearing, VSO-0102, 26 DOE ¶ 82,763 at 85,587 (1996), aff'd, 26 DOE ¶ 83,007 (1997).

The Individual states that he cannot explain the positive drug test, but maintains that it must be flawed in some manner. Tr. at 18. In an attempt to meet his burden, the Individual cites three factors that he asserts demonstrate there was a flaw in the drug test process. First, that the methodology deviated from accepted standards. Second, that there were discrepancies in the forms and the tests performed. Third, that he was taking a medication containing codeine that should have shown been detected in the drug screen if the urine sample tested was his and the test was properly performed. Since codeine was not detected, he would have me conclude that the test was faulty.

I have reviewed the testimony of the Medical Review Officer who explained the methodology of collecting, labeling, and packaging the urine sample provided by the Individual. Tr. at 50-54. In addition, I have examined at great length the extensive documentation on the laboratory procedures provided by the Toxicology Laboratory that tested the urine sample. Exh. 11. I find that all of these procedures are substantially the same as those explained in exhaustive detail in Personnel Security Hearing, VSO-0126, 26 DOE ¶ 82,776 at 85,682-85 (1997) and which need not be repeated here. Like the opinion in that case, I find no obvious error or deviation from proper procedure in the methods employed in collecting, handling, and analyzing the Individual's urine sample.

The Individual first claims that the procedures used when collecting his urine sample did not comply with DOE Order 3792.3 (as amended), the Drug-Free Federal Workplace Testing Implementation Program. Exh. N. See also Exh. 4 at 15-16. In particular, he directs my attention to Chapter II, ¶ 5.b.(1). That provision states that notice of a drug test must include a statement that a person who is tested

may submit medical documentation supporting the use of a specific drug or other substance that may give the appearance of a positive test. Such information will be secured in a sealed envelope marked with the appropriate specimen identification number. The contents of the envelope will be made available only to the Medical Review Officer and will be examined only in the event that the specimen yields a confirmed test result.

Id. at II-5. The Individual asserts that contrary to this provision, he was not offered the opportunity to submit documentation concerning the use of "a specific drug or other substance," although he made (but did not submit) such a note on his own volition. Tr. at 43, referring to Exh. F. The Medical Review Officer did not dispute that the Individual was not offered the opportunity specified in the DOE Order at the time of the test. However, the Medical Review Officer notes that the Individual was tested under a different program, EAPRO, and that DOE Order 3792.3 does not apply to EAPRO. Tr. at 71-77. More importantly, however, the Medical Review Officer states that the process he employs adequately substitutes for the documentation opportunity procedure. Tr. at 74. Under this process, after receiving notification of a positive drug screen, the Medical Review Officer contacts the person with the positive test and inquires as to any reasons the test may have come out positive. This includes inquiring into any legal or illegal drug use. Tr. at 55-57, 74, 88. As I stated at the hearing, this is a technical point, and I find that the procedure employed in this case is substantially the same and reaches substantially the same goals as DOE Order 3792.3. Tr. at 76. Further, the Individual has not provided any explanation whatsoever as to how the difference in procedure might have led to a falsely positive drug test. Thus, this claim is irrelevant.

The Individual next asserts that discrepancies in the test performed and the accompanying paperwork indicate that the sample tested may not have been his. According to the Individual, he was placed in EAPRO for alcohol use and only consented to random alcohol testing. He further points out that the notice of testing specified that it was only for alcohol screening. Exhs. 4 at 11; D; E. Because the first test was for drugs, rather than alcohol as provided in the December 14 test notice, the Individual argues that other, unspecified problems with the test, inferentially, make it invalid.

After examining the evidence, I see no irregularity that would affect the validity of the drug test, and nothing whatsoever to support a claim that the Individual's own urine was not tested. It is correct that the December 14 test notice specified that the Individual was to be tested for alcohol. Exhs. D; E. However, the EAPRO agreement the Individual signed does allow for both drug and alcohol screening. Exhs 1 & 6B. The Medical Review Officer explained that the drug screen resulted apparently from an inadvertent clerical error when the collecting nurse checked that "box" on the request form. Tr. at 61-62, 68. This error in specifying what test was to be performed does not invalidate the results of that test. Consequently, I find that the mistake on the test request form does not invalidate the positive drug test.

