ML20138A890

Objection to ASLB 860227 Order on Initial Prehearing Conference Directing NRC to Serve as Advocate of Aslab Condition & Provide Further Formal Notice of Charges to C Husted.Order Should Be Modified.W/Certificate of Svc

ML20138A890
Person / Time
Site:	Three Mile Island
Issue date:	03/14/1986
From:	Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-428 ALAB-772, CH, CLI-85-02, CLI-85-2, NUDOCS 8603200202
Download: ML20138A890 (10)

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s 00LMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMP 11SSION BEFORE TIIE ADMINISTRATIVE LAW JUDGE '86 NAR 17 P3 :25 0FFICE Of he .

00CKETING & a[rMCf.

BRANCH In the Matter of )

) c GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

NRC STAFF OBJECTIONS TO REPORT AND ORDER ON INITIAL PREHEARING CONFERENCE I. INTRODUCTION In the Administrative Law Judge's February 27, 1986 Report and Order on Initial Prehearing conference (" Order"), the Presiding Officer made a number of rulings concerning the parties and contentions in this proceeding and the prehearing and hearing procedures to be followed in the course of this proceeding. Among these rulings , the Presiding Officer found that the Commission intended the NRC Staff to act as the

" proponent of the sanction" against Charles Husted , and to carry the hurden of going forward and the burden of persuasion, and of " meeting the due process requirements so that P1r. Husted can defend against the charges levied." Order, at 8. According to the order: "Due process provides that in addition to an opportunity for a hearing the person is entitled to a statement of reasons for the proposed action so that the person can gather the evidence to meet the charges." In support of this proposition, the Order cites the Administrative Procedure Act ("APA"), 5 U.S.C. $ 554(b), which states:

8603200202 860314 PDR ADOCK 05000289 0 PDR

o Persons entitled to notice of an agency hearing shall be timely informed of (1) the time, place, and nature of the hearing; 4

(2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted.

Order, at 8.

h'hile the Staff does not object to carrying the initial burden of go-ing forward, nor does it disagree with the conclusion that Charles Ilusted should not bear the burden of persuasion in this proceeding, O the Staff does object to the Presiding Officer's Order insofar as it interprets the Commission's September 5,1985 Notice of Hearing (" Notice of Hearing") -

as requiring the Staff to be the advocate of the Appeal Board condition, and to " levy charges" against Mr. Husted. As discussed below ,

Mr. Husted has, through the Commission's Notice of Hearing, already I

been provided with the notice contemplated by the APA. Further, the Staff believes that the Commission did not contemplate giving the Staff the discretion to determine the nature of any " charges" against

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Mr. Husted, and that in directing the Staff to assure the development of an adequate record, the Commission did not intend to have the Staff serve strictly as the advocate of the Appeal Board's condition. The Staff, therefore , seeks modification, or, as appropriate, clarification of the February 27, 1986 Order, as more fully described below.

1_/ See Prehearing Conference Transcript, at 39-42.

3.q 2_/ 50 Fed. RS. 37098 (September 11, 1985). l

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II. DISCUSSION A. Charles Ilusted Has Already Been Provided Adequate Notice as Required by Due Process and the APA In Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1221-1224 (1984), the Appeal Board imposed a condition on General Public Utilities Nuclear (Licensee) requiring that Mr. Ilusted "have no supervisory responsibilities insofar as the training of non-licensed personnel is concerned." d. , at 1224. The Appeal Board based this " requirement" on two " allegations" or " charges:"

first , that tir. Husted allegedly solicited an answer during an April 1981 NRC SRO licensing examination, and second, that Mr. Husted "was ac-cused of failing to cooperate with NRC investigators inquiring into the overall cheating controversy." Id., at 1221.

In imposing the condition , however, the Appeal Board found it

" unnecessary. . .to resolve the dispute. . .concerning Mr. Husted's alleged solicitation of an answer.. ." in light of the Stipulation between the Li-censee and the Commonwea!th of Pennsylvania which resulted in Mr. Ilusted's removal from service as a licensed operator or instructor of licensed operators or trainees. Id. , at 1222. Rather, the Appeal Board relied on the second charge--failure to cooperate with NRC investigators--as evidence of a poor attitude toward his responsibilities.

