ML20205F448

Proposed Findings of Fact & Conclusions of Law in Form of Recommended Initial Decision

ML20205F448
Person / Time
Site:	Three Mile Island
Issue date:	08/15/1986
From:	Bauser D GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
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CH, NUDOCS 8608190207
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'6 AUS 18 A9:37 UNITED NUCLEAR STATES OF REGULATORY AMERICAcr COMMISSI gfCFSlg g

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BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of )

)

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

NUCLEAR CORPORATION )

)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

)

GPUN'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (SUBMITTED TO THE ADMINISTRATIVE LAW JUDGE IN THE FORM OF A RECOMMENDED TNITIAL DECISION)

Deborah B. Bauser Scott E. Barat SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Counsel for GPU Nuclear Corporation August 15, 1986 4

8608190207 86081S PDR ADOCK 05000 89

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UNITED STATES OF AMERICA b RalAl< y d

NUCLEAR REGULATORY COMMISSION ETsfNCh BR I'IE BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of )

)

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

NUCLEAR CORPORATION )

)

(Three Mile, Island Nuclear )

Station, Unit No. 1) )

)

GPUN'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (SUBMITTED TO THE ADMINISTRATIVE LAW JUDGE IN THE FORM OF A RECOMMENDED INITIAL DECISION)

Deborah B. Bauser Scott E. Barat SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 counsel for GPU Nuclear Corporation August 15, 1986

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TABLE OF CONTENTS

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f Page I. Introduction and Procedural Background . . . . . . . . . . . . . . . . . 1 A. Procedural History Leading Up to Notice of Hearing . . . . . . . . 1 B. Procedural History of This Proceeding . . . . . . . . . . . . . . 4 C. Scope of the Proceeding . . . . . . . . . 6 D. Request to Subpoena the Special Master . . . . . . . . . . . . 9 II. Findings of Fact . . . . . . . . . . . . . . . 12 A. The Solicitation Issue . . . . . . . . . 12 B. Mr. Husted's Attitude and 4

Integrity During The 1981 NRC Investigations, The 1982 Restart Proceeding Before the Special Master, and This Proceeding . . ... . . . . . . 24 (i) Cooperation with the NRC investigators . . . . . . . . 26 (ii) Withholding information  !

from the NRC investigators . . . . . . . . . . 33 (iii) Mr. Husted's attitude and forthrightness during the NRC hearing process . . . . . . . . . . . . . 43 C. Mr. Husted's Job Performance . . . . . . 50 (i) Long-term reviews of Mr. Husted's job performance . . . . . . . . . . . 53

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e (ii) Short-term performance evaluations . . . . . . . . . . . 57 (iii) Testimonial and personal evaluations of .

Mr. Husted . . . . . . . . . . . 64 D. Remedial Action . . . . . . . . . . . . . 68 III. Conclusions of Law . . . . . . . . . . . . . . 72 4

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00(MEite USNRC August 15, 1986 16 AUS 18 A9 37 UNITED STATES OF AMERI g NUCLEARREGULATORYCOMMISIBChff[gyyg(Ag! '

BRANCH BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of ) ,

)

General Public Utilities ) Docket No. 50-289 (CH)

Nuclear Corporation )

)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

)

GPUN'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (SUBMITTED TO THE ADMINISTRATIVE LAW JUDGE IN THE FORM OF A RECOMMENDED INITIAL DECISION)

I. INTRODUCTION AND PROCEDURAL BACKGROUND A. Procedural History Leading Up To Notice of Hearing

1. The Nuclear Regulatory Commission administered Reactor Operator and Senior Reactor Operator examinations to all licensed operators and candidates at Three Mile Island Unit 1 ("TMI-1") on April 23 and 24, 1981. In response to allegations that two oper-ctors sitting for these exams had cheated during the tests, the NRC's Office of Incpection and Enforcement ("OIE") conducted an investigation into possible cheating during the April exams.

Many TMI-l employees were interviewed during the OIE

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investigation. Among those individuals was Mr. Charles Husted, a licensed senior reactor operator and a member of the TMI Training Department who had taken the April exams.

2. In its Memorandum and Order dated September 14, 1981, the Atomic Safety and Licensing Board reopened the TMI-1 restart proceeding record on matters related to cheating and appointed a Special Master to act as its informal assistant, serve as a tech-nical interrogator, and conduct a hearing. Mr. Husted was among those individuals who were deposed pursuant to this hearing and who testified before the Special Master.

3. In his report, the Special Master proposed findings of fact that were adverse to a number of individuals. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1),

LBP-82-34B, 15 N.R.C. 918 (1982). Among those proposed findings were a number of discrete charges against Mr. Husted. These charges included findings that Mr. Husted: (1) solicited an answer to an exam question from another operator during the April 24, 1981 SRO written examination; (2) gave testimony before the Special Master that was not forthright; (3) refused to cooperate with the NRC investigators, deliberately refusing to provide in-formation; and (4) displayed an unacceptable attitude towards the hearing. 15 N.R.C. 918, 957, 1045. Because of the absence of a reliable standard by which to assess this conduct, the Special Master could not conclude or recommend that Mr. Husted should be removed from licensed duties. In his view, a lesser sanction was l

e 4 appropriate; he made no recommendation regarding such a sanction.

Id. at 1045-46.

4. In its review of the Special Master's decision, the Li-censing Board endorsed findings (2) through (4) above and re-jected finding (1), i.e., that Mr. Husted had cheated.

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-56, 16 N.R.C. 281, 315-320 (1982). Because the Board found Mr. Husted's conduct during the investigation and his testimony to be unrelated to his status as a licensed reactor operator, however, it concluded that an action against his license would be inappropriate. Based on its concern about the cttitude Mr. Husted might impart to his students, however, the Board recommended that the instructor qualifications and delivery performance of Mr. Husted receive particular attention during the required post-restart audit of the TMI training program. No direct sanction was imposed on Mr. Husted. Id. at 319-20.

5. In its review of LBP-82-56 in ALAB-772, the Atomic Safety and Licensing Appeal Board recognized that an intervening Stipulation entered into between the Licensee and the Common-wealth of Pennsylvania during the pendency of appeal made it un-necessary to decide whether Mr. Husted should be removed from licensed duties.1/ Also, the Appeal Board did not address wheth-or Mr. Husted had solicited an exam answer. Metropolitan Edison 1/ The Stipulation, dated July 6, 1983, provides that Mr.

Husted will not operate the plant or train licensed operators.

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Company (Three Mile Island Nuclear Station, Unit No. 1),

ALAB-772, 19 N.R.C. 1193, 1222-1224 (1984). The Appeal Board, however, ordered, as a condition of TMI-l restart, that Mr.

Husted have "no supervisory responsibilities insofar as the training of non-licensed personnel is concerned." Id. at 1224.

As a result of ALAB-772, Mr. Husted was removed from his position as Supervisor of Nonlicensed Operator Training.

6. In CLI-85-2, the Commission reviewed ALAB-772.

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-2, 21 N.R.C. 282 (1985). In that decision, the Commission provided Mr. Husted an opportunity to request a ,

hearing in order to challenge .the Appeal Board's decision that he '

be barred from serving as Supervisor of Ncnlicensed Operator Training. Id. at 317. In a letter dated March 25, 1985, Mr.

Husted formally requested that such a hearing be convened.

Mr. Husted also requested that the scope of the hearing be ex-panded to consider whether Mr. Husted is barred by concerns about his attitude or integrity from serving as an NRC licensed opera-tor, or a licensed operator instructor or training supervisor.

B. Procedural History of This Proceeding

7. Mr. Husted's request for a hearing was granted in the Commission's Notice of Hearing dated September 5, 1985. The NRC {

Staff was ordered to participate as a full party and to ensure that the record was fully developed. On September 12, 1985, I

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was designated the presiding officer for this proceeding. In a December 6, 1985 Memorandum and Order, an initial prehearing con-ference was scheduled to take place in Harrisburg, Pennsylvania on February 19, 1986. Following the prehearing conference, Three Mile Island Alert, Inc. ("TMIA") and GPU Nuclear Corporation

("GPUN") were admitted as parties and the subjects at issue in

! the proceeding were discussed. See Report and Order on Initial l

Prehearing Conference, February 27, 1986.

The NRC Staff objected to the Report and Order on Initial Prehearing Conference insofar as that order required the Staff to cdvocate the restriction set out in ALAB-772. See NRC Staff Ob-jections to Report and Order on Initial Prehearing Conference, March 14, 1986. After the issue of the Staff's advocacy of the ALAB-772 restriction was briefed by the parties, I ruled that the Staff was not required to act as the proponent of the ALAB-772 order. See Ruling on Staff Objections to Prehearing Conference Order, March 26, 1986. Instead, I ruled that the Staff would have the burden at the hearing to "go forward with the presenta-tion of a record on which the Appeal Board's condition may be judged." Id. at 4. I also ruled that Mr. Husted would have no initial burden to go forward and no burden of persuasion as to the issues in the proceeding. Id. at 4. Finally, I ordered that the Staff should notify the parties and me, no later than seven days prior to the commencement of the hearing, as to its position regarding whether or not the ALAB-772 condition should be i

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vacated. Id. at 6. On June 12, 1986, the Staff stated that the ALAB-772 condition concerning Mr. Husted should be vacated. Let-ter from George E. Johnson to Morton B. Margulies, Esq., June 12, 1986.

8. Discovery began March 1, 1986 and was completed approx-imately three F-onths later.

9. The final prehearing conference was held at Harrisburg, Pennsylvania on May 20, 1986. Report and Order on Final Prehearing Conference, May 27, 1986. Witnesses were identified and other procedural matters pertinent to the hearing were re-colved, including the order of proof, order of cross-examination, and the issues to be heard. .

10. Prefiled testimony was filed for all witnesses except Mr. John G. Herbein, who was subpoenaed by TMIA during the hear-ing. Trial plans were submitted that identified on what subjects cach witness would testify. The evidentiary hearing was held on June 23-26, and July 1, 1986 in Harrisburg, Pennsylvania.

C. Scope of the Proceeding

11. The Commission's Notice of Hearing set forth the scope of the hearing in such a manner that Mr. Husted would have an op-portunity to demonstrate his fitness for the position of NRC licensed operator, licensed operator instructor and training

supervisor, and non-licensed training supervisor. CLI-85-2, 21 N.R.C. 281 (1985).2/ TMIA proposed two litigable contentions:

1. The Appeal Board's condition barring Charles Husted from supervisory respon-sibilities insofar as the training of ~

non-licensed personnel is concerned should not be vacated by reason of his demonstrated bad attitude and lack of integrity.

2. Husted should be barred from serving as an NRC-licensed operator or licensed op-erator instructor or training supervisor by reason of his demonstrated bad atti-tude and lack of integrity.

Report and Order, February 27, 1986 at 4. GPUN also proposed a litigable contention:

The conduct and attitude of Charles Husted with which GPU is familiar indi-cates that the NRC should not disqualify Mr. Husted from serving as an NRC-licensed operator or an instructor of licensed or non-licensed personnel.

Id.

2/ Specifica1 ,, the Commission directed me to decide whether the following concerns were true, and if so, whether they require that Mr. Husted not be employed in the jobs in question:

(1) the alleged salicitation of an answer to an exam ques-tion from another operator during the April 1981 NRC written ex-tmination; (2) the lack of forthrightness of his testimony before the Special Master; (3) his poor attitude toward the hearing on the cheating incidents; and (4) his lack of cooperation with NRC investigators.

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12. The factual issues agreed to by the parties are a natu-ral outgrowth of the Commission's order and the parties' conten-tions. These issues are:

(i) Did Husted solicit an answer to an exam question from [Mr. Janes) during the April 1981 NRC examinction?

(ii) Did Husted's testimony before the Spe-cial 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?

Report and Order, May 27, 1986 at 6.

13. In addition, throughout the course of the hearing it became apparent that certain other questions required resolution.

The Appeal Board denied Mr. Husted's promotion to Supervisor of 1

Nonlicensed Operator Training because they found him lacking in the ability to communicate effective); a sense of responsibility i l

and that his conduct demonstrated a tac of respect. Of course, issues involving the Appeal Board's authority as exercised in ALAB-772 were not considered in this proceeding. See Report and Order, February 27, 1986 at 10. Nevertheless, it is important to decide the following two subsidiary questions:

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1. Did the Appeal Board place an appro-priate standard on Mr. Husted regarding his promotion?

(a) If so, did Mr. Husted fail to meet this standard based on the evidence presented and Mr. Husted's appear-ance in this proceeding?

2. Assuming that Mr. Husted failed to meet the Appeal Board's standard, (a) should Mr. Husted be forever barred from obtaining the positions that he held?

(b) does Mr. Husted now meet that stan-dard?

