ML20205R651

Initial Decision.* Initial Decision LBP-87-11 Ordering That Condition Re C Husted Imposed in ALAB-772 Shall Not Be Vacated.Served on 870403

ML20205R651
Person / Time
Site:	Three Mile Island
Issue date:	04/02/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:
References
CON-#287-3000 85-514-02-OT, 85-514-2-OT, ALAB-772, CH, LBP-87-11, NUDOCS 8704060403
Download: ML20205R651 (72)

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DOLKETED LBP-87-11 U$NRC UNITED STATES OF AMERICA

• Nuclear Regulatory Comission 87 MR -3 20 :27 -

83efore Administrative Law Judge GFFICE 3 h Rt!A o Morton B. Margulies 00CKEiiiiG .5 SERVICf BRANCH i

SERVED APR -31987

, In the Matter of DocketNo.50-289(CH)

, General Public Utilities Nuclear (ASLBP No. 85-514-02-0T)

(Three Mile Island Nuclear Station, Unit No. 1) April 2, 1987 .

)

INITIAL DECISION ,

1 Appearances l

l Gene E. Johnson, Esq., Bethesda, Maryland, for the Nuclear Regulatory Comission Staff.

Louise Bradford, Harrisburg, Pennsylvania, for Intervenor Three Mile

Island Alert, Inc.

Deborah B. Bauser and Scott E. Barat. Esos., Shaw, Pittman, Potts &

Trowbridge, Washington, D.C., for Intervenor GPU Nuclear Corporation.

Michael W. Maupin and Maria C. Hensley, Esgs., Hunton & Williams, Richmond, Virginia, for Charles Husted.

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8704060403 070402 89 p PDR ADOCK 05 3 50

2 I. PROCEDUPAL HISTORY AND BACKGROUND i

This proceeding was instituted by the Commission on September 5, 1985, to provide a hearing for Mr. Charles Husted, a former licensed operator and licensed operator instructor at the Three Mile Island NuclearPlant(TMI). The purpose is to determine whether a license condition imposed as part of the Appeal Board's decision on management-related issues in the Three Mile Island, Unit 1 (TMI-1), restart proceeding, ALAB-772, 19 NRC 1193, 1224 (1984), should be vacated. This condition barred Mr. Husted from supervisory responsibilities in the training of non-licensed personnel at the plant. This initial decision finds that Mr. Husted's conduct and attitude disqualify him from such a position and that the condition imposed by the Appeal Board shall not be vacated.

This matter evolved from examinations adninistered by the Connission at THI in April 1981, which tested 36 individuals seeking NRC reactor operator and senior reactor operator licenses. Evidence of cheating by individuals taking the examinations was subsequently disclosed. Mr. Husted was interviewed twice in the course of the NRC's investigation of the matter.

The Licensing Board in the TMI-1 restart proceeding determined to reopen the phase of the proceeding pertaining to the quality of the licensee's management and its operating personnel. It appointed a Special Master to preside over a hearing on the relationship between information developed about cheating on the April 1981 NRC operator i

licensing examinations and the management issues previously considered l l

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or left open by the Licensing Board. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) (TMI-1 Restart), LBP-82-56, 16 NRC 281, 287-288 (1982).

I Mr. Husted appeared as a witness before the Special Master. He was not a party to the restart proceeding, nor was he represented by 1

individual counsel during the time that the restart proceeding worked its way through to review by the Appeal Board. The Special Master found that Mr. Husted refused to cooperate with the NRC investigation; had displayed an attitude toward the investigators and the hearing that was unacceptable; and had solicited an answer during the examination from another person taking the examination. After noting that he was without guidelines, the Special Master determined that he could not conclude that Mr. Husted should be removed from his licensed duties but that a lesser sanction would be appropriate. He made no reconnendation regarding the lesser sanction because he did not have the infonnation necessary to make such a determination. TMI-Restart, LBP-82-348, 15 NRC 918,957-961,1045-1046(1982).

After considering the Special Master's report, the Licensing Board concluded that there was no reliable evidence that Mr. Husted cheated on the examination. However, the Licensing Board concluded that Mr. Husted had refused to cooperate with NRC investigators; that he continued to l

withhold information within his knowledge; and that he had provided unbelievable testimony at the hearing. The Licensing Board questioned i whether Mr. Husted is able, or, if able, willing to impart a sense of seriousness and responsibility to the TMI operators. It then concluded 4

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4 t that certain changes be made in the licensee's training program including the establishment of criteria for the qualifications of training instructors and the auditing of training at the point of

delivery. No direct sanction was -imposed on Mr. Husted but the Licensing Board recommended that his qualifications and delivery perfomance receive particular attention during a review of the TMI

training program. TMI-Restart, LBP-82-56, 16 NRC 281, 315-320 (1982).

! During the pendency of appeals of the Licensing Board decision, the licensee (now GPU Nuclear Corporation as successor to Metropolitan Edison Company) reached a stipulation with the Conunonwealth of Pennsylvania, a party to the restart proceeding. The Connonwealth withdrew its appeal and GPU Nuclear Corporation agreed not to employ Mr.

I Husted at any time in the future to operate TMI or to train operator license holders or trainees. TMI-Restart, ALAB-772, 19 NRC 1193, 1201

} n.1,1213,1222(1984).

In its review of the Licensing Board decision, the Appeal Board ,

l 1 found that the record supported the conclusions of the Special Master and the Licensing Board about Mr. Husted's poor attitude toward his i

responsibilities as reflected in his failure to cooperate with the NRC j l investigators. However, the Appeal Board disagreed with the Licensing Board on how to view Mr. Husted's attitude toward his teaching I responsibilities. The Appeal Board stated that where so much of the training infomation to be conveyed concerns the need to comply with proper procedures, the instructors attitude toward (i.e., respect) for i

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1 these procedures, becomes an integral part of the instructor's ability to teach. Id. at 1221-1224.

! The Appeal Board noted that although the stipulation between the h

licensee and the Commonwealth of Pennsylvania would prohibit Mr. Husted from training licensed operators Mr. Husted had been promoted to I Supervisor, Nonlicensed Operator Training. This promotion placed him in a position to instruct personnel with important duties that affect the public health and safety and that have important management j responsibilities. The notice of the promotion was given to the Appeal Board in May 1983. The Appeal Board questioned the licensee's judgment in promoting Mr. Husted. It thereupon required that Mr. Husted have no supervisory responsibilities insofar as the training of non-licensed personnel is concerned. Id.

I The Commission took review of whether the Appeal Board had the legal authority to impose on a licensee a condition that in effect operates as a sanction against an individual, where that individual is not a party to the proceeding and has had no notice of a possible i sanction or the opportunity to request a hearing. After examining the statutory and Constitutional issues raised, the Connission elected not to decide them. Instead, it granted Mr. Husted the opportunity to request a hearing on whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of i

non-licensed personnel is concerned should be vacated. The Connission

! further determined that the Appeal Board's condition should not remain l

6 in effect during the pendency of any requested hearing. TMI-1 Restart, CLI-85-2,21NRC282,314-317(1985).

Mr. Husted requested a hearing on March 25, 1985, not only on the Appeal Board condition, but also on whether he "is barred by concerns about his attitude or integrity from serving as an NRC licensed operator, a licensed operator instructor or training supervisor."

Notice of Hearing, 50 Fed. Re2 37,098 (1985).

The Comission granted Mr. Husted's request to expand the scope of the issues, finding that whether Mr. Husted should hold any of the jobs

, in question would focus on the same four concerns:

(1) the alleged solicitation of an answer to an exam question from another operator during the April 1981, NRC written examination; (2)hislackofcooperationwithNRCinvestigators; (3) the lack of forthrightness of Mr. Husted's testimony before the Special Master; and (4) his poor attitude toward the hearing on the cheating incidents.

I g.

While expanding the scope of the hearing, as requested, the Comission also acknowledged "the rights of the parties to [the]

Stipulation" that bars Mr. Husted from operating TMI and from training operating license holders or trainees. The Comission noted that should Mr. Husted be able to demonstrate his fitness for the positions at issue, he could raise the matter of the Stipulation with GPU Nuclear l Corporation and the Commonwealth of Pennsylvania. M.

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7 s' The Commission assigned NRC Staff the role of participating as a .

i party to insure that the record is fully developed. It also invited petitions to intervene. Id.. After publication of the Notice of Hearing

{ and the appointment of this Administrative Law Judge to preside, both

! GPU Nuclear Corporation (GPU Nuclear) and Three Mil'e Island Alert Inc.

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(TMIA) petitioned to intervene in the proceeding, and were admitted as

parties. Memorandum and Order, December 6, 1985.

! An initial prehearing conference was held in Harrisburg, i

Pennsylvania on February 19, 1986, to discuss various procedural l matters. A Report and Order.0n Initial Prehearing Conference was issued-2 February 27, 1986, which admitted, as rephrased, the two contentions proffered by TMIA. These are:

i 1. The Appeal Board's condition barring Charles Husted from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should not be vacated by reascn of his demonstrated bad attitude and lack of integrity.

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

) operator or licensed operator instructor or training supervisor by reason of his demonstrated bad attitude

)

l and lack of integrity.

