ML20205F292

Proposed Findings of Fact & Conclusions of Law in Form of Initial Decision Re Hearing on ASLB Condition Barring Husted from Supervisory Responsibilities.Certificate of Svc Encl

ML20205F292
Person / Time
Site:	Three Mile Island
Issue date:	08/16/1986
From:	Hensley M HUNTON & WILLIAMS, HUSTED, C.A.
To:
References
CON-#386-365 CH, NUDOCS 8608190143
Download: ML20205F292 (130)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of )

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GENERAL PUBLIC UTILITIES NUCLEAR, ) Docket No. 50 ^29 (CH)

)

(Three Mile Island Nuclear Station,)

Unit No. 1) )

CHARLES HUSTED'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (SUBMITTED TO THE ADMINISTRATIVE LAW JUDGE IN THE FORM OF AN INITIAL DECISION) 8608190143 860016 9 PDR ADOCK 0500 G

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%: Qi: "V!r.l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Law Judge In the Matter of )

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

)

(Three Mile Island Nuclear Station,)

Unit No. 1) )

I.

Introduction and Background i

1. The accident at TMI Unit 2 happened on March 28, 1979. When the accident occurred Licensee, Metropolitan Edison Company,1 shut down Unit i volun-tarily. The question then became whether Unit 1 should be restarted. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1) , LBP-82-34B, 15 NRC i

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1 0n January 1, 1982, General Public Utilities l Nuclear Corporation (GPUN) replaced Metropolitan Edison l Company as' the licensee authorized to operate TMI-1.

I Tr. 786-787 (Long).

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' 1 918, 923 (1982). The Commission determined that a pub-lic hearing before an Atomic Safety and Licensing Board (the Licensing Board) was required before a decision could be reached on whether to pensit restart of Unit

1. See Metropolitan Edison, CLI 79-8, 10 NRC 141, 144-145 (1979). Such a hearing was held.

2. A short time prior to the publication of its Partial Initial Decision (PID) on restarting TMI-1, the Licensing Board learned that two TMI employees had cheated on NRC reactor operator examinations given in April 1981. Thus, when the Board issued the PID, it retained jurisdiction to consider the extent to which cheating at TMI might affect its findings on the issues decided in the PID. See Metropolitan Edison, LBP-81-32, 14 NRC 381, 403 (1981).

3. In order to deal with the cheating, the Licensing Board reopened the record in the TMI-1 restart proceeding, appointing Gary Milhollin as technical advisor, informal assistant and Special Master. See Metropolitan Edison, LBP-82-34B, 15 NRC 918, 924 (1982). The Licensing Board required that the proceeding before the Special Master deal with twelve specific issues under the following broad issue:

r % The broad issue to be heard in the reopened proceeding is the effect of the information on cheating in the NRC April examination on the management issues con-sidered or left open in the Partial Ini-tial Decision, recognizing that, depending on the facts, the possible nexus of the cheating incident in the NRC examination goes beyond the cheating by two particular individuals and may involve the issues of Licensee's management, integrity, the quality of its operating personnel, its ability to staff the facility adequately, its training and testing program, and the NRC process by which operators would be tested and licensed.

Id. at 924-26.

4. Mr. Charles Husted, the subject of the present proceeding and a former NRC licensed reactor operator and training instructor, had taken the April 1981 NRC licensing. examinations. He testified before the Special Master on December 10, 1981. See Staff Ex. 2; Tr. 601 (Husted). At the conclusion of the hearing, the Special Master concluded that Mr. Husted had solicited an answer to an NRC examination question from another operator; had not been forthright in his testi-mony denying the solicitation; had refused, at least initially, to cooperate with the NRC investigation into cheating at TMI; and had displayed an unacceptable attitude toward the hearing and NRC investigators. 15 NRC at 961, 1045-1046, 13 316-317. The Special Master, f

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however, could identify no " reliable standard" by which to judge the seriousness of Mr. Husted's conduct and thus decided that he could not recommend that Husted be removed from licensed duty. Id. at 1045-1046. He recommended but did not impose a lesser sanction.

5. Upon review of the Special Master's Report,'

the Licensing Board rejected the Special Master's con-clusion that Mr. Husted had solicited an answer to an examination question. Metropolitan Edison, LBP-82-56, 16 NRC 281, 316 (1982). It did, however, find that Mr.

Husted had refused to cooperate with the NRC investi-gators and had given the impression during his testimony that he didn't care whether he was believed.

16 NRC at 318-319. The Licensing Board did not impose a direct sanction on Mr. Husted.- Id. at 320.

6. Upon appeal of the Licensing Board decision, the Appeal Board learned that GPUN had promoted Mr.

Husted to the position of Supervisor of Non-licensed Training. It also learned of a stipulation between GPUN and the Commonwealth of Pennsylvania by which GPUN had agreed to the following:

2. Now and at any time in the future Li-censee will not utilize (.r. M Husted]

(whose attitude was criticized by the

< k ASLB) to operate TMI-1 or to train operating license holders or trainees.

3. Licensee will direct that the ASLB-mandated training audit specifically evaluate Mr. [Husted's] performance and attitudes as an instructor and Licensee will comply with the findings in a timely and appropriate manner, but in no event would Mr. [Husted] be utilized for any function specified in paragraph 2, above. Prior to the audit Licensee will continue to moni-tor Mr. [Husted's] performance and assign work consistent with that per-formance.

Metropolitan Edison, ALAB-772, 19 NRC 1193, 1222 (1984).

7. The Appeal Board questioned GPUN's judgment in promoting Mr. Husted to the position of Supervisor of Non-licensed Training. Id. at 1224. The Appeal Board required, "in addition to those commitments reflected in the stipulation with the Commonwealth and the con-ditions imposed by the Licensing Board should restart be authorized, that Husted have no supervisory respon-sibilities insofar as the training of non-licensed per-sonnel is concerned." Id. at 1224.

l 8. On September 11, 1984, the Commission took review of, inter alia, whether an adjudicatory board in an ongoing I hearing has the legal authority to impose a condition on a licensee which in effect oper-l ates as a sanction against an individual,

l where that individual is not a party to the proceeding and has had no notice of a possi-ble sanction or opportunity to request a hearing.

Metropolitan Edison, CLI-84-17, 20 NRC 801, 811 (1984);

see also Metropolitan Edison, CLI-85-2, 21 NRC 282, 314 (1985).

9. After receiving briefs from the parties to the restart proceeding, the Commission decided not to resolve the questions presented. It stated, instead, that In fairness to Husted . . . the Commis-sion has decided to provide him an opportunity to request a hearing on whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of nonlicensed personnel is con-cerned should be vacated.

Metropolitan Edison, 21 NRC at 317.

II.

- The Present Hearing

10. On March 25, 1985, Mr. Husted requested a hearing on whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be vacated. See Letter from Deborah B. Bauser to Chairman Palladino et al. (March 25, 1985). Mr. Husted

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also requested that the Commission expand the scope of the hearing ~to address whether he should be barred by concerns about his attitude and integrity from serving as an NRC licensed operator, a licensed operator instructor or a supervisor of licensed operator training. Id. at 2.

11. The Commission granted Mr. Husted's requests.

Notice of Hearing (Sept. 4, 1985). I was subsequently designated to preside over this hearing. Designation of Presiding Officer (Sept. 12, 1985).

A. Parties.

12. There are four parties to the present pro-ceeding: Mr. Husted, NRC Staff (Staf f) , and Inter-venors Three Mile Island Alert (TMIA) and GPUN. Both TMIA and GPUN were found to have filed litigable con-l tentions that bear upon one or more of the matters at issue. See Report and Order on Initial Prehearing Con-ference at 4 (Feb. 27, 1986); Supplement to TMIA's Request for Leave to Intervene in the Hearing Granted Charles Husted (Jan. 9, 1986); GPU Nuclear Corporation's Supplement to its Petition to Intervene l

l (Jan. 10, 1986).

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. s 13. TMIA supports imposition of the Appeal i

Board's order, contending that it should not be vacated  !

"by reason of [Mr. Husted's] demonstrated bad attitude and lack of integrity." Report and Order on Initial Prehearing Conference at 4. TMIA also contends that Mr. Husted should be barred from serving as an NRC-licensed operator or licensed operator instructor or training supervisor by reason of his demonstrated bad attitude and lack of integrity.

Id.

14. GPUN opposes imposition of the Appeal Board's order and opposes restrictions upon Mr. Husted's em-ployment, contending that The conduct and attitude of Charle Husted with which GPU Nuclear is famil. .

indicates that the NRC should not disqualify Mr. Husted from serving as an NRC-licensed operator, an instructor of licensed or non-licensed operators or a supervisor of operator training personnel.

I GPU Nuclear Corporation's Supplement To Its Petition to Intervene at 1 (January 10, 1986).

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15. Staff's position is more fully set forth in paragraph 25.

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_9 B. Factual scope of hearing.

16. The first four of the following factual questions were required to be heard by the Commission's Notice of Hearing; the latter three were adopted by the parties, with my approval, as within the scope of this hearing:

(i) Did Husted solicit an answer to an exam question from P [ David Janes) during the April 1981 NRC examination?

(ii) Did Husted's testimony before the Special Master lack forthrightness?

(iii) Did Husted have a poor attitude toward the hearing on the cheating incidents?

(iv) Did Husted fail to cooperate with NRC investigators?

(v) What does Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity?

(vi) In light of the answers to (i) through (v), is any remedial action required with respect to Husted?

(vii) If remedial action is required, what is it?

See Report and Order on Final Prehearing Conference at 6 (May 27, 1986); Notice of Hearing at 2; Report and Order on Initial Prehearing Conference (Feb. 27, 1986).

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. t C. Miscellaneous legal matters.

17. The nature of the present proceeding gave rise to several questions that I directed the parties .

to address at the initial prehearing conference. See Memorandum and Order at 5 (Dec. 6, 1985). These issues included defining the nature of the proceeding, estab-lishing who would have the burdens of proof and of going forward, and identifying key factual and legal issues. See id. at 5-6. The parties met prior to the February 19 prehearing conference. Their views on the issues were embodied in a letter sent to me by Mr. Husted's counsel.

18. The parties disagreed over the nature of the I proceeding. Mr. Husted, NRC Staff and GPUN viewed this proceeding as being in the nature of an enforcement action. TMIA disagreed, arguing that it was in the l

nature of an appellate review. See Letter from Michael l

W. Maupin to Hon. Morton B. Margulies at 4 (Feb. 17, l

1986); Tr. 17 (Bradford). Consistent with its opinion on the nature of this proceeding, TMIA believed that the only issue to be decided was a legal one, i.e.,

I whether the Appeal Board in ALAB-772 had the authority l

l to impose the order barring Mr. Husted from supervising l

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o- the training of non-licensed personnel. See Letter at 4; Tr. 4 (Bradford) .

19. The Notice of Hearing does not readily place this proceeding in the format of a typical proceeding.

Given that Mr. Husted is faced with the possible impo-sition of an agency sanction, I detennined that the proceeding is most like a hearing on a proposed enforcement action. Report and Order on Initial Prehearing Conference at 7. I also determined that the proceeding called for a de novo hearing and the development of a new record. As stated in Report and Order on Initial Prehearing Conference at 7:

Mr. Husted is faced with the possible imposi-tion of an agency sanction. A material issue for decision is whether the Appeal Board's sanction barring Mr. Husted from employment in a particular area should be vacated. The Commission, in effect, found the record be-fore the Appeal Board inadequate because Mr.

Husted was not a party to the earlier pro-ceeding. The Commi3sion again is raising the possibility of impcsing the same sanction on Mr. Husted by means of the subject proceed-ing. Thus, the proceeding is not in the na-ture of an appellate review as TMIA contends because it calls for a new record developed through a hearing de novo.

20. On March 4, TMIA moved the Commission to dis-miss the Notice of Hearing, arguing, inter alia, that the only issue to be resolved was legal, not factual.

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TMIA's Motion to Dismiss and For Stay at 1-2 (Feb. 28, 1986). The Commission denied TMIA's motion, stating:

TMIA misconstrues the Commission's deci-sion to provide Mr. Husted a hearing. As explained in CLI-85-2, the Commission decided not to resolve the difficult questions re-garding whether Mr. Husted was legally enti-tied to an opportunity for hearing because, among other things, in fairness to Mr. Husted it was of fering him an opportunity to request a hearing. 21 NRC 282, 316-17 (1985). The focus of this hearing is not a legal one, but rather a factual determination of whether the Appeal Board's condition should remain in place. This determination, unlike that made in the TMI-1 restart proceeding, will be made after Mr. Husted has had a full opportunity to participate in the hearing.

Order at 2 (March 20, 1986) (footnote omitted).

21. Closely related to the issue of the nature of the proceeding was the issue of allocating the burdens of persuasion and going forward with the evidence on the factual issues. Mr. Husted, Staff and GPUN all agreed that Mr. Husted did not bear the burden of per-suasion or, at least initially, the burden of going forward with the evidence on any issue. See Letter from Michael W. Maupin to Hon. Morton B. Margulies at 5 Tr. 41-42 (Johnson).

(Feb. 17, 1986); see, e.g., Staff took the position that it did not bear the burden of persuasion; it was participating solely for the purpose of insuring the development of a full record. Staff i

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o i l argued that since TMIA sought the imposition of an agency sanction, TMIA should bear the burden of going forward with the evidence against Mr. Husted. Letter at 5; see Tr. 33, 43-44 (Bradford-Johnson). TMIA sought to place the burdens of persuasion and presenting evidence on Mr. Husted. Letter at 5; seg, e.g. Tr. 38, 44 (Bradford) .

22. In Report and Order on Initial Prehearing Conference, I ruled that by directing Staff to ensure full development of the record, the Commission intended Staf f to fulfill the role of proponent of the sanction and to assume the burdens that go with 1.t, including the burden of going forward, the burden of persuasion and the burden of meeting the due process requirements embodied in the Administrative Procedure Act. 5 U.S.C.

S 554 (b) . Report and Order at 8.

23. Staff objected to being placed in the role of 3

proponent of the Appeal Board action. NRC Staff Ob-jections to Report and Order on Initial Prehearing Con-ference at 2 (March 14, 1986). Upon reconsideration, I l

ruled that NRC case law provides no authority that would support an order assigning Staff a specific posi-tion in the proceeding. See New England Power Co.

(NEP Units 1 & 2) , LBP-78-9, 7 NRC 271, 279-80 (1978).

The requirement that Staff act as the proponent of the Appeal Board's order was eliminated. Ruling on Staff Objections to Prehearing Conference Order at 4 (March 26, 1986).

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24. In the Ruling on Staff Objections to Prehear-ing Conference Order, however, I held that Staff was required at the hearing to go forward with the presen-tation of a record on which the Appeal Board' s condi-tion could be judged. Id. at 4. Staff was further di-rected to take a position on whether the Appeal Board's condition should be vacated and to make that position known seven days prior to the start of the hearing.

Id. at 6. Consistent with the characterization of this hearing as an enforcement-type proceeding, I held that Mr. Husted was not to have the burden of persuasion or, at least initially, the burden of presenting evidence on any of the matters at issue. Id. at 4.

25. On June 12, Staff notified the parties and me that it favored vacating the Appeal Board condition that Mr. Husted have no supervisory responsibilities insofar as the training of non-licensed personnel is

• concerned. Letter from George E. Johnson to Morton B.

Margulies, Esq. (June 12, 1986).

D. TMIA's Motion to Subpoena Gary Milhollin.

26. On June 5, 1986, TMIA filed an Application for Issuance of Subpoena to Gary L. Milhollin, the Special Master in the reopened hearing on cheating, seeking to compel his appearance and testimony on issues in the present proceeding. By telephonic order of June 9, I directed TMIA to address the adequacy of its notice, in the context of this proceeding; the general relevancy of the testimony sought; and whether its request met the requirements of 10 C.F.R.

S 2.720 (h) (2) (i) for subpoenaing NRC personnel. Any party desiring to do so was permitted to respond to TMIA by June 23, the first day of the hearing. Order (Resulting from June 9, 1986 Telephone Conference Call)

(June 10, 1986).

27. On June 13, 1986, TMIA filed a Brief in Sup-a port of Application for Issuance of Subpoena addressing the issues set forth in the June 10 order. Mr. Husted, Staff and GPUN filed timely responsive briefs

( requesting that TMIA's application be denied.

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28. After considering the parties' arguments, I-denied TMIA's application for issuance of a subpoena to Mr. Milhollin. I based this ruling on several grounds.