See Tr. 973-76 (Judge Margulies). The relevant issues, there-fore, are the seven issues agreed to by the parties and the two cdditional issues specified above. These issues, moreover, may be grouped into four categories: (1) whether Mr. Husted solic-ited an answer during the exam; (2) Mr. Husted's attitude, integ-rity, and conduct during the 1981 NRC investigations, the 1982 restart proceedings before the Special. Master, and this proceed-ing; (3) Mr. Husted's job performance as it reflects on his atti-tude and integrity; and (4) the necessity for remedial action.

These findings will be presented in a similar arrangement.

D. Request to Subpoena the Special Master

14. At a meeting among the parties on May 12, 1986, the NRC Staff proposed a stipulation of fact with respect to the attitude that Mr. Husted appeared to convey during his December 10, 1981 cppearance before Special Master Gary Milhollin. -The stipulation would have stated that Mr. Husted appeared to testify in a flip-pant and less than serious manner. In a June 9, 1986 telephone conference call, Mr. Husted's counsel reported that all the par-ties would not agree to the stipulation.

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15. At that time, it was also revealed to some parties that had yet to receive service that TMIA had just applied, by appli-cation dated June 5, 1986, for the issuance of a subpoena for Special Master Gary Milhollin to appear to testify in this pro-ceeding. In an Order of June 10, 1986, I requested TMIA to sup-port its request by addressing the issues of (1) the adequacy of the notice in seeking the subpoena, (2) the general relevancy of the testimony sought, and (3) whether the request meets the "ex-ceptional circumstances" requirement of 10 C.F.R. 5 2.720(h)(2)(i), which applies to the subpoenaing of NRC person-nel.

16. In response to this Order, TMIA claimed, first, that the notice was timely. TMIA stated that it contacted Professor Milhollin when the parties could not reach a stipulation regard-ing attitude by about May 20, 1986. Professor Milhollin would not appear voluntarily, and TMIA therefore applied for the sub-poena. Moreover, TMIA claimed that because all parties were fa-miliar with the Special Master's report, no party was prejudiced.

As to relevancy, TMIA claimed that due to Professor Milhollin's impartiality, he could provide the best evidence on the issue.

Finally, 10 C.F.R. $ 2.720(h)(2)(1)'s exceptional circumstances i - _ , __ _ _ _ . - _ _ _ _

requirement was met, TMIA claimed, because Professor Milhollin was the only witness to explain the basis for the facts stated in his report. TMIA's Brief in Support of Application for Issuance of Subpoena, June 13, 1986.

17. In responses submitted June 23, 1986, the other parties unanimously opposed TMIA's request for subpoena.

18. On June 24, 1986, TMIA's request for subpoena was de-nied. Tr. 323-28 (Judge Margulies). There is a well-established bar against one who acts in a quasi-judicial capacity testifing as to the bases, reasons, mental processes, analyses, or conclu-sions used in reaching a decision. United States v. Morgan, 313 U.S. 409 (1940); Fayerweather v. Rich, 195 U.S. 276, 306-07 (1904); United States v. Cross; 516 F. Supp. 700, 708 (M.D. Ga.

1981); see Licensees' Response to TMIA's Application For Issuance of Subpoena to Gary L. Milhollin, June 23, 1986, at 6-8. This was precisely what TMIA sought to have Professor Milhollin do.

Tr. 326 (Judge Margulies). See TMIA's Brief in Support of Appli-cation for Issuance of Subpoena, June 13, 1986. This in itself was enough to deny TMIA's request. Moreover, to allow the Spe-cial Master to testify in this proceeding would taint its de novo character, which was the essential purpose of the proceeding.

See Mr. Husted's Answer to TMIA's Brief in Support of Application for Issuance of Subpoena, June 23, 1986, at 13-14. Exceptional circumstances called for by 10 C.F.R. $ 2.72O(h)(2)(i) also were not met: Mr. Husted admitted that he appeared flippant in his l

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testimony. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB 715, 17 N.R.C. 102 (1983);

Licensee's Response to TMIA's Application for Issuance of Subpoe-na to Gary L. Milhollin, June 23, 1986, at 8-9. The application was also tardy. Professor Milhollin did not testify.

II. FINDINGS OF FACT l

A. The Solicitation Issue

19. The first issue in this proceeding concerns whether Mr.

Husted solicited an exam question from another examinee during the April 1981 NRC examinations at TMI.

20. Testimony on this subject was presented on behalf of the NRC Staff and Mr. Husted. Mr. William J. Ward, formerly Chief of the OIE Investigations Branch, and Mr. Peter E. Baci, formerly an OIE Senior Investigator, testified, along with Mr. David Janes, a TMI-1 shift supervisor, Mr. Samuel Newton, a former TMI Training Department Manager, and Mr. Husted himself.

21. The April, 1981 examinations were given in two shifts:

"A" and "B." A reactor operator (RO) and a senior reactor 1

operator (SRO) exam was given on each shift. Shift "A" exams t took place on April 21 and 22; shift "B" exams took place on April 23 and 24. Examinees were able to take the test in either o smokers' room or a nonsmokers' room. Mr. Husted and Mr. David  !

Janes, a TMI-1 shift supervisor, were the only individuals taking the NRC SRO "B" examination in the smokers room on April 24, l

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1981. As part of the NRC investigation into cheating at TMI-1, on September 25, 1981 OIE investigators William J. Ward and Peter E. Baci interviewed Mr. Janes. The purpose of the interview was to question Mr. Janes about a rumor that had surfaced concerning a telephone call made from one TMI operator, known as Mr. U,3/ to another TMI employee, known as Mr. KK, that may have constituted cheating. Tr. 158 (Ward).

22. The OIE report of Mr. Janes' interview reports that Mr. Janes said that at no time during the April exams did he see anyone cheating or assist anyone during the examination. It dis-cusses what Mr. Janes said about the exam procedures, TMI manage-ment's intolerance of cheating., the U - KK rumor, and the opera-tors' resentment of the TMI requalification exams. However, when Mr. Ward testified at the hearing before the Special Master, for the first time he indicated publicly that during the Janes inter-view, Mr. Janes stated that Mr. Husted had solicited an answer from him during the April 1981 SRO B examinations. Ward, ff.

Tr. 140 at Attachment 2. At the hearing before the Special Mas-ter, Mr. Baci testified as part of the same panel as Mr. Ward but 3/ Early in the TMI-1 restart proceeding before the Special Master, the parties to that proceeding negotiated a stipulation on confidentiality providing, in part, that a system of letters be used instead of names. Thus, individuals (such as Messrs. U and KK) who chose to be protected by the confidentiality agree-ment were referred to solely by their letter designations. See Metropolitan Edison Company (Three Mile Island Unit No. 1),

LBP-82-34B, 15 N.R.C. 918, 927 (1982). The identities of these persons played no role whatsoever in the present proceeding.

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said nothing regarding Mr. Janes' purported allegation. Tr. 248 (Baci). More importantly, the OIE report of Mr. Janes' interview is silent as to this' substantive allegation of attempted cheating. See Ward, ff. Tr. 140 at Attachment 3.

23. The testimony of Messrs. Ward and Baci in this proceed-ing was quite consistent as to the conduct of Mr. Janes' inter-view. According to both investigators, the interview, conducted on September 25, 1981, took place in an NRC trailer at TMI.

Mr. Baci was seated behind a desk, and Mr. Janes sat across from Mr. Baci but faced away from him and towards Mr. Ward. Mr. Baci was substantially behind or to the side of Mr. Janes, and Mr. Ward could look past Mr. Janes at Mr. Baci. Tr. 147, 181 (Ward), Tr. 221 (Baci). Mr. Ward was the primary questioner of Mr. Janes. Tr. 146 (Ward), Tr. 220 (Baci).

24. During the interview, according to the testimony of Messrs. Ward and Baci, Mr. Janes denied providing assistance to anyone during the April, 1981 exams. Baci, ff. Tr. 214 at 3. He expressed anger, however, at the NRC proctor's absence during the April 24, 1981 examination. Ward, ff. Tr. 140 at Att. 3 (OIE Report of Janes' interview). Mr. Janes was concerned that this absence made him vulnerable to cheating allegations. Baci, ff.

Tr. 214 at 3. Mr. Ward " thought that his vehemence was rather strange, and it suggested to me the possibility that he had in fact been solicited." Ward, ff. Tr. 140 at Att. 2. In short, on the basis of Mr. Janes' demeanor, Mr. Ward concluded that a

solicitation had taken place.4/ Ward, ff. Tr. 140 at 3.

Mr. Ward felt that it was worth pursuing the matter further. In lieu of asking Mr. Janes again whether any cheating had occurred on that day, Mr. Ward utilized what he characterized as an appro-priate investigator's technique, asserting, ". . . [T]he reason why you [Mr. Janes) are so upset about this is it puts you in an awkward position when Husted asked you a question." Id. at Attachment 2. At this point, Mr. Janes apparently looked star-tied and hesitated. Id. Mr. Ward continued with this in-vestigative technique, saying something like "[W]e knew he

[Husted] had asked the question", (although of course Mr. Ward had no substantive basis for this assertion). Id., Baci, ff. Tr.

216 at 5-6. Mr. Janes then responded,,according to Mr. Ward, by cdmitting that Mr. Husted had asked him a question and that Mr. Janes had refused to answer it. Ward, ff. Tr. 140 at Attach-ment 2.

25. Based on this accusation, Mr. Ward " concluded that some cort of solicitation had been made." Ward, ff. Tr. 140 at 5.

Mr. Ward does not recall if he then believed it to have been an cetual attempt to obtain assistance. Id. This is because, as Mr. Ward explained, " solicitation" is a word he uses to mean 4/ Mr. Ward did not consider the possibility that Mr. Janes' irritability during the interview was due to reasons other than a possible solicitation, such as the stress engendered by the Di-rector of Nuclear Reactor Regulation's recent announcement that all TMI-1 operators would have to retake the RO and SRO exams.

Tr. 175-79 (Ward).

merely that a question has been voiced, not that the question necessarily called for an answer or that an answer to that ques-tion was expected. Tr. 200 (Ward). Mr. Janes did not use the ,

word " solicitation" during the interview to describe what had transpired. Tr. 174 (Ward). Mr. Ward is not convinced that an act of cheating took place. Tr. 193 (Ward).

26. Mr. Ward believes that it is possible that Mr. Husted's statement was a rhetorical question, which would not constitute an act of cheating. Tr. 150, 200 (Ward). In his prior testi-mony, some of which Mr. Ward adopted as his testimony in this proceeding, Mr. Ward described Mr. Janes' account of Mr. Husted's statement as "more like what a.certain concept was, well, what the hell does this mean, or words to that effect." Ward, ff. Tr.

140 at Attachment 2. Again in this proceeding, Mr. Ward said that "it wasn't explicitly clear to me then and it certainly is not now whether it was an exclamation of concern over the, over Mr. Husted's inability to answer the question that he saw in front of him or if it was actually a question directed to

[Mr. Janes]." Tr. 149 (Ward).

27. Mr. Baci's testimony in this proceeding similarly sug-gests that Mr. Husted's statement out loud during the SRO B exam-ination did not constitute an attempt to cheat. Mr. Baci repeat-cdly testified that during the September 25, 1981 interview, Mr. Janes was unable to recall the nature of Mr. Husted's remark.

Baci, ff. Tr. 214 at 6, Tr. 224 (Baci). Mr. Baci did not recall

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4 Mr. Janes saying that the question dealt with a concept helpful in answering an exam question. Tr. 227 (Baci). Mr. Baci did re-call, however, that Mr. Janes did not characterize Mr. Husted's statement as a solicitation, only that a question had been i voiced. Tr. 267, 249, 271 (Baci). Mr. Baci testified that J

, Mr. Janes reported that a question had been asked that may have been rhetorical in nature, something along the lines "What the hell is this?" Tr. 250, 268 (Baci). Unlike Mr. Ward, Mr. Baci i

would not have used the word " solicitation" to describe what Mr. Janes reported. Mr. Baci felt that the word " solicitation,"

as used to mean that Mr. Husted was asking for a response to a test question, was inappposite to the situation described by Mr. Janes. Tr. 271 (Baci).5/ Instead, Mr. Baci recalls that 1

Mr. Janes said that someone had asked a rhetorical question along the lines of "what the hell is this." Tr. 250, 268 (Baci). In 1

short, Mr. Baci's testimony refutes the suggestion that Mr.

Husted cheated on the SRO exam.

28. OIE never directly confronted Mr. Husted with

Mr. Janes' claim. Tr. 153 (Ward). OIE also never confirmed,

) with Mr. Janes, that their understanding of Mr. Janes' allegation l

l was correct. Tr. 182 (Ward). According to Mr. Ward, the reason for this failure to corroborate the allegation was that Mr.

i Husted had already stated in two OIE interviews that he did not i i 1

5/ Nevertheless, Mr. Baci is sure that he and Mr. Ward were talking about the same event. Tr. 271 (Baci).