GPU Nuclear's single contention also was admitted. It provides:

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

1 The Notice of Hearing did not readily place this hearing in the format of a typical proceeding. Given that Mr. Husted was faced with the imposition of the equivalent of an agency sanction, I determined i

{ that the proceeding is most like a hearing in a proposed enforcement l

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action. It was also determined that the proceeding required the development of a new record through a hearing de novo. Report and Order

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on Initial Prehearing Conference, February 17, 1986, at 7.

3 The NRC Staff's (Staff) role was ultimately defined as to go I forward with the presentation of a record on which the Appeal Board's condition might be judged. I further ruled that Mr. Husted had no initial burden to go forward and no burden of persuasion on the matters ,

! at issue in this enforcement type of proceeding. Ruling on Staff

Objections to Prehearing Conference Order, March 26, 1986, at 4. Staff was also required to make known to the participants, no later than seven 1

{ days prior to the commencement of the hearing, its position as to whether or not the condition imposed in ALAB-772 should be vacated.

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This requirement was to enable the conduct of the hearing in accordance I with the administrative process. 11.5_. at 5-6.

In addition to the four factual matters directed to be considered by the Notice of Hearing, previously referred to on page 6. I requested that the following questions would also be considered:

What does Mr. Husted's performance of his responsibilities with GPU Nuclear reflect about his attitude and integrity?

! In light of the answers to the four factual matters directed ,

to be considered by the Notice of Hearing and the above <

< question, is any remedial action required with respect to l Mr. Husted?

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If remedial action is required, what is it?

! Report and Order on Initial Prehearing Conference, February 27, 1986, at 11.

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I also determined that in addition to providing Mr. Husted with an i

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opportunity to demonstrate his fitness for the position at issue and for i 1

a hearing de, novo, the Commission Notice permitted me to consider  !

evidence bearing on Mr. Husted's qualifications to be employed in the job in question, without limitation as to the time frame. M. at 5.

Finally, I determined it was appropriate to address, in the course of the proceeding, the question as to the standards to be applied in determining whether Mr. Husted should be barred from any of the positions under consideration. M.at11.

A final prehearing conference was held on May 20, 1986, in Harrisburg, in which various determinations were made regarding the procedures and order for the presentation of evidence at the hearing.I Report and Order On Final Prehearing Conference, May 27, 1986.

On June 12, 1986 the Staff gave notice in advance of the hearing that its position was that the Appeal Board condition imposed in ALAB-772 should be vacated. Hearings were conducted in Harrisburg on June 23-26, and on July 1, 1986 when the record was closed. I heard testimony from five witnesses called by the Staff, six witnesses 1

Prior to each prehearing conference, the parties met and discussed the numerous and sometimes difficult procedural issues relating to this somewhat unusual proceeding. In each instance, a memorandum covering the parties' consideration of these matters, setting forth their agreements (and disagreements) as well as recomendations to the Judge, was prepared by counsel for Mr. Husted and submitted in advance of the conference. The parties' efforts in this regard measurably advanced the focusing and resolution of procedural issues.

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10 called by Mr. Husted, including Mr. Husted, and one witness, a former GPU Nuclear employee, subpoenaed on behalf of TMIA.

At the conclusion of the hearing, I directed that proposed findings of fact and conclusions of law be served in hand by August 18, 1986, with replies due in hand by September 8,1986. The parties were requested to address the seven concerns identified (see above). In addition the parties were directed to address:

Whether the Appeal Board used an appropriate standard when it barred Mr. Husted's promotion based on finding him lacking in the ability to comunicate effectively a sense of responsibility?

If so, did Mr. Husted fail to meet that standard?

Assuming Mr. Husted failed to meet the standard, should he forever be barred from obtaining the position that he held?

Whether or not Mr. Husted met the standards of the Appeal Board previously, and does he meet them now?

What did Mr. Husted's actual appearance on the witness stand, testifying in this proceeding demonstrate as to his forthrightness, attitude and integrity?

Tr. 974-75 (Margulies, J.).

Timely filings of proposed findings of fact and conclusions of law l were made by the parties. Replies were filed by Mr. Husted, Staff and i TMIA. It should be noted that all of the filings submitted by the parties have been considered and those proposed findings of fact and conclusions of law r.ot incorporated directly or inferentially in this initial decision are rejected as unsupported in fact or law or are unnecessary to the rendering of this decision.

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II. FINDINGS OF FACT A. Did Mr. Husted solicit an answer to an exam question from

- Mr. Janes during the April 1981 NRC examination?

1. . From April 21 through April 24, 1981, the NRC administered examinations for reactor operator (RO) and senior reactor operator (SRO) licenses to 36 TMI employees'. The examinations were given in connection j with the proposed restart of TMI. During the grading and review of the examinations in July 1981, it became apparent from similarities in

answers that cheating had taken place. Husted Ex. 26 at 1.

i 2. On April 24, 1981, David C. Janes, a shift foreman, had taken the SR0 examination. The only other examinee in the room for the examination was Charles Husted. From time to time an NRC proctor was also in the room. Janes, ff. Tr. 278 at 1.

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3. As part of the NRC investigation into cheating involving parties other than Mr. Husted William J. Ward, Chief, of the InvestigationsBranch,OfficeofInspectionandEnforcement(0IE),and Peter E. Baci,2 Senior Investigator, interviewed Mr. Janes on September 25, 1981. Tr. 158 (Ward).

4. During the interview, Mr. Janes, then a shift supervisor, expressed anger at the proctor's absence from the examination. He stated he felt the proctor's absence made him vulnerable to an 2

At the time of the subject hearing Mr. Baci was Assistant Director, Department of Defense Inspector General, Defense Criminal Investigative Service.

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12 allegation of cheating. Ward, ff. Tr. 140, at Att. 3. Because of Mr.

Janes' demeanor, Mr. Ward concluded that a solicitation had taken place or that Mr. Janes believed one had taken place. M.at5. Mr. Ward testified that in order to get Mr. Janes to acknowledge what Mr. Ward suspected, he used an investigator's technique of asserting, without substantiating evidence, that the investigators knew that Mr. Husted had asked Mr. Janes a question. M.,Baci,ff.Tr.216at5-6.

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5. In December 1981 Mr. Ward testified before the Special Master that:

"the reason you are so upset about this is that it puts you in an awkward position when Husted asked you a question, and he looked startled, and he started to hesitate. And I said something to the effect that we knew he had asked the question, and he said well, he only asked one question, and that was how the information came up . . . . He related that it was just one attempt. He could not remember specifically what it was, to my recollection. It was more like a certain concept was, well, what in the hell does this mean or words to that effect. And we (sic) he refused to answer it, no further questions were asked."

Ward, ff. Tr. 140, Att. 2. Tr. 25,462-25,463.

6. Earlier in his testimony before the Special Master, Mr. Ward l said that Mr. Janes' answer was somewhat ambiguous. Mr. Ward stated that Mr. Janes said that a fellow examinee asked him a direct question on one occasion, but that he did not provide the answer, and that ended the situation at that point. M.,Tr.25,316.

7. In his testimony at the current hearing, Mr. Ward reaffirmed the accuracy of his prior testimony. Ward, ff. Tr. 140 at 4. Mr. Ward i believed that Mr. Janes provided truthful information in the September I 1981 interview. Tr.151(Ward). Mr. Ward further testified that it was l

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13 not clear to him either at the time of the interview or at the time of

! his current testimony whether Mr. Husted's alleged utterance was an exclamation of concern over his inability to answer the question that he saw in front of him or whether it was actually a question directed to i Mr. Janes. Tr.149(Ward). Mr. Ward had the impression it was 4 exclamatory in nature. Tr.163(Ward). Mr. Ward explained that when in his testimony the word solicitation was used it was meant that a question was asked. He said he was uncertain whether or not an answer was expected. Tr.200(Ward). Mr. Ward agreed that as time passed his j

recent recollection was not as clear as that closer to the event. Tr.

] 150 (Ward).

8. Mr. Ward was the principal interrogator during the September j

1981 interview. He kept no notes of the interview. A report of the j interview was prepared by Mr. Ward and contained in a report of investigation dated October 13, 1981. It does not mention the i

discussion involving Mr. Husted. Ward, ff. Tr.140, Att. 3, pp. 40-41 Tr.146(Ward). The reason given for not mentioning the Husted incident

! was the investigation involved organized or conspiratorial type cheating i

l and management involvement and that Mr. Husted's incident did not relate to those concerns. Id.at5.Tr.142,192-193(Ward).

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j 9. Mr. Baci basically agreed with and confirmed the testimony of Mr. Ward. Baci, ff. Tr. 214 at 3-4, Tr. 272 (Baci). Mr. Baci had appeared as the other member of the panel with Mr. Ward in testifying i

l before the Special Master, but Mr. Ward spoke for the panel. Tr. 269

) (Baci).

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i 10. Mr. Baci testified that Mr. Janes could not recall the nature of the question asked by Mr. Husted. Mr. Baci believed Mr. Janes might have indicated it was a rhetorical question. Tr.224(Baci). Mr. Baci i

further testified that Mr. Janes " knew somebody said something, asked a question, but that is why I believe I indicated that it may have been a rhetorical question, you know, like, what the hell is this? Where did it come from?" Tr.250(Baci). He further elaborated that Mr. Janes l

could not characterize what was said as a solicitation or question.

Somebody asked something which may have been like "what does this mean or what the hell is this." Tr.267-268(Baci).