First, TMIA's application did not afford sufficient

! notice to the parties in the context of this proceed-ing. See Tr. 324-325 (Margulies). Second, TMIA's ,

brief msde it clear that it sought to probe Mr. Milhollin's mental processes in support of his findings and con-clusions. To allow TMIA to do so would run afoul of the well established bar against requiring one acting in a quasi-judicial capacity to testify as to the bases or analyses h'e used in reaching a decision. See United States v. Morgan, 313 U.S. 409 (1940); United States l

v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977); Standard Packaging Corporation v. Curwood, Inc., 365 F. Supp.

134, 135-36 (N.D. Ill. 1973); see also Tr. 326 (Margulies). Third, allowing Mr. Milhollin to testify would violate the basic concept of this de, novo hearing. Tr. 326 (Margulies). Finally, TMIA failed to show that Mr. Milhollin had direct personal knowledge i

> of a material fact not known to other available wit-nesses. It did not, therefore, meet the exceptional circumstances requirement of 10 C.F.R.

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• S 2.720 (h) (2) (i) , which governs subpoenaing NRC 1

personnel. Tr. 325-326 (Margulies). l E. The hearing.

29. The evidentiary hearing was held in Harris-burg, Pennsylvania on June 23 through 26 and July 1, 1986. Thirteen witnesses appeared, twelve of whom sub-mitted prefiled testimony. See Appendix A. The Ex-hibits admitted into evidence are described in Appendix l

B hereto.

III.

< The Cheat.ing Episode

30. During the period April 21 through 24, 1981, the NRC administered reactor operator (RO) and senior reactor operator (SRO) examinations to a total of 36 TMI employees. Husted Ex. 26 at 1. These examinations were given in connecticn with the proposed restart of TMI Unit 1. Id. During the grading and review of the j examination results in July 1981, marked similarities i

i were found in the essay-style answers submitted by two l

I

A of the examinees, designated O and W.2 Id. An investi-gation was conducted by'NRC's Office of Inspection and Enforcement (OIE) to determine whether cheating or col-lusion had occurred between 0 and W and whether there was evidence of similar improprieties by other indi-viduals who had taken the examination. Id. Mr. Husted was interviewed on July 29, 1981. Baci, ff. Tr. 214, Att. 2 at 39. The results of this first round of investigations are set out in Husted Exhibit 26. A thorough analysis and comparison of O's and W's RO and SRO examinations confirmed the existence of numerous examples of similarities in their written responses which indicated that they had conspired to cheat on l both exams. Husted Ex. 26 at 1. Further, an analysis I

of Company "mcck" RO and SRO examinations administered on April 2 and 3, 1981 disclosed additional l

similarities in the answers furnished by the two l

individuals in question. Id.

l 2 The two individuals' names are apparently protected from disclosure to the public under an I ongoing confidentiality agreement. See Tr. 452-53 l (Maupin-Margulies) .

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31. After completing the first round of investi-gations and publishing its report on the results, OIE undertook additional interviews of TMI personnel.

Mr. Husted was interviewed a second time on September 18, 1981. Husted, ff. Tr. 330 at 14.

IV.

Solicitation of an Answer to an Examination Question During the April 24, 1981 Examination

32. Mr. David Janes, a TMI Unit 1 shift super-visor, was interviewed by senior NRC investigators Ward and Baci on September 25, 1981. Ward, ff. Tr. 140 at 2-3.

33. Mr. Janes took.the Senior Reactor Operator examination on April 24, 1981. Janes, ff. Tr. 278 at

1. The only other examinee in the room with Mr. Janes was Mr. Husted. Id. An NRC proctor was in the exami-nation room from time to time. Id.

34. In his appearance before the Special Master in 1981, Ward testified that Janes, during his September 25, 1981 OIE interview, had told Ward and Baci that Husted had asked Janes during the April 24, 1981 examination a question "related to the exam."

Ward, ff. Tr. 140, Att. 2 at 25,462-63. Before me, Ward testified that he believed his 1981 testimony to be an accurate record of what transpired at his inter-view with Janes. Ward, ff. Tr. 140 at 4. According to Ward, Janes expressed anger during the interview about the periodic absence of the NRC proctor from the April 24 examination room. Ward, ff. Tr. 140, Att. 3 at 40.

Janes believed that the proctor's absence had put Janes in a position where he could have been asked for help.

Id.; Ward, ff. Tr. 140, Att. 2 at 25,462. Mr. Ward was struck by the strength of Janes's feelings on the sub-ject, and it occurred to Ward that Janes may in fact have been asked for help on the examination by Husted.

Ward, ff. Tr. 140, Att. 2 at 25,462. Relying on an l

l investigative " hunch" or "a feeling," Ward then said to Janes something to the effect that it was rather evident from [ Janes's] attitude and his . . . " anger," that something happened that Mr. Husted obviously asked you a ques-tion.

I believe the response to that was, only one, or words to that effect.

Tr. 149 (Ward). Putting it another way, Ward testified that he said to Janes i

we knew [Husted] had asked the question, and [ Janes] said well, he only asked one question . . . .

Ward, ff. Tr. 140, Att. 2 at 25,463. In fact, Mr. Ward knew no such thing. Baci, ff. Tr. 214 at 3. Ward was simply employing an investigative " ploy." Id.

35. Mr. Baci also testified about the alleged Janes disclosure. Baci said that Janes acknowledged in response to the Ward ploy that Husted had indeed asked a question during the April 24, 1981 examination. Id.

36. Mr. Husted categorically denied that he asked Mr. Janes during the April 24 examination a question about the examination. Husted, ff. Tr. 330 at 3. In-deed, he said that he did not speak to Janes during the examination. Id. Husted said, however, that he did speak aloud at one point during the examination. Id.

He testified that on reviewing an examination question on thermodynamics for which he had not prepared himself or his students, he became upset. Id. at 3-4. He said aloud words to the effect "What the hell is this?" Id.

at 4. Husted said that he did not direct the remark to anyone or mention the substance of the question that had upset him. Id.

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37. Mr. Janes testified (a) that he did not tell Ward and Baci during the September 25, 1981 OIE inter-view that Husted had asked him a question during the April 24' examination and (b) that in fact Husted did not speak to him during the examination. Janes, ff.

Tr. 278 at 2. Janes testified that Ward's testimony on this subject must have been based on a misunderstanding of the answers Janes had given during the September 25, 1981 interview. Janes, ff. Tr. 278 at 2-3. Janes also offered several explanations as to how the misunder-standing might have occurred.3 Janes, ff. Tr. 278 at 3-6; Supp. 1-2.

3 First, Janes thought he was asked during the interview what he would have done if Husted had asked a question during the exam and that he answered: "Only one question? I wouldn' t answer." Janes, ff. Tr. 278

at Supp. 1-2. Janes believes that the investigators l

may have mistaken Janes's answer to this hypothetical question as an indication that Husted had in fact asked l a question. Id. Janes also testified that he had discussed with the investigators hearing " groans or exclamations" during the examinations. Janes, ff.

Tr. 278 at 5-6. Janes said it is " extremely possible" that he discussed Husted's exclamation, referred to in paragraph 40, supra, with the interviewers. Based on the testimony of all four witnesses, I believe it is likely that the Husted exclamation is what was discussed during the Janes interview. Mr. Ward conceded that such an exclamation would not be an attempt at cheating. Tr. 200 (Ward).

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38. Thus, Ward and Baci have attributed to Janes the statement that Husted asked Janes a question during the April 24, 1981 examination. Janes and Husted deny that Husted did so. In my view it is not necessary to decide which testimony is correct. Even if it is assumed for the sake of argument that Husted asked a question aloud during the April 24, 1981 examination, it has not been shown by a preponderance of the evi-dence that Husted solicited an answer to an examination question from Janes. Indeed, as is shown in the following paragraphs, the preponderance of the evidence supports the conclusion that Husted did not seek help from Janes'on the examination.

39. As I have said, Janes and Husted testified that Husted did not seek Janes's help on the-April 24, i

1981 examination. See paragraphs 36-37, supra.

40. Mr. Baci, though insisting that Janes said Husted had asked a question during the examination, testified that Janes said the question "may very well i

have been rhetorical in nature." Baci, ff. Tr. 214 at l 4. Mr. Baci said Janes could not remember the exact question Husted was said to have asked. Tr. 267 i

(Baci). It was Baci's impression that the question was

to the effect "what the hell is this?" or "where did this come from?", Tr. 250 (Baci) , or "what does this mean?" or "what the heck is this?". Tr. 268 (Baci) .

Mr. Baci was careful to avoid calling the alleged ques-tion a " solicitation;" he said in fact that he would not use the word " solicitation" to describe the ques-tion allegedly asked by Husted. Tr. 271 (Baci). Baci also said that Janes did not characterize the question as "a solicitation or somebody asking a specific ques-tion, you know, relative to the examination." Tr. 267 (Baci). Most important, Mr. Baci testified that, in his opinion, there is not a sufficient basis to support an allegation that Mr. Husted solicited an answer to an examination question from Mr. Janes. Baci, ff. Tr. 214 at 7.

41. Mr. Ward testified that he had asked Janes to explain the alleged question and that Janes had said it i was "more like an exclamation." Tr. 149 (Ward). Ward said it was not clear to him in 1981 and is not clear to him now whether Husted's statement was an exclama-tion or actually a question directed to Janes. Id.

( Mr. Ward also testified, however, that, based on his l recollection of the Janes interview, "some sort of l

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solicitation" had been made by Husted during the April 24, 1981 examination. Ward, ff. Tr. 140 at 5. But Mr.

Ward said that he could not recall whether he believed in 1981 that Husted had actually attempted to obtain assistance on the April 24, 1981 examination. Id.

Mr. Ward also explained just how he used the word

" solicitation" in his testimony:

I think that why we may be caught up with (the word] " solicitation" is that it carries freight that I didn't intend it to mean, perhaps more of a legal connotation if not social. I meant to capture the fact that I felt that there was a question asked and whether or not an answer was expected, I am not now certain. But I am convinced that a question was asked. In that sense,

. that is how I defined " solicitation" when I used it.

Tr. 200 (Ward).

42. Most important, Mr. Ward testified that, assuming Husted asked a question during the April 24, l

1981 examination, Mr. Ward did not know in 1981 what i

that question was and does not know how. Tr. 189 (Ward). Without knowledge of the content of the alleged question, I can hardly conclude that it was designed to elicit help.

43. To summarize, there is conflicting testimony about whether Husted asked a question during the j

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. o April 24, 1981 examination. There is, however, no reasonable basis for finding that Mr. Husted sought help on the examination from Mr. Janes, and I find that he.did not.

44. Before leaving this subject, I should make an observation that I shall have occasion to return to during the course of this Initial Decision. The in-vestigation undertaken by OIE in the wake of the TMI cheating episode had potentially serious implications for all of the TMI employees involved. Inaccuracies in the reports of the interviews would pose, at the very least, the threat of significant damage to the repu-tations of persons discussed in the interviews, and the investigators recognized this danger. Tr. 196-197 (Ward); Tr. 263-264 (Baci). Yet, in connection with the Janes interview, Mr. Ward kept at best fragmentary notes. Tr. 144, 198 (Ward). Mr. Baci kept only sketchy notes, contrary to his usual practice, see Tr.

263 (Baci); his did not mention the allegation about Husted that Janes is alleged to have made. Tr. 265 (Baci). The official report of the interview does not mention the alleged Janes report about Husted. See Ward, ff. Tr. 140, Att. 3 at 40-41. No tape recording

or verbatim transcript was made of the interview.4 Tr.

265-66 (Baci). Mr. Janes was not given an opportunity to review and approve the accuracy of a report of the interview. See Tr. 182-183 (Ward). Mr. Janes attended the interview alone and thus is in a position where it is "his word against theirs," and there were two of "them." I am not in a position nor would I wish to suggest how OIE should conduct its interviews. I would observe though that where, as in the case of the Janes interview, material ambiguities are present-that OIE could have avoided by making an accurate record of the proceedings, I am inclined to resolve those ambiguities against OIE.

45. One final matter on this issue. A good deal was made~in the Special Master's Report about precisely when Mr. Janes became angry about the absence of the

(

Mr. Baci testified:

l

. . . Now, if you are asking me if it

. would be better to have a word-for-word l transcript, I would have to say yes.

Almost in every instance in life, it is better to know word for word what somebody said so there can be no confusion. . .

Tr. 274 (Baci).

i

\

NRC proctor from Mr. Janes's examination room on April 24, 1981. I questioned Mr. Janes on this score at a

length. See Tr. 302-304. I find that on April 24, 1981, during the SRO examination, Mr. Janes was troubled by the proctor's absence in only one respect:

when Mr. Janes needed to consult the proctor on one occasion during the examination, the proctor was gone.

Tr. 304 (Janes). The possibility that he might be accused of cheating, however, did not occur to Janes on April 24, 1981, Tr. 303 (Janes) ; that occurred to him only after the OIE investigation had begun in late July 1981. Janes, ff. Tr. 278 at 4. When the investigation began, everyone on Janes's shift except Janes was in- ,

terviewed promptly, and for a short time Janes feared

. that he might be the subject of the investigation. Id.

When this fear arose and Janes reflected on the proc-tor's absence from the room on April 24, 1981, he was i at a loss as to how to prove, if it should become t

necessary, that he had not cheated on the examination.

l l Id. This concern, and his fear that the April 24, 1981 SRO examination would be invalidated, is what made him

" angry." Id.; see Ward, ff. Tr. 140, Att. 3 at 40. In i fact, the examination was invalidated and had to be i

1 .___ _ _ _ - . _ _ .. _ . ___..___._ _ _ _ _ _ _ __

l l

retaken. Husted, ff. Tr. 330 at 11-12; Tr. 874 (Newton) . I find Mr. Janes's explanation entirely l i

plausible and straightforward. )

V.

Forthrightness of Husted's Testimony Before the Special Master

46. The Special Master and the Licensing Board found in 1982 that Mr. Husted's testimony before the Special Master was not credible in certain respects.

15 NRC at 960-61; 16 NRC at 318. For our purposes, the issue that arises from those findings has been posed by the Commission in terms of " forthrightness." "Forth-right" literally defined, means " going straight to 'the point." Webster's Ninth New Collegiate Dictionary 486 (1985). Given the serious restrictions on Mr. Husted's job opportunities that are the focal point of this pro-ceeding, I believe that the appropriate incuiry ought to be whether Mr. Husted attempted to be truthful in his testimony before the Special Master, and that is how I shall construe and resolve this particular issue.

First, I will describe the 1981 testimony by Mr. Husted that was found to be incredible; I will deal briefly with his testimony about the " solicitation" issue and

then at greater length with his testimony about his ,

1981 OIE interviews. Second, I will review the evi-dence in this proceeding that deals with Husted's 1981 OIE interviews and his 1981 testimony. Third,,I will set out my findings on this issue.

A. Husted's 1981 testimony about the alleged solicitation.

47. The Special Master had before him on the question of solicitation what he viewed as the con-flicting testimony of Janes and Husted, on the one hand, and Ward, on the other. ,

15 NRC at 957-58. The Special Master resolved the conflict by determining 1

that the testimony of Janes and Husted on the solicita-tion issue was incredible. Id. at 959, 961. Thus, he concluded that Husted had sought help from Janes on the April 24, 1981 SRO examination. This necessarily implied that Husted had not testified truthfully about the alleged solicitation. In determining, for purposes of resolving the solicitation issue, that Husted was not a credible witness, the Special Master relied on his conclusions that Husted had " refused to cooperate with the NRC investigation," did not like the way the NRC investigation was conducted and had displayed a t

I

generally " flippant demeanor" on the stand. Id. at 1045. In assessing Husted's credibility, the Special Master also relied on the conclusion that Husted had deliberately withheld information about a " passing papers" comment until his second NRC interview. Id. at 961, 1045. All of these subsidiary conclusions involve matters relevant to other issues in this proceeding, that I have addressed below in this Initial Decision.

I repeat, however, the Special Master relied on them solely as a basis for disbelieving IIusted's testimony that he had not sought Janes's help on the April 24, 1981 SRO examination. I have found, however, that Husted did not solicit Janes's help on the SRO examination. I conclude, then, that with respect to the subject of solicitation, Husted testified truth-fully before the Special Master, and I reach this con-clusion without regard to Husted's attitude toward the NRC investigation or the Special Master hearing and without regard to what he said on any other subject.

B. Ilusted's 1981 testimony about his NRC interviews.

48. The Licensing Board found incredible Mr. Ilusted's attempt "to explain his first refusal to 1

1

i answer the questions of the NRC examiners and his claim that he later remembered some information." See 16 NRC at 318. The Licensing Board also seems to suggest that Mr. Husted withheld information from NRC during a second interview on September 18, 1981. See 16 JRC at 319. It found: ". . when he provided some informa-tion, he continued to withhold information within his knowledge; and he provided an incredibly inconsistent account of his reasons during the (Special Master]

hearing." Id. at 319. Presumably "some information" is the " passing papers" comment discussed beginning at parag'raph 61. I shall summarize the testimony that troubled the Licensing Board and then review the testi-many in the record before me that goes to the issue of the truthfulness of that testimony.

