ML20154B637

Rept & Order on Initial Prehearing Conference to Determine Whether Aslab Condition Barring C Husted from Supervisory Responsibilities Should Be Vacated.Hearing Schedule for Proceeding Provided.Served on 860303

ML20154B637
Person / Time
Site:	Three Mile Island
Issue date:	02/27/1986
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	GENERAL PUBLIC UTILITIES CORP., JOINT PETITIONERS - TMI, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
CON-#186-275 85-514-02-OT, 85-514-2-OT, CH, NUDOCS 8603040353
Download: ML20154B637 (14)

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UNITED STATES OF AMERICA Ua ':

Nuclear Regulatory Commission *'

Sefere Acministrative Law Judge..y g.ay'" 3 y g' Morton B. Margulies -~

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) N BAR -31986 In the Matter of )

) Docket No. 50-289(CH)

General Public Utilities Nuclear )

Corporation )

) (ASLBP No. 85-514-02-0T)

(Three Mile Island Nuclear )

Staticn, Unit No. 1) ) February 27, 1985

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Ra:crt and Order On Initial Peehearing Conference I.

Introduction:

Sy Notice of Hearing, issued September 5,1985, the Commission crdered that a hearing be instituted to determine: (a) whether the Appeal Board's ccedition 'carring Charles Fusted from supervisory responsibilities insofar a:; ne training of non-licensed personnel should be vacatec, and (b) whether he is barred by. concerns about his attitude or integrity frca serving as. an NRC licensed operator, or a licensed operator instruct.or or training supervisor. Metropolitan Edison Comoany, et al. (Three Mile Island Nuclear Station, Unit 1),

ALAB-772,19 NRC 1193,122d (1984).

In the September 5,1985 Notice, the Ccmission directed the i

hearing to focus on whether the following four concerns regarding 860304035? e60227 PDR 0

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Mr. Husted are true, and, if so, whether they require that he not be employed in the jobs in question:

(1) the alleged solicitation of an answer to an exam question from another operator during the April 1981' NRC written

examination; i

(2) the lack of forthrightness of his testimony-before the Special Master; (3) his poor attitude toward the hearing en the cheating incidents; and (4) his lack of cocperation with NRC investigators.

This matter had its genesis in 1981 when the NRC orcerad resctor operator examinations at the facility where Mr. Hustec was a licensed operator training instructor. Questions were raised concerning his attitude and integrity as related to the testing and investication and hearing that followed. The condition barring Mr. Husted from supervisory responsiblities, insofar as the training of non-iicensed -

personnel, was imposed in an appeal of a proceeding involving the.

ability of licensee's management to operate the facility in a competent, responsible and safe manner. Mr. Husted was not a party to the proceeding leading to the limitations imoosed on his emcicyment. The '

i-j_ Appeal Board's condition has been suspended by the Commissicn during the pendency of this proceeding. Metropolitan Edison Comoany, et al. (Three l Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 317 (1985).

As to (b) above, the Licensee and the Commonwealth of Pennsylvania'

) entered into a stipulation wherein the former agreed not to employ i

{ Mr. Husted in the enumerated capacities.

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-3 Interestea parties were given an opportunity te. est i - - --

intervene in the subject proceeding. -The .'#C Staff wa; cira: tac to participate as a full party and to ensure that the reccrd is fully

. developed.

! After my accointment to hear this matter, Three Mile Isl~and Alert, 1 Inc. (TMIA) and General Public Utilities Nuclear Corporation (GPU) filed l petitions to intervene. In an order of December 6, 1985,-I found that i both petitioners satisfied standing and intarest requirements to i

participate as carties except to the extant of filing litigable i contentiens, as required by 10 CFR 2.712(b). The order. scheduled an i

j initial prenearing conference for February 19, 1986, at Harrisburg, Pennsylvania. A listing of areas to be covered at the conference was provided including deciding en the litigability of any proposed i

i contentions. Petitioners, Staff and Mr. Husted were encouraged to meet l and confer prior to the conference in order to attempt to narrow and

! simplify the issuei.

l The participants did meet in advance of the prehearing conference i

i at which time they agreed on a significant number of issues and-i .

expressed disagreement on others. Issues considered included proposed 1

contentions submitted by TMIA and GPU. A summary of the results of-the-meeting was contained in a letter which was submitted -to me in advance i of the conference. As ordered, the initial prenearing conference was i

I held on February 19, 1986 with all participants in the proceeding in i

j attendance. The planned agenda contained in the December 6 order was l

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follcwed. This Report and Order reviews the matters ccvered during the prehearing conference and sets forth .the final rulings on 'the issues considered.