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11. Shift Supervisor Janes testified before the Special Master-that Mr. Husted did not ask him anything about the examination and did not speak to him during the examination. Tr. 286 (Janes). Mr. Janes confinned that testimony during the current hearing and stated he knew of no reason why Mr. Ward would testify as he did about Mr. Husted asking him a question, other than by way of a misunderstanding. Janes.

ff. Tr. 278 at 2-3.

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! 12. Mr. Janes also testified before the Special Master that when l

! he was being questioned by Mr. Baci, Mr. Ward broke in to state that Mr.

Husted had solicited help. Mr. Janes said that before he could deal i i i with Mr. Ward's incorrect statement, Mr. Baci asked another question, l 1

which Mr. Janes proceeded to answer. He did not respond to Mr. Ward's statement, which was not in the fonn of a question. Id.. at_3.

i 13. Mr. Janes further testified that in preparing for this i

hearing he recalled something being discussed during the September 25, i

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1981 interview that may have some similarity to Mr. Ward's allegation.

i M. at 4. Mr. Janes stated that during the interview he was asked the hypothetical question of what he would have done if someone had asked him a question during the 1981 exam.3 Mr. Janes stated he told the investigators he would have refused to answer the question. He further testified that he was then asked what he would do if he were asked such a question at that time (September 25,1981). Mr. Janes stated he replied it would just constitute an attempt, but because of what transpired he would be very hostile to the person who asked the question. He also testified that at the end of the September 1981 a

interview he may have indicated to the investigators that he had heard

one or more groans or exclamations during the examinations he took, as the people in the rooms read the exam. He stated he did not presently know nor did he think he knew on September 25, 1981, who groaned or in l which of the exams he took that the noises occurred. M.at5.

14. Mr. Janes filed supplemental testimony which was placed in the J

record. He stated that on the basis of Mr. Baci's prefiled testimony, he concluded that he had in his own testimony reversed the identities of l l

Mr. Ward and Mr. Baci. He further recollected that the first of the i questions asked was, in effect "What would you have done if Chuck

[Husted] had asked a question during the exam?" Mr. Janes believes he 3

In testifying on June 23, 1986, Mr. Ward denied that he asked Mr.

Janes any hypothetical question. Tr.201(Ward).

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16 then said, "Only one question? I wouldn't answer." Id., Supp. Test. at

1-2.

15. In April 1981, Mr. Husted was a full time instructor in i

Licensed Operator Training and a holder of an SRO license. Husted, ff.

330 at 1. He testified before the Special Master that_he did not solicit an answer and did not speak to Mr. Janes during the April 24,

! 1981 examination. Staff Ex. 2 at Tr. 26,936-26,937. In the current 1

i hearing he reaffinned his prior testimony and stated that he and Mr.

Janes did not speak once the examination began. However, he stated that he did speak out 1 cud at one point during the examination. Mr. Husted i

testified that he had developed lesson plans for his students and had instructed them in thennodynamics on the Rankine cycle, which is a f practical or real process. The question in the April 1981 SRO exam i

j dealt with the Carnot cycle, which is a theoretical process. Mr. Husted j said that when he came to the question he realized he had not prepared the operators to answer the question.4 He said he was upset and said i aloud words to the effect "What the hell is this?" He further testified 1

4 he did not direct the remark to anyone or mention the substance of the j l j question that led to the exclamation. M.at4. Mr. Husted said he did

. not believe that which he considered a rhetorical statement was talking I

because it was not conversation. Tr.339(Husted). l l

l 4 Mr. Husted himself did not correctly answer the question on the l

examination. Tr.335(Husted).

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current-bearing. Tr. 497-498 (Husted);.' He indichted this recollectica y,

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1 (Husted). When Mr. Husted was questi,oned by NRC fnvestigators on July

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beforetheSpecialMasterabouttheexclamationkilaid(,fmade,he i testified that he had. Tr.It6(Husted). Attha'hintIounselfo'r t

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e Husted to reread the. transcript of his test.imony befope the Special .,,

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s c discussions with Mr. Janes, Mr. Husted replied not directly but that at one point he was asked if the examinees had agreed who would go to the proctor if they had come across an examination question that needed clarification. Mr. Husted then stated that he had testified, "no, we

.did'not discuss anything during the exam." Tr.495-496(Husted). Mr.

Husted did not mention the question posed to him that same day before the Special Master: "Q One of the NRC investigators has testified, as you know--that Mr. [ Janes] said that you asked him a question during the exan. 'Is that true?" Staff Ex. 2 at Tr. 26,937.

- 18. Mr. Samuel Newton, Operator Training Manager, testified that when he first heard of the allegation that Mr. Husted had solicited an answer from Mr. Janes he spoke to Mr. Husted who denied it. Mr. Newton

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said he seems to recall he was told by Mr. Husted of the "What the hell I does this mean?" remark, but he may have read about the comment elsewhere. Newton, ff. Tr. 836 at 3. This testimony provided nothing dispositive.

Conclusion:

There is no convincing evidence that Mr. Husted solicited an answer to an exam question from Mr. Janes during the April 1981 NRC i examination.

. 19. I accept the Ward-Baci version of what transpired when they

$. interviewed Mr. Janes on September 25, 1981. It was helpful to have Mr.

Ward clarify his prior statements and to have Mr. Baci testify. The i

essential facts derived from their interview were that they confronted j Mr. Janes with a statement that Mr. Husted asked a question during the April 24, 1981 examination; that Mr. Janes acknowledged that it had i ,

occurred; that the question tended to be in the nature of being

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19 rhetorical or an exclamation; and that Mr. Janes denied that he ever offered any response to the question. I believe the foregoing to have occurred when Mr. Janes was interviewed.

20. The testimony of Mr. Ward and Mr. Baci is found to be more accurate than that of Mr. Janes. The investigators basically corroborated each other's statements as to what transpired, and they are dispassionate observers of what occurred. What they reported was of no consequence to their primary investigation. It was because of this that no mention was made of the Husted discussica in the report of investigation. Further, their recounting of what occurred became somewhat less focused with the passage of time, which is consistent with what usually occurs. This helped make their testimony persuasive.

21. Mr. Janes' version is one that continues to be refined as time passes. When testifying before the Special Master, he recounted that Mr. Ward interrupted questioning by Mr. Baci to state that Mr. Husted had solicited help and that before he could respond to the statement, Mr. Baci asked another question which Mr. Janes proceeded to answer. He said that he never did respond to Mr. Ward's statement. During this hearing Mr. Janes disclosed a recent recollection which was that he was l asked hypothetical questions by the investtsators as to how he would 1

react if he were questioned by Mr. Husted. Mr. Janes then testified what he stated his answers were. He ascribes to Mr. Ward a misunderstanding of his answers to the hypothetical questions as being the cause for Mr. Ward stating Mr. Husted asked him a question during the April 1981 examination.

20

22. The Ward-Baci version of what transpired is more credible than Mr. Janes' because the latter's recounting cf his conversations with the investigators was not corroborated and he was far from being a dispassionate participant. Mr. Janes was angry during the interview:

he misidentified his questioners. If there was any misunderstanding it was likely that of Mr. Janes. The investigators were asking the questions and if anyone knew if they were hypothetical, the investigators would have. Mr. Ward denied that a hypothetical question was asked. Mr. Janes had never previously testified about this precise recollection of hypothetical questions that deal with a subject that Mr.

Janes did rict indicate to be the subject of continuing discussion. Mr.

Janes' recent recollection of what transpired, reported more than four years after the occurrence, is not convincing that the investigators had misunderstood what happened at the interview and that their testimony was incorrect.

23. If one accepts the Ward-Baci description of what they were told, as true, it does not establish that Mr. Husted solicited an answer to an exam question. All that this hearsay establishes is that there was an utterance from Mr. Husted, in the fom of a question that tended to be rhetorical or exclamatory. It does not constitute proof that Mr.

Husted solicited an answer to the question and that he attempted to cheat on the examination. The evidence does not justify such a conclusion.

24. In coming to the above decision, it is not necessary to look  ;

for corroboration to Mr. Husted's disclosure of what he says he said aloud during the examination. His statement that he said words to the

21 I

effect "What the hell is this?" was first made known to this agency's representative some five years after the event.5 The testimony was very precise as to what was said to have occurred. Because experience shows j that human memories dim with time, one questions the meaning of such a specific exculpatory recollection by Mr. Husted, which was revealed just before the hearing and after the Licensing Board had found in its decision that the exclamatory words did not establish the alleged cheating.

B. Did Mr. Husted fail to cooperate with NRC investigators?

25. Charles Husted was first interviewed on July 29, 1981 during the NRC investigation into cheating on the April 1981 operator exams at TMI. The interview was conducted by OIE Investigators R. Keith Christopher and Raymond H. Smith. Baci, ff. Tr. 214 at 2, Att. 2. Mr.

Husted was accompanied by Paul G. Christman, Manager, Plant Administration, TMI.

l l

l l

5 On brief, Staff's position was there did not appear to have been questioning before the Special Master t. hat could reasonably have elicited that information. Staff Proposed Findings of Fact and Conclusions of Law, August 15, 1986 at 18. It would not have been unreasonable for that infonnation to have been part of the response to the question asked of Mr. Husted, "One of the NRC investigators has testified, as you know, that you asked--that Mr. [ Janes] said that ycu asked him a question during the exam. Is that true?" Mr.