As further evidence of a bad attitude toward his responsibilities, the Ap-peal Board also relied on the Licensing Board's finding that Mr. Husted's testimony was not only unbclievable, but indicated that he did not care whether his testimony was believed or not. In sum, the Appeal Board condition barring Mr. Husted from supervisory responsibilites in the

e training of non-licensed personnel was based on what was termed "his documented past failure to cooperate with the NRC in its cheating investigation" - and his " demonstrated bad attitude." O In CLI-85-2, the Commission determined to afford Mr. Husted the opportunity to rcouest a hearing "on whether the Appeal Board's condi-tion barring him from supervisory responsibilities insofer as the training of non-licensed personnel is concerned should be vacated." Three Mile Island, supra, CLI-85-? , 21 NRC 292, 317 (1985) .

In the September 5, 1985 Notice of Hearing, the Commission, at Mr. Ilusted's request, expanded the scope of the hearing to include "whether he is barred by concerns about his attitude or integrity from serving as an NRC licensed operator, or a licensed operator instructor or training supervisor." Notice of Hearing, at 1. In that notice, the Com-mission observed that, in support of his request to expand the scope of the hearing, Mr. Husted argued that such expansion would involve con-sideration of the same factual issues as would the originally proffered opportunity for hearing. Id . , at' 2. Moreover, as the Presiding Officer acknowledged in his December 6, 1985 Memorandum and Order, at 2, the Commission's Notice of IIearing specified the "four concerns regarding Mr. Husted" which, if true, might warrant his not being employed in the jobs in question. They were-(1) the alleged solicitation of an answer to an exam question from another operator during the April 1, 1981 NRC written examination; 3/ ALAB-772, supra,19 NRC at 1224.

4/ Id. , at 1224 n.37.

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'(?) the lack of forthrightness of his testimony before the Special Master; (3) his poor attitude toward the hearing on the cheating incidents; and (4) his lack of cooperation with NRC investigators.

Thus, the subject matter of this proceeding, whether viewed as charges, allegations, or simply factual issues, was established in the Commission's Notice of Hearing. Neither the Presiding Officer's December 6,1985, Memorandum and Order, nor the February 27,1986 Re-port and Order substantially depart from this scope. The latter Order extends the factual issues to encompass three further questions: "What does Ilusted's performance of his responsibilities with GPU reflect about his attitude and integrity"?; "In light of the answers to Tthe previous question and the four issues set out in the Notice of Hearing], is any remedial action required with respect to Husted"?; and, "If remedial ac-tion is required, what is it"? Order, at 11. However, these additional questions do not expand the scope of the proceeding as defined in the Commission Notice of Hearing, an.d were agreed to by Mr. Husted, the Staff and CPU. See Charles Husted Exhibit '1. In any event, the Appeal Board's decision in ALAB-772, the Commission's decision in CLI-85-2, and the Commission's Notice of Hearing issued on September 5, 1985 provide Mr. Husted adequate notice of the allegations concerning his conduct, and the issues which will be addressed in the hearing.

Similarly, the Notice of Hearing also addresses the time, place and nature of the hearing, as well as the legal authority and jurisdiction un-I

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der which it will be held. 5_/ The time, place, and nature of the hearing have been further specified during the initial prehearing conference and in the February 27, 1986 Order.

In sum, the notice contemplated by the APA has been accorded to Mr. Ilusted, principally through the Commission's Notice of Hearing, but also through prior Appeal Board and Commission decisions, the prehearing conference and the Presiding Officer's December 6,1985 and February 27, 1986 orders. As a result , the Staff respectfully requests that the February 27, 1986 Order be modified to delete any requirement that the Staff provide further formal notice of charges against Ftr. Husted, the law and facte on which the imposition of the Appeal Board condition would be based, or the time, place, nature of, or the legal authority for, the subject proceeding.

D. While The Staff May Be Allocated The Burden Of Proof. A Require-ment That The Staff Be An Advocate For The Condition Is Unnecessary and Inappropriate The Staff also objects to, and seeks clarification of, that part of the February 27, 1986 Order which may be read to require the Staff to be an advocate of the Appeal Board's condition. The Order states:

5,/ The pertinent portion of the Notice of Hearing states:

Pursuant to the Atomic Energy Act of 1954, as amended, and the regulations in Title 10, Code of Federal Regulations ,

Part 2, notice is hereby given that a hearing will be held be-fore an Administrative Law Judge, to be appointed by the Chief Administrative Judge, Atomic Safety and Licensing Board Panel.

The Administrative Law Judge will set the time and place for the hearing and shall hold prehearing conferences as necessary.