II. Discussion of Rulings:

a. Following the rephrasing of TMIA's proposed contentions, it was agreed by the participants that they are litigable. The proposed contentions are:

1. The Acceal Board's condition barring Charles Husted from-supersisory responsibilities insofar as the training of 1 non-licansed perscnnel is concerned shculd c,ot be vacated by reason of his demonstrated bad attitude and lack of 4 intagrity.

2. Husted shcaid be barred from serving as an NRC-licensed ~

cperatcr or licensed operatar instructor or training supervisor by reascn of his demonstrated bad attitude and lack of integrity.

TMIA's proposed contentions make allegations in regard to matters 1

at issue in the proceeding. They are specific, adequately supported by bases and reascnably apprise Mr. Husted of what he need defend against.

They are found to be litigable contentions under the requirements of 10 CFR 2.714(b).

4 The contention proposed by GPU provides:

The conduct and attitude of Charles Husted with which GPU is

familiar indicates that the NRC should not. disqualify Mr. Husted from swerving as an NRC-licensed operator or an instructor of licensed or non-licensed personnel.

The proposed contention also goes to a matter at issue; it bears on Mr. Husted's qualifications to be employed in the jobs in question. It I

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is sufficiently precise to provide adequate notice to the parties on the l matter addressed. This contention, too, is found to be litigable.

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5 At the prehearing conference a question was raised as to whether the evidence that could be presented under the GPU contention must be limited to the time that preceded the imposition of the condition by the Appeal Board. TMIA subscribes to that position. The other parr.icipants do not. After consideration, I find that such a limitation would be excessively restrictive. Although the Appeal Board was necessarily limited to considering that which transpired prior to the time it issued its opinion, the Notice of Hearir.g calls fcr ahat is a d3 nove herming to provide "Mr. Husted with an opportunity to camonstrata 'is fi a ss for the positicn at issue." A full and fair hearing remires tha: en a matter bearing on Mr. Husted's qualifications to be ec.cicyed in the jobs in question, there be no restrictive time limitaticns on the ev%nca submitted.

b. TMIA and GPU, in submitting litigable contentions and having otherwise qualified as intervenors, are each admitted as a party to the proceeding. NRC Staff, TMIA, GPU and Charles Husted are parties to the proceeding.

c. Staff, Husted and GPU are in agreement that this prcceeding is in the nature of an enforcement proceeding and, as such, Mr. Husted shoulci not bear the burden of persuasion.

Staff differentiates this proceeding frcm the regular enforcement proceeding where the Staff is the proponent of the enforcement orcer, takes a position in favor of enforcement and bears the burden of goir.g forward with a prima facie case. Staff states that in this proceeding it is not the proponent of the order in question and its role, at least

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6 initially, is only for the purpose of developing a full record. Staff contemplates offering the prior record for itself, without requesting that it be accepted for the truth of the matter stated therein, but that the record might establish a orima facie case in support of~ the order.

Staff looks to having the record admitted provisionally, that is, subject to establishing the truth of the matters asserted therein by offering Mr. Husted and others the opportunity to call witnesses and to cross-examine those witnesses whose testimony is in the record. It is of the position that to the extent there is a proponent of the order it is TMIA.

Mr. Husted's position in the matter is that the prior proceeding was fundamentally flawed, insofar as it dealt with Mr. Husted and that what is required is a de novo proceeding, with the burden of establishing wrongdoing by Mr. Husted on the party who wants to impose the sanction.

TMIA believes the proceeding is in the nature of an appellate review and regardless of the nature of the proceeding, Mr. Husted has the burden of persuasion.

GPU is of the opinion that Staff need not put witnesses on the stand but that to avoid unfairness they must formulate a position on the issues at the same time as the other parties do. GPU further asserts that Staff does not have to be an advocate in support of or against Mr.

Husted.

The matter of deciding the nature of the proceeding and the responsibilities of the parties that result from the determination is

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1 particularly difficult. This difficulty arises frc= the way the matter evolved, and from the fact that the not ce instituting tne hearing does i

I not readily place it in the format of a typical proceeding.

This proceeding is most appropriately determined to be a hearing on i an' enforcement action. Mr. Husted is faced with the possible impcsition j of an agency sanction. A material issue for decision is whether the j Appeal Board's sanction barring Mr. Husted from employment in a  !

i particular area should be vacated.

The Cc=.ission, in effect, found the i

record before the Appeal Scard inadequata becausa Mr. Hustad was not 3 i

! party to the earlier proceeding. The Ccmi::sion again is raising the possibility of imposing the same sanction en Mr. Husted by means of the subject proceeding. Thus, the proceeding is not in the nature of an appellate review as TMIA contends because it calls for a new record l developed through a hearing de novo, The possible sanction cannot be construed to be anything other than an agency sanction. Initially, it was ir.; posed by the Appeal Board.