Husted's answer was, " Absolutely not." Staff Ex. 2 at Tr. 26,937.

The information also could have come out in questioning by the investigators on July 29, 1981, when Mr. Husted testified that the room was quiet and the only disruptions involved questions asked of the proctors. j

22

26. The interview resulted in a summary being placed in the

" Report of Investigation--Three Mile Island Nuclear Generating Station, Unit 1/ Investigation of Alleged Cheating on Operator Licensing Examinations," August 11, 1981, atpage39("AugustOIEReport"),Husted Ex. 26. Baci, ff. Tr. 214, Att. 2.

27. The August 01E Report states, in pertinent part,

[Husted] was queried concerning the possibility of reference material being covertly brought into the classroom by examinees.

However, for unknown reasons, he declined to respond to this question or explain his reluctance to discuss this issue. 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 hearsay." However, [Husted] refused to reveal any specifics of the rumors he had heard or to identify the individuals (if named) who were allegedly implicated. Upon further attempted questioning, [Husted] declared he could not recall anything i concerning what he had heard.

Husted Ex. 26 at 39.

1

28. In this proceeding there was no Staff witness that could attest to the accuracy of the summary. Mr. Christopher could not recall the interview. He did not know who wrote up the summary. From the style of the summary, Mr. Christopher assumed he did not write it. Tr.

384-399(Christopher). His testimony was without worth. Mr. Smith was too ill to appear and never provided testimony. Tr. 402 (Johnson).

29. Another account of what transpired was contained in a more extensive summary prepared by Mr. Christman. It differed in several respects from the August OIE summary and, as pertinent, stated:

Mr.[Husted]wasaskedwhethercandidatesareallowedtobring 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 i

23 responded that he could only answer for himself and that he did not l bring such articles to the examinations. He did state that the one textbook that he recalled being available in the classroom was a l set of Steam Tables.

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 l 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.

Husted Ex. I at 3. l

30. Although both reports indicate that Mr. Husted failed to answer the question about whether reference materials were brought into the examination room, the Christman sumary indicates that Mr. Husted subsequently did answer a slightly different question. The August OIE Report does not record this answer at all. Husted, ff. 330 at 7-8,  ;

Husted Ex. 1. Rather, the August OIE Report states that Mr. Husted 1 declined to explain his reluctance to discuss this issue.

I

31. The Christman sumary states Mr. Husted initially refused to answer a question about rumors or gossip as to cheating on the April examinations. Then, according to Mr. Christman, when the question was asked again, he answered it, stating he could not recall any such rumors or gossip. The August OIE Report did not mention repeating the question. It stated that Mr. Husted acknowledged he had heard rumors to q

that effect, which he labeled as " unconfirmed hearsay." He refused to reveal the specifics of the rumors or to identify the individuals. The ,

1 August OIE Report discussed the cheating in terms of "on the exams."

The Christman sumary spoke of the cheating "on the April examinations."

1

, - - , _ - - , - - - - . - , , s--

i 24

32. Mr. Christman had accompanied Mr. Husted to the July 29 1981 interview for the purpose of representing the utility, to see that the rights of its employees were not undermined and to learn about the subject under investigation. Tr.365(Christman). At this hearing Mr.

j Christman only had the typewritten copy of his sunnary, which he believed to'be accurate. If an item were not reported in the summary he considered it unlikely that it occurred, His summary did not report any discussion by Mr. Husted with the investigators indicating that the questions were too broad in scope or that he asked permission to decline to answer a question. He did not remember that occurring at all. Tr.

377-380(Christman). Mr. Christman also testified that if the term -

" unconfirmed hearsay" were used, it would have appeared in his report, which it had not. Mr. Christman considered Mr. Husted as being cooperative overall with the investigators, taking into account his not answering two questions initially. He described the atmosphere of the interview as very businesslike and tense. Mr. Christman testified that 4

the summary was correct in reporting that Mr. Husted had said, in regard to another area of inquiry, that he did not know whether the proctor had left the examination room. Tr.380(Christman).

33. Mr. Husted's second OIE interview occurred on September 18, 1981. Matakas, ff. Tr. 406, Att. 4 at 16. The only persons present were Mr. Husted and the interviewer, Richard Matakas. Id. Mr. Matakas is a senior investigator, with 17 years of investigative experience.

The pertinent part of the interview is set cut in the report of investigation as follows:

i

25

[Husted] was asked to clarify what he meant by " unconfirmed hearsay" in his previous statement. He stated that he did hear one

consnent made during the time period of the NRC R0/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.

[Husted] stated he heard the conenent in the area near the coffee ,

pot and men's room in the trailer that was located between the two classrooms. He said he personally did not have any knowledge regarding either reference material or crib sheets being taken into the NRC exams and that he did not know if the above mentioned comment relating to " passing papers" was being directed at him or not; further, he did not know if the person was referring to the NRC exams or some other exam.

34. In testifying about the September 18, 1981 interview, Mr.

Matakas stated that, prior to conducting the interview, he had been told by telephone--he believes by Mr. Bact--that in a previous interview Mr.

Husted had been reluctant to answer certain questions related to cheating or alleged cheating on reactor operator exams at TMI. He was l also told that Mr. Husted termed this information as " unconfirmed hearsay." It was Mr. Matakas' assignment to pursue what Mr. Husted j meant by "unconfimed hearsay" in the earlier interview. Matakas, ff.

I i l Tr.406at3,Tr.407-408(Matakas). 1

35. Mr. Matakas believes he started the interview with the matter of the " unconfirmed hearsay." Tr.431-432(Matakas). The investigator did not recall asking Mr. Husted if he used the term " unconfirmed hearsay." He remembered asking Mr. Husted what he meant by the tem.

Mr. Matakas notes reflected the infomation he obtained. Mr. Matakas wrote: "This is ' unconfirmed hearsay' statement (see report p. 39)" in i the left margin on the first page, next to his notes describing what Mr.

Husted told him about an incident he had heard. These notes indicated that Mr. Husted

26 heard statement near coffee pot and men's room in trailer between two classrooms. Some one (don't recall who)--don't even know if comment was directed at ne--passing papers in the exam. Starting the day of the first exam and go seven days. It was in this period that I heard it.

Q. Characterize statement.

f A. It was one of those type statements that someone makes when he was mad and says to the first person he sees. (going to second page)

Don't even know if he was talking about SRO or RO exams.

Id., Att. 2.

36. Mr. Matakas' draft summary related the incident described in the notes, prefacing the description with a statement that "Mr. Husted

' was asked to clarify what he meant by ' unconfirmed heresay' (sic) in his 1 previous statement." Id., Att. 3. In his prefiled testimony, Mr.

Matakas stated that either Mr. Husted gave the indicated response in an answer to a question as to what he meant by "unconfinned hearsay," or,-

after he made the response, he acknowledged that the statement referred to the same incident he was referring to when he used the phrase

" unconfirmed hearsay" during the July 29, 1981 interview. Id. at 5.

Mr. Matakas stated that Mr. Husted characterized the statement as a j rumor. He noted, however, that Mr. Husted's statement may have been voluntary. Id.

37. Mr. Matakas asked Mr. Husted why he did not provide the information before and was told, "It wasn't that I did.not want to identify anyone the last time interviewed. I couldn't identify anyone.

I didn't want to spread rumors." Tr. 428 (Matakas). To the best of Mr.

Matakas' knowledge, Mr. Husted used the phrase " passing papers in the i

27 exam." He said Mr. Husted indicated he did not know whether the passing of papers was referring to the NRC exams or some other exam. Mr. Husted further told the investigator that he had no knowledge of reference material being brought into the classroom. Mr. Husted said that no one told him about having cheated nor did he see anyone cheat. Mr. Husted did state that the questions he was asked during the first interview were so broad he did not feel that he could answer them. Tr. 409-410 (Matakas).

38. Mr. Matakas explained that when taking notes he writes comments during the interview or immediately thereafter. He makes margin coments when he amplifies his original questions in further questioning, and gets additional information. He thinks the margin coments on Mr. Husted's responses were made right away. Tr. 411 (Matakas). When interviewing Mr. Husted, the investigator did not have a copy of the August ole Report with him. Tr.444(Matakas).

39. The investigator testified that he did not believe Mr. Husted withheld any infcnnr. tion from him nor did he recall him being uncooperative or not forthcoming. Matakas, ff. Tr. 406 at 6-7.

40. Mr. Husted testified that when he was interviewed on July 29, 1981 he did not know at that time two of his co-workers were under suspicion for cheating and that the mechanism involved the passing of l l

exam papers. He was apprehensive before the interview because a shift '

foreman had told him that in connection with the TMI Unit 2 accident NRC interviewers asked excessively broad questions, trick questions and often distorted the answers they received. Husted, ff. 330 at 5. Mr.

l

.I i

28 Husted said he went into the interview with the thought he was going to give very specific and accurate answers. He was not going to answer a question that was so broad that it would be likely the answer would be incomplete. Tr. 514 (Husted).

41. Mr. Husted acknowledged that he declined at first to answer the question dealing with bringing in reference material because it was too broad. He said the question was not limited to authorized or unauthorized material and not to any particular examination. When the question was then asked as to either examination, he answered about himself. His recollection as to the answer was consistent with the Christman sumary. Husted, ff. 330 at 7-8. On cross-examination, Mr.