49. The testimony by Mr. Husted that concerned the Licensing Board was elicited by Mr. Adler of the Commonwealth of Pennsylvania on cross-examination. The testimony dealt principally with the two interviews of Mr. Husted conducted by OIE, one on July 29, 1981 and the other on September 18, 1981. The OIE report of Husted's first interview (the First Report) la Attach-ment 2 to Mr. Baci's profiled testimony. Baci, ff. Tr.

- - -- - -,.. , - _ . _.-.- ._-_. ._. ._._.._ ._ . y_ _.- _ _._____ . - _ . . _ . . _ . . _ . , _ _ . . . . _ _ . _ . .

214, Att. 2 at 39. The OIE Report of the second Husted interview (the Second Report) is attached to the pre-filed testimony of Mr. Matakas as Attachment 4.

Matakas, ff. Tr. 406, Att. 4 at 16.

50. In his testimony before the Special Master, Mr. Husted began by conceding the accuracy of the First Report, with only this exception: Husted pointed to the first line of the fourth paragraph of the First Report and noted the failure of OIE to report his statement that he had seen no material brought into "the exam rooms where (hel took the exam." See Staff Ex. 2 at 26,912-14. Mr. Husted then conceded the accuracy of the.Second Report. Staff Ex. 2 at 26,914-15. He was then isked about a conversation he had overheard shortly after the April 1981 exams, and described during the second interview, involving the words " passing papers." See Staff Ex. 2 at 26,924.

Next he was asked whether the " passing papers" comment was the " unconfirmed hearsay" referred to in the fourth paragraph of the First Report, and he said it was. See t

Staff Ex. 2 at 26,928. Husted was then referred to the same paragraph of the First Report and asked why he had failed to reveal rumors of cheating. He gave an answer

_34_

that the Licensing Board termed "not believable." 16 NRC at 318. He said:

I did not like the way the investi-gation was conducted. I did not like the questions that were being asked. They were so broad and vague that I could not give a specific answer. And I think out of lack of anything other to say, I just told them that I did not want to answer the question.

I could not remember any specific instances of rumors that were told me spe-cifically concerning any specific things that could have gone on during the exami-4 nation.

Staff Ex. 2 at 26,929. Mr. Husted repeated that he had not provided information concerning potential cheating during the first interview "because [hel did not have any information." Id. Husted was then asked this question and gave this answer:

Q. So between July 29 and September 18, which are the two dates of your interviews, you recalled with greater detail the specifics of the rumor you had heard? Is that your testimony?

A. Not exactly, no. At the interview in July I did not remember any specific rumors of cheating. During the July inter-view and the September interview, I deter-mined that it is possible or that it had been possible that the two words that I had heard, ' passing papers,' could have been referring to passing papers during the exam.

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And during the second interview in September I indicated that to the gentleman that interviewed me.

Staff Ex. 2 at 26,930.

51. Mr. Husted testified before me, without being contradicted, that the word "During" in the answer set out above should have read "Between," Husted, ff. Tr.

330 at 24, and in the context of the testimony I believe his observation is correct. See Staff Ex. 2 at 26,931, lines 2-4. Mr. Husted's answer, quoted above, contradicted both (a) his earlier concession that the First Report was accurate in stating that he had heard rumors but failed to disclose them and (b) his prior statement that the " unconfirmed hearsay" in the First Report and the " passing papers" remark in the Second Report were the same; the examiner recognized this.

See Staff Ex. 2 at 26,930. The examiner asked Husted why he had given the prior inaccurate testimony; Husted i said "I do not know." Staff Ex. 2 at 26,930-31.

52. As I said in paragraph 48, supra, the Licens-ing Board also seems to suggest that Husted did not tell everything he knew about the " passing papers" comment during the second interview. Husted testified in 1981 that he had heard only the two words " passing

• . papers." Staff Ex. 2 at 26,924. He had overheard them "between the coffee pot and the men's room" in the TMI training center as he walked by. See Staff Ex. 2 at 26,924-25. Husted said "What papers, what time, during an exam or not during an exam, I do not have any idea what they were talking about." Staff Ex. 2 at 26,924.

53. Before assessing the truthfulness with which Mr. Husted gave the testimony described in paragraphs 50-52, I must review the testimony in the record before me, beginning with the two OIE interviews of Husted.

C. Husted's first NRC interview: the present record.

. 54. On July 29, 1981, Husted was interviewed by R. Keith Christopher and Raymond H. Smith of OIE.

Baci, ff. Tr. 214, Att. 2 at 39. Paul G. Christman, Manager, Plant Administration, TMI Unit 1, accompanied Husted. Id. OIE published a report of the interview, which I refer to in this Initial Decision as the First Report. The important part of the First Report, for i

our purposes, says

DD was queried concerning the possibility of reference material being covertly brought into the classroom by exuminees.

However, for unknown reasons, he declined to respond to this question or explain his reluctance to discuss this issue. He was l

also asked whether any rumors or comments regarding instances of cheating on the exams had come to his attention. He acknowledged that he had heard rumors to this effect which he labeled as "uncon-firmed hearsay." However, DD refused to reveal any specifics of the rumors he had heard or to identify the individuals (if named) who were allegedly implicated. Upon further attempted questioning, DD declared he could not recall anything concerning what he had heard.

Baci, ff. Tr. 214, Att. 2 at 39. "DD", of course, refers to Husted. This is the First Report, whose accuracy Mr. Husted conceded before the Special Master.

55. Mr. Husted has testified in this proceeding, however, that the First Report is incomplete or inaccu-rate in several respects. Insofar as the " forthright-ness" issue is concerned, there are three important respects in which Husted challenges the First Report's accuracy. First, Husted testified that he was asked by the interviewers whether he had "any knowledge of cheating" and answered "no." Husted, ff. Tr. 330 at 8.

Second, Husted testified that he does not recall hearing or using the words " unconfirmed hearsay"; he is certain he would not have originated those words. Id.

at 10. Third, Mr. Husted does not believe that he acknowledged during the first interview having heard any rumors of cheating. Id. at 9-10.

56. Mr. Christman, it transpires, also took notes of the July 29, 1981 interview of Husted, see Husted Ex. 1, and his notes support Husted's testimony about the incompleteness or inaccuracy of the First Report.

In pertinent part, the Christman notes say Mr. DD stated he has no opinion of whether the layout of the classroom is conducive to cheating. He responded no when he was asked whether he had any knowledge of cheating.

He refused to answer a question about whether he had heard any rumors or gossip in '

regards to cheating on the April examina-tions. When he was asked this question i again, he answered that he cannot recall having heard any rumors or gossip in regard to cheating on the April examinations.

Husted Ex. 1 at 3.

57. Mr. Christman testified at the hearing. He I

said that while he recalls very little about Husted's first interview, he remenbers making notes during the s

interview and preparing a handwritten draft of Husted Exhibit 1 promptly upon returning from the interview.

Christman, ff. Tr. 351 at 2. He expressed confidence that Husted Exhibit 1 is an accurate report of his per-ceptions of what was said and done during the inter-

, view. Id. at 3. Christman testified further that he thought it unlikely that there were important matters discussed in the interview that ha did not record. Tr.

t

379 (Christman). Mr. Christman stood cross-examination and was examined by me.

58. Mr. Baci sponsored the admission of the First Report into evidence. Baci, ff. Tr. 214 at 2. He did so, however, because he had assembled the summaries of interviews into the Staff's Report of its first investigation. Id. He was not at the interview, see id., and he did not prepare the First Report, Tr. 216 (Baci). The two interviewers were Raymond Smith and Keith Christopher. Smith was ill and did not appear before me as a witness. See Tr. 402 (Johnson).

Christopher appeared but had no useful testimony to supply. It is a fair characterization to say that he remembered nothing about the interview. Christopher, ff. Tr. 386 at 1-6. He did not even recall inter-viewing Husted. Id. at 2. He only assumed that he took notes, and he did not know whether Smith took notes of the Husted interview. Id. at 5; Tr. 391 (Christopher). In any event, Christopher now has no such notes. Chtistopher, ff. Tr. 386 at 5. He did not know who prepared the First Report, id._ at 6, but he believes based upon its style that he did not write it.

Tr. 388 (Christopher). Thus, Christopher could not

=

• verify that the First Report was accurate. Tr. 397 (Christopher). No one could. i

59. Here, as in the case of Janes, Ward and Baci, we have conflicting reports on the content of an NRC interview, an interview with important implications for an individual's employment rights and reputation.

Again, the ambiguities could have been avoided, cer-tainly in large measure, if OIE had maintained a ,

verbatim record of the first Husted interview or secured a signed statement from Husted. In this instance, OIE can shed no light whatever on the sub-stance of the interview beyond supplying the First Report itself.

60. Accordingly, I find that it has not been shown by a preponderance of the evidence that the fourth paragraph of the First Report is an accurate report of that portion of the first Husted interview.

! It has been shown by a preponderance of the evidence that Husted Exhibit 1 is an accurate report of that portion of the interview. I find, therefore, that (a) i Husted was asked whether he had any knowledge of cheating on the April 1981 NRC examination at TMI and answered "no", (b) the term " unconfirmed hoarsay" was

l I

not used during the interview and (c) when asked whether he had heard any rumors about cheating on the April examinations, Husted first refused to answer and then said he could not recall hearing any. I find that Husted did not acknowledge during the first interview that he had heard rumors of cheating on the exams.

D. Husted's second NRC interviews the present record.

61. Mr. Husted's second OIE interview occurred on September 18, 1981. See Matakas, ff. Tr. 406, Att. 4 at 16. The only persons present were Husted and the interviewer, Richard Matakas. Id. The important part of the interview, for present purposes, is set out in the Second Report as follows:

DD was asked to clarify what he meant by

' unconfirmed hoarsay' in his previous statement. He stated that he did hear one comment mado during the time period of the NRC RO/SRO exams where someone (he did not recall who) said they saw someone (the-unidentified person did not say who) passing papers in the exam. DD stated he heard the comment in the area near the coffee pot and men's room in the trailer that was located between the two class-rooms. He said he personally did not have any knowledge regarding either reference material or crib sheets being taken into the NRC exams and that he did not know if the above mentioned comment relating to

' passing papors' was being directed at him or not; further, he did not know if the

• person was referring to the NRC exams or some other exam.

Id. Taken at face value, the Second Report would indi-cate that Husted had thought of the " passing papers" comment during the first interview but declined to dis-close it. In the following paragraphs, I shall review the evidence in the record before me that goes to the accuracy of the Second Report.

62. Mr. Matakas testified that the purpose of his interview was to determine what Husted had meant by the ostensible reference to " unconfirmed hearsay" included in the First Report. Matakas, ff. Tr. 406 at 3. He did not, however, have a copy of the First Report with him during the interview. See Tr. 437, 444 (Matakas).

Mr. Matakas was confident that he asked Husted whether the " passing papers" comment was the " unconfirmed hear-say" mentioned in the First Report. Matakas, ff. Tr.

406 at 4-5. Matakas did not recall asking Husted whether he had actually used the term " unconfirmed hearsay" during his first interview. Tr. 439 (Matakas). He simply took it as a "given" that Mr.

Ilusted used those words. Id.

63. Mr. Matakas retained his notes of the Ilusted interview, see Matakas, ff. Tr. 406, Att. 2, and the l

l

Second Report is reasonably faithful to the notes. Cf.

id. with Matakas, ff. Tr. 406, Att. 4 at 16. Mr. Matakas's notes show on the first page Mr. Husted's description of the " passing papers" comment, and written beside this description, in the left hand margin, is the statement "This is ' unconfirmed hearsay' statement.

(See Report p. 39)." Matakas, ff. Tr. 406, Att. 2 at

1. This statement, of course, is not a question. Mr.

Matakas believes he probably made the marginal notation "right away;" if it was at a later time, "it was like immediately following when I remembered, yes, I want to record that and I would put it down." Tr. 411 (Matakas).

64. Mr. Husted testified in this proceeding that he is confident he did not remember the " passing papers" comment until after his July 29, 1981 inter-view. Husted, ff. Tr. 330 at 11, 13, 17. He believes his recollection of the remark was triggered either when he learned after his first interview that O and W had ef fected their cheating by passing papers back and l forth or when he first read the OIE Report of its first investigation. Id. at 13. The OIE Report of the first investigation, which was published in August, contained

several references to " switching exam papers" and

" passing answer sheets." Id. Mr. Husted did not, how-ever, deny that the Second Report could be an accurate report of his second interview. He acknowledged that Mr. Matakas may have asked him whether the " unconfirmed hearsay" mentioned in the First Report was the " passing papers" comment and that he, Husted, may have incor-rectly said "yes." Id. at 16; Tr. 616 (Husted). He also testified, however, that he may have misunderstood Matakas's question or that Matakas may not have asked precisely the question he believes he did.5 Husted, ff. Tr. 330 at 16. Mr. Husted did testify, however, that the Second Report is inaccurate in stating that the remark Husted said he heard referred to passing papers "in the exam." Husted, ff. Tr. 330 at 14, 15.

Although Mr. Matakas testified that he may have read back the "in the exam" statement to Husted during the interview, see Tr. 412 (Matakas) , Mr. Husted's testi-mony in this regard is corroborated by other evidence.

Mr. Husted had a telephone conversation with John S

See footnote 7.

---

n- - - , .,,--.,---,,-.--.,m------.--,- - - - - - - - - - - . - - - - - -, . - - - . , - - - - ., - - - ,

Wilson, a Metropolitan Edison Company lawyer, on October 5, 1981. Wilson, ff. Tr. 451 at 1-2. Wilson's notes of that conversation indicate that Husted told him he.had heard "2 - words: ', Passing papers' at water fountain." See Husted Ex. 2; Wilson, ff. Tr. 451 at 2.

There is no indication that Husted heard more than the two words " passing papers." There was also introduced into the record notes made by Dr. Robert L. Long, a GPUN Vice President, of a conversation he had with Jack Herbein, also on October 5, 1981. See Husted Exhibit

11. Herbein reported to Long on, among other things, a conversation Herbein had had with Husted earlier that day. Long's notes show that Herbein had said: "Husted wants Wilson to verify w/ I&E that they know Husted heard two words @ water fountain ' passing papers.'"

Id. In addition, Mr. Newton recalled discussing with i Husted Husted's having heard the " passing papers" comment. Newton, ff. Tr. 836 at 3-6. Newton recalls the discussion involving only the words " passing papers." Id. There is no indication that Husted had heard a reference to passing papers "in the exam." Id.

Newton also told Dr. Long on May 27, 1982 that he had talked with Husted about the " passing papers" incident.

E . _ _ -

. . Husted Ex. 12. Based on the foregoing I find that Husted did not tell Matakas he had heard a reference to passing papers "in the exam," but only that he had heard the remark " passing papers."6 ,

65. Before leaving Newton's testimony, I should address o'her c aspects of it. Newton said he thought his discussion with Husted of the " passing papers" com-ment occurred between Husted's first and second inter-views, although he acknowledges that he may be mistaken. Newton, ff. 836 at 4-5. Husted believes the conversation occurred after his second interview. ,

Husted, ff. Tr. 330 at 19. Husted's view is borne out l 6Mr. Matakas wrote in his handwritten notes of the interview the statement " Don't even know if he (the individual Husted overheard] was talking abt (about]

SRO or RO Exams." Matakas, ff. Tr. 406, Att=. 2 at 2.

Husted, according to Matakas, made this statement. See-Matakas, ff. Tr. 406 at 4. Depending on the inflection' Husted used when making this statement, it can be interpreted to mean the individual was talking about i either the RO or the SRO exam or that Husted was not sure the individual was referring to an exam at all.

l i Mr. Matakas's typed draft of the interview (Attachment

3) demonstrates that he interpreted Mr. Husted's statement a third way. Attachment 3 does not use the words "even," "RO" or "SPO." That draft, instead, states "he (Husted] did not know if the person was referring to the NRC exams or some other exam."

Matakas, ff. Tr. 406 at Att. 3.

I l

I l

I l

l

F I

by Wilson's notes of his October 5, 1981 phone call with Husted. Those notes show this:

Had he previously reported [the " passing papers" comment] to anyone in Company:

today is first time he told anybody in Company.

Husted Ex. 2. Based on these notes and Mr. Newton's uncertainty, I find that the Newton-Husted discussion of the " passing papers" comment occurred after Husted's September 18, 1981 interview, indeed after October 5,

! 1981.