Lastly, the Individual asserts that the positive drug screen for marijuana must be in error because the same test did not, as it allegedly should have, show positive results for other drugs he claims that he was taking. This argument is based upon the claimed use of an over-the-counter analgesic, Rid-a-Pain, for an attack of gout prior to the test.(4) Tr. at 42, 43, 44, 151. Rid-a-Pain is a product of Pfeiffer Pharmaceuticals that contains, inter alia, one milligram of codeine phosphate in each tablet. Exh. 10. The Individual states that over the course of two days, he took approximately eleven Rid-a-Pain tablets, the last one or two just before going to bed around 10:00 or 11:00 pm on December 13. Tr. at 44-45, 152; Exh. F. The urine sample for the drug test was taken the next day, December 14, at approximately 9:15 a.m. Exhs. 3E, 3F, 11 at 13. Thus, the Individual's last dosage could have introduced as much as two milligrams of codeine into his system approximately ten to eleven hours before the drug screen the next morning. On this basis, the Individual asserts that the test should have shown a positive result for codeine, and its failure to do so indicates that the test was faulty.

Before examining this argument, it is important to stress that the Individual has not submitted sufficient, convincing evidence to show that he either suffered from gout directly before the December 14 test, or that he took Rid-a-Pain to alleviate the resulting pain. During the hearing a considerable period was spent querying the Medical Review Officer on this argument. Based on his experience and general knowledge of the testing equipment, the Medical Review Officer opined that the drug screen would have picked up evidence of codeine in the Individual's system, provided that the dosages and circumstances were as described by the Individual. Tr. at 77-78. This opinion, given during the hearing, was based on his experience with other false positive results for codeine produced by eating poppy seeds. Tr. at 79, 83, 91-94.(5)

Following the hearing I requested an affidavit from the Director of the Toxicology Laboratory on this matter. I accord it greater weight than the opinion of the Medical Review Officer, because of the Director's extensive, specific knowledge and experience in this particular area as opposed to the more general knowledge of the Medical Review Officer. Compare Tr. at 46-48 with Exh. 11 at 69- 73. In his affidavit, the Laboratory Director explained the Toxicology Laboratory's procedure for testing samples, and stated that in the initial, immunoassay screening test, anything less than 300 nanograms of codeine per milliliter of urine would not show a positive result. Exh. 18 at ¶¶ 2, 3. His affidavit then considers the facts as stated by the Individual and outlined above. Exh. 18 at ¶ 4. The Laboratory Director then concludes that:

Based upon my expertise in both toxicology and pharmacology, it is my expert opinion that given the very small amount of codeine ingested and the length of time that passed before the urine sample was analyzed . . . , it is quite possible that the codeine level that was allegedly in the employee's urine was lower than the concentration cutoff level for the initial screening test.

Exh. 18 at ¶ 5.

The Laboratory Director's conclusion — "it is quite possible that" the amount of codeine ingested by the Individual would not produce a positive drug test result — is entirely consistent with expert testimony presented in other cases. In Personnel Security Hearing, VSO-0019, 25 DOE ¶ 82,759 (1995), an individual challenged the credibility of a positive drug test by showing that he took Robitussin AC. In that case, the Individual ingested ten to twenty times more codeine than in this case.(6) In that case the Robitussin AC was taken approximately thirty-six hours before the drug screen (rather than the ten or eleven hours alleged in this case). The expert opinion that the Hearing Officer accepted that case is that in the average person codeine has a half-life between 1.9 and 3.9 hours and that the drug is usually eliminated from that average person in about five half-lives, or between ten and twenty hours. 25 DOE at 85,564. The expert in that case further testified that the amount of codeine involved (which apparently was ten or twenty times higher than in this case) would not produce a positive drug test if the specimen was collected more than fifteen to twenty hours after the codeine was taken (as opposed to the ten or eleven hours in this case). Id.

Balancing the facts of VSO-0019 and this case — and recognizing that individuals and circumstances differ — I believe that the expert opinion accepted in the prior case is in general harmony with the expert opinion in this case. Thus, I accept the expert opinion that it is quite possible that the amount of codeine the Individual claims to have ingested in this case would not produce a positive drug test result. Therefore, the Individual's assertion that the test is flawed for marijuana because no positive result for codeine was shown must be rejected.(7)

As I stated above, where drug use is denied, the responsibility lies with the Individual to identify and prove some flaw with a positive drug test. The Individual has not met this standard. Accordingly, I find that the positive drug test is valid, that the security-related concerns under Criteria F, K, and to the extent dependent on the positive drug test, Criterion L, are well-founded. I further find that the Individual has failed to demonstrate that restoration of his clearance would be clearly consistent with the national interest and would not endanger the common defense and security. 10 C.F.R. § 710.7.