Husted stated he sought clarification of the question, and answered it as rephrased. Tr. 505-507 (Husted). Mr. Husted acknowledged, however, that such an exchange was not recorded in the Christman notes. Tr. 508 (Husted).

42. Mr. Husted also recalled being asked about any knowledge of cheating, a question he was displeased with and declined to answer at first for a reason he could not remember. He then noted that the Christman sumary states he said he could not recall having heard any rumors or gossip in regard to cheating on the April examinations. Mr.

Husted testified that the Christman record most accurately reflects his answer. The August OIE Report did not report the exchange but stated Mr. Husted acknowledged hearing rumors and labeled them as "unconfinred hearsay." Husted, ff. 330 at 8-10.

l i

I 29

43. Mr. Husted testified that he seemed to recall that when he was asked a question he did not want to answer he asked the interviewers whether he could decline. He said he was told if the investigators wanted rnore information on the subject they would interview him again later. M.at10. The witness testified that as to the questions he did not answer at first, he answered them when placed in a different form or a more specific question was asked. Tr. 505, 508 (Husted).

44. Mr. Husted stated that he did not recall hearing or using the term " unconfirmed hearsay" in connection with the July 29, 1981 interview, which is consistent with Mr. Christman not using the term in his sumary. M.at10.

45. When Mr. Husted was cross-examined on his statement about his refusal to answer the first question dealing with bringing reference material into the examination room, for the reasons it was too broad and did not relate to any particular examination, he stated he could not recall how specific the information was that the investigation was related to cheating on the April 1981 examination. He stated that he may have known that the investigation was related to that examination.

Tr.571(Husted).

46. Mr. Husted then testified that he was uncertain as to when he l

knew the interview involved an NRC examination, whether it was before he went to the interview or if he was told at the beginning of the interview. When pressed as to why he interpreted the question on materials being brought into the exam as applying to all exams that he participated in since joining the company, Mr. Husted stated that the

30 broadness of the question provided no guarantee that the investigators were looking into that one recent examination. When pressed further, he stated he was not certain that at the start of the interview that anyone specifically told him that the questions would be limited solely to that examination and not to any other activities that occurred prior to that examination. Tr.572-581(Husted).

. 47. Mr. Husted on cross-examination recalled Mr. Christman's testimony to the effect that it was clear that the July 29 interview related only to the April 1981 examinations. In answer to a question as to why he had difficulty as to which exams were involved, Mr. Husted said it related to the warning of the shift foreman about broad l questions. He said he wanted to make sure his answers would relate to the specific exams. Tr. 611-613 (Husted).

48. Mr. Husted was asked as to how he related his statement during the July 29 interview as was reflected in the Christman summary, that Mr. Husted said he did not know if the proctor left the room during either examination with his coment before the Special Master, that although a wild guess, it was 50 percent of the time. Mr. Husted answered that the Christman notes indicated he had a limited knowledge of the specific whereabouts of the proctor and when asked by the Special Master he just picked 50 percent. Tr.614-615(Husted).

49. Mr. Husted testified that he currently had a very limited recollection of the September 18, 1931 Matakas interview. Mr. Husted said he did not recall the investigator using the term " unconfirmed hearsay" and it is not a term Mr. Husted uses. Tr. 531 (Husted). Mr.

I

31 l

Husted repeatedly testified that he never considered his statement about the passing paper remark to involve a rumor and he never kncwingly l

~

characterized it as such.6 Tr.541(Husted). He described it as information he personally gathered first hand in passing by a conversation and that it was a conclusion he had drawn on his own. . When deposed on October 23, 1981 Mr. Husted stated he did not hear rumors to the effect that papers were passed from one person to another in the exams. In giving his deposition on April 29, 1986, Mr. Husted stated that he did not consider the matter to involve rumors.

50. Mr. Husted felt the investigator in his interview mistakenly recorded that Mr. Husted had classified the passing papers remark as the unconfimed hearsay. Mr. Husted said that when he left the September 18 interview he did not think that he had given Mr. Matakas the impression that his knowledge of the conversation he had overhead constituted a rumor. Tr.534(Husted).

51. Mr. Husted introduced a whole new element into the proceeding when he gave prepared testimony as follows:

i 0

Before the Special Master Mr. Husted accepted the characterization of the passing paper comment as a rumor in the following exchange:

i Q Let's turn to Staff 27 at page 16. You describe a rumor that you heard near the coffee pot and men's room in the third paragraph on that page. Is that the same instance that you are referring to?

A Yes.

Staff Ex. 2 at 26,924.

32 l

It is possible that he [Mr. Matakas] did not ask me the question he meant to. It is also possible, however, that Mr. Matakas did ask i me if I considered the " passing papers" consnent to be "the unconfirmed hearsay" alluded to on page 39 and that I simply misunderstood the question when I said it was. It is also possible that I understood the question and gave an incorrect answer; when I was first asked the question as the hearing [before the Special Master], I answered it incorrectly and had to correct my answer later on.

Husted, ff. 330 at 16.

52. Mr. Husted could not recall when he learned of the two workers who in cheating had passed papers between them. He testified that he believed he did not recall the passing papers coument until after the July 29, 1981 interview. He said it could have been when he saw the August OIE Report. Mr. Husted stated that at the time he learned of the mechanism by which the two had cheated, or shortly thereafter, he-remembered the consent he overhead previously which involved the words

" passing papers." He said that reading the August OIE Report may have caused him to remember the remark. Id. at 13. Mr. Husted then described the comment to Mr. Matakas in his second NRC interview.

53. Mr. Husted also had another view as to what went on at the September 18, 1981 interview with Mr. Matakas, as revealed by the conversation Mr. Husted had with John F. Wilson on October 5 and 6, 1981. Mr. Wilson is an attorney who represented the licensee and acted as liaison for the licensee with the NRC in interviews and in i

transmitting information that was developed in the course of the utility's investigation. Tr. 458 (Wilson). Mr. Husted and John G.

Herbein, then Vice President for Nuclear Assurance were having a conversation on October 5, 1981 when they telephoned Mr. Wilson because 4

I

33 a question came up as to whether or not Mr. Husted reported tne passing papers remark to the NRC by way of the Matakas interview. Mr. Husted was concerned that the information should be reported, if in fact he had failed to do so. Tr. 457 (Wilson). Mr. Wilson made notes on the conversation and testified from them at the hearing.7 Husted Ex. 2.

54. Mr. Wilson's recollection was that Mr. Husted was uncertain as to whether or not he told the NRC about the passing papers and the purpose of the call was that if he had failed to do so, to find out how he could accomplish it. Mr. Wilson testified that as of October 5, 1981, Mr. Husted had a question as to whether or not he had informed the NRC. However, by the next day, upon reflection, Mr. Husted had confirmed in his own mind that he had passed on the information to the NRC during the Matakas interview. Tr. 458 (Husted). The Wilson notes were consistent with Mr. Husted's statement that he used the term

, " passing papers" and never did extend it to " passing papers in the I

exam," a phrase that Mr. Matakas used. Tr. 585 (Husted).

55. Mr. Samuel Newton, Operator Training Manager, testified during this hearing that he had a conversation with Mr. Husted about passing l 1

papers, which he believed may have occurred sometime between the two l 7

Dr. Robert L. Long, now GPU Nuclear Vice President for Nuclear Assurance, tock notes on an October 5, 1981 conversation he had-with Mr. Herbein. The notes state that Mr. Husted had told Mr.

i Herbein "Husted wants Wilson to verify w/I8E that they know Husted

heard two words at the water fountain ' passing papers'." Husted Ex. 11.

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

l 34 interviews but was uncertain about this time. Newton, ff. Tr. 836 at 3-5. Mr. Newton's testimony did nothing to help clarify the issue.

56. Mr. Husted's testimony before the Special Master on December 10, 1981, relating to the July 29 and September 18, 1981 interviews, is relevant to the issue of whether Mr. Husted failed to cooperate with .the NRC investigators.

57. Mr. Husted testified before the Special Master that the August GIE Report containing the summary of the July 29, 1981 interview was an accurate description of his interview with the NRC investigators with one exception. He said the exception relate'd to the investigators' summary that stated that Mr. Husted declined to respond to a question concerning the possibility that reference material had been covertly brought into the classroom by examinees and that Mr. Husted had not i

explained his reluctance to discuss the issue. Mr. Husted testified to the Special Master that he explained to the investige. tors that he had seen no material brought into the room that was not authorized by the proctor of the exam and further he did not want to discuss what took place in other exam rooms and over the course of the entire exam. Tr.

608(Husted). He also testified that the Matakas interview on September 18, 1981 was accurately described in Mr. Matakas' report. Id.

8 Mr. Husted testified before the Special Master that because of the difficulty he had with the initial investigation report, he insisted that Mr. Matakas write down every question, which he was permitted to read, and he then stated his answer which was written down verbatim. Staff Ex. 2 at Tr. 26,967.

4 l

l l

35 l

1 1

58. Hr. Husted initially testified that the passing papers remark l was the unconfirmed hearsay referred to in the initial interview. He ,

testified on cross-examination:

Q On Staff Exhibit 26, page 29 [ sic] [ July 19, 1981 sumary] you i

also refer to unconfirmed hearsay. Are you referring to a i different instance there or the same instance?

l A That is the same instance.