1 L 4 The principal issue of the subject proceeding is whether the Appeal 1

Board's sanction should be continued. When the prcceeding was  ;

instituted, the parties were but Staff and Mr. Husted. Had not TMIA' come forward voluntarily to participate in the, proceeding, the f proceeding could never be viewed as anything but an enforcement

! proceeding involving the possible imposition of an agency sancticn.

i flothing TMIA has done in participating has caused a change in the nature s[

of the proceeding. Although TMIA seeks the impositicn of the sanction, ,

TMIA's status is still that of an auxiliary participant, not the moving l

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8 party. This is not a proceeding instituted at'the complaint of TMIA so that it must assume the burden of proof in the matter.

The proceeding threatans Mr. Husted with restrictive action being taken against him and having limitations put on the kind of employment he might pursue. 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 3vMance to meet the cht ges. The Administrative Procedure A:.t.

5U.S.C.554(b)provides:

• Persons entitled to notice of an agency hearing shall be timely infor ed of -

(1) the time, place, and nature of the hearing; (2) the legal authority and jurisdiction under which the '

hearing is to be held;'and (3) tne matters of fact and law asserted.

Mr. Husted is entitled to have his due process requirements met. -

A reascnable interpretation of the Notice of Hearing is that the Ccmission intended 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 resting the due process requirements so that Mr. Husted can defend against the charges levied.

It is concluded that this was the Comission's intent in light of its statement in instituting the proceeding, "The NRC Staff is to participate as a full party, and is to ensure that the record is fully

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developed." The only other party to the proceeding was Charles Husted.

There is no party but Staff that the Commission could logically have l

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! intended to act as the proponent of the sanction and carry the l responsibilities that accompany possible agency action, including the  ;

meeting of due process requirements. Under our system of law, Mr.-

Husted, as an accused, has no initial burden to go forward and has no i burden of persuasion on the matters at issue.

Staff believes that it may submit the prior record into the record ,

of this proceeding, without requesting that it be accepted for the truth of the matter stated therein, and thus, the earlier record could The Staff's reasoning is in error. The establish a prima facie case.

Commission has already considered the record to be inadequate in that Mr. Husted was not a party to that proceeding, resulting in the subject i

proceeding. The issues in this proceeding do not permit a prima facie case to be made on evidence that not offered for its truth. What l'

Staff is proposing will not develop the record even as Staff interprets i

that requirement.

! Due process requires that Mr. Husted know in advance of the hearing l of the charges against him and the law and facts that are asserted to support the allegations. In this way he may defend against the charges.

3 In order to conduct the hearing in a fair and impartial manner and j pursuant to the Notice of Hearing, it is determined that Staff shall be ,

considered the proponent of the possible agency sanction and assume

responsibilities attendant to the moving party for the reasons stated.

] d. TMIA identified what it believes to be the key legal questions in this proceeding:

I. Did the Appeal Board in ALAB-772 have authority to impose

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the order barring Husted from supervising the training of non-licensed personnel?

II. Are the issues: (2) the lack of forthrightness of his testimony before the Special Master; (3) his poor attitude i toward the hearing on the cheating incidents; and (4) his lack i of cooperation with NRC investigators, litigable in this l

proceeding?

j TMIA asserts that Question I requires an affimative answer and is the only issue that need be decided in this proceeding. It further j believes that even if the answer were determined to be "no," the I

decision of the Appeal Board in ALAB-772 on issues (2), (3) and (4)

J constitues final agency action and is binding in this proceeding.

Staff, Husted and GPU believe Question I :s moot in light of the fact that the Ccmmission initiated this proceeding. Those parties also

, are of the opinion that the issues specified under Question II are

, litigable because the principal purpose of this proceeding is to examine these issues anew. ,

Issues involving the Appeal Board's authority as exercised in ALAB-772 will not be considered in this proceeding. The Comission in 4

CLI-85-2, supra at 317, stated it had no intention of resolving such issues but instead provided for the subject proceeding. In the Notice

! of Hearing, the Comission specifically called for the litigation of items (2), (3) and (4). The alleged solicitation of an answer to an 1

exam question frcm another operator during the April 1, 1981 NRC written examination was also clearly set out as an issue for consideration in the Notice of Hearing, and remains a viable issue. .The Commission's institution of the subject proceeding as a de novo hearing evidences its

11 determination that consideration during this proceeding of the Appeal Board's authority would serve no useful purpose. To do so would run contrary to the action taken by the Commission.