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cheat'on the OIE exams. Mr. Ward also held the view that the Janes allegation was an insufficiently important allegation to pursue in light of the focus of the investigation on management involvement and limited available OIE resources. Id.

29. Mr. Ward wrote the OIE summary of the Janes interview that appears as Attachment 3 to his prefiled testimony. Tr. 207 (Ward). Mr. Ward stated that he wrote the report in his custom-ary fashion except that the report does not mention Mr. Janes' statements concerning Mr. Husted's remark in the exam. Tr. 207 (Ward). Mr. Ward considers this omission to be justifiable. See Tr. 151-52 (Ward).

30. Mr. Ward reasoned that the thrust of the investigation was management involvement in cheating, and that the OIE's limited resources should not be used to pursue what was at most en aborted case of attempted cheating. Tr. 152 (Ward). Also, Mr. Ward testified that the act did not constitute cheating.

Ward, ff. Tr. 140 at Attachment 3. According to Mr. Ward, his management had agreed that the act did not fit into OIE's defini-tion of cheating and that it was beyond the scope of the investi-gation. Id., Tr. 152 (Ward). As a result, Mr. Ward decided to i omit the statement regarding Mr. Husted from the report. Tr.

152-153 (Ward). Mr. Baci testified that the statement was not reported in the OIE Summary because Mr. Janes had given Mr.

Husted no information in response to the statement and was not cven sure as to the nature of the question. Because there was no e

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witness to this alleged incident, including it in the report would serve no useful purpose. Baci, ff. Tr. 214 at 67.

31. Mr. Janes unequivocally denies that Mr. Husted asked him anything about the examination during the April 24, 1981 cxam. Janes, ff. 278 at 2, 6; Tr. 280 (Janes). In fact, Mr. Janes does not believe that Mr. Husted said anything to him at all during the examination. Janes, ff. 278 at 2.

32. Mr. Janes does confirm that during the OIE interview he discussed how upset he had become, once the cheating investiga-tion had begun, about the fact that the NRC proctor had been absent from the exam room. See Janes, ff. 278 at 4, Tr. 303-05 (Janes). He explained that he.was angry because when the cheating investigation began, he realized that the absence of a proctor put him in the position of not being able to prove that he did not cht6t. Also, Mr. Janes was angry because he suspected that the exam would be invalidated as a result of the proctor's absence. Id. Mr. Janes fervently denies that the upset he ex-hibited during his interview was due to his having been solic-ited. Tr. 304-05 (Janes). Mr. Janes repeatedly asserted that he was not solicited by Mr. Husted.

33. Mr. Janes also testified as to what he believes is the most likely explanation for Messrs. Ward and Baci's belief that he had reported that a question had been asked during the exam.

According to Mr. Janes, the investigator sitting in front of

him6/ was questioning him when the person sitting behind him broke in to state that Mr. Husted had solicited help on ths exam.

Janes, ff. Tr. 278 at 3. Directly after this statement, the in-vestigator sitting in front of Mr. Janes asked the hypothetical question, "WhatwouldyouhavedoneifChuck(Hustedjhadaskeda question during the exam?" Mr. Janes thinks that he responded, "Only one question? I wouldn't answer." Janes ff. Tr. 278 (Sup-plemental Testimony) at 2. Mr. Janes believes that the investi-gators mistakenly thought that his first query - "Only one ques-tion?" -- was an affirmative statement in which he was confirming that Mr. Husted had asked a question. In fact, Mr. Janes was re-sponding to a hypothetical (and incorrect) scenario. This expla-nation is confirmed by Mr. Janes' intonation, evident in this proceeding, which Mr. Ward noticed in the 1981 interview and

characterized as " flat." Tr. 144 (Ward). The lack of inflection in Mr. Janes' voice shows how his asking a question could be in-terpreted as providing a statement. Moreover, the sequence of interview questions, which included hypotheticals, supports Mr. Janes' deductions about the source of the miscommunication on this matter. Janes, ff. Tr. 278 (Supplemental Testimony) at 2, Tr. 172 (Ward).

6/ Mr. Janes at first believed that Mr. Baci sat in front of him, and Mr. Ward behind him. After reading Mr. Baci's prefiled testimony, Mr. Janes believes that Mr. Nard sat in front of him cnd Mr. Baci behind him. Janes ff. Tr. 278 (Supplemental Testi-

, mony) at 2. This is consistent with Messrs. Ward and Baci's i testimony.

1

34. Mr. Janes' account is a plausible explanation. There l may well have been a misunderstanding on the investigators' or Mr. Janes' part. This type of interrogation, in which two people are questioning a witness at the same time, could easily result in such confusion. Most importantly, however, one important part of Mr. Janes' testimony is wholly consistent with that of all other witnesses on this subject.

35. Mr. Janes remembers telling the investigators that dur-ing one of the exams he heard one or more groans or exclamations as people in the room read the exam. Janes, ff. Tr. 278 at 5, Tr. 281 (Janes). Mr. Janes is not sure on which exam he heard cuch sounds. Janes, ff. Tr. 278 at 5. Mr. Janen noted that Messrs. Ward and Baci's " recollection of a question which was nct en exam question could very well have been the exclamation that he recalls." Tr. 284 (Janes). The exclamation that Mr. Janes heard could also have been the exclamation that Mr. Husted re-called. See Tr. 316-17 (Janes), Husted ff. Tr. 330 at 4.

36. In that connection, Mr. Husted testified that he did not ask Mr. Janes a question during the examination. Husted, ff.

330 at 3. He does recall, however, speaking aloud during the SRO cxam and the circumstances surrounding this exclamation. When Mr. Husted came across an examination question on the Carnot thermodynamic cycle, he became upset because he realized that he had not prepared his students to answer a question on that con-cept. Husted, ff. 330 at 3-4. He exclaimed aloud words to the  ;

l i

i

effect, "What the hell is this?" Id.; Tr. 334-35 (Husted). In r

this rhetorical remark, Mr. Husted did not mention any specific aspect of the question, did not mention Mr. Janes' name, did not look at Mr. Janes, and Mr. Janeo did not acknowledge or respond

?

to this exclamation. Tr. 334-5 (Husted). The exclamation did not contain technical information or other requests for assis-tance. Tr. 341 (Husted). Mr. Husted did not intend to seek an y answer from Mr. Janes. Id.

[ -

37. Finally, Samuel Newton, Mr. Husted's former supervisor,

=

I testified that when he first heard of the allegation that Mr.

& Hunted had solicited an answer from Mr. Janes, Mr. Newton talked 5

to Mr. Husted about it.2/ Mr..Husted denied the allegation.

Although he is unsure, Mr. Newton seems to recall that during this conversation Mr. Husted said that during the exam he may C

have blurted out a rhetorical remark to the effect of "What the L. hell does this mean?" Newton, ff. Tr. 836 at 3. Mr. Newton rec-ognizes, however, that he may have read about Mr. Husted's rhe-tbrical comment somewhere. Id.

38. As is the case throughout this proceeding, the evidence on this issue consists primarily of recollections of an interview that occurred almost five years ago. Individuals' memories of this interview, therefore, are not crisp and complete. Neverthe-less, on this matter the evidence appears to be remarkably 2/ Mr. Newton did not believe that Mr. Husted would cheat on an examination. Newton, ff. Tr. 836 at 3.

Idbll h ..

consistent and suggests that Mr. Husted did not attempt to solic-it an exam answer from Mr. Janes.

39. The evidence that Mr. Husted did in fact solicit an answer is scant. At best, the evidence against Mr. Husted con-sists of the investigators' belated and unexplained assertions that Mr. Janes said in 1981 that Mr. Husted asked a question.

Ward, ff. Tr. 140 at Attachment 3, Baci, ff. Tr. 214 at 4-5. The substance of this recollection is strenuously denied by the statement's supposed declarant, Mr. Janes. The only contempora-neous account of Mr. Janes' interview admitted in this proceeding (which is written by one of the investigators) does not indicate that Mr. Husted solicited an answer from Mr. Janes.g/ In their testimony, Messrs. Ward and Baci could not say that the question constituted an act of cheating; they did not characterize the re-ported question as one to which an answer was expected. See Tr. 192-93 (Ward), Tr. 200 (Ward), Tr. 271 (Baci). Indeed, both investigators testified that the question mentioned by Mr. Janes may well have been merely a rhetorical question. Tr. 150 (Ward),

Tr. 250, 268 (Baci).

40. The overwhelming weight of the evidence indicates that Mr. Husted did not cheat.

g/ There was also tentimony that Mr. Baci's handwritten notes of the interview concerning did not mention that Mr. Janes made a stat'ement Mr. Husted.

Tr. 241-2 (Baci).

B. Mr. Husted's Attitude And Integrity During The 1981 NRC Investigations, The 1982 Restart Proceed-ing Before the Special Master, and This Proceeding

41. Mr. Husted's conduct during the 1981 NRC cheating in-vestigation and the 1982 restart hearings before the Special Mas-ter has generated three questions that this proceeding must re-solves (1) Did Mr. Husted fail to cooperate with NRC investigators; (2) Did Mr. Husted's *.estimo".y before the Special Master lack forthrightness; and (3) Diu :'r. Husted have a poor attitude toward the hearing on the cheating incident? A subsid-iary question that stems from this hearing is Mr. Husted's atti-tude today, as reflected by his testimony during this proceeding.

42. The NRC Staff, Mr. Husted, and TMIA presented testimony relating to these issues. The Staff offered the testimony of NRC u

investigators R. Keith Christopher and Richard B. Matakas. In addition to his own testimony, Mr. Husted called Paul G.

Christman, TMI-1 Manager of Plant Administration, Samuel L.

Newton, formerly Mr. Husted's Training Department Supervisor, and

, John W. Wilson, one of GPUN's attorneys. TMIA called John G.

Herbein, formerly Vice President of Nuclear Assurance at GPUN, to testify.

43. Mr. Husted was interviewed by OIE investigators R.

Keith Christopher and Raymond H. Smith on July 29, 1981, as part

_ of the NRC investigation into cheating during the April 1981 NRC

, exams at TMI. This was the first time Mr. Husted had been in-volved in such an interview. Husted, ff. Tr. 330 at 5.

K..

Investigator Richard A. Matakas conducted a second interview of 1

Mr. Husted on September 25, 1981.

44. According to the OIE report of Mr. Husted's first in-I terview, Mr. Husted declined to answer a question regarding the l

)

possibility of reference material being brought into the class-l room by examinees. The OIE report also says that Mr. Husted '

acknowledged that he heard rumors about cheating on the examina-tions, but refused to reveal any specifics about these rumors.

Baci, ff. 214 at Attachment 2 (" August OIE report"). At his sec-ond interview, Mr. Husted related that during the time period of i the exams he heard a statement between two or more individuals

! about " passing papers." Husted, ff. Tr. 330 at 14. The Special 4

Master in the restart proceeding concluded that Mr. Husted delib-erately withheld the information about " passing papers" until this second interview. LBP-82-34B, 15 N.R.C. 918, 961 (1982).

45. Mr. Husted was deposed on October 23, 1981 pursuant to the proceeding before the Special Master. At that deposition, Mr. Husted answered several questions in what he has acknowledged was a " cute" manner. Husted, ff. Tr. 330 at 21. Mr. Husted also testified at the hearing on the cheating issues. The Special Master concluded that Mr. Husted, while testifying, displayed an unacceptable attitude toward the hearing.

46. Finally, during this proceeding Mr. Husted testified

regarding all issues with which we are concerned.

(i) Cooperation with the NRC investigators

47. Mr. Husted was interviewed by OIE investigators on July 29, 1981. This was the first time Mr. Husted had participated in such an interview, and he was apprehensive about it. Husted, ff.

Tr. 330 at 5, Christman, ff. Tr. 351 at 3. He had been told by a TMI-2 shift foreman that the NRC investigators sometimes asked very broad questions and trick questions, and he wanted to be sure that his answers were correct. Tr. 565 (Husted). The in-terview was somewhat tense, although it was conducted in a busi-nesslike fashion. Tr. 355, 368 (Christman).

48. Page 39 of the August 11, 1981 Report of Investigation

(" August OIE Report") is a short, four-paragraph account of Mr.

Husted's July 29, 1981 interview. The interview was conducted by Investigators R. Keith Christopher and Raymond H. Smith. Baci, ff. Tr. 214 at 2 and Attachment 2. According to the August OIE Report, Mr. Husted did not answer two questions:

(Mr. Husted) was queried concerning the possibility of reference material being covertly brought into the classroom by examinees. However, for unknown rea-sons, he declined to respond to this question or explain his reluctance to discuss this issue. He was 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 " unconfirmed hear-say." However, (Mr. Husted] refused to reveal any specifics of the rumors he had heard or to identify the individuals (if named) who were allegedly impli-cated. Upon further attempted ques-tioning, (Mr. Husted] declared he could 4

not recall anything concerning what he had heard.