59. When asked about the July 19, 1981 summary stating that he had refused to reveal any specifics of the rumors he heard or identify the individuals who were allegedly implicated and why he refused to answer the question, Mr. Husted answered, "I do not know. Stupid, I think."

! Tr. 522 (Husted).

60. When he was questioned further about the response of being

" stupid," Mr. Husted explained that he did not like the way the investigation was conducted and the questions were being asked. He stated that they were so broad and vague that he could not give a specific answer. For a lack of anything other to say he just told the investigators he did not want to answer the question. He went on to state that he could not remember any specific instances of rumors that were told him about specific things that could have gone on during the examinations. He explained that he did not provide any information because he did not have any information. Mr. Husted stated that the

! ~

sumary was how the investigators interpreted his saying that he did not have anything to say. Staff Ex. 2 at Tr. 26,929.

61. Mr. Husted further stated that between the July interview and the September interview he concluded that the words " passing papers"-

t 36 that he had heard could have been referring to passing papers during the exam, which he indicated to the interviewer in September.

62. Mr. Husted was questioned about his testimony that both i

interview accounts were accurate, that in both instances he was quoted 4

as referring to rumors as " unconfirmed hearsay," that he had testified earlier that they were the same incident, and then that in the first-interview he said he did not recall any specific rumors. He was then asked which account was correct. Mr. Husted answered the last account was most correct, the September 18 interview. In response to the

question why he had stated earlier that they were the same incident, he replied that he did not know. Id. at 26,930-31. *

63. During the current hearing Mr. Husted was asked why in his testimony before the Special Master he had agreed to the accuracy of the

July 29 interview sumary. He answered that he had not taken the time to seriously consider the question put before him and that he had given the document only a cursory review. He also explained that he had been chastised and attacked rather than cross-examined before the Special Master, and that caused him to be confused and to make foolish errors. l l

Tr.611,630-631(Husted).

Conclusion:

Mr. Husted failed to cooperate with the NRC investigators.

, 64. The evidence of record establishes that Mr. Husted failed to corperate with the NRC investigators who conducted the July 29 and September IS, 1981 interviews.

65. " Cooperation" may be defined as "to act or work together for a i

common purpose or to a common end." Cooperation with investigators can

37 ,

l be measured by the extent of the information furnished in answering questions when interviewed. It can also be measured by the reliability of the information furnished, as well as by the candidness with which it was provided. Proving information that proves to be unreliable and misleading and underinines the investigative effort is the antithesis of..

cooperation. Overall, that is what Mr. Husted did in providing information to the investigators, and it must be concluded he failed to ccoperate.

66. For ease of development, Mr. Matakas' September 18, 1981~

interview of Mr. Husted is discussed first.

67. Mr. Matakas, a professional investigator with many years of I

experience, proved to be a very credible witness. His testimony was supported by notes and sumaries. He was straight forward, knowledgeable and persuasive in testifyirg.

68. When Mr. Matakas interviewed Mr. Husted, he began with the assumption that Mr. Husted had been reluctant to answer certain questions during the July 1981 interview relating to cheating on the April examinations. Mr. Matakas had been advised that Mr. Husted termed the alleged cheating "unconfir1ned hearsay" and he was to attempt to obtain information about this matter from Mr. Husted. Mr. Husted informed Mr. Matakas of the passing of papers. In the ensuing interview, Mr. Matakas reasonably believed from what Mr. Husted told hir i

that the passing paper remark constituted the rumor that Mr. Husted had heard but did not reveal at the initial interview. Supporting evidence l

that Mr. Husted led Mr. Matakas to believe the foregoing was the (

l 1

)

38 i

response Mr. Husted gave to the investigator's question as to why he had 1

not provided the information about passing papers at the first interview. Mr. Husted said that he could not identify anyone and he did not want to spread rumors. Mr. Husted through this response indirectly identified the passing papers comment as a rumor and did nothing to.

dispel that identification. Mr. Husted did not say that he did not i categorize the incident as e rumor and that he did not recall the incident at the time of the interview, as he would do later. At the very least Mr. Husted mislead Mr. Matakas during the September interview.

! 69. How willing was Mr. Husted to stand by and confirm the story he told Mr. Matakas, thereby supporting its credibility and trustworthiness?

701 Within 18 days after the Matakas interview, of which the

" passing. papers" comment was a significant component, Mr. Husted informed his superiors, on October 5, 1981, that he was uncertain as to-

-l whether or not he had told the NRC about the passing of papers, and if )

he had not done so, asked how to go about it. The very next day he then advised the licensee that he had in fact passed on.the information.

71. When testifying before the Special Master on December 10, 1981, Mr. Husted initially not only testified that Mr. Matakas had correctly described the interview, but also that the passing papers l

remark was the unconfirmed hearsay that was involved in the' initial interview. However, he later took another tack . testifying that he could not remember any specific instances of rumors .that were told him l

l

, , , , - - - _ _ - - , .. . - . . . - , . - , -. . . - . - _ . . ._l

l 39 i about specific things that had gone on during the examinations. Mr.

Husted stated he did not provide any information at the initial interview because he did not have any information.

72. Mr. Husted then came full circle at the last hearing, again indicating that Mr. Matakas' statement about the interview was accurate, but with a new wrinkle. Mr. Husted raised the possibility that Mr.

Matakas had asked him if he considered the passing papers comment to be t

the unconfirmed hearsay referred to and that Mr. Husted had " simply misunderstood the question when he said it was." Mr. Husted also raised the possibility he had understood the question but gave an incorrect answer. This came about despite extensive testimony by Mr. Husted during this current hearing as to why the Matakas' account was incorrect.

73. From the start Mr. Husted undermined an important segment of his interview with Mr. Matakas. He immediately questioned what the content of the interview was, and thereafter made inconsistent and contradictory statements of what was said. Mr. Husted's statements vitiated that part of the interview dealing with his acknowledgement j that the passing papers comment was the same as the rumor he had heard, but that he did not reveal at the initial interview. Mr. Husted's continuing conduct cannot be explained away or excused on the basis that

! it resulted from how Mr. Husted reacted to cross-examination at a i difficult time. Mr. Husted's actions showed a lack of reliability, credibility and responsibility on his part, which most adversely i

-- -- M-y w -g ,.e, -g 7- t y,c - -

g-- - --ye --eg--r-? --

g- --+-y- r ,4m-. -. ,.,.9,,y-- w = . g, ,

_- . . . . .= ._ - . _ .. -. ._

i 40 affected his discussion with Mr. Matakas and evidenced a failure to cooperate with him.

74. Moving over to whether Mr. Husted cooperated with Investigators Christopher and Smith in the July 29, 1981 interview, a principal area of focus becomes whether Mr. Husted responded to the questions asked of him. It should be pointed out that the mere failure I

to answer a question during an investigation does not necessarily demonstrate a failure to cooperate; there may be a justification for the refusal, such as vagueness in the questions or that the information requested is not available at the time the question is asked. If one

! were cooperative, the reason for the inability to respond to the l question would be given.

75. The report of the interview prepared by the investigators

]

differed from that of Mr. Christman, who attended the interview for the licensee. As pertinent, the investigators' report said Mr. Husted refused to answer a question about covertly bringing reference material into the classroom and he did not explain his reluctance to discuss the issue. It also said that Mr. Husted acknowledged having heard rumors about cheating on the exams but refused to reveal specifics. It further said that upon additional questioning Mr. Husted declared that he could 1

not recall anything concerning what he had heard. This would indicate  !

l Mr. Husted failed to cooperate with the investigators by refusing to answer questions about reference materials and rumors, without I explanation.

2 4

1

.. _ . _ _ , , , . . , _ _ . . _ _ _ . , , . . - - . , , , , .- . . _ - . . .,, . . . . , . , , _ . 7 .y.,-._...--

41

)

76. Mr. Christman reported that after not answering a question ,

2 about reference materials, Mr. Husted did answer then a similar one.

Mr. Christman also reported that Mr. Husted initially refused to answer a question about rumors and that, when asked the question again, stated that he had not heard rumors in regard to cheating on the April examinations. Mr. Christman provided no explanation of why Mr. Husted refused to respond initially. Mr. Christman's report indicated that while not willing to cooperate innediately, Mr. Husted did cooperate with the investigators by answering their questions.

77. Mr. Husted's testimony before the Special Master ultimately confirmed that he had not answered questions. .He testified that he did not like how the questions were asked and for a lack of anything other to say he just told the investigators that he did not want to answer the question. His testimony before the Special Master did not establish i

what his answer to the investigators was. Mr. Husted testified that he

! did not provide any information because he did not have any information i and that the investigators' statements about his July 29. 1981 refusal to reveal specifics was their interpretation of Mr. Husted saying he did

not have anything to say.

78. Mr. Husted introduced a new element in the current hearing, which would indicate a more cooperative effort on his part. He testified that as to the July 29 interview he sought clarification of

! the question on materials brought into the exam room, and he asked permission to decline to answer a question. Mr. Christman could not l l

l 1

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

l 42 l

corroborate this and because it was not recorded in his notes Mr.

Christman indicated it did not occur.