66. Mr. Newton also recalled Husted's telling him that he had been asked during his first interview whether he had " heard any rumors about passing papers."

Newton, ff. Tr. 836 at 4. That recollection is incon-sistent with Husted's memory of the interview, see Husted, ff. Tr. 330 at 19, Christman's notes of the interview, see Husted Ex. 1 at 3, and the First Report itself, see Baci, ff. Tr. 214, Att. 2 at 39. I find that Husted was not asked during his first OIE inter-view whether he had heard "any rumors about passing papers."

67. Against this analysis of the testLmony about the second interview and the " passing papers" comment, i

I return to the Second Report. First, I have found in l

l 1

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. . 1 l

paragraph 60, supra,that Husted did not say during his first interview that he had heard rumors of cheating which he labeled " unconfirmed hearsay" and failed to disclose. Mr. Matakas did not ask him if he had.

Thus, the second interview was pregnant with the possi-bility of misunderstanding at the outset. Second, Mr.

Matakas did not place a copy of the First Report before Husted when he asked him about the first interview, and this enlarged the potential for misunderstanding.

Third, while Matakas is confident he asked Husted about the " unconfirmed hearsay" in a clear, understandable manner, Matakas's notes do not set out precisely the question he asked. Moreover, Matakas acknowledged that he may have added the marginal notation about "uncon-firmed hearsay" some period of time, perhaps a very brief period of time, after the question about "uncon-firmed hearsay" was asked and answered, again raising the chance of an inadvertent misstatement. Fourth, I

! have found that Matakas's notes are wrong in I attributing to Husted the words "in the exam." That error casts some doubt on their overall accuracy.

Finally, while Matakas's notes are preferable to the support the Staff has produced for the Ward, Baci, t

l i

l Christopher and Smith interview reports, they are no substitute for a verbatim transcript, tape recording or j signed statement, and again I am disposed to resolve my doubts against the OIE Report of interview. I find that it has not been shown by a preponderance of the evidence that Husted intended to indicate during his second interview that he had thought of and withheld the " passing papers" comment during his first inter-view. I find further that he did not think of and withhold that information during the first interview.8 7 For example, if Matakas asked "Is this what you called ' unconfirmed hearsay?'" Mr. Husted could have thought he asked 'Is this what you'd call unconfirmed hearsay?'"

8 Assuming for the sake of argument that he had thought of the " passing papers" comment during the l

first interview, I still would not find that he

! wrongfully withheld it. The testimony is in agreement that the question asked him dealt with " rumors." See paragraphs 55, 56, supra. Husted has testified consistently that he has never considered the " passing papers" comment that he heard to be a " rumor." Tr.

531-32, 534-41, 583 (Husted). It was information

" gathered first hand." Tr. 531 (Husted). I find that a plausible distinction. Moreover, at the time of the first interview Husted did not know that O and W had cheated or how they had done so. Husted, ff. Tr. 330 j

at 11. That testimony is uncontradicted. Thus, at the time of his first interview he had no reason to attach any special significance to the comment even if it (Footnote Continued) i

E. Husted's 1981 testimony in perspective.

68. I now return to Husted's 1981 testimony before the Special Master. It is important to put his appearance into perspective, and in that connection I shall summarize the findings I make in paragraphs 82-86 below. First, it was the first time Mr. Husted had testified in such a proceeding. Husted, ff. Tr. 330 at

22. Second, he had been under a great deal of physical <

and emotional stress in the months just prior to his appearance. Id. Third, perhaps because of the seques-tration order put in place by the Special Master, Mr.

Husted received little help from company counsel before the hearing. Id. at 23. Fourth, And most important, Husted learned only a few days before his appearance of Ward's testimony implicating him in charges of attempted cheating. Id. at 22. Husted testified that these allegations turned his anxiety over testifying to

" outright fear." Id. Husted said that after he learned of the Ward charges, he gave very little l

l (Footnote Continued) entered his mind. When Husted was interviewed the second time, after he had learned that O and W had cheated by passing papers, he disclosed the information.

- +

thought to his two OIE interviews. Id. at 23. He said that he had not reviewed the First and Second Reports carefully before testifying. Id. And while he believes he reviewed the Christman report of his first interview before testifying, he does not think he compared it carefully to the First Report. Id. Husted testified that as the Adler cross-examination proceeded, he became " hopelessly rattled." Id. at 24.

He had an urgent desire to get the testimony over with and get out of the hearing room. Id.

69. Mr. Husted testified that for the reasons described in paragraph 68, he got of f on the wrong foot. At the outset, he incorrectly conceded the accuracy of the First and Second Reports. Id. at 23.

He incorrectly testified that the " passing papers" comment was the " unconfirmed hearsay" referred to in the First Report. Id. He acknowledged that the state-ment singled out by the Licensing Board -- because he had no information he said he did not want to answer the question -- was also incorrect and that in fact he had had no information and should have said so. Tr.

613 (Husted). In fact, he did say so. Staff Ex. 2 at 26,929, lines 16-17.

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F. Findings with respect to the forthrightness issue.

70. I find that Husted did testify incorrectly when he acknowledged before the Special Master the ac-curacy of the First Report. Thus, when Husted gave the testimony that the Licensing Board found " incredible,"

see paragraph 48, supra, he was trying to justify a version of the first interview that I have found was inaccurate in material respects. I find that the gist of that testimony, namely that he had no information to provide, Staff Ex. 2 at 26,929, was accurate. I find

- that when Husted acknowledged before the Special Master the accuracy of the Second Report, he either (a) ad-mitted incorrectly that it was an accurate report of his interview or (b) if it was an accurate report, he admitted incorrectly that he had given accurate information during the second interview.

l

1. I find that Husted was incorrect when he said that the " passing papers" comment was the " unconfirmed hearsay" mentioned in the First Report.

72. I find that Mr. Husted did not intend to give untruthful testimony before the.Special Master. I find s

that he gave his incorrect testimony through inadver-tence and a lack of care.9

73. I find that when Mr. Husted began to correct his testimony before the Special Master, beginning at Staff Ex. 2 at 26,930, and said he had not recalled the

" passing papers" comment until after his first inter-view, he was testifying accurately and truthfully and that he did so thereafter.

74. I find further that Mr. Husted did not-with-hold from Mr. Matakas or the Special Master any sig-nificant information about the " passing papers" com-ment, its content, who said it, where it was said or when it'was said.

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75. Before concluding my evaluation of this issue l

l I should comment on Mr. Husted's forthrightness -- his l

l truthfulness -- in this proceeding. I believe he Mr. Husted gave incorrect testimony on an important matter in this proceeding. He said he had testified about his April 24, 1981, exclamation in the

! cheating hearing. Tr. 346 (Husted). After reviewing his 1981 testimony he acknowledged that he was mistaken. Tr. 495 (Husted). Asked for an explanation, Mr. Husted said he has a "hard time remembering when specific things happened in the past." Tr. 498 l (Husted). He had no motive for giving the incorrect testimony; he simply did so inadvertently.

l l

l L - .-. . . . .-

t testified truthfully. I gained that impression from observing him. In addition, he made a number of ad-missions against interest. Among other things, he readily acknowledged.the inconsistencies in his 1981 testimony, Husted, ff. Tr. 330 at 25; he conceded that the Second Report might accurately summarize his inter-view insofar as the " unconfirmed hearsay" remark was concerned, id. at 16; he conceded that he had conducted himself badly during the October 1981 deposition by the Aamodts, id. at 21, and that the criticism he received from company counsel was justified, Tr. 951 (Husted) ;

and he admitted that he had appeared flippant at the 1981 hearing. Husted, ff. Tr. 330 at 25.

76. In summary, in order to hold against Husted on this issue, I must find by a preponderance of the evidence that he did not attempt to testify truthfully before the Special Master. I cannot do so. To be sure his early testimony was incorrect in several important respects. To that extent, he did not "go straight to the point, and so it might be said that he was not

" forthright" in the strict sense. But he corrected his testimony before the Special Master and in all impor-tant respects ultimately gave accurate testimony. In

I I

short, I find that he testified truthfully in the 1981 l hearing.

VI.

Mr. Husted's Attitude Toward the Hearing on the Cheating Incident

77. A brief review of the Special Master's and Licensing Board's findings will help identify the Com-mission's concern over this issue. The Special Master quoted the following passage from Mr. Husted's testi-mony bslore him:

Q. In the last paragraph on page 39 (the First Report], it stated that you refused to reveal any specifics of the rumors you heard or identify the indi-viduals who were allegedly implicated?

Why did you refuse to answer that question?

A. I do not know. Stupid, I think.

j Q. You were being interrogated by NRC

! investigators regarding cheating at

! TMI. You are a member of the training l department. You have stated it is l part of your responsibilities to help l

prevent cheating at TMI. And you are telling me that you refused to answer a question regarding rumors of cheating at TMI because you were stupid?

A. I did not like the way the investi-gation was conducted. I did not like the questions that were being asked.

They were so broad and vague that I l

=

could not give a specific answer. And I think out of lack of anything other to say, I just told them that I did not want to answer the question.

15 NRC at 961. The Special Master then concluded:

"This attitude, together with Mr. Husted's generally flippant demeanor, convinced me that Mr. Husted was not a credible witness." Id. Insofar as Mr. Husted's demeanor before him was concerned, the Special Master noted the Metropolitan Edison concession that "Mr. Husted's answers 'were sometimes flippant' and that 'he appeared at times to consider the questions in a less than serious manner.'" Id. at 960.

78. The Licensing Board found that Husted's testimony about his OIE interviews "gave the sense that he didn't care whether he was believed or not." 16 NRC at 319. I note in passing that both the Special Master and the Licensing Board appear to have based their l

findings about Husted's attitude on inferences drawn from his conduct at the hearing and his testimony on other subjects. It does not appear on the face of either decision, or from the transcript of his testi-1 mony, that Husted was examined about his attitude toward the cheating hearing. See Staff. Ex. 2.

1 I

l l

l

79. The evidence in the record consists princi-pally of Mr. Husted's testimony before me and Staff Exhibit 2, which is a transcript of Husted's testimony before the Special Master. I admitted Staff Exhibit 2 solely for the purpose of showing what Mr. Husted in fact said in the cheating hearing and, to the extent a transcript can do so, how he said it. Tr. 490 (Margulies). I have reviewed Staff Exhibit 2. It is not apparent'from the face of Husted's 1981 testimony that his answers were at times flippant. See Staff Ex.

2.

80. Mr. Husted, however, stated in his testimony before me that he had "no reason to doubt that I appeared flippant and to consider the questions in a less than serious manner." Husted, ff. Tr. 330 at 25.

I questioned him carefully on the bases for this ad-

! mission. First, he cited the " stupid, I think" testi-mony that was quoted by the Special Master and is set out above in paragraph 77. Id.; Tr. 607 (Husted).

Second, he cited his inconsistent testinony before the 1

Special Master about the " passing papers" comment as a basis for concluding that he appeared flippant and to f consider the questions in a less than serious manner.

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{

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l l

l

Husted, ff. Tr. 330 at 25; Tr. 608-609 (Husted).

Third, he cited his statement that he "did-not like the way the investigation was conducted" as a possible basis for concluding that he appeared flippant. Tr.

< 609 (Husted).

81. It is clear that Mr. Husted did not appear to be a model witness during his 1981 appearance before the Special Master. As I view my responsibility, how-ever, it is to determine whether Mr. Husted's 1981 appearance before the Special Master reflected a funda-mentally poor attitude toward the hearing or disrespect for the hearing process. In order to do that I must put Husted's appearance in perspective, based on the entire record before me.

82. Mr. Husted was under a good deal of physical and emotional stress as a result of the cheating epi-sode in general and the hearing in particular. The

. cheating incident resulted in additional work for the Training Department, of which Husted was a member.

Husted, ff. Tr. 330 at 12; Brown, ff. Tr. 697 at 6; Newton, ff. Tr. 836 at 8. The Department adopted and implemented new procedures designed to prevent cheating in the future, and this procedure imposed greater exam i

writing and review requirements on Husted. Husted, ff.

Tr. 330 at 12. Hested also had to help devise and carry out a special training program aimed at preparing TMI personnel for still another NRC licensing exami-nation, this one to be held in October 1981, and in addition to his other duties he had to prepare himself for this exam. Id. at 11-12. The cheating had an emotional effect on Husted too. In his view, there was resentment among the TMI operators toward the Training Department, some of it bordering on hostility. Id. at

11. Husted perceived a general feeling among the oper-ators that O and W had cheated because the Training Department (including Husted) had not prepared them adequately for the 1981 examinations. Id. The requirement imposed by Harold Denton of NRC, that a new round of NRC examinations be held, produce low morale at TMI. Id.; see Brown, ff. Tr. 697 at 5; Newton, ff.

Tr. 836 at 8. Husted viewed the requirement as an l

indictment of all the examinees , including himself.

Husted, ff. Tr. 330 at 11; Tr. at 937-938; see also l Brown, ff. Tr. 697 at 5-6.

83. Husted was not a sophisticated witness.

Husted's appearance before the Special Master was his i

l t

first in an URC proceeding. Husted, ff. Tr. 330 at 22.

The proceeding was unusual in that it was' conducted pursuant to a sequestration order. See id. at 23. Dr.

Long, an experienced public speaker and witness, testi-fled that he was as apprehensive as he had ever been about his impending appearance before the Special Master. Long, ff. Tr. 755 at 4-5. He attributed his anxiety to the sequestration order and the facts that (a) the witnesses were forbidden to discuss the pro-ceeding with each other and (b) even counsel for the Company could tell the witnesses next to nothing about the proceeding. Id. at 5. There was, he said, "an unusual air of mystery surrounding the proceeding."

Id. Husted noted that counsel for the Company spent little time with him before his testimony. Husted, ff.

Tr. 330 at 23.

84. Of course, the physical and emotional stress associated with the cheating episode and the seques-tration order did not affect only Husted. But Husted had additional reasons to be anxious about his appearance before the Special Master. On October 23, 1981, Mr. Husted had been deposed by one of the inter-venors in the cheating proceeding. Id. at 21. He was 1

. . kept waiting for almost two hours beyond the evening hour when the deposition was to begin. Id. At several points during the deposition he gave what he readily admitted were " cute" answers. Id. When counsel for the Company saw the transcript of the deposition, he admonished Husted not to conduct himself during the hearing as he had during the deposition. Id.; Tr. 600 (Husted). Indeed, counsel held up Mr. Husted's conduct during his deposition as an example to other company witnesses of conduct they should avoid during the hearing before the Special Master. Husted, ff. Tr. 330 at 21. Mr. Newton, one of Husted's superiors, also discussed Husted's deposition with him prior to the hearing. Newton, ff. Tr. 836 at 6-8. Husted told Newton he had been nervouc about the deposition and that an intervenor's attorney had deliberately tried to irritate him. Id. at 6. Newton advised Husted to stay calm and cool and not let anyone irritate him.

Id. at 6-7. Thus, Husted doubtless felt pressure to j improve on his deposition conduct. Husted told Newton after the hearing that he thought he had "over-reacted in his attempt not to get flustered."

,Id . at 7. Mr. Husted testified before l

I l

me that he was "very afraid, very nervous, and possibly in an effort.to control'those emotions, I went a little bit overboard and appeared to be exceedingly relaxed, carefree." Tr. 605-06 (Husted).

85. The most important factor in Husted's frame of mind during the hearing, however, was Mr. Ward's testimony, given before the Special Master on December 1, 1981, just nine days before Husted's appearance.

Tr. 601 (Husted). Ward, of course, testified that Janes had accused Husted of soliciting help during the April 24, 1981 examination. Husted, ff. Tr. 330 at 22.

Mr. Husted suddenly found himself in serious jeopardy.

Id. As a result, his anxiety about his forthcoming appearance before the Special Master turned to "out-right fear." Id. He was concerned about the effects of this accusation on his children and on his reputa-tion among his co-workers and friends. Id. at 22-23.

The Ward accusation thereafter dominated his concern about the hearing, and he gave little thought to the OIE interviews. Id. at 23.

86. When he appeared before the Special Master, Mr. Husted was nervous and scared; he sweated profusely. Id. at 24. He quickly became " hopelessly

rattled."10 Id. As I have found, see paragraph 70, supra, he incorrectly conceded the accuracy of the First Report. In response to my question, Husted explained why:

I believe at that time I had not taken the time to seriously consider the question put before me. I had -- prior to being asked that question, I had been asked to review (the First Report]. And in my review, I did a very cursory review of it and not a detailed review of it, and I was asked to speak to its correctness. And rather than fully considering the ramifica-tions of my answer, I conclude -- or I answered the question that it was.

Tr. 608 (Husted).

87. Husted testified that he regretted the

" stupid, I think" answer the moment he said it.