Id. Thus, according to this account, Mr. Husted (1) refused to answer e question concerning reference material being brought into the classroom, and (2) acknowledged that he had heard rumors about cheating but refused to reveal any specifics about them.

It is the refusal to answer these two questions that form the basis for accusations that Mr. Husted did not cooperate with the NRC investigators.9/

l

49. Christopher, one of the investigators who interviewed Mr. Husted, testified at this proceeding.lO/ Mr. Christopher re-members literally nothing about the interview. Christopher, ff.

Tr. 386 passim, Tr. 387 (Christopher).

50. Also present at the interview, however, was Mr. Paul G. '

Christman, Manager, Plant Administration, TMI-1. GPUN management had asked Mr. Christman to be available if any employee scheduled to be interviewed in connection with the cheating investigation requested that he be accompanied by a management representative.

Christman, ff. Tr. 351 at 1-2, Tr. 364 (Christman).

51. In contrast to the very brief OIE summary of Mr. Husted's July 29, 1981 interview, Mr. Christman took four l

t 9/ There is no evidence to suggest that Mr. Husted was uncooperative or withheld information during his September 25, 1981 interview. See Matakas, ff. Tr. 406 at 7.

10/ Due to serious illness, Investigator Raymond H. Smith was unavailable at this proceeding. See Tr. 402 (Johnson), Tr. 396 (Christopher).

I

- . - - . - - - . .-#.-. - , . - - - _ _ . - _ _ , __.,_..,y-_ , , . , _ ,-__-.c-- . - - ~ , _ - . _ _ , _ - _ - _ - - - . _ - - , , , . - . _ - - ~

pages of notes (the "Christman Report"); these notes were l

presented as evidence in this proceeding. Husted Exh. 1. With

)

respect to the question concerning reference material being j brought into the classroom (the " reference material question"),

the Christman Report says, Mr. [Husted] was asked whether candi-dates are allowed to bring notebooks, pads of paper, textbooks, etc. to the examination. Mr. [Husted] did not  ;

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

Id. The Christman Report differs significantly from the August OIE Report. While both reports indicate that Mr. Husted failed to answer the reference material question,11/ the Christman Report indicates that Mr. Husted subsequently did answer a olightly different question. The August OIE Report does not record this answer at all. Husted, ff. 330 at 7-8, Husted Exh. 1. Rather, the August OIE Report says that Mr. Husted de-clined to explain his reluctance to discuss this issue.

11/ Mr. Christman testified that he did not remember the manner in which Mr. Husted initially declined to answer (whether he remained silent or requested permission not to answer). Tr. 357 (Christman). Mr. Christman also did not recall whether Mr.

Husted hesitated before answering the slightly different ques-tion. Tr. 358 (Christman).

52. With respect to the question concerning rumors of cheating (the " rumors of cheating question"), the Christman Report records the e~xchange as follows:

Mr. [Husted] 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 examinations.

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

Again, the Christman Report expressly and significantly differs from the August OIE Report. The August OIE Report says that Mr.

Husted " acknowledged" hearing rumors of cheating, but it does not mention that when the rumors of cheating' question was repeated, Mr. Husted answered it. Instead, it says only that Mr. Husted refused to elaborate on the rumors he may have heard. In con-i trast, the Christman Report indicates that Mr. Husted said he had no knowledge of cheating, and that after first refusing to answer j the rumors of cheating question, Mr. Husted answered it saying that he had heard no rumors or gossip. In short, the Christman Report reflects a greater degree of cooperation than does the

August OIE Report.

53. Mr. Husted believes that he cooperated with the NRC in-

{

vestigators. Husted, ff. Tr. 330 at 11, Tr. 610-11 (Husted).

t Mr. Husted believes that he refused to answer the reference mate-rials question because it was too broad. Tr. 505 (Husted). He 1

f

_ - - , , . . . , . _ . , _ _ . , _ . , , _ . _ . - _ , _ _ ,___..__m- ._..__.y_ _ _ . , - . _ ,,,,_.,__~,._._.---*--"rc*-r ' ' - - - "

believes, based on his interpretation of the Christman Report, that he asked for clarification of the question and then, when the question was limited to the examinations, answered the ques-tion only for himself. Husted, ff. Tr. 330 at 7-8, Tr. 505-6, 576-77 (Husted). The Christman Report does not mentdon that Mr.

Husted complained that a question was too broad. Husted Exh. 1, Christman, ff. Tr. 351 at 3.

54. Mr. Husted cannot recall why he declined, at first, to cnswer the rumors of cheating question. Husted, ff. Tr. 330 at

8. He agrees with the Christman Report that when he was asked the question again, he answered it. Once again, Mr. Husted thinks that he may have asked for clarif*cetion or simplification of the question before answering it. Tr. 518 (Husted).

55. Finally, Mr. Husted testified that with respect to one of the questions that he refused to answer, he had first asked the interviewers whether he could decline to answer. According to Mr. Husted, the interviewers told him that if they wanted more information, they would interview him later. Husted, ff. Tr. 330 ct 10. This request for permission not to answer does not appear in the Christman Report or August OIE Report. Id. However, Mr. Husted was interviewed a second time by the OIE. Matakas, ff. Tr. 406 at 2.

56. The question of whether Mr. Husted cooperated with the NRC investigators during his July 20, 1981 interview revolves cround which version of the interview is more persuasive the August OIE Report or the Christman Report. If the Christman Report is believed, although Mr. Husted initially refused to answer two questions (which may have been uncooperative), he then proceeded to answer the questions when they were asked a second time. If the August OIE Report is believed, then Mr. Husted flatly refused to answer two of the investigators' questions.

57. I believe that-the Christman Report is more persuasive.

The Christman Report is much more comprehensive and detailed than the August OIS Report. As a result, there is a meaningful amount of information reported in the Christman Report that is not in-cluded in the August OIE Report. For instance, Mr. Christman re-ports that Mr. Husted was asked for the names of the people tak-ing the exam with him; this exchange does not appear in the August OIE Report. Tr. 374 (Christman). Also, the August OIE Report does not make it clear that Mr. Husted discussed and drew c diagram of the arrangement of the examination testing areas.

Husted, ff. Tr. 330 at 6. The Christman Report indicates that Mr. Husted drew such a diagram. Hunted Exh. 1.

58. More significantly, the Christman Report elaborates in much greater detail about the two questions that Mr. Husted ini-tially refused to answer. See Husted Exh. 1. It is highly un-likely that Mr. Christman would record responses made by Mr.

Husted during the interview if they in fact did not occur.

59. In addition, tne process used by Mr. Christman to gen-crate his report is quite reliable. Mr. Christman took u - . . _ _ __ _ . _ - _ __.__ _ _ . _ _ - _ . ___. _ _ _ _ _ _

l t

handwritten notes of the interview. Upon returning from the in-  ;

tarview, Mr. Christman himself promptly prepared from his handwritten notes the narrative account of the interview that ap-pears as the Christman Report. Christman, ff. Tr. 351 at 2. Mr.

Christman considered everything that was said to be important, cnd he believes that he recorded virtually everything that hap- '

pened during Mr. Husted's July 29, 1981 interview. Tr. 367, 378-9 (Christman). Moreover, Mr. Christman testified precisely cnd carefully in this proceeding. It is much more likely that the OIE Report inadvertently omitted Mr. Husted's responses after  !

the two questions were restated.

60. Perhaps Mr. Husted should not have initially refused to t cnswer the reference materials and rumors of cheating questions.

i While Mr. Husted may have thought the questions were too broad to cnswer, it is unlikely that Mr. Hunted made this reason clear to f

l the investigators. According to the Christman Report, however, j Mr. Husted proceeded to answer these questions, and the investi-gators were not disrupted by Mr. Husted's initial refusals. Tr.

• 362, 381-2 (Chrisman). These initial refusals certainly are not a sufficient basis on which to conclude that he failed to cooper-  ;

ate with the llRC investigators. It is more important to recog-nize that on both occasions when the OIE interviewed Mr. Husted, Mr. Husted appeared voluntarily. Although Mr. Husted may not

,I have been fully cooperative, I conclude that as a general matter  !

Mr. Husted cooperated with the NRC investigators. See Christman, t ff. Tr. 331 at 4.

l l

(ii) Withholding information from

, the NRC investigators

61. The allegation that Mr. Husted withheld information from the NRC centers around Mr. Husted's recollections at the time of his first investigative interview by OIE in July, 1981.

At issue is whether Mr. Husted did or did not recall at the time of that interview information that he now remembers he had heard shortly after the April, 1981 NRC exams. Unfortunately, the dif-ficulty of proof in such a case of an individual's past state of 4

mind is compounded by significantly different summaries of the interview.

62. The August OIE Report states that Mr. Husted acknowl-cdged that he had heard rumors regarding cheating on the exams.

According to this Report, Mr. Husted labelled these rumors

uncenfirmed hearsay'" but " refused to reveal any specifics of the rumors he had heard or identify the individuals (if named) who were allegedly implicated. Upon further attempted ques-tioning, [Mr. Husted) declared he could not recall anything con- 1 cerning what he had heard." This is the interview conducted by a

Investigator Christopher, who has no recall whatsoever of the in-terview. Christopher, ff. Tr. 386 passim, Tr. 387 (Christopher).

63. Mr. Husted was interviewed again on September 25, 1981 by OIE investigator Richard B. Matanas. The report of this in-terview (the " October OIE Report") states that Mr. Husted

_e. .,_-y , - . -- -- , - . - , y _e , . . - - - , . , - , , - . , . . , y.,. - ---, ,, ,,- ,,-.ea - .-

l was asked to clarify what he meant by

" unconfirmed hearsay" in his previous statement. He stated that he did hear s

one comment made 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.

[Mr. Husted] stated he heard the comment in the area near the coffee pot and men's room in the trailer that was lo-1 cated between the two classrooms.

Thus, the August and October OIE Reports raise the question whether Mr. Husted recalled a rumor at the time of his July 29, 1981 interview, but did not disclose it.12/

64. Mr. Matakas' and Mr. Newton's testimony appear to sug-gest that Mr. Husted initially did not disclose everything that he recalled. Mr. Matakas believes that he told Mr. Husted that 12/ The information concerning rumors of cheating is the only instance where Mr. Husted can be accused of withholding in-formation, although there are some inconsistencies in Mr. Husted's testimony. For instance, the Christman Report ctates that at one point Mr. Husted told the OIE investigators that he did not know whether the proctor left the room during ei-ther of the April, 1981 NRC examinations. Husted Exh. 1 at 2.

During his testimony before the Special Master, Ar. Husted testified that the proctor was out of the room about fifty per-cent of the time during the SRO examination. Staff Exh. 2 at 26,935. These answers are inconsistent; however, there is no reason to believe that Mr. Husted intended to mislead or withhold information from the NRC investigators in this regard.

Mr. Husted termed his fifty percent estimate "a wild guess." Id.

Mr. Husted was concentrating very hard on the exam and was not 4

focused at all on the proctor's activities. Therefore, Mr. Husted did not remember during his prior testimony whether or when the proctor was out of the room. Tr. 549 (Husted). Mr.

Christman's notes indicate that Mr. Husted had limited specific knowledge of the proctor's whereabouts during the exam. Tr. 615 (Husted). In sum, this inconsistency constitutes no more than an cxample of Mr. Husted's tendency to guess at an answer to a ques-tion about which he is unsure. See 11 89-92, infra.

the purpose of the September 25, 1981 interview was to find out what Mr. Husted meant when he used the term " unconfirmed hearsay"  ;

l in his first interview. Matakas, ff. Tr. 406 at 7, Tr. 409, 431 (Matakas). Mr. Matakas thinks that he specifically asked Mr.

Husted what he meant by the term " unconfirmed hearsay" in his first interview. Tr. 430 (Matakas). Mr. Matakas also believes that Mr. Husted responded either that the " unconfirmed hearsay" in his first interview was the " passing papers" story, or after he related the " passing papers" story, Mr. Husted acknowledged 4

that that was what he meant by the term " unconfirmed hearsay" in his first interview. Matakas, ff. Tr. 406 at 5.

65. Significantly, however, Mr. Matakas testified that his interview was based on facts supplied to him about what Mr.

Husted had said during his first interview. Either investigator Ward, Gilbert, or (most likely) Baci told Mr. Matakas over the 4

telephone that in a previous interview, Mr. Husted had been re-luctant to answer questions related to cheating on reactor opera-tor exams at TMI. Mr. Matakas was told that Mr. Husted had termed the information he possessed " unconfirmed hearsay."