79. If one accepts the investigators sumary in the August OIE Report, it would support the conclusion that Mr. Husted did not cooperate with them. If one accepts the Christman version, it shows that as to answering questions, after some hesitancy, Mr. Husted ultimately did not fail to cooperate with them.

80. The investigators sumary, although admissible in evidence, is entitled to virtually no weight. It is without probative value for there was no one who could stand cross-examination on it. In a system of jurisprudence that rest heavily on the right of cross-examination, one cannot ascribe any significant value to a document where no one stood ready to defend it.

81. Although Mr. Christman was not an independent witness to what occurred at the interview, being there to represent the licensee and to look out for its employees, there is nothing to indicate that his report of what occurred was other than accurate. He noted the questions that were not initially answered. He differed with Mr. Husted on the latter's claim of justifying not answering. Mr. Christman's version of what occurred at the interviews is accepted as what happened, along with the conclusion that Mr. Husted answered questions asked of him after initially refusing to do so.

82. There is other evidence that Mr. Husted did not fully cooperate with Investigators Christopher and Smith. When Mr. Husted initially failed to answer a question on bringing materials to the l

l

43 l examination, claiming it was overly broad and saying it could cover all examinations he had taken at the facility, he appears to have been obstructive. Mr. Christman had no difficulty identifying what examinations the inquiry concerned.

83. Also, Mr. Husted gave inconsistent testimony on the matter _ of the whereabouts of the proctor. He told the investigators he did not know whether the proctor left the examination room. He testified before the Special Master that he guessed that the proctor was gone 50 percent of the time. His statemer.ts were contradictory and unreliable.

84. Mr. Husted was not candid with Investigators Christopher and Smith when he was questioned as to whether there was talking in the examination room. He said there was none, not considerin'g as talking the previously discussed question or exclamation. Mr. Husted stated that the classroom was quiet and the only disruptions were at times proctors were asked to clarify questions. This response was at least an obfuscation of what he testified later had occurred.

85. Mr. Husted's interview with the investigators on July 29, 1981 was marked by a resistance to testifying, which he then acceded to. He also, in part, obscured what had occurred in the classroom.

86. Although Mr. Husted's responses to the investigators on July 29, 1981 cannot be viewed as an overall failurefto cooperate, it 1

involved some deficiency. This deficiency must be considered along with i I

Mr. Husted's very basic failure to cooperate with Mr. Matakas. These two interviews were part of a single investigation and are wholly interrelated. When the evidence of both interviews is considered

1 44 together, it is convincing that Mr. Husted failed to cooperate with the NRC investigators investigating cheating on the April 1981 NRC examinations.

87. Discussion is warranted of what the interviews established substantively. Both interviews failed to show that Mr. Husted had any knowledge of cheating on the examinations brought about by bringing in outside materials into the examination room.

88. Also, as evidenced by the accepted Christman sunnary, the first interview failed to show Mr. Husted concealed information at that time of rumors or gossip in regard to cheating on the April examination.

Further, there was no other reliable, probative and substantial evidence presented to establish that Mr. Husted did, in f act, knowingly have information of rumors or gossip at the time of the first interview which he concealed. Discarding what is just speculation and conjecture, basically the only information of record about the knowledge Mr. Husted  ;

i possessed at that time comes from his statements and these statements have proved to be so unreliable that they are without value and are not useable for fact finding. The record in the proceeding fails to comprehensively establish what Mr. Husted knew and when he knew it.

Without such evidence, it was not established that he concealed information from Mr. Christopher and Mr. Smith about cheating on the April 1981 NRC examinations.

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

i .

'l t

/

45 Ni l

i

,[ ' j p

Did Mr. Husted's testimony before the Speciil Master

? l l C.

Jack forthrightness? l j

89. A dictionary definition of " forthright" is " proceeding i straight on, lacking ambiguity, straightforward." Webster's Third New i 1

International Dictionary, Unabridged, G. & C. Merriam Co. Publishers, 1976 edition. Testimony that is contr.adi: tory, misleading, lacking in l credibility, or less than serious is not forth'right. The record before the Special Master contains a significant number of such instances in Mr. Husted's testimony. i 4

90. As discussed in B. above, Mr. Husted first testified before \,

l the Special Master that the investigators' reports of their interviews ,

with him on July 29 and September 18, 1981 were accurate. He a#gt ded '

that.the passing paper remark was the unconfirwed hearsay referred to ' in '

\

the initial interview. During the same session before the Special t s

Master, he also took a position on the accuracy of these statements that was inconsistent with his original testimony. This action evidenced as o i

lack of reliability, responsibility and credibility in an important area of inquiry.

j

91. When Mr. Husted was asked about the July 29, 1981 summary stating that he refused to reveal any specifics of the rumors he heard

' or identify ,the individuals who were allegedly implicated and why he \

l refused to answer the question, Mr. Husted answered, "I do not know. J Stupid, I think." Tr.522(Husted). (This answer could be interpreted 9y as again confirming the accuracy of the August DIE Report suneary.) Mr. JL j l

' Husted's connent on this answer during the current hearing is_ telling.

b i

m 46 After mentioning his regret, he stated, "Given this remark and my l 1

inccnsistent testimony abcut the ' passing papers' comment, I have no b , reason to doubt that I appeared flippant and to consider the questions

, in a less than serious manner." i 1

92. Mr. Husted answered some questions before the Special Master L

in a manner that were inconsistent with other answers he gave at that hearing. These internal inconsistencies resulted in testimony that lacked credibility and obfuscated what occurred. Mr. Husted testified at different times that Mr. Wilson was the exam proctor and that he did not know who the proctor was. Staff Ex. 2 at 26,942-26,943. Mr. Husted testified he was totally unaware of Mr. Janes' actions 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. Ld.at26,936.

d Also, Mr.

Husted testified before the Special Master that he guessed the proctor f

was absent 50 percent of the time, whereas he stated at the July 29, 1981 interview he did not know if the proctor left the room during the examinations. Tr. 614-615 (Husted). Questions about the activities of a proctor in an inquiry on cheating during an examination are important.

93. Mr. Husted explained that the inconsistencies were more likely

(

the result of poor choices of words, rather than a lack of forthrightness. Tr. 548-549. However, this explanation cannot be readily accepted because, in other instances, he claimed subtle

, differences in word meanings to explain away difficulties he found

>' himself in. These differences he claimed included a distinction between

! i the words " bothered" and "a burden" in defending his 1981 testimony that

47 hewasbotheredbytheabsenbeoftheproctor[becauseitforcedhimto

-leave the room to obtain clarification], but that it was not a burden, l because he did not mind getting out of his seat to walk around. Tr.. l 543-547(Husted). Mr. Husted claimed another difference in meaning when n ..

m he was questioned by NRC investigators whether there was talking -in the examination room. He responded no, because he did not consider a rhetorical statement as " talking" because it was not conversation. Tr.

338-339(Husted). Moreover, he said he did not classify the passing papers remark as a rumor because it was something he'had overheard and was a conclusion he had drawn on his own. Tr.535-540(Husted). Mr.

Husted found no conflict between his statement, made during this hearing, that he seldom gets angry and his description of uttering aloud the exclamation "W' hat the hell is this?" and leaving the examination room to regain his concentration, by explaining that at the examination he was upset or disappointed rather than angry. Husted, ff. 330 at 4, Tr.520,606-607(Husted).

94. Mr. Husted provided a number of reasons why he testified before the Special Master in the manner he had. First, he said it was the first time he had testified in such a prt.ceeding. Husted, ff. Tr.

330 at 22. Second, he said he had been under a great deal of physical and emotional stress in the months just prior to his appearance. Id. j l

Third, he said that perhaps because of, the sequestration order put in I

% 3 I

place by the Special Master, he received'little help from company counsel beforeithe hearing. Id. at 23. Fourth, and most importantly, Mr. Husted said_ he learned only a few days before his appearance of Mr.

}.

48 l

I Ward's testimony implicating him in charges of attempted cheating. M.

at 22. He testified that these allegations turned his anxiety about l l

testifying to " outright fear." M. Mr. Husted said that after he l learned of the Ward charges, he gave very little thought to his two OIE interviews. M.at23. He stated that he had not reviewed the first and second reports- carefully before testifying. M. And while Mr.

Husted said he believes he reviewed the Christman report of his first interview before testifying, he does not think he compared it carefully to the first report. M. Mr. Husted testified that as the cross-examination proceeded, he became " hopelessly rattled." I_d. at 24.

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

95. Mr. Husted testified that for the reasons described, he got off on t'ie wrong foot. At the outset, he incorrectly conceded the accuracy of the first and second reports. M.at23. He incorrectly testified that the " passing papers" comment was the " unconfirmed

. hearsay" referred to in the first report. M. Mr. Hu;ted noted that the statement singled out by the Licensing Board (that because he had no information he said he did not want to answer the question) evidenced a mistake on his own part. Mr. Husted said that he had had no infomation i and he should have said so. Tr.613(Husted).

96. Mr. Husted's testimony before the Special Master came after Mr. Husted was deposed by the attorney for an intervenor on October 23, 1981. Mr. H rsted characterized his answers to questions posed in the l

49 deposition, as being cute. Because he was not called until more than two hours after he was scheduled, Mr. Husted had been annoyed and lost his temper. Husted Ex.12 at 1, Husted, ff. Tr. 330 at 21. Tr. 596 (Husted).