The Notification Letter specifies three other sub-charges under Criterion L. These are the 1972 college marijuana use, the 1990 marijuana possession charge, and the 1992 refusal to participate in random drug testing under the Drug-Free Workplace Program. The first of these appears to involve nothing more than youthful collegiate experimentation, and due to the Individual's youth in 1972 and the passage of time this aspect of the matter has been fully mitigated. Exh. 4 at 22-24.

As to the second sub-charge under Criterion L — the 1990 dismissed charge of marijuana possession — there are unanswered questions that lead me to find a valid security concern. In this instance, the Individual was detained on a DUI charge and, during a police search of his van, a 35 millimeter film canister containing marijuana was found behind the seats of the van where there were storage boxes and a bed platform. Tr. at 155-59; Exhs. 4 at 27; 17 at 23-26, 37-38. The Individual states that the marijuana was not his, but must have been left by two hitchhikers who rode with him for three or four hours from Washington State to Oregon during a trip back from Vancouver Island. Tr. at 155-56, 158-59. Exhs. 4 at 23-27; 17 at 23, 37. The Individual has submitted no evidence to corroborate this self-serving explanation. In his defense, the Individual also states that the charges were dropped, but cannot state with certainty why. Tr. at 25-26, 157. A prosecutorial decision to dismiss a charge without explanation does not alone mitigate a drug possession security concern. See, e.g., Personnel Security Hearing, VSO-0098, 26 DOE ¶ 82,760 at 85,573 (1996). Therefore, this matter is sufficiently unresolved to lead me to conclude that a valid security concern remains as to this matter.

The last sub-charge under Criterion L in the Notification Letter is that the Individual refused to take random drug tests in 1992 as part of the Drug Free Workplace Program. The Individual does not deny this, but states that his refusal was based on principle. He believes that the involuntary random drug tests violated his right to privacy and that the selection of persons for the random drug tests was arbitrary without reference to any need or risk. Exh. 9 at 6-7, 10-11, 14, 16-17. I have carefully considered the Individual's testimony and find that the beliefs he stated are sincerely held and were not put forth for purposes of evasion. Moreover, soon after his refusal, the Individual submitted to a drug test which was negative. Exh. B. In addition, in an agreement with the DOE, the Individual agreed to be placed in a Testing Designated Position, under which he was subject to random drug tests for a year. Tr. at 32; Exh. O. He successfully completed the requirements of that agreement. Tr. at 29, 36; Exh. P. Thus, I believe that the Individual has successfully mitigated the security concern under this portion of Criterion L of the Notification Letter.

Finally, because the Individual denied use or possession of marijuana, electing instead to attack the drug test and the possession charge, he offered little in the way of mitigation, reformation or rehabilitation. The Individual provided us with copies of recent performance appraisals testifying to his excellent work. Exhs. J; K. In addition, his current and former supervisors testified to his reliability, the lack of complaints, and the high quality of his work. Tr. at 115, 120-22, 127-28, 140. This type of evidence, while helpful, is insufficient to mitigate a security concern absent evidence of mitigation, rehabilitation, or reformation directly related to that security concern. See, e.g., Personnel Security Hearing, VSO-0085, 26 DOE ¶ 82,751 at 85,707 (1996) (that the individual is an excellent employee does not mitigate security concern arising from drug use); Personnel Security Hearing, VSO-0005, 24 DOE ¶ 82,753 at 85,530 (1995). These character witnesses also testified that they did not believe that the Individual used marijuana or presented a security concern. Tr. at 116, 122, 130, 141. None of these persons, however, has direct knowledge of any of the events that formed the security concern. Tr. at 115, 124, 131-32. Thus, I cannot find that this testimony demonstrates sufficient mitigation. In addition, the Individual also complains that access to a secure facility was not sufficiently rigorous and that testing is not done in a uniform manner. Exh. 4 at 18-21. These are matters that should be brought to the attention of the appropriate security office and are not matters relevant to determining an individual's eligibility for an access authorization. The Individual also testified eloquently that he never used marijuana since his college days and about both his father's difficulties with alcohol, as well as his own successful efforts to halt alcohol use. Tr. at 144-49. The Individual is to be commended for conquering problems with alcohol use, but the security concerns in this case involve marijuana. On this topic, I find that the Individual's simple denials in the face of the evidence to the contrary, do not constitute mitigation, reformation, or rehabilitation.

III. CONCLUSION

The security concerns in this case are well established both in the record of this case and in prior opinions considering access authorization. The duty to keep security commitments is a twenty- four hour a day, seven days a week responsibility. Thus, the DOE must have complete confidence in all facets of the lives of the persons it entrusts with secure information. Tr. at 103 (testimony of security specialist). The use of marijuana raises serious concerns of honesty and trustworthiness because an individual is thereby involved in a criminal activity that could subject him to blackmail or coercion that could cause him to compromise security. Tr. at 99-100. In addition, someone who would violate criminal laws might also disregard rules and regulations designed to protect classified information. Id.