Mr. Matakas was ordered to pursue what Mr. Husted meant by this term. Tr. 407-8, 436-7 (Matakas). Thus, Mr. Matakas went into Mr. Husted's interview assuming that Mr. Husted had made the

" unconfirmed hearsay" statement. His current perception of this fact, therefore, could reflect no more than this initial under-ctanding. In short, the October OIE Report is not independently i

j

m probative of the fact that Mr. Husted mentioned any rumors or used the phrase " unconfirmed hearsay" during the first interview.

66. Mr. Newton thinks that after he read the August OIE Report, he met with Mr. Hucted and asked him why, if he had heard I rumors, he was unwilling to discuss them with the NRC. Tr. 890 (Newton). Mr. Newton believes that Mr. Husted said either that i he had heard a comment about passing papers or that if he had heard such a statement, he would have been reluctant to pass on such a vague reference. Newton, ff. Tr. 836 at 4. Mr. Newton cdmits that he may not remember this conversation accurately.

Id. at 5. The conversation may well have occurred after Mr. Husted's second interview. Id. It also may be that Mr. Newton has confused what Mr. Husted told him after he learned how Messrs. O and W had cheated with what Mr. Husted told Mr. Newton he had discussed with the NRC investigators. Id.

Given that Mr. Husted did not recall the passing papers comment by July 29, 1981, see 11 67-70, infra, Mr. Husted may well have reported a subsequently remembered incident to Mr. Newton. Even at the earliest possible time of this conversation, the August OIE Report had been issued and Mr. Husted would have known how 0 cnd W had cheated. It was this knowledge that may have triggered Mr. Husted's recall of the " passing papers" conversation.

Husted, ff. Tr. 330 at 13.

67. Mr. Husted is sure that he did not remember the " pass-ing papers" incident until after his July 29, 1981 interview, t

Husted, ff. Tr. 330 at 10. Mr. Husted's testimony is supported by the weight of the evidence.

)

68. First, there is a serious question whether the term

" unconfirmed hearsay" was used at all during the July 29, 1981 interview. If " unconfirmed hearsay" was not used during the July 29, 1981 interview, then the " passing papers" comment could not be the " unconfirmed hearsay" that appears (by mistake) in the August OIE Report. Mr. Husted cannot recall using the words

" unconfirmed hearsay." Tr. 531 (Husted). In fact, the words

" unconfirmed hearsay" were not in his vocabulary at the time of the cheating investigation. Tr. 531 (Husted). Moreover, the Christman Report doce not mention the words " unconfirmed hear-say." Husted Exh. 1. If Mr. Husted had used the phrase

" unconfirmed hearsay" during the interview, it is likely that Mr. Christman would have written those words down and included them in his report. " Unconfirmed hearsay" would have caught Mr. Christman's attention because it is not a commonplace phrase.

Tr. 380-81 (Christman).

69. The question is further complicated by the fact that Mr. Husted never considered his knowledge about " passing papers" to constitute a rumor. Tr. 541 (Husted). Mr. Husted has never knowingly characterized the " passing papers" comment as a rumor.

Instead, he considered the comment to constitute information that he gathered firsthand in passing by a conversation. Tr. 531, 541

(Husted).13/ Given Mr. Husted's distinction between these phrases, it is doubtful that the overheard " passing papers" com-ment constitutes the " rumors" reported in the August OIE Report.

More significantly, the Christman Report indicates that Mr.

Husted said that he could not recall having heard any rumors of cheating. Husted Exh. 1. According to the Christman Report, then, Mr. Husted did not mention the " rumors" indicated in the August OIE Report. It is more likely than not, therefore, that Mr. Husted also never mentioned " rumors" during his July 29, 1981 interview.

70. The evidence also is insufficient to conclude that Mr.

Husted confirmed to Mr. Matakas that he had in mind the " passing papers" story during his first interview. From his testimony in this proceeding, it is apparent that while Mr. Husted may com-plain about the precision of a question that he has been asked, he also tends to lack precision and is sometimes insufficiently careful in his responses and thus easily makes mistakes. See 11 89-92, infra. Whether Mr. Husted misunderstood the question or gave an incorrect answer when Mr. Matakas asked what he meant by the words " unconfirmed hearsay" is unclear. It is clear, how-I I

cver, that Mr. Matakas went into Mr. Husted's September interview with the assumption that Mr. Husted had stated, in his first l l

13/ Mr. Husted did not characterize the " passing papers" state-ment as a rumor in his testimony before the Special Master. Tr.

532-36 (Husted).

- _ . - - , _ .. _ , - . _ , --,r , - . . _ _ _ , - - . - - - . . -

interview, an awareness of " unconfirmed hearsay;" Mr. Matakas' task was to ferret out what this hearsay was. Mr. Matakas' scanty notes and his testimony reflect this mindset. If one be-lieves the Christman Report, as I do, Mr. Matakas' assumption is incorrect. Mr. Husted, therefore, had no reason to equate the

" passing papers" incident with a phrase or rumor that he in fact did not mention during his first interview.

71. Mr. Husted knew that the investigation was important.

See Tr. 945-47 (Husted). It is implausible that he would have withheld information. In sum, there is insufficient grounds to find that Mr. Husted withheld evidence from the NRC investiga-tors.

72. Even if one were to assume, however, that Mr. Husted knew about the " passing papers" statement during his first inter-view and failed to disclose it to the NRC investigators, the na-ture of the information and circumstances of the interview make such withholding of information highly regrettable, but no more than this.

73. The only part of the conversation in the hallway that Mr. Husted remembered hearing was the phrase " passing papers."

Husted, ff. Tr. 330 at 14. He does not believe that at any time he indicated that the " passing papers" comment made any mention of an exam. Id. at 15.14/

14/ The October OIE Report and Mr. Matakas' testimony indicate that Mr. Husted reported that he heard someone say " passing pa-(Continued Next Page)

74. In view of this fact, it is understandable that Mr. Husted would have ascribed little importance to the comment until he became aware that O and W had cheated by passing papers during the April exams. Mr. Husted did not have this knowledge (Continued) pers in the exam." October OIE Report, Matakas ff. Tr. 406 at Attachment 1 (Matakas handwritten notes); Tr. 412 (Matakas).

However, additional inconsistent evidence was presented on this issue. Husted Exh. 2 is notes made by Mr. John Wilson, counsel for GPUN, of a telephone conversation that he had with Mr. Husted and Mr. John G. Herbein, who at that time was Vice President of Nuclear Assurance, on October 5, 1981. Husted Exh. 2. Mr.

Husted and Mr. Herbein had been meeting in connection with a GPUN-mandated requirement that Mr. Herbein, as the officer in charge of the Training Department, meet with training personnel to determine whether the instructors had any knowledge of cheating incidents and whether the instructors would support GPUN's position to cooperate with the cheating investigation.

Tr. 926 (Herbein). During this meeting, a question arose as to whether Mr. Husted had reported the " passing papers" comment to the NRC at his second interview. Mr. Herbein then called Mr. Wilson, who was acting as a GPUN-NRC intermediary, to facil-itate advising the NRC of this information.

Tr. 457-58 (Wilson).

One line of Mr. Wilson's notes reads, "2 words - ' Passing papers' ct water fountain." Id., Tr. 456 (Wilson). According to Mr. Wilson, the notes indicate that the only words Mr. Husted heard from the conversation at the water fountain were " passing papers." Tr. 469 (Wilson), Wilson, ff. Tr. 451 at 2. Similarly, notes taken by Dr. Robert L. Long, currently GPUN Vice President for Nuclear Assurance, of an October 5, 1981 conversation he had with Mr. Herbein also support Mr. Husted's claim that Mr. Husted heard merely " passing papers." See Husted Exh. 11. Dr. Long's notes indicate that Mr. Husted had told Mr. Herbein: "Husted wants Wilson to verify w/I&E that they know Husted heard two words at the water fountain ' passing papers.'" Id. Finally, Mr. Newton recalls having a discussion with Mr. Husted about the

" passing papers" comment and recalls that the discussion involved only the two words " passing papers." Newton, ff. Tr. 836 at 3-6.

While it therefore remains uncertain whether Mr. Husted heard

" passing papers" or " passing papers in the exam," Mr. Wilson's notes, Dr. Long's notes, and Mr. Newton's testimony certainly raise questions about the matter that are sufficient to accept Mr. Husted's recollection.

l ot the time of his July 29, 1981 interview. Husted, ff. Tr. 330 at 11, 13. Thus, it is likely that he did not appreciate the significance of the " passing papers" comment until after his first interview.

75. Moreover, Mr. Husted supplied the " passing papers" in-formation to the NRC at his second interview. After he realized the connection between the " passing papers" comment and the 0 and W cheating incident, the significance of the remark must have be-come apparent. Indeed, Mr. Wilson's October 5, 1981 notes (Husted Exh. 2) indicate that Mr. Husted was very concerned that the NRC possess this information. Husted Exh. 2, Tr. 457-8 (Wilson). It was only after Mr. Husted confirmed in his own mind that he had given this information to Mr. Matakas that he was content that he had reported all relevant information to the NRC.

Tr. 458-9 (Wilson).

76. Perhaps Mr. Husted should not have initially refused to enswer the investigators' questions about reference material and rumors of cheating. It is unclear, however, whether this refusal reflected a pervasive poor attitude by Mr. Husted. Mr. Husted acted cooperatively throughout the rest of the interview. Tr.

360 (Christman). There is absolutely no evidence that Mr. Husted i

I intended to deceive the NRC investigators. Instead, Mr. Husted has testified that he was apprehensive because he had been warned against trick or overly broad questions posed by NRC investiga-tors. Husted, ff. Tr. 330 at 5. In view of what he had been

told, this was a legitimate concern. Moreover, as the confusion concerning the Janes interview demonstrates, Mr. Husted's concern was not unfounded. In summary, then, even if one were to assume that Mr. Husted was aware of the " passing papers" statement at the time of his first NRC interview, the reasonable conciusion from this assumption is that Mr. Husted used poor judgment in refusing to disclose information that he did not deem significant at the time. Mr. Husted's conduct, even interpreted in its most cdverse light, does not reflect a lack of integrity. While con-flicting, the evidence is insufficient to establish that Mr. Husted in fact withheld any information.15/

15/ A derivative concern is the accuracy of Mr. Husted's testi-mony before the Special Master on the subject of when he first recalled the " passing papers" incident. Assuming Mr. Husted re-membered this event during his initial OIE interview, is it rea-sonable to conclude that Mr. Husted was honest in his repeated testimony to the contrary? Once again, the evidence is sketchy.

Unquestionably, Mr. Husted testified at times carelessly and in-accurately during his courtroom appearances. See 11 89-92, infra. He may have done so regarding this subject, as well. It is improbable, however, that Mr. Husted's current testimony con-cerning the timing of this important recollection is the result of carelessly provided testimony. The issue, then, becomes whether Mr. Husted himself believes that his recollection of the

" passing papers" comment post-dated his initial interview. This possibility is at least as likely as any other. An example of such an incorrect but honestly-held conviction occurred during this proceeding: Mr. Husted testified that he first identified his exclamation during the NRC examination ("What the hell is this?") when he testified before the Special Master. Tr. 346 (Husted). It was apparent that Mr. Husted sincerely believed this to be the case and had no intention to deceive, but, in fact, he was wrong. Tr. 495 (Husted).

(iii) Mr. Husted's attitude and forthrightness  !

during the NRC hearing process

)

1

77. In connection with the hearing on cheating at TMI-1, I Mr. Husted was deposed by the Aamodts on October 23, 1981 and testified before the Special Master on December 10, 1981.

78. During his October 23, 1981 deposition, Mr. Husted con-ducted himself inappropriately. The deposition was scheduled to begin at 7:00 p.m., but Mr. Husted was not called until two hours

~

later. As a result, Mr. Husted was angry. Husted, ff. Tr. 330 at 21.

79. During the deposition, Mr. Husted gave a number of an-nwers that he has termed " cute " Id. Most illustrative is the following exchange:

Question: May I,ask you, what happens to fuel pin tem-perature over core life if an oxidizing layer builds up on the cladding surface?

Answer: No , you may not.

Question: You don't know the answer?

Answer: Of course, I know the answer. I think it's a ridiculous question. You asked me if you may ask me and my answer is you may not.  !

Question: Let me rephrase that then. What happens to fuel pin temperature over core life if an oxidizing layer builds up on the cladding surface?

l Answer: It increases.

Question: Thank you.

Answer: You're welcome.

l

)

l l

_, _ _ . . - __ _ . . _ - - . - - . ._ --_r, , - - . - -,

Tr. 620 (Husted). At another point, Mr. Husted answered "My wife does not associate with anyone that I work with." The next ques-tion is "Okay." Mr. Husted then answered " Fortunately for her."