As to Question II, the record does not support the claim that tha Appeal Board's action in ALAS-772 is final agency action, bird 59 the agency. To tne contrary, the Commission has not accepted the hpe?.!

Board's action as that of the agency, but has ordered these issues to be litigated in this proceeding. I Mr. Husted would raise as a legal issue the qu3stion of at standards should be applied in determining whether he should be h emd from any of the specified positions. This is an aporopriate ie;al issue which should be addressed during the cource of the proceeding,

e. As to factual issues, Staff, GPU and Husted agree that in addition to the four issues referred to in d. above, others to be considered include: (5) What does Husted's performance of his responsibilities with GPU reflect cbout his attitude and integrity?;

(6) In light of the answers to (?) through (5), is any remedial action required with respect to Husted?; and (7) If remedial action is required, what is it? TMIA takes the position that these issues may be addressed but not relitigated. It bases its assertion on the fact that several of these matters were in the earlier proceeding, and claims that since Mr. Husted had the opportunity to participate at that time, he has waived the right to litigate these issues presently.

I find (5), (6) and (7) are appropriate factual questions to be answered by this proceeding. The Ccmmission instituted the subject

i procaeding be:ausa :'r. HL ?.=d iof c  : ,i:= i; 1 party in the prior proceeding. The No tic! 0" -o'*iag "ancatec tna t i tems II) through (a) be heard and (5) thrcugh (7) are locical extensions of those factual issues. A thorough uncerstanding of the full comple.T.ent of issues involved is necessary for a fair determinaticn in this proceeding.

f. I find the parties are correct in their conclusions that (1) I lack authority to dissolve or otherwise affect directly- the Stipulation bit.een the Lice.uae ard the Commenweal th of Pennsylvania that bars the

1. crner frca e.rploying '!r. Fusted in certain capacities and (2) I am free i

t: resolve any factual issues about Mr. Husted's attitute and integrity.

The parties' second conclusien affords the opportunity to determine whether Mr. Husted should be barred, based on attitude considerations and integrity from serving in such capacities, without regard to the existence of the Stipulation. All of the foregoing is called for by the Notice of Fear ing.

g. TFe burden of proof and of going forward are those of Staff, who is considered the proocrent of the enforcement order. It will be left to the parties to determine how intervenors should be fitted into the order of presentaticn of their cases and to what extent they are to participate. Should the parties be unable to resolve these matters, they should be raised for decision at the next prehearing conference.

4 The evidence pertaining to whether Mr. Husted should be barred from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be similar to that used to determine whether he should be barred from serving as an N?.C licensed operator,lor J =

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4 cans +d agerator instructor, or training supervisor.

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terractica! to bifurcate the hearing on the issues relating to licensed I

and non-licensed activity as suggested by TMIA because they are not  ;

, ciscrete matters. To attempt to do so would be impracticable, unwor'<able and cause undue delay.

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h. The parties were not able to reach a conclusive determination

! as to what use should be made in this proceeding of the record of the

{ prior proceedings. Should the parties be able to do so in advance of j the hearing, it wculd prove helpful . If it is not possible, fermal l rulings will le made at the hearing as the material is offered.

! i. All of the participants agree that an opportunity for +

discovery is necessary. They furthur agree that two rounds of 1 4

! interrogatories and document requests should be provided for, with the j understanding that all disccvery would be completed within two months i

j after it begins. Document production is to be made within a 14-day time l' frame. The dates reflected in the discovery schedule are receipt dates.

The discovery schedule agreed to by the parties is made subject to the ,

i understanding that any party may seek an extension of the time period '

for good cause shcwn. The schedule agreed upon is as follows:

Discovery begins March 1, 1986

Discovery is completed j.

(responses and production due) May 1, 1986 j The nature of the case makes the request for discovery and the proposed' discovery schedule reasonable. It is adopted as the' schedule l for the proceeding.

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14 The hearing schecule agreed to by the parties is li;:ewise reasonable and is adoptad as the schedule for the croceeding. It provides as follows: ,

J Final pre-hearing conference May 12, 1986 Testimcny is filed June 1, 1986 Hearing begins June 23, 1956 ORDER Based upon all of the foregoirg, it is hereby CRCERED that:

This orcar, unich inccrporatas 11; a" ..e rulings ccntained in

ection II above, shall centrol da subsecuent ccurse of the proceeding unless redified by rurther order.

Objections to this ORDER may be filec cy 3 party within five (5) days after service of the Orcer, except than the Staff may file objections withint ten (10) days after service.

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ACMINISTRATIVE LAW JUDGE i

Dated at Bethesda, Maryland this 27th day of February,1986.

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