Husted, ff. Tr. 330 at 25. He stated, however, that he intended no disrespect for the hearing process and that he had tried to testify truthfully. Id. He testified that in fact he treated the hearing quite seriously, given Ward's testimony. Id. He said that the best 10Husted said he felt he was being " attacked" and "chastized" by Mr. Adler. Tr. 611, 630 (Husted). Mr.

Brown, who also testified, said he felt like he was being used "as target practice in a bow and arrow contest..." Tr. 741 (Brown).

l l _ - . _ .. ._ _ _ _ _ _ _ _ _ _ _ _ _ ___ _ ___ _.

explanation for the impression he conveyed is that he was scared to death. Id.

88. I watched Mr. Husted testify for an entire day on the subject of his forthrightness, attitude and cooperation. I found him to be a serious and forth-right witness. I believe he attempted to testify truthfully throughout.

89. It has not been shown by a preponderance of the evidence that Mr. Husted had a fundamentally poor attitude toward the hearing before the Special Master.

I find that he gave the appearance at times of being flippant and that he appeared at times to consider the questions in a less than serious manner. In the cir-cumstances, however, I do not believe that Mr. Husted's 1981 performance in fact reflected a lack of respect or of seriousness. Indeed, it is inconceivable to me that i

he would not have treated the proceeding seriously given Mr. Ward's allegations. I find, instead, that the shortcomings in his conduct were due to inexperience, lack of adequate preparation, and fear l

j and concern over the personal jeopardy in which the Ward testimony had placed him.

y.

90. In this connection, I have considered Mr. Husted's performance during the 1981 deposition.

The attitude he reflected during that deposition 'as undesirable, notwithstanding the adverse circumstances of the depositions. Still, Mr. Husted did answer every question he was asked. Tr. 619 (Husted). Moreover, his poor conduct during the deposition caused his su-periors to counsel him on two occasions as to the cor-rect way to conduct himself at the hearing. See para-graph 84, supra. Thus, the result of his poor conduct at the deposition was to heighten the sense of serious-ness with which he approached the hearing.

91. One final point. The Special Master based his findings about Mr. Husted's attitude, at least in part, on Husted's statement that he did not like the way the NRC investigation was conducted. 15 NRC at 961. First, it seems to me that this statement, taken in context, meant only that he thought excessively broad questions were asked. See Staff Ex. 2 at 26,929.

Second, and most important, I have found below that Mr.

Husted did not fail in any significant way to cooperate with the OIE interviewers. Third, even if I were to assume that Husted was not cooperative in the first

interview, I know no reason to infer from that that he had a bad attitude toward the hearing, particularly since he was entirely cooperative during the inter-vening second interview. Thus, I do not believe that Husted's statement about the NRC investigation supports the conclusion that he had a poor attitude toward the hearing.

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• . VII.

Husted's Cooperation with the NRC Investigators

92. Mr. Husted, as I have said, was interviewed ,

twice by NRC, first on July 29, 1981 by Messrs.

Christopher and Smith (with Mr. Christman present) and then on September 18, 1981 by Mr. Matakas. There is no indication on the face of the Second Report that Mr.

Husted was anything but cooperative during his second interview. See Matakas, ff. Tr. 406, Att. 4 at 16.

Mr. Matakas testified that he did not recall Mr. Husted being uncooperative or not forthcoming. Matakas, ff.

Tr. 406 at 7. Mr. Husted testified that he was fully cooperative with Matakas. Husted, ff. Tr. 330 at 17.

There being no other testimony on the subject, I find that Mr. Husted was fully cooperative with the NRC in-vestigator during his second interview.

93. There are, of course, two written versions of the first interview, the OIE's First Report and Mr. Christman's report. Both indicate that at two points during the interview Husted declined to answer a question. There is, however, an important difference.

The First Report indicates that in response to the

__ _ _ _ _ _ _ _ _ . , . ~ __ _ _ _ . _ . . _ . . _ .____ _ .--__ _ ___ _ _ _ __ _ .._ _ _ _ ___ . _ _ _

important question about rumors of cheating, Husted acknowledged hearing some but declined to say what they ,

were. See Baci, ff. Tr. 214, Att. 2 at 39. The Christman notes indicate that in response to the ques ,

tion about rumors of cheating, Husted first declined to answer and then said he had heard none. See Husted Ex.

1 at 3. Given my earlier finding that Husted Exhibit 1 is the more accurate, see paragraph 60, I find that Husted ultimately answered during the first interview the question about rumors of cheating.

94. The First Report indicates that Husted was queried concerning the possibility of reference material being covertly brought into the classroom by examinees. However, for unknown reasons, he declined to respond to this question or explain his reluctance to discuss this issue.

Baci, ff. Tr. 214, Att. 2 at 39.

! The Christman notes (Husted Exhibit 1) state i

l Mr. DD was asked whether candidates are l

allowed to bring notebooks, pads of paper, j textbooks, etc. to the examination. Mr. DD l

did not answer this question. He was then asked did anyone bring articles as described above to either examination. He l responded that he could only answer for himself and that he did not bring such j articles to the examinations. He did state i that the one textbook that he recalled being available in the classroom was a set of Steam Tables.

i i

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r Husted Ex. 1 at 3. Again treating the Christman notes as the more accurate version, I find that Mr. Husted declined to answer NRC's general question about what candidates are allowed to bring to examinations and that, on being asked whether "anyone" brought articles to "either examination," said that he had not.

95. Mr. Christopher, I repeat, remembered nothing about the first interview. See paragraph 58, supra.

Thus he had no recollection as to whether Husted showed a less than serious or otherwise poor attitude at the first interview. Christopher, ff. Tr. 386 at 5.

96. Mr. Christman remembered little about the first interview. Christman, ff. Tr. 351 at 2. He does, however, remember Mr. Husted's two refusals to answer, and he recalls that the atmosphere in which the interview occurred was "not friendly." Christman, ff.

Tr. 351 at 3. Mr. Husted seemed tense and apprehen-sive. Id. Mr. Christman does not recall, and his report does not indicate, that Mr. Husted asked for clarification of any question during the interview.

Id.;.see Husted Ex. 1. Mr. Christman concluded that Mr. Husted was "for the most part cooperative" during the interview but that he was not " fully cooperative,"

i

because he declined at two points to answer the investigators' questions. Christman, ff. Tr. 351 at 4.

Christman said on the stand that "from an overall standpoint, I would say he was cooperative." Tr. 369 (Christman). Mr. Christman also testified that Husted did not raise his voice or argue with the interviewers at any point during the interview. Tr. 356 (Christman). He called the interview " businesslike."

Id. Mr. Christman testified that the instances in which Husted declined to answer did not seem to

" divert" the interviewers; the instances did not cause the interviewers "any great trouble." Tr. 362 (Christman) .

97. Mr. Husted also testified about th'e first interview. He readily admitted being apprehensive, Husted, ff. Tr. 330 at 5; he was not happy to be there.

Tr. 515 (Husted). He had talked with a TMI Unit 2 shift foreman sometime before the interview. Husted, ff. Tr. 330 at 5. The shift foreman had given him the impression that NRC interviewers asked excessively broad questions. Id. This made Mr. Husted cautious as he approached the interview. Id.

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98. With respect to the subject of bringing ma-terials into the exam room, Mr. Husted remembers be-lieving that the question was too broad. Id. at 7. It was not limited to unauthorized materials and it was not limited to any particular examination. Id. Mr.

Husted testified that he did not answer the question at first. Id.; Tr. 504 (Husted). He testified that he believes Mr. Christman's version of the follow-up ques-tion and answer is correct. Husted, ff. Tr. 330 at 8.

That is to say, one of the interviewers asked if anyone brought reference material into "either examination,"

and Husted answered that he had not. Id. at 7-8.

99. Mr. Husted is certain he was asked whether he had heard any rumors about cheating on examinations.

Id. at 8. He cannot recall, though, whether the ques-tion was limited to the April 1981 examinations. Id.

at 9. He said that the question may have been broader than indicated in either version; he also acknowledged, however, that it may have been limited to the April examinations and that he may have misunderstood it to have been broader. Id. He was confident that his ultimate answer was accurately reported in the Christman report. Id. at 10.

I 100. Mr. Husted conceded that he does not know l whether he asked for clarification of the questions that he declined to answer. Tr. 505 (Husted). With respect to the first question -- bringing materials into the classroom -- he said he believed there was a discussion between him and the interviewers and that a question was asked that he felt comfortable with. Tr.

507 (Husted). He acknowledged, however, that Christman did not mention any such discussion in his notes. Tr.

508 (Husted). With respect to the other question --

involving rumors of cheating -- he could not recall whether he simply sat silent or asked for a more specific question. Tr. 509 (Husted). Mr. Husted did say that, in general, his normal manner of approaching questions was to be sure he understood them and that he believes he asked for clarification during the first interview, though he was not sure. Tr. 570 (Husted).

101. Mr. Christman could not recall Husted's stating any reservations about the form of the questions. See Tr. 358 (Christman). I asked Mr. Christman whether his notes would have captured everything that occurred during the interview. He said "I would suspect that the majority of it might be a

l better characterization." Tr. 377 (Christman). On the other hand, Christman did say that had Husted asked for clarification, Christman would have expected that to be in his summary. Tr. 378 (Christman).

102. As I have said, Mr. Husted indicated in his testimony that he thought the questions on reference materials and rumors of cheating were too broad, in part because they could have been construed to deal with all examinations, not just those that were given in April 1981. See paragraphs 98-99, supra.

Mr. Christman said, however, that there was no question that the July 29, 1981 interview dealt with the April NRC examinations. Tr. 377 (Christman).11 Mr. Husted was examined carefully along these lines by TMIA. He said that he was not certain that the investigators stated at the beginning of the interview that questions would be limited to the April examinations. Tr. 580-81 1

1 Upon reviewing this question and answer, however, I note that neither the question nor the answer specifies that the interview dealt solely with the April 1981 NRC examinations, or that the investigators confined themselves to questions about the April 1981 NRC examinations. See Tr. 377 (Margulies-Christman).

r-  !

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(Husted). He also said, quite plausibly, that if the interview centered on a single exam, the interviewers should have had no problem specifying that their questions related to that one exam. Tr. 580 (Husted).

I asked Mr. Husted why he would have had difficulty understanding which exams the interview involved. Tr.

612 (Margulies). He said:

I'm quite certain that I didn't have dif-ficulty in focusing on just [the April]

exams. I had difficulty answering questions that did not focus on those exams specifically.

Tr. 612 (Husted). Mr. Husted's position during the second interview, which occurred two months after the first, was that the questions asked during the first interview "were so broad that I just could not give specific answers." Matakas, ff. Tr. 406, Att. 2 at 3; see also Matakas, ff. Tr. 406 at Att. 3 and Att. 4.

103. Again we see the difficulty that results when no verbatim record of a material interview is made. In part for this reason, and in part for others, I have found that the Christman notes set out the more f accurate report of the first Husted interview. I am thus left with these conclusions. The interview was not friendly, but it was businesslike. No voices were I

c <

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• raised. There were no arguments. Mr. Husted declined to answer a question about reference materials generally but answered it as to himself. He declined to answer a question about rumors of cheating but then, on being reasked, answered it. He did not withhold any information that he should have disclosed. I cannot conclude that Husted was fully cooperative. I do con-clude, however, that he did not fail to cooperate to an extent that would call into question his fitness to serve in any of the positions that are involved in this proceeding.

104. I might add one thought on this subject of investigations. They are, as I have said, serious matters for employees. Indeed, we have seen in this proceeding -- in connection with the solicitation issue -- how employees not originally suspected of wrongdoing can, as a result of the investigatory pro-cess, find themselves the subject of very serious alle-gations that turn out to be unjustified. In short,

" innocent" employees have every reason to approach such investigations with caution. I know of no regulation or statute that imposes on employees an unqualified requirement of " cooperation" with NRC investigations.

Mr. Christopher testified that on innumerable occasions, witnesses in interviews have declined to answer questions or to be interviewed at all. Tr. 392, 393-94 (Christopher) . Suppose Husted had insisted on having his interview transcribed? Suppose he had declined to be interviewed altogether, requiring that a subpoena be issued? Suppose he had appeared with counsel, and counsel had raised numerous objections to the interviewers' questions, including the objection that they were excessively broad? Suppose he had invoked the Fifth Amendment? Surely an employee has a lawful right to do all these things in the interest of protecting himself. But if he can exercise those rights only at the risk of losing his livelihood, his rights are meaningless ones indeed. I simply do not believe that a so-called " lack of cooperation" such as we have on this record is any basis for significant remedial action.

VIII.

What Mr. Husted's Performance of His Responsibilities with GPUN Reflects About His Attitude and Integrity 105. Both the Licensing and Appeal Boards expressed concern about whether Mr. Husted was competent, by virtue of his attitude, to serve as a licensed operator instructor in the TMI Training Department. See 16 NRC at 319; 19 NRC at 1223. The Appeal Board also questioned GPUN's judgment in promoting Mr. Husted to Supervisor of Non-licensed Operator Training. 19 NRC at 1224.

106. The Licensing Board had doubts about Mr. Husted's

" competence to instill a sense of seriousness about the important need for integrity, discipline and public confidence in the TMI training program." 16 NRC at 320. It was also concerned about Mr. Husted's attitude toward operator qualification examinations. Id. at 319. The Appeal Board questioned Mr. Husted's ability as an instructor to convey the proper attitude toward compliance with procedures, stating:

l Where, as here, so much of the training l

information to be conveyed concerns the need to comply with proper proce-l dures . . ., the instructor's attitude toward -- i.e., respect for -- those proce-dures becomes an integral (though perhaps l

subliminal) part of his or her ability to teach.

19 NRC at 1223. The Appeal Board defined teacher competence as "the ability to communicate effectively a sense of responsibility as well as [ technical] informa-tion." 19 NRC at 1223.

107. This is a de novo hearing. What others have said at other times about Mr. Husted in reliance on a different-record is not at issue here. I cite Licens-ing Board and Appeal Board concerns only to indicate what they were. I have noted that Mr. Husted was not asked about his attitude toward the TMI training pro-gram, operator qualification examinations or compliance with proper procedures. See Staff Ex. 2. Nor does it appear from a review of the Special Master's con-clusions, the Licensing Board decision and the Appeal Board decision that others were asked about Mr. Husted's ability to communicate effectively to his students a sense of responsibility as well as technical

( information.

108. How Mr. Husted performed his responsibilities with GPUN is an indicator of his attitude toward those i

responsibilities. The issue of what Mr. Husted's per-formance of his responsibilities with GPUN reflects

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_79-1 I

about his attitude and integrity was extensively litigated in the present hearing. Based upon Messrs. i l

I Haverkamp's, Brown's, Long's, Newton's and Husted's written and oral testimonies and the numerous exhibits introduced into evidence, I find that Mr. Husted is qualified, both technically and by virtue of his positive attitude toward reactor safety, NRC and company examinations, and the TMI training program, to serve as reactor operator, instructor of licensed and non-licensed operators, and training supervisor.

109. Mr. Husted has held five positions at GPUN:

auxiliary operator, control room operator, training instructor, Supervisor of Non-licensed Operator Training and Special Projects Assistant in the Nuclear Assurance Division. Haverkamp, ff. Tr. 648, NRC Report at 3. He has been employed at TMI for over twelve years. See id.; Husted, ff. Tr. 330 at 1-2. The frequent evaluations of Mr. Husted's job performance i

i 12 Mr. Husted's technical qualifications were never

.n dispute in this proceeding. It was uncontested that he obtained his NRC RO license in June 1978 and his NRC SRO license in July 1980. Husted, ff. Tr. 330 at 1-2.

He also passed the NRC RO and SRO examinations given in April and again in October 1981. Tr. 939 (Husted).

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done by his superiors make it possible to assess what that performance reflects about his attitude and integrity.

A. Auxiliary and control room operator.

110. Mr. Husted was hired by Metropolitan Edison Company to serve as an Auxiliary "A" Operator - Nuclear in February 1974. Husted, ff. Tr. 330 at 1. He served as an auxiliary operator until August 1977, when he became a control room operator. Haverkamp, ff. Tr.

648, NRC Report at 3. He worked as a control room operator for approximately one year, until July 1978.

Id.

111. The testimony on what Mr. Husted's perfor-mance as an auxiliary and control room operator reflects about his attitude and integrity is quite favorable. Mr. Donald R. Haverkamp, an NRC Region I Projects Engineer in the Division of Reactor Projects, was specifically directed by Region I management to .

conduct a special safety inspection with respect to Mr.

Husted. Haverkamp, ff. Tr. 648, NRC Report at 2. The special inspection was initiated to assist Staff in developing a full record for this hearing. Id.