Tr. 618 (Husted).

80. Although Mr. Husted may not have fully realized the significance of the deposition, he knew that it was part of the restart proceedings. Tr. 597, 616 (Huste6). These comments in-dicate a less-than-serious approach to the deposition.1p/

81. Mr. Husted's poor performance at his deposition was criticized by GPUN management, and Mr. Husted realized that it was not appropriate. In addition, GPUN counsel admonished Mr.

Husted not to conduct himself at the hearing like he did at his deposition. Tr. 600 (Husted). Husted, ff. Tr. 330 at 21, Newton, ff. Tr. 836 at 6-7.

82. Mr. Husted's testimony before the Special Master was admitted in this proceeding in order to show what was said and appears as NRC Staff Exh. 2. Mr. Husted's answers sometimes ap-peared to be flippant, and he appeared at times to consider the questions in a less than serious manner. For instance, when asked why he refused to answer a question during his first inter-view, Mr. Husted responded, "I do not know. Stupid, I think."

Staff Exh. 2 at 26,928, Husted, ff. Tr. 330 at 25. Mr. Husted 1s/ Mr. Newton testified that Mr. Husted had told him that he had reopended this way because he was nervous and because one of the intervenor attorneys had deliberately tried to irritate him.

Newton, ff. Tr. at 6.

also appeared flip when he said that he did not like the way the NRC investigation was being conducted. Staff Exh. 2 at 26,929, Tr. 610 (Husted).

83. Mr. Husted answered some questions before the Special Master in such a manner that they were inconsistent with other answers he gave at that hearing. These internal inconsistencies also fostered the appearance that Mr. Husted was testifying in a less than serious manner. For example, Mr. Husted testified on the one hand that the proctor's absence from the exam room both-ered him; at other times he said that this absence was not a bur-den. Id. at 26,935, 26,944.17/ He also testified at different times that Mr. Wilson was the exam proctor and that he didn't know who the exam proctor was. Id. at 26,942,43. Finally, Mr.

Husted testified that he was totally unaware of Mr. Janes' ac-tions during the exam; yet he also said that he "certainly" would have noticed if Mr. Janes had left the room while the proctor was absent. Id. at 26,936. As a result of this confusing testimony, Mr. Husted has been viewed as exhibiting a poor attitude toward the hearing process and as testifying in a less than forthright manner.

17/ Mr. Husted testified at this proceeding that these prior an-swers were not necessarily inconsistent because something can be a bother but not be a burden. Tr. 545-468 (Husted). However re-fined Mr. Husted's thinking on this subject may be, at a minimum, these answers appear inconsistent and thus are confusing.

84. Mr. Husted testified that while he may have appeared flip, he was actually extremely serious. He has stated that he certainly meant no disrespect toward the hearing process.

Husted, ff. Tr. 330 at 25. In fact, he believes that he gave the impression that he was not serious and forthright precisely be-cause of the seriousness with which he took the situation, the consequent pressure he felt, and his resultant confusion when subject to intense cross-examination. Id.

85. The proceeding before the Special Master was an anxious _

time for all involved. Dr. Robert L. Long, GPUN's Vice Presi-dent, Nuclear Assurance, an experienced public speaker, testified that he was as apprehensive as he has ever been about that hear- -

ing. Long, ff. Tr. 755 at 4. Mr. Brown, formerly Supervisor, Licensed Operator Training, said that while on the stand, he felt like he was "being used as target practice in a bow and arrow contest;" he was scared. Tr. 741, 749 (Brown). Both Dr. Long and Mr. Brown felt that the sequestration order in effect at that time, which limited discussion about what had transpired in the '

hearing, was a major reason for this anxiety. Long, ff. Tr. 755 at 4-5, Tr. 741 (Brown). Undoubtedly, Mr. Husted also was sub- -

ject to this anxiety.

86. In addition, Mr. Husted had been admonished not to con-duct himself at the hearing as he had during his October 23, 1981 _

deposition (see 11 78-81, supra). Husted, ff. Ir. 330 at 22.

Mr. Newton discussed with Mr. Husted the necessity of staying

calm so that he would give thoughtful answers. Newton, ff. Tr.

836 at 6-7. After his testimony, Mr. Husted told Mr. Newton that he had tried to follow Mr. Newton's advice, but had overreacted in his attempt not to get flustered during the hearing. As a re-sult, he did not handle himself very well at the hearing. Id. at

7. This overcompensation may have resulted in answers appearing flip. Tr. 605-6 (Husted).

87. In addition to the pressure felt by other witnesses at the proceeding, Mr. Husted was in a unique position to feel highly stressed because of Mr. Ward's sudden accusation that Mr.

Husted had solicited an answer from Mr. Janes during the April 24, 1981 SRO exam.

This accusation did not surface until Mr.

Ward testified on Dec. 1, 1981 and, in view of the constraints placed on the proceeding, Mr. Husted knew no more than that the accusation had been made. See Husted, ff. Tr. 330 at 22, Tr.

601-03 (Husted). Thus, Mr. Husted took the witness stand, not merely as a witness, but as an accused person in a highly publi-cized, extremely intense, and very important proceeding on cheating. Husted, ff. Tr. 330 at 22.

88. Given the above-mentioned pressures and Mr. Husted's reaction to them, it is apparent that while Mr. Husted may have seemed flip and uncaring, it is likely that this was a defensive response to the adverse and difficult circumstances in which he found himself. Mr. Newton tertified that he "didn't feel in any way, shape or form that Mr. Husted had performed improperly [at

the hearing) through a conscious attempt on his part to do so."

Tr. 904 (Newton). Although Mr. Husted's performance was unfortu-nate, it is highly unlikely that he in fact did not take the hearing seriously. Even if Mr. Husted had been inclined to do so, he had been expressly admonished by Mr. Newton, his supervi-sor and a member of GPUN management, to take these matters very seriously. More importantly, he had just been accused of cheating during an NRC exam. Mr. Husted could have lost his job if he had been found to have cheated; he had an enormous incen-tive to take the hearing very seriously (and no incentive not to do so). In short, Mr. Husted's testimony constitutes an insuffi-cient basis to conclude that Mr. Husted did not respect the hear-ing process.

89. Instead, it seems that Mr. Husted is not a careful wit-ness. The inconsistencies in his testimony before the Special Master, enumerated above, do not appear to be the result of any desire by Mr. Husted to lie on the stand. Many of the inconsistencies relate to trivial matters. There was absolutely no reason why Mr. Husted would not be forthright about these mat-ters.

It is apparent that Mr. Husted simply lacked the ability to speak clearly in the situation in which he found himself, viz., the unfamiliar and intimidating courtroom environment. See Hutted, ff. Tr. 330 at 22, Tr. 626 (Husted).

90. Mr. Husted himself cited an instance in his testimony before the Special Master that illustrates that he is not a

careful witness. There, he was asked whether the October OIE Report was an accurate description of his interview. Mr. Husted responded that it was. Staff Exh. 2 at 26.914. Mr. Hucted now admits that although he had been given an opportunity to review the October OIE Report, he did so in a cursory manner. He did not fully contemplate his answer. Had he.done so, he would not have responded as he did. Tr. 608-9 {Huxted).

91. Indeed, Mr. Husted's testimony in this hearing provides a cogent example of his difficulty with the hearing process. In response to a question, Mr. Husted recalled that when he testified before the Special Master he discussad his rhetorical exclamation ("What the hell is.this?"). Tr. 346 (Husted).

Later, however, after reviewing the transcript, he recanted this testimony. Tr. 495 (Husted). Mr. Husted admitted that he often gets confused about when things had occurred. Id. Nevertheless, in an effort to be helpful, Mr. Husted guessed at the answer --

and guessed wrong. Also, on at least one occasion, Mr. Husted attempted to answer a question that he admitted he did not under-stand. Tr. 942 (Husted). In short, Mr. Husted has exhibited a remarkably consistent tendency to make inconsistent statements with benign motives. Significantly, there were no instances dur-ing this proceeding where Mr. Husted appeared flippant or ap-peared to have a poor attitude toward the hearing. Mr. Husted testified forthrightly and in an appropriate manner.

i

92. In summary, it is extremely likely and I therefore find d

that Mr. Husted's apparent demeanor during the Special Master &

a 4

hearing was the result of the pressure he fcit during the hear- d ing, his effort to overcome that pressure, his confusion over the 5 questions he was asked, and, ironically, his unwitting desire to cooperate by responding even when he didn't know the answer. The fact that Mr. Husted is not a careful witness does not mean that he lacks respect for the regulatory process or does not approach '

these hearings seriously. Nor does it indicate that he did not attempt to testify forthrightly. In order to be less than forth-right, there must be some intent to withhold information or to avoid questions. There is no pattern apparent to suggest that this was the case. His conduct at the hearing before the Special Master and at this hearing do not reflect unfavorably on his at-titude toward the regulatory process.

C. Mr. Husted's Job Performance

93. The positions of control room operator, licensed opera-tor instructor, and Supervisor of Nonlicensed Operator Training are positions of significant responsibility that affect the pub-lic health and safety. The Supervisor of Nonlicensed Operator Training,'for instance, supervises the instructors of nonlicensed personnel, plans training schedules, evaluates instructors, and conducts some classroom teaching. Tr. 675 (Haverhamp). This Supervisor is responsible for training all of the auxiliary  ;

operators, who work in the plant under the supervision of the licensed operators. The actions of the auxiliary operators have the potential for initiating or mitigating an event by their prompt response. Tr. 736 (Brown). Mr. Husted's attitude and in-tegrity, reficcted by his job performance, must be viewed as it affects the public health and safety. While Mr. Husted's techni-cal competence is not at issue in this proceeding, we are con-cerned with his job performance as it relates to his attitude, integrity, and ability to impart a sense of seriousness and re-sponsibility to the operators if he were to resume teaching. gee Report and Order on Final Prehearing Conference, May 27, 1986; ALAB-772, 19 N.R.C. 1193 (1984).

94. Testimony on this subject was presented by the NRC Staff and Mr. Husted. The Staff offered the results of a formal review conducted by NRC Project Engineer Donald R. Haverkamp.

Mr. Haverkamp also testified. Mr. Husted entered as evidence '

many of the reports created pursuant to GPUN's special monitoring program of Mr. Husted, many of his employee performance evalua-tions, and his instructor evaluations. Also, three of Mr.

Husted's former training supervisors at TMI, Messrs. Brown, Newton, and Long, testified. Mr. Husted also testified regarding his job performance. For discussion purposes, these various evaluations may be classified into three types: (i) long-term reviews of Mr. Husted's performance, (ii) short-term performance evaluations, and (iii) testimonial and personal evaluations of Mr. Husted.

I W

t E 95. Mr. Husted has held various jobs with Metropolitan Edison Company and GPUN.18/ Mr. Husted held an NRC RO license e-from June, 1978 to July 1980 and an SRO license from July, 1980 to July, 1983. He was an auxiliary operator instructor from July, 1978 to July, 1982, at which time he became a licensed op-2 erator instructor. See Haverkamp, ff. Tr. 648, Attachment 2

("Haverkamp Report") at 3. In March, 1983, Mr. Husted was ap-pointed Supervisor, Nonlicensed Operator Training. Subsequently, in June 1983, GPUN made a commitment to the Commonwealth of Pennsylvania to remove Mr. Husted's SRO license and to decline to use him as a TMI-1 licensed operator or instructor of licensed 7 operators. In June, 1984, ALAB-772 mandated that Mr. Husted be removed from the position of Supervisor, Nonlicensed Operator Training. Long, ff. Tr. 755 at 6-7. Currently, Mr. Husted works as an Engineering Assistant, Senior III in the Nuclear Assurance Division and deals with the TMI-1 replica simulator. Husted, ff.

Tr. 330 at 1.

96. One of the major controversies in this case has in-volved Mr. Husted's conduct in the TMI-1 restart proceeding. Of course, the jobs held by Mr. Husted would not ordinarily include E

appearances in legal settings, such as hearings and depositions.

Tr. 669, 688 (Haverkamp). Indeed, extensive involvement with e

18/ Dr. Robert L. Long testified about the transition from Met-repolitan Edison to GPUN. In summary, CPUN is the successor en-tity to Metropolitan Edison as the licensed operator of TMI-1.

See Tr. 784-87 (Long).

w M

such legal proceedings can be a hindrance to performing these jobs. Tr. 877 (Newton). Consideration should be paid to Mr.

Husted's performance at the various legal proceedings that have become the subject of much of this hearing. These incidents, however, must be evaluated in their proper context, which in-cludes both their limited and highly stressful nature as well as their very distinct character from Mr. Husted's job activities and performance.