The falsification of information and use of marijuana in violation of the drug certification is also an important security concern. One of the pillars of the effective protection of information by the United States Government "is to ensure that [information] is shared only with those viewed as trustworthy." Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. No. 105-2, at 4 (1997). If an individual is less than candid and honest about his activities when queried about them, trustworthiness is clearly diminished. Tr. at 100-01. Similarly, violation of a commitment to refrain from using illegal substances voluntarily undertaken by signing a Drug Certification (especially where as here that pledge was given because of concerns of prior drug use) seriously undermines the government's ability to trust that individual to keep the solemn pledge to protect sensitive national information. Tr. at 103-04. See also Personnel Security Hearing, VSO-0121, 26 DOE ¶ 82,751 at 85,505, 85,507 (1996); Personnel Security Hearing, VSO-0035, 25 DOE ¶ 82,767 at 85,617 (1995); Personnel Security Hearing, VSO-0028, 25 DOE ¶ 82,762 at 85,587 (1995).

Thus, I find that there is significant information in the possession of the DOE which in turn is sufficient to provide a basis for invoking the criteria in 10 C.F.R. § 710.8 (f), (k), (l). In particular, the record discloses that the Individual tested positive for marijuana and has not presented evidence demonstrating mitigation, reformation, or rehabilitation of that use. In addition, the record discloses that the Individual was in possession of marijuana and has not satisfactorily explained that possession to the degree necessary for me to conclude that the charge has been mitigated. Thus, in view of the criteria set forth in 10 C.F.R. Part 710 and the record before me, I am unable to find that restoring the Individual's 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). It consequently follows that my recommendation is that the Individual should not have his access authorization restored at this time.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either the Office of Security Affairs or the Individual may file a Request for Review of this Hearing Officer Opinion within thirty calendar days of receipt of this Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, Department of Energy, 1000 Independence Avenue, S.W., Washington, D.C. 20585- 0107, and served on the other party. If either party elects to seek review of this Opinion, that party must file a statement identifying the issues on which the party wishes the Director of the Office of Hearings and Appeals to focus. This statement must be filed within fifteen calendar days after the party files a Request for Review. The party seeking review must serve a copy of the statement on the other party, who may file a response within twenty days of receipt of the statement.

Richard T. Tedrow

Hearing Officer

Office of Hearings and Appeals

Date: July 7, 1997

(1)Criterion K applies when the DOE has information that an individual has

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 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.

10 C.F.R. § 710.8(k).

(2)Criterion F applies where DOE has information indicating that an individual has

Deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a

personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization or proceedings conducted pursuant to [10 C.F.R.] § 710.20 through [10 C.F.R.] § 710.31.

10 C.F.R. § 710.8(f).

(3)Criterion L applies when the DOE has information indicating that an individual has:

Engaged in ... unusual conduct or is subject to ... circumstances which tend to show that [he] is not honest, reliable, or trustworthy; or [may be] subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security.

10 C.F.R. § 710.8(l).

(4)4/ The Individual also claimed that several days prior to the test he had used an asthma inhaler to counteract an allergy to his cat. Tr. at 42; Exh. F. However, no evidence or argument concerning any implications of the use of the inhaler has been introduced. Consequently, there is no basis upon which to consider this claim.

(5)5/ Poppy seeds most often produce false positives for morphine, not codeine. See Carl M. Selavka, Poppy Seed Ingestion as a Contributing Factor to Opiate-Positive Urinalysis Results: The Pacific Perspective, 36 J. Forensic Sciences 685 (1991).

(6)6/ Robitussin AC has ten milligrams of codeine per teaspoon with a recommended adult dosage of two teaspoons every four hours. Thus, Robitussin AC's recommended dosage contains twenty milligrams of codeine (as opposed to the one or two Rid-a-Pain tablets containing one milligram of codeine per tablet). See Ronald Arky, et al., Physicians' Desk Reference (48th ed. 1994) at 1902.

(7)Although the affidavit was submitted after the hearing, I informed the Individual that I would be seeking the additional information from the Laboratory Director as a person with greater expertise in this area. In addition, he was made aware of our prior case described above. Tr. at 91-92. In order to give him every opportunity to rebut the expert opinion, I left the record open for an inordinately long period. Tr. at 159. In addition, he was contacted directly on this matter and has declined every invitation to provide any evidence in response.