I

_ _ _ _ _ . . _ _ _ _ - . - . . . . _ . ~ . . _ _ .

Mr. Haverkamp's inspection focused on the issue of what Mr. Husted's performance of his responsibilities with GPUN reflects about his attitude and integrity. Id. at 3; Tr. 673 (Haverkamp). Mr. Haverkamp spent thirty-eight hours during three separate periods between February 25 and March 13, 1986 reviewing evaluations, memoranda and letters relating to Mr. Husted's job per-formance. .Haverkamp, ff. Tr. 648, NRC Report at 1; Haverkamp, ff. Tr. 648 at 3-4. He also interviewed ten GPUN employees who had worked with Mr. Husted in various supervisor-employee or co-worker relationships.

Haverkamp, ff. Tr. 648 at 4.

112. With respect to Mr. Husted's performance as a reactor operator, Mr. Haverkamp concluded that based on the limited comments from individuals interviewed, "Mr. Husted's professional competence and overall per-formance as an operator were acceptable; no adverse opinions were stated." Haverkamp, ff. Tr. 648, NRC Report at 18. The Employee Performance Evaluations

, conducted between March 1974 and December 1977 are l

favorable. See id. at 6.

113. Mr. Husted's supervisors were impressed by Mr. Husted's attitude as a reactor operator toward i

l

l l

nuclear safety. Mr. Nelson Brown, a former' member of the TMI Training Department, testified that based on having served with Mr. Husted on-shift in the control room, where Mr. Husted monitored the control room instrumentation, he believed Mr. Husted was conscious of the importance of safety. Brown, ff. Tr. 697 at 15, Tr. 735 (Brown) . Mr. Samuel Newton, formerly the Supervisor of Operator Training and then Manager of Plant Training at TMI, Newton, ff. Tr. 836 at 1-2, observed Mr. Husted's performance as a member of a group undergoing simulator requalification training.

See Husted Ex. 25. Shortly afterwards, Mr. Newton wrote that he was favorably impressed with the ability of the group, which included Mr. Husted, to operate the controls, their technical knowledge, and their atti-tudes toward and diligence in following procedures.

Husted Ex. 25 at 1.

114. Mr. Husted testified that he "always recog-nized and appreciated that a person in position to operate the controls of a nuclear reactor . . . holds a position of public trust." Husted, ff. Tr. 130 at 26.

According to Mr. Husted, he has never knowingly done or said anything in the control room that would indicate a r

disregard for nuclear safety. Id. Mr. Husted's testi-mony was not contradicted.

B. Instructor.

115. Mr. Husted obtained his NRC RO license in June 1978. Husted, ff. Tr. 330 at 1. He began his career in the Training Department as an Administrator, Nuclear Technical Training in July 1978. Id. at 1-2.

From July 1978 until approximately September 1980, he was primarily responsible for instructing auxiliary operators in nuclear plant operations. Id. The Employee Performance Evaluations conducted of Mr. Husted during this period reveal a steadily improving perfor-mance. Haverkamp, ff. Tr. 648, NRC Report at 7. He was cited for "his logic, sincerity and candid assertiveness." Id.

116. Mr. Husted's 1980 annual evaluation, the last one done while he was primarily an auxiliary operator instructor, reflects favorably on Mr. Husted's attitude and integrity. See Husted Ex. 15; Newton, ff. Tr. 836 l at 9. The evaluation notes Mr. Husted's "primarily individual ef fort" in obtaining an NRC SRO license on l TMI Unit 1. Husted Ex. 15 at 2. It also states:

i

(

1

-84 Mr. Husted is honest and direct in his

_ personal interactions, creating open and effecti've working relationships with his supervisors, peers, and subordinates.

Id.

117. Mr. Husted was promoted to full time instructor in Licensed Operator Training in September 1980. Husted, ff. Tr. 330 at 2. He taught licensed reactor operators until March 1983. Id. The evidence on Mr. Husted's performance as a licensed operator instructor is extensive. Messrs. Brown, Newton, Long, Haverkamp and Husted testified on this subject.

A number of employee and instructor performance evaluations were introduced into evidence, along with Mr. Haverkamp's special safety inspection report. Finally, Dr. Long testified on the results of a special performance monitoring program of Mr. Husted. See paragraphs 127-129, below.

118. Mr. Husted's immediate supervisor for the period September 1980 to March 1983 was Nelson Brown, then the Supervisor of Licensed Operator Training. Brown, ff. Tr. 697 at 1-2.

Mr. Brown conducted three performance i

85-evaluations of Mr. Husted during this period.

Brown, ff. Tr. 697 at 9, 14-15. All were favor- i able. See Husted Exs. 4, 5 and 6. Mr. Brown was also a student in Mr. Husted's classes.

Brown, ff. Tr. 697 at 15-16. Mr. Brown testified that on the basis of his observations of Mr. Husted, which I find to be extensive, he believed Mr. Husted to be " conscientious." Id.

at 15. Mr. Husted insisted on "high quality" in his work and further insisted that " students receive the best information they could be given." Id. Mr. Brown described Mr. Husted's attention to safety as " meticulous." Id. As evidence of his confidence in Mr. Husted's attention to safety, Mr. Brown assigned him 4

responsibility to teach courses on engineered safeguards and to keep track of and teach courses on the nature and significance of Unit 1 and Unit 2 plant modifications. Id. Mr. Brown testified that he had never known Mr. Husted to do or say anything to his students that reflected disrespect for the nuclear regulatory process or examination requirements. Id. at 16.

- - .- - , - - ..,----n- , - - ~ , - - - - . - - - -,,-,---,,-----.---,,---.---.,e, . . - ~ - , - - - - - - - , ,-

119. Mr. Brown was Mr. Husted's immediate super-visor during the period following the O and W cheating episode. Id. at 7. The discovery of O's and W's cheating led to the NRC investigation into cheating, the invalidation of the April exams and the announce-ment that the NRC examinations would have to be retaken in October. Brown, ff. Tr. 697 at 5-7; Husted, ff. Tr.

330 at 12. The cheating episode also increased the Training Department's workload. Brown, ff. Tr. 697 at

6. Husted, ff. Tr. 330 at 12; see paragraph 82, supra.

Mr. Samuel Newton, then Operator Training Manager, testified that in late Spring or early Fall 1981 the Training Department had a new responsibility added to its list, that of responding to discovery requests for the 1981 reopened hearing on cheating. Tr. 893 (Newton). See also Brown, ff. Tr. 697 at 6.

120. Mr. Husted admitted that his overall morale and attitude were below par in the months following the discovery of cheating. Husted, ff. Tr. 330 at 13. He said in written comments he prepared for his 1981 annual evaluation that It is becoming increasingly difficult to maintain a positive working attitude which is leading to reduced production and increased reduction in motivation.

Id. Mr. Husted testified that despite the stresses he was under in 1981 he carried out his work in a profes-sional and conscientious manner. Id.

121. Mr. Brown testified that the effects of stress associated with the 0 and W cheating episode and its aftermath were noticeable in Mr. Husted. Brown, ff.

Tr. 697 at 7. He believed that Mr. Husted questioned his responsibility as an instructor for the cheating that occurred. Id. at 8. Mr. Husted resented, as did Mr. Brown, the challenge to his pers'nal o integrity that the cheating investigation raised. Id. Mr. Brown testified that Mr. Husted tended to be curt and sensi-tive to criticism on a personal level, but his perfor-mance as a licensed instructor remained highly profes-sional. Id. at 9. Mr. Brown's observations of Mr. Husted in 1981 are reflected in Husted Exhibits 3 and 4.

Husted Exhibit 3 is a " working draft" performance evalua-tion authored by Mr. Brown. Tr. 707 (Brown). Mr. Brown testified that the marks on the first page, consisting of O's, 2's and 1/'s and the written comments on the second page were based on a short-term " snap-shot" view of Mr. Husted's performance; they reflect Mr. Brown's i

initial impressions upon filling out the form. Brown, 4

1 l

ff. Tr. 697 at 109; Tr. 707 (Brown). Some of the written comments on the second page may be construed as  !

critical. These include the comments "wants to work with others, does not accept ' constructive criticism' well," and "not very tactful when dealing with others in I

or out of department." Husted Ex. 3 at 2. Husted Exhibit 3 also contains favorable comments. These include " demonstrated creativity in setting up Tur. Gen.

Course" and " demonstrates interest -- taking outside courses plus NRC prep." Id.

122. Both the favorable and unfavorable comments in Husted Exhibit 3 are entitled to little weight.

These comments were Mr. Brown's initial impressions; they did not take into account Mr. Husted's performance over any significant length of time. See Brown, ff. Tr.

697 at 10; Tr. 707 (Brown). Husted Exhibit 3 was not reviewed by Mr. Newton. Newton, ff. Tr. 836 at 9. Mr.

Newton testified that it was unusual for a supervisor such as Mr. Brown to fill out a draft evaluation based on a " snap-shot" time frame. Tr. 898 (Newton). In any event, the comments do not reveal that Mr. Husted had a poor attitude toward NRC regulatory requirements, examinations or the TMI training program.

123. Mr. Brown in the final version of the 1981 Annual Evaluation (Husted Ex. 4) does comment on the post-cheating effects on Mr. Husted's attitude. He also notes Mr. Husted's efforts to overcome these effects.

Husted Ex. 4; Brown, ff. Tr. 697 at 13. Mr. Brown gave Mr. Husted all " commendable" or " competent" marks; none was below " competent." Husted Ex. 4. Mr. Brown con-sidered the 1981 Evaluation to be favorable. Brown, ff.

Tr. 697 at 13. It was his opinion in 1981 that Mr. Husted was "on his way to becoming an excellent instructor." Husted Ex. 4.

124. Mr. Newton signed Husted Exhibit 4. He testified that he had regular contact with Mr. Husted between April and December 1981. Tr. 874 (Newton).

Mr. Newton did not.during this period observe a less than serious attitude on Mr. Husted's part toward his responsibilities as a member of the Training Department.

j Id.

125. Mr. Newton worked closely with Mr. Husted from September 1980 until June 1984, see Newton, ff. Tr. 836 i

at 2. Mr. Newton, like Mr. Brown, was in an ideal posi-

{ tion to detect whether Mr. Husted had an unfavorable attitude toward the NRC regulatory process, examinations f

i r . _,_. , . . . _ - . _ _ . . _ _ , _ . , _ _ . _ _ _ . , , , _ _ . . _ . _ , _ , , _ . _ _ , _ _ , . - _ _ . . _ , _ _ _ _ _ _ _ _ _.__

'a

• or training requirements. See Tr. 864, 874 (Newton);

Newton, ff. Tr. 836 at 2. He conducted in-class evalu- ,

ations of Mr. Husted's performance as a licensed opera-tor instructor, see, e.g., Husted Exs. 20, 21 and 22, either wrote or reviewed all of Mr. Husted's Employee Performance Evaluations, see Husted Exs. 4, 5, 6, 15 and 16, and participated in a special performance monitoring program designed to assess Mr. Husted's attitudes and performance as a licensed operator instructor. See Staff Ex. 3; Newton, ff. Tr. 836 at 11.

126. Mr. Newton concluded on the basis of his extensive observations of Mr. Husted that Mr. Husted took his work seriously and wanted to do it correctly.13 Newton, ff. Tr. 836 at 12. Mr. Newton testified that Mr. Husted respected the regulatory process and would have emphasized to his operator-students a sense of responsibility toward following NRC mandated procedures.

Id. at 12; Tr. 865 (Newton). Newton testified that Husted conveyed a sense of seriousness and 13 Not only as an instructor, but also as Supervisor of Non-licensed Operator Training. See Section C., below.

i

• responsibility to the TMI operators he taught. Newton, ff. Tr. 836 at 12.

127. Dr. Robert Long, who is the Vice President of Nuclear Assurance for GPUN and responsible for the Training and Education Department in which Mr. Husted worked from July 1978 to June 1984, testified about Mr. Husted's attitude, integrity and job performance.

Long, ff. Tr. 755 at 1-2. Prompted by the criticisms of Mr. Husted's interactions with the NRC investigators during the cheating investigations, his conduct during his October 1981 depoaition, and his appearance in the 1981 reopened hearing on cheating, Dr. Long developed a formal plan for monitoring and assessing Mr. Husted's attitude and performance as a licensed operator instruc-tor (hereafter referred to as Special Monitoring Pro-gram). Id. at 2; Staff Ex. 3. Both Operations Depart-ment personnel under the direction of Mr. Hukill, Vice President / Director, TMI 1 and Training Department personnel carried out the monitoring program. Long, ff.

Tr. 755 at 2-3; Tr. 797-98 (Long). All were aware of i the Special Master's conclusions and the Licensing Board's findings on Mr. Husted. Tr. 788, 791, 798-799 (Long).

i a

1 128. Mr. Husted's performance and attitudes were extensively monitored from approximately June 1982 to December 1983. Long, ff. Tr. 755 at 5. Observers' reports of Mr. Husted's attitude and performance were favorable. See Long, ff. Tr. 755 at 5-6; Husted Exs. 9, 10, 24 and 25. For example, Mr. Husted was observed conducting a problem work session to assess students' abilities to analyze questions stated in a manner similar to that used on NRC licensing exams. The evaluator wrote:

Despite criticism from the student audience relating to the latter topic [NRC licensing exams], (Mr. Husted] handled the session in a very professional manner in terms of both technical ability and attitude. A positive attitude was also demonstrated in the post-evaluation discussion that was held later in the day.

Husted Ex. 10. The observers also made a point of being in the classroom area during breaks when Mr. Husted was teaching. See Husted Exs. 24 and 10. ,

observations of Mr. Husted's out of class behavior and conversations were consistent with assessments of his in-class behavior. See Husted Exs. 24 and 10.

129. Based upon written and oral reports, Dr. Long found no evidence of an undesirable attitude or lack of

• =

respect for the training and operator licensing pro-cesses on Mr. Husted's part. Long, ff. Tr. 755 at 5-6; Tr. 799 (Long); see Husted Exs. 9, 10, 24 and 25.

Dr. Long was satisfied that Mr. Husted was competent to instill a sense of seriousness about the important need for integrity, discipline and public confidence in the TMI Training Program. Tr. 806 (Long).

130. Mr. Haverkamp's report also dealt with Mr. Husted's performance and attitudes as a licensed operator instructor. See Haverkamp, ff. Tr. 648, NRC Report at 7-8, 18-19. Based upon the consistently favorable comments he received,14 Mr. Haverkamp con-cluded that "Mr. Husted's professional competence and overall performance as an instructor was very good, or better . . . Id. at 19.

131. Mr. Husted also testified on his performance as an instructor. He recognized and appreciated that a person in a position to teach those people who operate 14 These comments included " extremely competent, concerned about presentation getting through to students," " detail was thorough, concerned that students understood, priority was given to quality vs.

quantity;" and " adequately prepared, eager to help students learn." Id. at 19.

i

the controls of a nuclear reactor holds a position of public trust. Husted, ff. Tr. 330 at 26. Mr. Husted does not believe he ever gave students reason to believe that he did not respect, or that they should not respect, the NRC's regulatory process or NRC or Company training and examination requirements. Id.

Mr. Husted testified that "[iln the discharge of my training responsibilities over the years, I have made every effort to impart a sense of seriousness and responsibility to the people in my classes." Id at 26-27.

C. Supervisor of Non-licensed Operator Training.

132. Witnesses agreed that an individual occupying the position of Supervisor of Non-licensed Operator Training has 1 duties that affect public health and safety. Tr. 736 (Brown); Tr. 675 (Haverkamp). The Supervisor of Non-licensed Operator Training is responsible for the training of auxiliary operators, who serve as extensions of licensed control room operators. Tr. 736 (Brown). ,

An auxiliary operator has the potential to initiate and to mitigate a nuclear event. Id. As such, his training and attention to detail aro safety related. Id.

.. .---..- ,.--.. _ ,.. ,..- ,,. .,,,,,._---.--n. .----n, , - - - . , , . . , , . - _ , . - . . -. - - -

133. Mr. Brown, who as Supervisor of Licensed Operator Training was familiar with the requirements for the job of Supervisor of Non-licensed Training, recommended to Mr. Newton that Mr. Husted be promoted to the position.

Tr. 736 (Brown). Messrs. Brown and Newton were aware of the Special Master's and Licensing Board's reservations about Mr. Husted. See Tr. 737-738 (Brown); Newton, ff. Tr. 836 at

11. No one, however, was more aware of these reservations than Dr. Long, who was responsible for the operation of the entire Training Department. See Tr. 788 (Long). Based on the results of the recent Special Monitoring Program, Dr.