(i) Long-term reviews of Mr. Husted's job performance

97. The NRC staff conducted an extensive review of Mr.

Husted's job performance. This work was done by Donald R.

Haverkamp, an NRC Project Engineer who, in connection with this proceeding, was instructed by NRC Region I management to conduct this special inspection. Haverkamp, ff. Tr. 648 at 3, Attach-ment 2 ("Haverkamp Report") at 2. Mr. Haverkamp conducted the inspection in February and March, 1986. He reviewed various let-ters, memoranda, instructor evaluations, employee performance evaluations, and other records regarding Mr. Husted's job perfor-mance. Haverkamp, ff. Tr. 648 at 3. The evaluations that Mr.

Haverkamp reviewed represent at least 20,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> of work by Mr.

Husted over more than a ten-year period. Tr. 667 (Haverkamp).

Mr. Haverkarp testified that he reviewed these evaluations be-cause he appropriately believes that the best measure of Mr.

Husted's performance is the contemporaneous measurements taken by

those who observed Mr. Husted over this period. Tr. 673 (Haverkamp). The GPUN job evaluations are inherently reliable.

They are completed as part of the annual reviews that are done for all GPUN employees. Tr. 766 (Long). GPUN management uses these reviews for their own internal purposes (promotion and salaries); fabrication or exaggeration would be inconsistent with this objective. Mr. Haverkamp also interviewed ten people who worked with Mr. Husted in various capacities. Haverkamp, ff. Tr.

648 at 4.

98. The Haverkamp Report is complete and persuasive. Vir-tually every job performance evaluation concerning Mr. Husted has been reviewed and summarized. Although it was brought out during the hearing that Mr. Haverkamp may have wrongly labelled a draft of a November 4, 1981 evaluation as a draft of an October 22, 1980 evaluation, it was apparent that this confusion would have no impact at all on the results of his report. Tr. 684 (Haverkamp).

99. Based on his review, Mr. Haverkamp concluded that Mr.

Husted's performance of his responsibilities at GPUN and Metro-politan Edison Company reflected favorably upon his attitude and professional integrity. No specific indication of past poor per-formance or demeanor were identified that should cause Mr. Husted to continue being restricted from any GPUN positions. Haverkamp, ff. Tr. 648 at 4, Haverkamp Report at 1, 22. Mr. Husted's evalu-ations indicated that over this extensive period of time, which

included the stressful period of the cheating investigation, Mr.

Husted's performance was maintained at an acceptable or satisfac-tory level. "During most of his employment, particularly while assigned as an operator instructor or supervisor of instructors, his performance appeared to be good to excellent. The many docu-ments regarding Mr. Husted's performance reflected favorably on his attitude and integrity." Haverkamp Report at 16.

100. In sum, Mr. Haverkamp believes that Mr. Husted would convey an aura of safety to the people he instructed and to the people he supervised if Mr. Husted were in the position of con-trol room operator, instructor of licensed operators, supervisor of licensed operators, or supervisor of nonlicensed operators.

Tr. 688-89 (Haverkamp). There was no evidence introduced to dis-pute Mr. Haverkamp's findings.

101. In addition to evaluations of his performance of the requirements of his job, Mr. Husted's attitude and demeanor were also specially monitored by GPUN officials through a program designed to assess Mr. Husted's performance over a fairly long period. Dr. Robert L. Long, Vice President of Nuclear Assurance for GPUN, testified extensively about these efforts. Dr. Long is responsible for the Training and Education Department, which in-cludes the Training Section in which Mr. Husted worked from July, 1978 until June, 1984.

102. As a result of Mr. Husted's performance in the cheating hearings, GPUN became concerned about his attitude towards his

work. In June, 1982, Dr. Long and other GPUN management members developed a formal plan by which Mr. Husted's attitude and per-formance as a licensed operator instructor would be assessed.

Dr. Long and Mr. H. D. Hukill, Vice President / Director TMI-1, met with Mr. Husted and explained that his apparent flippant at-titude during his deposition and testimony was inappropriate.

Thereafter, a monitoring and special counseling program began and continued through December, 1983. Mr. Husted was evaluated by both Training and Operations Department personnel. All reports indicated that Mr. Husted was performing satisfactorily and that there was no evidence of undesirable attitudes or disrespect to-wards the NRC. Long, ff. Tr. 755 at 2-6.19/ Husted Exh. 10, for example, is a report to Dr. Long from R. A. Knief, Manager, Plant Training. Dr. Knief conducted a formal classroom evaluation and informal observations of Mr. Husted. According to Dr. Knief, Mr.

Husted responded professionally and with a positive attitude to his students. Similarly, Mr. Newton reported that at no time had he heard anything out-of-line. Husted Exh. 24. The special mon-itoring program strongly supports the notion that Mr. Husted can impart a sense of responsibility to his students.

19/ Resulte of thene observations are contained in Husted Exhibits 9, 10, 24, and 25.

(ii) Short-term performance evaluations 103. Many of the actual evaluations relied on by Mr.

Haverkamp are a part of the record in this cace The first group of evaluations are Employee Performance Evaluations. A review of these documents indicates that Mr. Husted's performance has been average or better.

104. Mr. Husted's 1980 annual review (Husted Exh. 15) -

contains marks solely in the " competent" or " commendable" categories. ~ The Supervisor's comments remark, "Mr. Husted is honest and direct in his personal interactions, creating open and effective working relationships with his supervisors, peers, and subordinates." Husted Exh. 15.

105. For 1981, introduced into evidence was both Mr.

Husted's final evaluation (Husted Exh. 4) and a draft copy of that evaluation (Husted Exh. 3). Mr. Nelson D. Brown, who testified in this proceeding, authored both. There was much testimony concerning Husted Exh. 3. On the first page of the evaluation there appear three different sets of ratings, marked "O", "1/" and "2" respectively. Mr. Brown explained that two of the sets are his and represent a short-term " snapshot" evaluation and a year-long systematic evaluation. Brown, ff. Tr. 697 at 10-11, Tr. 707 (Brown). The third set reflects Mr. Husted's self evaluation. Mr. Brown cannot say which set is which. Brown, ff.

Tr. 697 at 11. The second page of the draft consists of Mr. Brown's initial comments, which were also based on a

short-term, " snapshot" evaluation of Mr. Husted. Id. at 10, Tr.

708, 718 (Brown). Some comments may be perceived as adverse to Mr. Husted. For example, draft comment 4 says that Mr. Husted is "not very tactful" in dealing with others. Draft comment 1 says, "Wants to work with others, does not accept ' constructive criti-cism' well." Husted Exh. 3. Draft comment 14 says, "Shows re-sistance to change and unusual assignments." Whether these com-ments in fact reflect negatively on Mr. Husted's capabilities as an instructor or his attitude about his responsibilities need not be resolved. While Mr. Brown stated that comments 1 and 14 re-21ected his view that Mr. Husted tended to resist changes in the Training Department's way of doing things, Mr. Brown also made clear that once the change ~became a fact, Mr. Husted readily com-plied with it. Brown, ff. Tr. 697 at 11. He also testified that draft comment 1 should not be construed as critical, but that it was a comment "that shows why I would not give Mr. Husted or any-one else (the highest rating] on the evaluation if they are not accepting the criticism well."

Tr. 718-19 (Brown).20/

106. The 1981 evaluation took place during a time of great stress and pressure on the Training Department, generally, and on Mr. Husted in particular. Because of the restart proceeding dis-covery demands, preparation for the October, 1981 reexamination 20/ Samuel L. Newton, Mr. Brown's supervisor, testified that tact was not Mr. Brown's forte, either, and that Mr. Brown may not have been giving the criticism in such a manner that would have been perceived as " constructive." Tr. 894-6 (Newton). -

S

i of licensed operators, development of new exam procedures, and _

normal training duties, the Training Department employees were -

working long hours;'these events adversely affected morale.

Newton, ff. Tr. 836 at 8, Brown, ff. Tr. 697 at 6. Mr. Brown be-lieved that Mr. Husted may have been under a particularly great

' deal of pressure because of the personal responsibility for the cheating incidents he felt as a member of the Training Depart- h_ e ment. Brown, ff. Tr. 697 at 8. In addition to those pressures

]

generally felt by the Training Department at that time, Mr. -"

Husted felt increased pressure because he was suddenly accused in the course of the evidentiary hearings of having cheated during the exams. Tr. 877 (Newton). Husted Exh. 16. Thus, it is hard-ly surprising that Mr. Husted may have exhibited some lack of tactfulness or ability to accept criticism during this period.

No such comments appear in Mr. Husted's later evaluations.

107. The final 1981 evaluation (Husted Exh. 4) contains marks which are " competent" or " commendable." The Supervisor's comments indicate that the adverse conditions had affected Mr.

Husted's projected attitude and that he had made efforts to over-come this effect. The 1981 evaluation is favorable.

~

Brown, ff.

Tr. 697 at 13.

108. The July, 1982 evaluation (Husted Exh. 16) contains -

better-than-average marks. It also comments, "Since the comple- "

tion of the restart hearings and associated reports, there has C been a noticeable improvement in [Mr. Husted's] enthusiasm and

-59 .

morale." Husted Exh. 16. Mr. Newton, who filled out this re-view, called it a "very favorable review." Newton, ff. Tr. 836 at 10.

109. Mr. Husted's 1982 annual review (Husted Exh. 5) also is a favorable review and reports that Mr. Husted possessed an "at-titude of quality." Similarly, the March, 1983 promotion review (Husted Exh. 6) was extremely favorable to Mr. Husted. Brown, ff. Tr. 697 at 15. Interestingly, Husted Exhibits 5 and 6 both contain an entry under "Special Assignments" labelled "ASLB hear-ings." Mr.' Husted received a "4" out of a possible "6" on this category. This category apparently had nothing to do with Mr.

Husted's performance as a witness during the proceeding. Rather, it dealt exclusively with the considerable time spent by Mr.

Husted and others in the Training Department to satisfy GPUN's discovery obligations for the restart proceeding, as well as to rewrite lesson materials that were taken during discovery and never returned. Tr. 900 (Newton), Tr. 723-26 (Brown).

110. Mr. Husted's July 1983 merit evaluation (Husted Exh.

17) contains above average marks and the comment, "[Mr. Husted'e]

attitude is always professional and this has provided an excel-lent example for peers." Husted Exh. 17. Similarly, his 1983 annual evaluation (Husted Exh. 18) is above-average. Under the

" Leadership" category, the comment " Promotes team concept.

Serves as excellent example. Mature and self confident" appears.

Mr. Leonard, the evaluator and the operations and Technical

Training Manager, also commented, " Chuck has maintained excellent morale, even though his SRO was terminated due to corporate com-mitments. He continues to apply himself professionally in all areas." Also, Mr. Husted Es May, 1984 evaluation, which contains very favorable marks, comments "[Mr. Husted's] positive attitude and professional approach to the training programs has maintained a high morale in the section. Despite uncontrollable influences on both his personal and professional life he has continued to perform at a superior level." Husted Exh. 19.

l 111. After Mr. Hasted was removed from the Training Depart-ment, his supervisors continued to report that he maintained a positive attitude. For instance, the 1984 annual evaluation re-ports, "[Mr. Husted] has a very positive, enthusiastic attitude about the (probability risk assessment] project and does more than is asked of him in order to contribute and learn." His marks were generally average or better. Husted Exh. 7. Finally, his 1985 annual evaluation contained average or better-than-average marks. Husted Exh. 6.

112. In addition to the Employee Performance Evaluations, four Instructor Evaluaticns, which measure Mr. Husted's perfor-mance in the classroom, were introduced into evidence. The rat-ings were all " good" to " outstanding." See Husted Exhs. 20, 21, 22, and 23.

113. Finally, Mr. Eusted's conduct during the restart pro-ceeding, while not dispositive, was considered by his supervisors

in evaluating Mr. Husted's performance. Although he did not di-rectly observe Mr. Husted's performance during the cheating pro-ceeding (the deposition or evidentiary hearing), Mr. Brown took

=

Mr. Husted's performance under those circumstances into account in Mr. Husted's candidacy for appointment to Supervisor, i

[ Nonlicensed Operator Training in March, 1983. Tr. 737-8 (Brown).

When that job became available, Nelson Brown recommended Mr.

L Husted for the position. Tr. 736 (Brown). While Mr. Husted's I

( poor performance before the Special Master was recognized, his C

organizational, planning, and teaching ability warranted that he be appointed. Tr. 737-8 (Brown). Dr. Long and the Director of Training and Education, Dr. Coe, concurred in Mr. Husted's ap-pointment. Long, ff. Tr. 755 at 6. Dr. Long was well aware of the Licensing Board decision expressing doubts about Mr. Husted's ability to convey to others the need for integrity, discipline,

[ and public confidence in a TMI training program. Dr. Long par-ticularly pursued the matter of Mr. Husted's attitude on the job with the Training Department staff. In response, Dr. Long re-ceived assurances that Mr. Husted had demonstrated appropriate

, integrity and a positive attitude towards nuclear safety and the

- regulatory process. The many reports generated by the special E

C monitoring program of Mr. Husted's attitude and performance in

=

E and out of the classroom confirmed that Mr. Husted did reflect

$ the appropriate attitudes required by the company and the NRC.