The scope of the hearing will be as set forth above. The hear-(FOOTNOTE CONTINUED ON NEXT PAGE) 1

n A reasonable interpretation of the Notice of Hearing is that the Commission intended the Staff to fulfill the role of the proponent of the sanction and to assume the burdens that go with it, including the burden of going forward, the burden of persuasion and meeting the due process requirements so that Mr. Husted can defend against the charges levied.

Order, at 8. To the extent that the Presiding Officer intends by this language that the Staff be an advocate of the Appeal Board condition, 6,/

the Staff respectfully disagrees with the Presiding Officer's ruling.

Under the Commission's directive in the Notice of Hearing that the Staff " ensure that the record is fully developed," the Staff properly may be given the burden of going forward with the evidence against Mr. Husted and of establishing a record on which the appropriateness of the Appeal Board's condition concerning Mr. Husted may be judged, but the Presiding Officer need not conclude that the Staff must be the advo-cate of the Appeal Board's condition to so allocate these burdens. The procedural rights of Mr. Husted may require that the case against him be macic before he has any obligation to go forward, and may require that the ultimate presumption remain at all times that Mr. Husted is free of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) ing will be conducted pursuant to the procedures contained in 10 CFR Part 2, Subpart G. . . .

Notice of Hearing, at 3. See also,10 C.F.R. 5 2.703.

-6/ While the Commission recognized that the condition has the effect of a sanction on Mr. Husted, it may be noted that the Appeal Board took no action directly against Mr. Husted, but rather imposed a condition on licensee.

unlawful or improper conduct, II but those procedural rights do not require the Staff to be an advocate of the Appeal Board's condition.

Similarly, the Commission's direction that the Staff participate as a full party and ensure that the record is fully developed does not require that the Staff be the advocate of a specific position on the ultimate ques-tion. At the prehearing conference, the Staff stated that it did not in-tend to take a position, at least initially, on whether the condition should be vacated or imposed. Prehearing Conference Transcript , at 31-32.

liowever, it may be noted that in the previous proceeding the Staff op-posed the Commonwealth of Pennsylvania's position, on appeal, that the Licensing Board should have imposed sanctions on Mr. Husted on the ba-sis of his attitude and integrity. 8,/ There is nothing in the Commission's orders suggesting that the staff is required to advocate the imposition of the condition affecting Mr. Ilusted. The Staff believes the Commission intended not that the Staff prove the case for the condition, but that the Staff ensure that all the material evidence, both evidence tending to sup-port imposition of the condition and evidence which would support vaca-tion of the condition, is brought out at the hearing. As a result, the Staff seeks clarification as to whether the February 27, 1986 Order was intended to limit the Staff to the role of advocate for the Appeal Board's

-7/ See, S. Rep. No. 752, 79th Cong., 1st Sess. (1945) (explaining EIcction 556(d) of the APA), cited in Environmental Defense Fund v.

EPA, 548 F.2d 998 (D.C. Cir.1976T cert den. , 431 U.S. 925.

-8/ "NRC Staff's Brief in Response to the Exception of Others to the Atomic Safety and Licensing Board's Partial Initial Decisions on flan-agement and Cheating Issues," dated November 19, 1982.

. condition, and if it was so intended, to have the Order modified to re-move such limitation.

III. CONCLUSION The Staff objects to the Presiding Officer's February 27, 1986 Order inso-far as it concludes, first, that due process and the APA require the Staff to provide further formal notice to Charles Husted, and second, that the Staff must act as an advocate of the subject Appeal Board condition. The Staff respectfully requests the Order be modified or clarified to remove any such conclusions.

Respectfully submitted, e

George . Jo% son Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of March,1986 1

1

O COLMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

g gg BEFORE TIIE ADMINISTRATIVE LAW JUDGE 0FFICE U :L.: un' 00CKEIN a at Wicf.

BRANC4 In the Matter of )

)

GENERAL PUBLIC UTILITIES ) Docket No. 50-289 (CH)

NUCLEAR )

)

(Three Mile Island Nuclear Station, )

~

Unit No.1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OBJECTIONS TO REPORT AND ORDER ON INITIAL PREHEARING CONFERENCE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of March,1986:

• Morton B. Margulies

• Atomic Safety and Licensing Board

, Administrative Law Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Louise Bradford Washington, DC 20555 Three Mile Island Alert 1011 Green Street

• Docketing and Service Section Ilarrisburg, PA 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq. Washington, DC 20555 Maria C. Hensley, Esq.

Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Deborah B. Bauser, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036 George E. fohndad Counsel for NRC Staff

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