Long was satisfied that Mr. Husted reflected a positive attitude not only in the classroom but in his day-to-day dealings with personnel. Tr. 789-790 (Long). Be fore approving Mr. Husted as Supervisor of' Non-licensed Operator Training, however, Dr. Long questioned the Training Direc-tor, and through him the training staff, extensively as to whether they were satisfied that Mr. Husted was able to instill a sense of seriousness in the operators and whether he was able to maintain integrity, discipline and appropriate attitudes toward nuclear safety and the regulatory process. Tr. 788-789 (Long). Dr. Long even con-suited with the office of the President. Tr. 789 (Long).

Satisfied with both Mr. Husted's attitude and performance, Dr. Long approved the promotion. Tr. 789 (Long).

134. Mr. Husted served as the Supervisor of Non-licensed Operator Training from March 1983 until June 1984, when the Appeal Board ordered him removed. Husted, ff. Tr. 330 at 2; Newton, ff. Tr. 836 at 11. From all accounts, Mr. Husted's attitude and performance as Supervi-sor was good; he took his work seriously and wanted to do it correctly. Newton, ff. Tr. 836 at 12.

135. Mr. Husted's performance evaluations during this period contain consistently good to excellent marks and comments. See Husted Exs. 17, 18 and 19. Mr. Husted was cited for his " excellent" classroom performance. Husted Ex.

17 at 4. The evaluator also wrote:

(Mr. Husted's] attitude is always profes-sional and this has provided an excellent example for peers.

Husted Ex. 17 at 4.

136. Mr. Husted's last performance evaluation as Supervisor of Non-licensed Operator Training describes him as "a keystone of the operator training section."

Husted Ex. 19 at 5. It also notes under the section "Significant Projects" that Mr. Husted assists students when problems arise. Pin-points problems actively. Keeps his hands

W 97 to himself, but still gives students oppor-tunity to approach him. "

Id. at 3.

137. That same evaluation contains the following comment under the heading " Professional Development of Subordinates . . .

[Mr. Hustedl devoted a significant amount of tima to qualification of Tom Hull. Has developed long range plans to qualify all nonlicensed instructors as RO or SRO.

Picked up workload of some instructors to accomplish this.

Id. at 4.

138. It is a favorable reflection upon Mr. Husted that he suffered no letdown in performance and attitude as a Supervisor despite GPUN's June 1983 commitment to Pennsylvania Governor Thornburg to remove his SRO licene and decline to use him in a licensed position.

See Long, ff. Tr. 755 at 6-7; Tr. 906-907 (Newton) .

Mr. Husted's October 1983 Employee Performance Evaluation states that Mr. Husted "has maintained excellent morale . . . [and] continues to apply himself professionally in all areas," despite having his SRO license " terminated due to Corporate commitments."

Husted Ex. 18 at 4; see Tr. 906-907 (Newton). Both Dr.

Long and Mr. Newton testified that the Company entered

into the stipulation in order to remove one of the barriers to restart of TMI-1; the stipulation was not prompted by doubts about Mr. Husted's conduct, perfor-mance, attitude or integrity as a reactor operator or a licensed operator instructor. Long, ff. Tr. 755 at 6; Tr. 906 (Newton).

D. Engineering assistant.

139. Mr. Husted has continued to maintain a posi-tive attitude despite his transfer out of the Training Department. See Long, ff. Tr. 755 at 7. He has been assigned to the Nuclear Safety Assessment Department as a Special Projects Assistant since June 1984. Husted, ff. Tr. 330 at 1. Despite being new to the field of system reliability analyses, see Husted E:. 7 at 2, Mr.

Husted was cited for his "very positive enthusiastic attitude about the (probabilistic risk assessment]

project" and doing "more than is asked of him to con-tribute and learn." Id. at 4. Mr. Ilusted was cited in his most recent evaluation for his " outstanding" per-formance on the TMI simulator project. Husted Ex. 8 at

4. Dr. Long testified that these assessments are entirely consistent with Mr. Husted's favorable earlier

_99-assessments while a member of the Training Program.

Long, ff. Tr. 755 at 7.

E. Conclusion.

140. Messrs. Haverkamp, Brown, Newton and Long all concluded, based upon their knowledge of Mr. Husted's attitude and integrity, that Mr. Husted's job opportunities should not continue to be restricted.

Haverkamp, ff. Tr. at 648, NRC Report at 22; Brown, ff.

Tr. 697 at 16; Tr. 735 (Brown); Newton, ff, Tr. 836 at 12; Long, ff. Tr. 755 at 8. Mr. Husted was described by those who knew him as an " honest man," Brown, ff.

Tr. 697 at 6, a " good employee," Long, ff. Tr. 755 at 7, and " conscientious." Newton, ff. Tr. 836 at 12.

Mr. Husted testified that he regrets having done any-thing to raise questions about his attitude toward nuclear safety, the TMI training process or examination requirements. Husted, ff. Tr. 330 at 26.

141. I find that Mr. Husted's performance of his responsibilities at GPUN, particularly as a licensed operator instructor and Supervisor of Non-licensed Operator Training, reflects favorably upon his attitude and integrity. The evidence on Mr. Husted' s job

-100-performance demonstrates respect for nuclear safety and diligence in following procedures. There is no evi-dence suggesting that Mr. Husted has imparted to any operator he taught a sense of irresponsibility toward safety, regulatory requirements or licensing examina-tions. The evidence shows that Mr. Husted respected the TMI training program and was viewed by others to be a valuable member of that program. I find that Mr.

Husted should not be barred by attitudinal concerns from serving as a reactor operator, instructor or l

supervisor of licensed or non-licensed training.

9 ,

101- ,

IX.

Applicable Legal Standard 142. - I asked.the parties to address certain issues:with respect to the legal standard applicable to Mr. Hu'sted's conduct. Tr. 974-75. The first such issue is whether the Appeal Board applied an appro-pilate. standard when it ordered Mr. Husted removed from the position of Supervisor of Non-licensed Opera-tor Training. When all,is said and done, I must apply some standard to Mr.,flasted's conduct, and the stan-

. dard articulated by .the Appeal Board is a reasonable place'to start. The Appeal Board, of course, had to s

deal only with Mr. Husted's service in a non-licensed I

position,.because the Stipulation between GPUN and the Commonwealth of Pennsylvania had brought about the i

withdrawal of Mr. Husted's operating license before the Appeal Board had to decide the matter. But I must resolve t'he question of standards for dealing with both the licensed and non-licensed positions from which Husted has been barred either by the Stipulation

! or by the Appeal Board.

143. It is by no means crystal clear precisely what standard the Appeal Board applied. It appears to l

l r

I l

6

-,-+-v. - . - . . - - -

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e a

-102-be embodied in two thoughts, both set out in the following passage:

We reject that notion (that teacher

" competence" means the mere ability to-impart information] in favor of one that recognizes teacher competence to include the ability to communicate effectively a sense of responsibility as well as information. . . . Where, as here, so much of the training information to be conveyed concerns the need to comply with proper pro-cedures . . . the instructor's attitude toward -- i.e., respect for -- those proce-dures becomes an integral (though perhaps subliminal) part of his or her ability to teach.

19 NRC at 1223. Respect for procedure and ability to communicate a sense of responsibility, then, were the touchstones. There is no indication in its decision that the Appeal Board related Husted's perceived failures to any statutory or regulatory requirement.

144. The decisions of regulatory bodies cannot stand without an adequate articulation of the standard by which the activity in question was judged. See SEC

v. Chenery Corp., 318 U.S. 80, 92 (1943) (Chenery I).

- For an activity to be outlawed, it must fall under the ban of some standard of conduct prescribed by the courts or the legislature or an agency to which the legislature has delegated its authority. Id. at 92-93. The courts will judge an agency's action, not on the

+ +

-103-  !

basis of what it could have done, but on the basis on what it purported to do. Id. at 93-94. Thus The [ agency's] action cannot be upheld merely because findings might'have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act. There must be such a responsible finding.

Id. at 94. If an agency intends to create new standards growing out of its experience in effectuating legisla-tive policy, it must express itself with sufficient clarity and precision to be understood. See SEC v.

Chenery Corp., 332 U.S. 194 (1947) (Chenery II). In particular, the agency's action must state how it is related to the agency's statutory mandate. See Chenery I, 318 U.S. at 94. Here, the Appeal Board has given no indication how the standard it applied -- unprecedented so'far as I know -- relates to the legal requirements set out in the Atomic Energy Act or the Commission's l regulations. I think it unlikely that a reviewing court would find acceptable under the Chenery decisions the Appeal Board's statement of the standards applicable to Husted.

145. As I said at the outset of this Initial Deci-sion, this proceeding is in the nature of an enforcement l

l

-104-proceeding. Insofar as Mr. Husted is concerned, the proceeding before the Appeal Board was also in the nature of an enforcement proceeding and with the most severe consequences for him. It is instructive in assessing the Appeal Board's statement of standards to review the Commission's Enforcement Policy. See 10 C.F.R. Part 2, App. C. The Policy provides for enforce-ment actions involving notices of violation, civil penalties and orders (including license revocation pro-ceedings). See 10 C.F.R. Part 2, App. C at SS V.A., B.,

C.Section V.A. states that all three types of actions will be instituted through the use of a notice of violation. A notice of violation is defined as " written notice setting forth one or more violations of a legally binding requirement." 10 C.F.R. Part 2, App. C, at S V.A.. The Appeal Board has not identified any legally binding requirement that Mr. Husted is alleged to have violated, and for this reason too its statement of stan-dards is inadequate. Thus, in order to determine whether there is an acceptable standard by which to judge Mr. Husted's conduct I must look elsewhere.

146. First, I shall address the standard applicable in determining whether Husted should be

-105-l barred from serving in a licensed position. The Commis-sion, of course, may grant operator licenses, and the Commission may take them away. Section 107 of the Atomic Energy Act, 42 U.S.C.A. S 2137 (1973) provides that the Commission may issue licenses and that it may suspend such licenses "for violations of any provision of this Act or any rule or regulation issued thereunder whenever the Commission deems such action desirable."

Section 186 of the Act provides that "[alny license may be revoked . . . for violation of, or failure to observe any of the terms and provisions of this Act or of any regulation of the Commission." 42 U.S.C.A S 2236 (a) (1973). Building on this statutory authority, the Commission has provided in 10 C.F.R.

S 55.40 (b) that any license may be revoked for, among other things,15 any conduct determined by the Commis-sion to be a hazard to safe operation of the facility.

T 15 Licenses may also be revoked under this section for certain material false statements, for conditions that would have warranted denial of the license in the first place, or for any violation of the Act, a license, or any Commission rule, regulation or order.

None of these violations seems to pose an appropriate standard for judging Husted's conduct.

-106-Thus, assuming that proper notice were given to Husted of his alleged violation -- a subject I return to below in paragraph 152 -- I could find that Husted is dis-qualified from serving in a licensed capacity if per-mitting him to do so poses a hazard to the safe opera-tion of a nuclear facility.16 147. Assuming I am correct about the standard applicable to Husted's licensed service, by what stan-i dard is his acceptability for a non-licensed position 16 Even this conclusion.is troubling in one respect. Mr. Husted does not now have a license. He would have to reapply to NRC for the issuance of a license if he wished to have one. Section 182a of the Atomic Energy Act provides that each application for a license shall specifically state such information as the Commission, by rule or regulation, may determine to be necessary to decide, among other things, the

" character of the applicant." 42 U.S.C.A. 2232(a)

(1973). The Commission could articulate licensing standards for attitude and integrity pursuant to this provision. A review of 10 C.F.R. Part 55, however, which deals with the issuance of operators' licenses, reveals no criteria whatever for character; it only sets out requirements for the applicant's technical

competence and medical condition and for the use of his services. There is case law for the proposition that a license may not be denied on grounds not set out in the rules and regulations governing the granting of licenses. See Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).

A further concern with this statement as a standard is discussed in footnote 19, below.

-107-to be judged? The Atomic Energy Act grants NRC broad power in dealing with the regulation of nuclear power.

Section 161b grants the Commission the authority to establish by rule, regulation, or order, such standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem neces-sary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property; 42 U.S.C.A. S 2201(b) (1973). I repeat, however, that this proceeding is in the nature of an enforcement pro-ceeding. The enforcement provisions of the Atomic Energy Act are narr.ower than S 161b. I have cited the provisions of the Act that authorize license revoca-tion. The Act also provides for criminal penalties in certain instances, see, e.g., 42 U.S.C.A. SS 2272, 2273 (1973). It provides, in addition, for injunction pro-ceedings, 42 U.S.C.A. S 2280 (1973), and contempt pro-ceedings, 42 U.S.C.A. S 2281 (1973). None of these provisions is relevant here. The Act also provides for the imposition of civil penalties on " persons," but only for violations of licensing provisions or vio-lations for which a license may be revoked. 42 U.S.C.A.

S 2282 (1973). The proceeding before me is not one involving the assessment of civil penalties, and so

-108-these provisions also appear to be irrelevant. The short of it is, there simply is no enforcement pro- i vision explicitly authorizing NRC to terminate a non-licensed person's job. Where, as here, a person's livelihood is at stake, I am reluctant to conclude that Congress has granted NRC the statutory authority to strip a particular non-licensed employee of his liveli-hood. I find support for this proposition, again, in the NRC's Enforcement Policy. That Policy purports to

" describe the enforcement sanctions available to NRC."

10 C.F.R. Part 2, App. C at V. Termination of an unlicensed person's employment is not included among the available sanctions. I find, then, that there is no legal basis on which I could order -- or upon'which the Appeal Board was authorized to order -- the removal of Mr. Husted from any non-licensed position.

148. On appeal of this Initial Decision, it could be held that S 161b, contrary to my conclusion, does provide NRC the fundamental statutory power necessary to terminate the employment of a non-licensed person.

i That being so, I shall assume for the sake of argument that such statutory power exists and continue the search for an applicable standard. The next question I

l

-109-is whether it is lawful to frame a standard now in this adjudicatory proceeding, or whether such standards must be adopted generically by NRC through a rulemaking.

Generally, the choice between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of an admin-istrative agency. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (Chenery II). The principle stated in Chenery II was followed by the Court in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). In Bell, however, the Court acknowledged that

...there may be situations where the Board's reliance on adjudication would amount to an -

abuse of discretion . . .

416 U.S. at 294. In fact the Court found that the NLRB had not abused its discretion in Bell by announcing new generally applicable standards in an adjudicatory pro-ceeding. It based this conclusion on the facts that (a) the issue facing the Board did not lend itself to

! generic rulemaking, (b) the adverse effects on the per-I sons involved were not substantial, (c) it was not a case where new liability was imposed on individuals for past actions that were taken in reliance on NLRB pro-

) nouncements and (d) that no fines or damages were l

l 1

_110 involved. Id. at 294-95. Relying on the qualifi-cations set out in Bell Aerospace, courts have determined in some circumstances that the articulation of new, generally applicable standards through an adjudicatory proceeding, rather than a rulemaking, constitutes an abuse of discretion. In Natural Gas Pipeline Co. v. FERC, 590 F.2d 664 (7th Cir. 1979), a pipeline company entered into a settlement with FERC by which it could advance funds to gas producers for exploration costs and reflect those funds in its rates.

i Under the agreement, the announced advance had to be spent by the producer within a " reasonable time" after-The it was included in the pipeline's rate base.

Commission had expressly rejected the adoption of a rigid time standard in determining reasonableness.

Yet, after the pipeline had made substantial advances and applied for approval of its increased rates, the Commission rejected the inclusion in rates of all advances made by the pipelines that were not actually spent by the producers within 30 days after the effective date of the rate increase. The Court of Appeals began its analysis with the observation that i

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-111-As a general policy, administrative agency orders which operate retroactively demand careful scrutiny.

Id. at 668. The Court noted the Commission'- argument that, under Bell Aerospace Co. and Chenery II, the Commission had authority to change the applicable rule in an adjudicatory proceeding, but it held that the case before it came within the exception stated by the Court in Bell Aerospace Co.. The Court found that two of the Bell guidelines were present. First, it found that the consequences to the pipeline company, which would incur a "large liability" if denied the requested rate base treatment, would be "very severe." Id. at 669. Second, the Court cited the fact that the pipe-line company had entered into the advance payment i

agreements in reliance upon the prior orders of the Commission. It found that, in the circumstances, the Commission's discretion to proceed by l adjudication as opposed to by rulemaking i

[is] restricted so as to prevent the imposi-tion of a "30 day rule" in this proceeding.

i Id. In Ruangswang v. Immigration and Naturalization Service, 591 F.2d 39 (1978) the plaintiff attempted to l qualify as an " investor" under Immigration and Natu-ralization Service (INS) regulations. She complied with the applicable standards, all of which were 1

i 1

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-112-l objective standards, set out in the INS investor regu-lations. The INS, however, decided that in addition to the objective criteria, the plaintiff must meet certain subjective criteria not included in the regulation, and on the basis of those criteria it denied her request, leaving her to face voluntary departure or deportation.