L

{ Tr. 788-90 (Long).

A i

m

] _ _ _ _ . _ . _ _ - - - . -

114. There are other indications that Mr Husted's testimony in the restart hearing was considered in his routine (employee performance) evaluations. For instance, Mr. Brown testified that he included Mr. Husted's performance before the Special Master in the Supervisor's Comments in the 1982 evaluation (Husted Exh. 5).

Mr. Brown viewed Mr. Husted's performance as an isolated event that would not have a significant bearing on the evaluation of Mr. Husted's attitude if viewed from a year long perspective.

Tr. 731-34 (Brown). Also, Mr. Newton testified that he did not feel that Mr. Husted had performed improperly before the Special Master through a conscious attempt on his part to do so. There-fore, while Mr. Husted's performance before the Special Master concerned Mr. Newton from the perspective of Mr. Husted's person-al growth, it did not have much impact on what kind of instructor or supervisor Mr. Husted was. The training and courtroom envi-ronments are totally different. Tr. 903-04 (Newton). Thus, although the evaluators were aware of Mr. Husted's performance before the Special Master, they viewed it in perspective as a single event to be considered in the annual evaluations. He dis-played no attitudinal problems on the job and consistently re-ceived very favorable evaluations.

(iii) Testimonial and personal evaluations of Mr. Husted -_

115. Apart from written evaluations, there was also testi-mony concerning Mr. Husted's job performance and attitude. Ac-cording to Nelson Brown, Mr. Husted's immediate supervisor in the Training Department from September, 1980 to March, 1983, Mr.

Husted had a high level of concern for safety, the NRC regulatory process and examination requirements. Mr. Brown also worked with Mr. Husted in the control room. Mr. Brown testified that in this context as well, Mr. Husted's attention to detail and attention in running the reactor displayed a very positive concern for cafety. The quality of Mr. Husted's classroom presentation and exam questions that he composed also indicated that he respected the licensing process and exam process. Tr. 735 (Brown), ff. Tr.

697 at 15-16. As a result of Mr. Husted's meticulous attention to safety, Mr. Brown assigned Mr. Husted the responsibility to teach courses on engineered safeguards and to keep track of and teach the courses on the nature and significance of Unit 1 and Unit 2 plant modifications. Id. at 15. Mr. Brown's testimony indicates that Mr. Husted's job performance reflects favorably on his attitude and integrity.

116. Samuel Newton, formerly Manager, Plant Training at TMI-1,21/ also commented very favorably about Mr. Husted's job l

21/ Currently, Mr. Newton is employed by the Institute of Nuclear Power Operations ("INPO"). While at INPO, Mr. Newton has (Continued Next Page)

performance at TMI-1. From April 1980 until Mr. Husted left the Training Department in June, 1984, Mr. Husted was Mr. Newton's subordinate. They worked closely together during this time.

-Newton, ff. Tr. 836 at 2. Mr. Newton testified that Mr. Husted was conscientious, took reactor safety seriously, respected the regulatory process, and conveyed a sense of seriousness and re-sponsibility to the TMI operators whom he taught. Id. at 12.

While Mr. Newton did think that Mr. Husted was flippant during Mr. Husted's October 23, 1981 deposition, Mr. Newton knows of no instance when Mr. Husted had been flippant or disrespectful to-wards the NRC in the course of his normal job responsibilities.

If Mr. Husted had displayed such an attitude, Mr. Newton believes he would have known about it. Tr. 864 (Newton). Instead, during the course of operator training Mr. Husted would have emphasized the sense of responsibility towards following procedures mandated by the NRC. Tr. 865 (Newton). Moreover, Mr. Newton did not be-lieve that Mr. Husted indirectly communicated an irresponsible attitude to his students. Id. In sum, Mr. Newton feels that Mr.

Husted's attitude and integrity make him well-qualified to serve es a licensed operator, licensed operator instructor, licensed (Continued) been involved in evaluating and developing training programs for a variety of positions in a nuclear power plant. Because Mr. Newton's job is to evaluate programs and performances like l Mr. Husted's, his opinion is especially persuasive. See Tr.

862-64 (Newton).

f operator training supervisor or supervisor of nonlicensed opera-tor training.

117. Mr. Husted also testified about his job performance.

He stated that he takes his work assignments very seriously.

Husted, ff. Tr. 330 at 26. He has never said or done anything that would indicate that he has a disregard for safety or that he did not respect the NRC regulatory process or training and exami-nation requirements. Id. Mr. Husted feels that he has made every effort to impart a sense of seriousness and responsibility to his students. Id. at 27. Mr. Husted acknowledged that the restrictions on the jobs available to him have had a significant emotional impact on him. Despite this, he believes that his job performance has always been better than average. This conclusion is not surprising, given Mr. Husted's job performance evalua-tions. Mr. Husted does believe, however, that he has carried an (motional burden that has required more effort on his part to perform to the requisite high standards than otherwise would have been necessary. Tr. 961-62 (Husted).

118. The Haverkamp Report also discusses personal interviews that Mr. Haverkamp conducted with Mr. Husted's co-workers. These interviews indicate that Mr. Husted displayed a sense of integri-ty and forthrightness, and a professional demeanor on the job.22/

22/ Mr. Haverkamp also testified that Mr. Husted cooperated fully with and was respectful towards Mr. Haverkamp. Tr. 650, Tr. 668 (Haverkamp).

1 l

Haverkamp Report at 21. Mr. Haverkamp concluded that these indi-viduals' " observations of Mr. Husted's performance and demeanor indicated a consensus opinion that Mr. Husted was above average,

, or better, as an operator instructor and supervisor of instruc-tors." Haverkamp Report at 22.

119. In summary, the record in this case regarding Mr.

Husted's job performance and what it reflects on his attitude and integrity is extensive. The Haverkamp Report concluded that Mr.

Husted's attitude was appropriate. All written evaluations of Mr. Husted admitted into evidence give Mr. Husted average to above average marks for his job performance. With possibly one exception, the comments on Mr. Husted noted in these evaluations support the notion that his on-the-job attitude and demeanor have been very appropriate. This is particularly impressive, given the stress that the Training Department was under during much of this time. Both the testimonial and written record concerning Mr. Husted's performance reflects a professional attitude and de-meanor, a respect for plant safety and the regulatory process, and the ability and willingness to impart a feeling of responsi-bility to his students. In short, the overwhelming weight of the evidence in this case is that Mr. Husted performed his job very well.

120. Mr. Husted's job performance reflects very positively on his attitude and integrity. Mr. Husted has performed well as a control room operator, auxiliary operator instructor, licensed

operator instructor, and Supervisor, Nonlicensed Operator Training. His job performance and associated attitudes should not bar him from any of these positions.

D. Remedial Action

)

l 121. In ALAB-772, the Appeal Board recognized that the Stip-ulation between GPUN and the Commonwealth of Pennsylvania disqualified Mr. Husted from serving as a licensed operator or instructor of licensed operators or trainees at TMI-1. ALAB-772, 19 N.R.C. 1193, 1222. The Appeal Board further ordered that Mr.

Husted "have no supervisory responsibilities insofar as the training of non-licensed personnel is concerned." Id. at 1224.

It said that the competence of a teacher includes "the ability to communicate effectively a sense of responsibility as well as in-formation." Id. at 1223. The Appeal Board evidently found that Mr. Husted did not possess this ability.

122. The Appeal Board did not expressly enunciate a standard against which Mr. Husted's action should be measured. It did state, however, its concern about an instructor's attitude to-wards following proper operating procedures: "the instructor's attitude toward -- i.e., respect for -- those procedures becomes an integral (though perhaps subliminal) part of his or her abil-ity to teach." Id. Moreover, the Appeal Board was concerned with Mr. Husted's "past failure to cooperate with the NRC in its  !

I cheating investigation." Id. at 1224. l l

I l

123. Also implicit in the remedy imposed by the Appeal Board was the standard, which it felt that Mr. Husted did not meet, that an operator instructor must exhibit the ability to impart a I

sense of responsibility. Relying on the August OIE Report, October OIE Report and Mr. Husted's testimony before the Special Master, the Appeal Board found that Mr. Husted had refused to answer fully the NRC examiners' question regarding rumors of cheating, gave unbelievable testimony in such a manner as to give

, the sense that he didn't care whether it was believed or not and thus could not be relied upon to communicate a sense of responsi-bility to his students. Id. at 1223-24.

124. There is no indication in the Appeal Board's decision that Mr. Husted was to be forever barred from serving as Supervi-cor, Nonlicensed Operator Training or any other job at TMI. Once the grounds for this restriction are eliminated, it would be un-just for the restriction to survive. If Mr. Husted is willing and able to convey a sense of his responsibility to his students, there is no reason to continue the restrictions placed on him.

125. It is appropriate to evaluate Mr. Husted's attitude as a part of his job qualifications, but the real question at hand is how can one extrapolate attitude from the findings of fact that have been made? Those findings include the following facts:

(1) Mr. Husted did not solicit an answer from Mr. Janes during the April 24, 1981 SRO examination; the evidence indicates that he merely made a rhetorical exclamation during the exam; (2) Mr.

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

Husted is a very capable instructor and one who has been found to have an appropriate attitude when he teaches; (3) It is unlikely that Mr. Husted withheld information from the NRC investigators during his July 29, 1981 interview; at worst, Mr. Husted did not appreciate the significance of the information in question to the investigation and the public health and safety; (4) Mr. Husted exhibited a poor attitude during his October 23, 1981 deposition; (5) While some of Mr. Husted's answers before the Special Master were inconsistent and appeared flip, it is likely that Mr. Husted took the hearing seriously; (6) Mr. Husted took the present pro-ceeding very seriously and acted in a professional manner; and (7) Mr. Husted's conduct as a GPUN employee has been scrutinized in great detail over the past few years, and has been found to be fully satisfactory.23/

126. In view of these findings, what can one conclude about the need to impose a remedy on Mr. Husted today? Undoubtedly, the importance of an operator, instructor, and supervisor con-veying a serious attitude and a sense of responsibility is clear to Mr. Husted. It is also clear that Mr. Husted has already been 23/ Of course, most of the evidence heard at the proceeding was '

not part of the record on which the Appeal Board made its deter-mination. For example, through the special monitoring of Mr.

Husted that was ordered by the Licensing Board, it has become l clear that Mr. Husted's attitude and demeanor are appropriate. l St a 11 101-102, supra. The Appeal Board was not in a position to l

consider this new information when it issued ALAB-772. Thus, sven if Mr. Husted failed to meet the Appeal Board's ALAB-772 standard at the time of the hearing before the Special Master, he does so now.

l l

l ..- -

l i

severely punished. His duly earned SRO license has been for- '

feited. If he is ever to be a licensed operator again, he will have to undergo the training and testing associated with reli-censing. He has not been able to teach licensed operators since July, 1983 and has not taught at all since ALAB-772 was issued in May, 1984. Mr. Husted no longer has any supervisory responsibil-ities at TMI-1. In short, his career path in training has been severely and adversely affected for the past three years. Mr.

Husted is well aware of his experience of the last several years, and the consequences he has suffered.

See Tr. 961-62 (Husted)

(Events of last few years have had a significant emotional impact on Mr. Husted).

127. In addition to these facts, the overwhelming weight of the evidence indicates that Mr. Husted could function as a quali-fied operator, instructor, and supervisor. See 11 119-20, supra.

To the extent that Mr. Husted exhibited any attitude problem, e.g., during his 1981 deposition, there is no basis for finding that today, his attitude on the job would be anything but profes-cional. There also is no basis for doubting Mr. Husted's charac-ter.

1 128. In light of these facts, further remedial action l cgainst Mr. Husted is inappropriate. To the extent that l Mr. Husted's conduct has at times been inappropriate, he has al-1 ready paid a steep and sufficient price for it. l l

III. CONCLUSIONS OF LAW 129. In accordance with the Commission order CLI-85-2 and based on the reliable, probative, and substantial evidence of record in this proceeding and the foregoing findings of fact, I conclude:

a. That the restriction placed on Mr. Husted by ALAB-772 is vacated; and

b. Mr. Husted is not disqualified from serving as a licensed operator, an instructor, and a training supervisor.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: DM d. ke>2 ov Deborah B. Bauser Scott E. Barat Counsel for GPU Nuclear Corporation 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: August 15, 1986

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