The Court found that the interpretation of the INS was contrary to the plain language of the regulation and that there was no reason for the plaintiff to expect, when she sought to comply with the regulation, that there were applicable requirements other than those set forth in the regulation. Thus, the INS's application of its regulation could not be sustained. Having decided that, however, the Court had to consider whether the Board could nevertheless establish the new standard that it sought to apply in the very adjudica-l tory proceeding in which the plaintif f was involved and l

then have it bind the plaintiff. The Court acknowledged the principles in Chenery II and Bell Aerospace, but it concluded:

[Wie have not received definitive limits on agency use of adjudicative proceedings to change course in midstream. We are, how-ever, convinced that what the Board seeks to do in this case is beyond the bounds of that which is permissible under Bell. The

-113-1 adverse consequences -- voluntary departure l at best and deportation at worst -- are certainly substantial. In the sense that the requirement added to the 1973 regulation prevents an. adjustment of status, there is some new liability. Finally, if there was )

good faith reliance on the 1973 regulation, Bell militates against allowance of the i adjudication method.

Id. at 44. The Court found that the plaintiff had relied on the objective criteria in the regulation and held in her favor.

149. First, it seems to me that the subject of qualifications for non-licensed persons employed at nuclear facilities would lend itself to generic rule-making. There is little reason to believe that the qualifications for competent teachers or training supervisors at one facility would differ materially from those that ought to be applicable to the teachers at another. Second, there can be no doubt that the adverse consequences Husted could suffer if a new stan-dard were adopted in this proceeding are substantial.

One need only look at what occurred before the Appeal Board, where the Appeal Board attempted to articulate a new standard, applied it to Husted and effectively l

stripped him of his job. Third, while no " fines or i

L damages" are involved here, the potential injury is l

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-114-quite serious, more serious perhaps than a fine or civil penalty. Fourth, I cannot find that Husted has changed.his position or " relied" in any way on the absence of a qualification standard the violation of which could lead to his termination by NRC action. The core notion implicit in " reliance", however, is lack of notice. The critical thing here is that HusEed could not have consciously conducted hinself in 1981 in accordance with a standard that I might adopt now.

150. Finally, I' note that NRC in fact has the authority to develop qualificatf.ons for non-licensed nuclear employees. In S 306 of the Nuclear Waste Policy Act, 42 U.'S.C.A. 10226 (1983) , NRC was directed by the Congress to promulgate requf.ations or other regulatory guidance for the training and qualifications of civilian nuclear power plant operators, supervisors, technicians "and other appropriate operating personnel."1 l

17 And in 1980, in S 307 of the NRC Appropriations l

! Act, Congress required that NRC develop a plan for

( improving the technical capability of licensed personnel to safely operate facilities. The plan was to include specific criteria for more intensive operator training. The provision said further:

(Footnote Continued) t i

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-115- '

NRC has not, in response to this legislative mandate, promulgated new q'ualifications. Instead it issued in March 1985 a Commission Policy Statement on Training and Qualification of Nuclear Power Plant Personnel. 50 Fed. Reg. 11147 (March 20, 1985). In that Policy Statement, NRC announced its decision to rely for the time being on industry efforts at self-improvement in connection with training and qualification programs.

The Policy Statement says:

The NRC will continue to review and approve all applicant training programs in accor-dance with applicable regulations, regula-tory guidance and the Standard Review Plan and to conduct inspections necessary to determine that current regulations and license training commitments are being met.

Id. at 11148. The Commission said further that it assumed that appropriate training programs for nuclear personnel would provide qualified personnel. In short, (Footnote Continued) i Such plan shall include provision for Commission review and approval of the qualifications of personnel conducting any required training and retraining program.

j Pub. L. No.96-295, S 307, 94 Stat. 791 (1980). I find no evidence that this requirement resulted in the promulgation of NRC standards applicable to non-licensed employees.

1

-116-NRC has made a conscious decision to look to the nuclear industry for development and implementation of personnel standards. In light of this development and the extent to which this case falls within the Bell exceptions, I conclude that a reviewing court would find it an abuse of discretion if I were to adopt a new standard and then invoke it as a basis for upholding the termination of Husted's employment.

151. I repeat, this is an area fraught with ambi-guity. Recognizing that the Commission, on appeal, might disagree with my analysis, I shall assume for the sake of argument that I must articulate a standard in this proceeding. I have no basis for devising a 18I note also the emerging doctrine of required rulemaking for the establishment of agency standards.

Due process includes the right to have one's conduct judged by known standards; without standards, there is no law. See Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968);

Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971); Historic Green Springs, Inc. v.

Bergland, 497 F. Supp. 839, 854-855 (E.D. Va. 1980).

Lack of substantive criteria denies someone in Mr. Husted's position any meaningful opportunity to respond to an agency's proposed action. It also precludes meaningful judicial review of agency decisions. See Historic Green Springs, 497 F. Supp.

at 854.

-117-standard different from that applicable to licensees.

Surely, I cannot adopt a standard that would require a less rigorous showing to remove a non-licensed person from his job than would be required to remove a licensed person, over whom the NRC clearly has enforcement powers, from his. Thus, I conclude that if any standard can lawfully be applied to Husted retroactively in this proceeding, it is whether his employment in any non-licensed position in question would pose a hazard to the safe operation of a facility at which he is employed.

To be more precise, I must find that it has been shown by a preponderance of the evidence that he fails to meet that standard.19 19 Even this statement of the applicable standard may be inadequate standing alone. In Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir.

1971), the Secretary denied a petition to suspend the registration of DDT, stating only that the suspension "is not warranted" and declining even to recite the statutory criterion for suspension. In fact, the l

statute required him to determine whether the anticipated harm attributable to the pesticides would

! amount to an " imminent hazard to the public." This, of course, is a standard quite similar to the one in 10 C.F.R. S 55.40(b). The Court remanded saying Congress clearly intended to protect the public from some risks by summary (Footnote Continued)

,. .---,m , _ - - - ,_--

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-118-

\

152. Before I address myself to this standard I must make one last legal point. I indicated in both the Report and Order on Initial Prehearing Conference and

'the Ruling on Staff Objections to Prehearing Conference Order that Husted was entitled to notice as to precisely what he is accused of having violated. See Report and Order at 8-9, Ruling on Staff Objections at 6-7. He still has not received any notice of the standard by which his conduct is to be judged. Thus, despite the holding of the hearing in this proceeding, he has been .

unable to shape his factual and legal positions in light (Footnote Continued) administrative action pending further proceedings. The. administrator's problem is to determine which risks fall in that class. The Secretary has made no attempt to deal with the problem, either by issuing regulations relating to suspension, or by explaining his decision in this case.

Id. at 596 (footnotes omitted). The Court found that the Secretary has an obligation to articulate the criteria that he develops in making each individual decision. The Court would not assume in the absence of adequate explanation, that proper standards were l

l implicit in every exercise of administrative discretion. Id. The clear import of the decision is that it is not sufficient merely to recite the broad statutory standard -- in this case hazard to safe l

operation of a nuclear facility -- but that criteria fleshing out the broad standard must be articulated.

I f

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- &- 4 m A --. - - -

-119-of the applicable standard, simply because no such stan-dard has been stated until this moment. The final legal point, then, is this: If, under the authority of Chenery II and Bell Aerospace, I adopt a new standard in this proceeding and wish to apply it to Husted, Husted is entitled to notice of that standard and an opportunity to supplement the record and make such additional factual and legal arguments as he believes appropriate. See Hill v. Federal Power Commission, 335 F.2d 355, 363-64 (1964); Port Terminal Railroad Ass'n.

v. United States, 551 F.2d 1336, 1342-43 (1977).

153. I now turn to the question whether, on this record, it has been shown by a preponderance of the evi-dence that the employment of Husted in any of the positions in question would pose a hazard to the safe operation of the facility at which he works. I have already found in Husted's favor on each of the factual questions addressed previously in this Initial Decision, and so there is no basis whatever for reaching the drastic conclusion that would be required to bar him I

from the positions in question. Moreover, had I determined that he had failed to measure up in some sig-nificant way with respect to one or more of the factual i

s w-.,y,y , - - - -. - , - - - - - - - - - - - - - , , .- -. . . - - - . . - . . , - - - + - , - . - - - , , - - - - -

+

-120-issues, I could not conclude on the record before me that his continued employment would constitute a hazard to the safe operation of a facility. With respect to his teaching, for example, such a conclusion would have to be based at least on a showing that he has in fact failed to communicate a sense of responsibility to his students, that his students have as a result failed to develop a sense of responsibility, and that as a result there is a substantial possibility that their operation of the facility would be unsafe. To state the require-ment is to conclude that it has not been met here.

X.

Remedial Action 154. In light of the foregoing findings and con-clusions, there is no basis for remedial action with .

respect to Mr. Husted. Furthermore, assuming solely for I

the sake of argument that the Appeal Board's findings were correct and the remedy appropriate in 1984, in f

light of my findings in Section VIII of this Initial Decision, I conclude that there is no longer any b' asis for continuing with the Appeal Board condition in I effect.

(

-121-XI.

Conclusion 155. Based on the foregoing findings and con-clusions I conclude that: (a) the restriction imposed on Mr. Husted by the Appeal Board in ALAB-772 should be and is vacated, and (b) Mr. Husted is not barred by rea-son of his attitude and integrity from serving as an NRC licensed operator, licensed operator instructor or supervisor of licensed operator training.

Respectfully submitted, CHARLES HUSTED By: /1A1 - . DJ l>L Maria C. Hensley, Counsel Of Counsel Michael W. Maupin Maria C. Hensley HUNTON & WILLIAMS P.O. Box 1535 Richmond, Virginia 23212 l

Dated: August 16, 1986

APPENDIX A Testimony Received Into Evidence Following Transcript Witness Page Baci, Peter E. 214 Staff's "Prefiled Testimony of Peter E. Baci" Brown, Nelson D. 697 Husted's " Testimony of Nelson D. Brown" Christman, Paul G. 351 Husted's " Testimony of Paul G. Christman" Christopher, R. Keith 386 Staff's "Prefiled Testimony of R. Keith Christopher" .

Haverkamp, Donald R. 648 Staf f's "Prefiled Testimony of Donald R. Haverkamp" Herbein, John G. 836 Husted, Charles 330 Husted's " Testimony of Charles Husted" I

I granted TMIA's subpoena request that Mr. Herbein appear as a witness in this proceeding. Tr. 694. He did not submit prefiled testimony.

I

_ _ . . . _ _ . _ - , - _ , , , - , _ . _ , . . . . . . _ . , , . . . . _ , . _ _ , , , , . . . . . - _ _ _ . , , , . . . . _ _ , . _ _ _ . - _ _ _ _ _ _ , _ _ . ~ _ ., _ _ _ _ , -

Following Transcript Witness Page Janes, David C. 278 Husted's " Testimony of David C. Janes" Husted's " Supplemental 278 Testimony of David C. Janes" Long, Robert L. 755 Husted's " Testimony of Robert L. Long" Matakas, Richard A. 406 Staff's "Prefiled Testimony of Richard A. Matakas" Newton, Samuel L. 836 Husted's " Testimony of Samuel L. Newton" Ward, William J. 140 Staff's "Prefiled Testimony of -

William J. Ward" Wilson, John F. 451 Husted's " Testimony of John F. Wilson"

o o APPENDIX B EXHIBITS IDENTIFIED ADMITTED EXHIBIT AT TRANSCRIPT AT TRANSCRIPT DESCRIPTION PAGE PAGE NUMBER 352 354 Husted Ex. 1. Paul G._Christman's Notes of Husted's July 29, 1981 OIE Interview John Wilson's 10/5/81 452 455 Husted Ex. 2.

notes of telephone conversation with Messrs. Husted and Herbein 1981 Draft of Employee 699 700 Husted Ex. 3.

Performance Evaluation written by Nelson D.

Brown Husted Ex. 4. 1981 Annual Nmployee 701 702 Performance Evaluation of Charles Husted Husted Ex. 5. 1982 Annual Employee 703 704 Performance Review of Charles Husted Husted Ex. 6. March 11, 1983 Promotion 705 706 (Reassign / Reclassify)

Employee Performance Review of Charles Husted Husted Ex. 7. 1984 Annual Employee 757 768 Performance Review of Charles Husted Husted Ex. 8. 1985 Annual Employee 759 768 Performance Review of Charles Husted Husted Ex. 9. December 20, 1983 inter- 769 770 office memorandum from R. L. Long to H. D. Hukill

Hunted Ex. 10. October 27, 1982 inter- 770 772 office memorandum from R. A. Knief to R. L.

Long and H. D. Hukill Hu0ted Ex. 11. Dr. Robert Long's 10/5/81 773 779 notes of conversation with John G. Herbein Husted Ex. 12. Dr. Robert Long's 5/27/82 774 780 notes of conversation with Samuel L. Newton Husted Ex. 13. Dr. Robert Long's 8/27/82 775 781 notes of conversation with Dave Boyd Husted Ex. 14. Dr. Robert Long's 6/4/82 775 782 notes "HDH's office-1315-1345 hrs."

Husted Ex. 15. 1980 Annual Employee 838 841 Performance Evaluation of Charles Husted Husted Ex. 16. 1982 Promotion (Review) 842 843 Employee Performance Evaluation of Charles Husted Husted Ex. 17. July 1983 Merit Employee 844 846 Performance Review of Charles Husted Husted Ex. 18. 1983 Annual Employee 847 848 Performance Review of Charles Husted Husted Ex. 19. June 1984 Employee 851 853 Performance Review of Charles Husted Husted Ex. 20. Guide for Evaluation of 854 855 Instruction: Lesson on Plant Heatup given on 9/14/82; signed by Samuel Newton on 9/15/82

~ o 856 857 Husted Ex. 21. Evaluation of Instruction (Subject Matter Proficiency) :

Lesson on Annual Requal Exam Review given on 3/30/83; signed by Samuel Newton on 3/30/83 Evaluation of Instruction 857 858 Husted Ex. 22.

(Subject Matter Proficiency):

' Lesson on CRO-Mechanical given on 5/9/83; signed by Samuel Newton on 5/9/83 Guide for Evaluation of 859 859 Husted Ex. 23.

Instruction Lesson on AO Requal given on 7/19/83; signed by Samuel Newton October 27, 1982 inter- 860 861 Husted Ex. 24.

office memorandum from S. L. Newton to R. L.

Long and H. D. Hukill June 3, 1983 inter-office 861 862 Husted Ex. 25.

memorandum from S. L.

Newton to R. L. Long Husted Ex. 26.' August 11, 1981 Office of 971 973 Inspection and Enforcement Report of Investigation:

Three Mile Island Nuclear Generating Station, Unit 1/

Investigation of Alleged Cheating on Operator Licensing Examinations NRC Staff Ex. 1. August 11, 1981 Office of 488 488 Inspection and Enforcement Report of Investigation:

Three Mile Island Nuclear Generating Station, Unit 1/

I Investigation of Alleged Cheating on Operator Licensing Examina-tions (4 pages total)

NRC Staff Ex. 2. Transcript pages 26,909- -

26,980 of Mr. Husted's testimony of December 10, 1981 489 490 (limited purpose) l l

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~ o Confidential Draft: C. Husted 800 801 NRC Staff Ex. 3.

Evaluation, prepared by R. L. Long and R. A. Knief August 30, 1982 NRC Staff Ex. 4. March 20, 1984 867 871 Letter from Deborah B.

Bauser to Chairman Edles and Administrative Judges Buck and Kohl containing reviews of the teaching performance, ability and attitude of Mr. DD conducted in 1983 e

t l

l I

i

~ r August 16, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of )

)

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

)

(Three Mile Island Nuclear Station, )

Unit No. 1) )

CERTIFICATE OF SERVICE I certify that copies of Charles Husted's Proposed Findings of Fact and Conclusions of Law (Submitted to the Administrative Law Judge in the Form of an Initial Decision) were served upon the following persons today by deposit in the U.S. Mail, first class, postage prepaid, or in the cases marked by an asterisk below by Federal Express, addressed to them at the following addresses:

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Chief, Docketing and Service Section i

7- .;

• 9

• The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway 4th Floor Bethesda, Maryland 20014

• George E. Johnson, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Mail Stop 9604 Bethesda, Maryland 20814

• Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, Pennsylvania 17102

• Deborah B. Bauser, Esq.

Scott Barat, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

i Washington, D.C. 20036 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 n 'i n. .

D .d Maria C. Hensley, Counsel for Charles Husted Dated: August 16, 1986

. -. _ - .__- .. . _ . _ .