97. On about December 2,1981, following the deposition and before

! he testified before the Special Master, Mr. Husted was admonished by an attorney for the licensee not to conduct himself as he did when he was deposed. Tr.600(Husted). His conduct was held up to other licensee employees as an example as how one should not conduct oneself when 9

A particular glaring example was the following:

Question: May I ask you. what happens to fuel pin temperature over core life if an oxydizing 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 its 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 termperature over core life if an oxydizing layer builds up on the cladding surface?

Answer: It increases.

Question: Thank you.

Answer: You're welcome.

Tr.596,616-618,620(Husted).

,, - ,-- ,,,- , ,- - - , - --m , -

50 testifying. Husted, ff. Tr. 330 at 21. 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. Despite the advice, Mr. Husted conducted himself in the way he did before the Special Master.

Attorneys for the licensee in the restart proceeding brought Mr.

Husted's testimony before the Special Master to management's attention.

Newton, ff. Tr. 836 at 7.

Conclusion:

Mr. Husted's testimony before the Special Master lacked forthrightness.

98. The inconsistencies, contradictions and conflicts in the testimony of Mr. Husted and his lack of seriousness at times giving the testimony make it apparent that on its face that his testimony before the Special Master lacked forthrightness.  ;

99. Mr. Husted's explanations as to why this unhappy display i l j occurred are unsatisfactory. Although it is well appreciated that this was a trying time for Mr. Husted, he had previously been warned as a result of his flippancy when being deposed that such conduct was unacceptable. As an individual with a responsible position, Mr. Husted must be accountable for his actions. Trying times do not give one a license to act at will. Mr. Husted evidenced a disregard for the regulatory process.

i 100. It was not established in this proceeding that Mr. Husted, at the time of the first interview, had a comprehensive knowledge of cheating which he concealed at that time. Neither was it shown that his f

- - , , - , - ,w-,_ , - - - - - - , -- ~g,,- ,e - + - - - - - . ~ -we- e-- -- ---,

51 lack of forthrightness before the Special Master was an attempt to 4

obscure such information, although.his lack of forthrightness did have the effect of obfuscating what transpired. The fact that obstruction of the investigation was not established as a motive for Mr. Husted testifying as he did does not mean his testimony was any more

> forthright. It just means the reason for his doing so was not proven.

Mr. Husted's testimony before the Special Master lacked forthrightness and is not excusable.

D. Did Mr. Husted have a poor attitude toward the hearing on the cheating incidents?

101. This is the fourth and last concern that the Commission requested that the hearing focus on for determining whether Mr. Husted should hold any of the jobs in question. The issue pertains to his attitude on the investigation, and the pre-trial and trial aspects of the inquiry into cheating on the April 1981 examinations.

102. Mr. Husted's actions that evidence his attitude were fully considered under Section A, B and C of this decision, and there is no need to detail them here again. They show that he did not cooperate l 1

with the investigators; that he was flippant in giving a deposition; and )

i that he was not forthright in his testimony before the Special Master. '

It can only be concluded Mr. Husted had a poor attitude toward the I

hearing on the cheating incidents.

103. A review of his actions shows that he acted with disdain and a lack of regard for the regulatory process. It was he who took it upon

52 himself to judge the value of the way the proceeding was conducted.

Accordingly, as it suited his purposes, he would answer questions, not answer them, or give them less than serious consideration. This resulted in instances where he toyed with those engaged in the process.

Ha made contradictory statements and changed his testimony at will.

104. Mr. Husted's poor attitude resulted in a lack of communication between him and those conducting the inquiry. The record was obscured, and no accurate account was obtained of what occurred.

105. Mr. Husted was undergoing emotional and physical stress during the inquiry. But despite the fact that he was cautioned that his i

conduct was unacceptable, the conduct continued. The unacceptable conduct was not an 'solated instance, but continued throughout the inquiry. As one who holds a responsible position, he should be held accountable for his actions. There is no basis for overlooking his poor attitude.

106. Relevant to the matter of Mr. Husted's attitude toward the hearing on the cheating incidents is the attitude he evidenced during the current hearing. Although he did approach the current hearing much l

more seriously, it did not appear that he fully understood the error of his past conduct, and he continued to display some of the same elements that led to the conclusion that he had a bad attitude.

107. At the outset it should be stated that he was not expected to be contrite to demonstrate that he had a correct attitude toward the process. The illustration below is a prime example of his not having learned that his answers to questions must be correct and that it was i

J 53 incumbent on him to fully connunicate his position on matters. The 1 testimony quoted below related to contradictions in his answers about

. the proctors and their whereabouts. His answer is. revealing of his thinking, and it is quoted in its entirety.

Q Your testimony was to some extent inconsistent, and your question of your forthrightness in your testimony before the l Special Master has become an issue, and I would like to ask you

whether you believe your testimony was forthright and, if so, how are we to interpret or explain your inconsistent testimony?

A First off, I believe my testimony was forthright and most of the inconsistencies that have been brought to my attention are most likely as a result of poor choices of the words that I used in explaining the answers.

Using your last question as an example, it is very apparent to me that during the exams I showed little concern at all as to

! who the proctor was, therefore, I can very easily understand why, when asked a lot of questions about whc the proctor was and how often the proctor was there, that I could have easily not have a consistent answer from one question to another.

] (Emphasis supplied.)

The primary concern in taking on these exams is to pass. In order to do that it requires a great deal of concentration.

i Keeping track of the whereabouts of the proctor would not be in j

the best interest of anyone taking that exam. Therefore, it doesn't trouble me at all that I didn't remember who the proctor was or when the proctor was and was not in the room. (Emphasis supplied.)

In fact, the proctoring of the exams changed hands fiam time to time without my knowledge, one time Mr. Haverkamp was in,

another time Mr. Wilson would be in, some other time someone i else would be in, sumetimes there was no proctor. But I did not

keep track of it, therefore, I don't have any trouble

understanding why, when )ressed on the issue. I may give  !

inconsistent answers. ( Dnphasis supplied.) l Tr.548-549(Husted).

l i

108. The response shows that once again Mr. Husted's approach is i

to only concern himself with what he considers important and to act l

)

4 ,

l 54 accordingly, irrespective of the consequences on the validity of the inquiry and the effectiveness of the regulatory process.

109. In addition to not acknowledging inconsistencies in his testimony before the Special Master, Mr. Husted went so far as to evidence surprise and considered incorrect the Special Master's finding that Mr. Husted had refused to cooperate with the NRC investigation and the inference from that finding that he lacked credibility. Tr. 610, 614(Husted). In view of the strong record made before me that support findings that Mr. Husted had refused to cooperate with the NRC investigation and lacked credibility, it must be concluded that Mr.

Husted continues to deny the consequences of his actions and accept responsibility for them.

110. During the current hearing, Mr. Husted evidenced incidents of unreliability in his testimony but to a lesser extent than he had previously. He gave incorrect answers to questions. When asked it he testified before the Special Master on the exclamation he said he made during the examination (in a question bearing on when the statement was l I

first made known), he said he had, when in fact he had not. After being allowed to review the transcript over night he was asked about questions that had been asked before the Special Master on coments, utterances or discussions with Mr. Janes. He testified that there was one question that indirectly touched on it. He did not mention that he had been asked: "One of the NRC investigators had testified, as you know--that

[Mr. Janes said that you asked him a question during the exam. Is that true?" He responded, " Absolutely not."

1

-55 111. Mr. Husted altered his testimony in ways that had lacked crecibility. Although he testified at length as to why the Matakas i interview report was ircorrect in reporting the passing papers remark to be the " unconfirmed hearsay," he also stated it was possible he simply misunderstood the Matakas question and had said the passing papers comment was the " unconfirmed hearsay" or possibly he gave an incorrect

I answer to that question.

112. His memory was also selective, which produced a negative impression. This included his newly disclosed exculpatory recollection of the exclamation he said he made during the examination. Another example was the discussion he related with the the investigators on July 29, 1981, about clarification of a question and obtaining permission not to answer a question, which another witness, Mr. Christman, indicated.

j did not happen.

113. The record disclosed that Mr. Husted had and continues to have a poor attitude toward the hearing on the cheating incidents.

J 1

E. What does Mr. Husted's performance of his responsibilities with l GFU Nuclear reflect about his attitude and integrity? i 114. The Commission in instituting the proceeding noted that Mr.

Husted should be able to demonstrate his fitness for the position at

issue. To pennit the record to be fully developed concerning Mr.

l Husted's fitness to hold the positions, the parties were permitted to present evidence on Mr. Husted's regular job performance.

i i

l

56 115. Mr. Husted has held various jobs with Metropolitan Edison Company and GPU Nuclear. The latter is the successor entity as the licensed operator of TMI. Tr.784-787(Long). Mr. Husted held an-NRC R0 license 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 operator instructor.

Haverkamp, ff. Tr. 648, Att. 2 at 3. In March 1983, Mr. Husted was

< appointed Supervisor, Nonlicensed Operator Training. Subsequently, in June 1983, GPU Nuclear made a commitment to the Comonwealth of f Pennsylvania to remove Mr. Husted's SR0 license and to decline to use him as a TMI-1 licensed operator or instructor of licensed operators.

i In June 1984, ALAB-772 mandated that Mr. Husted be removed from the j position of Supervisor, Nonlicensed Operator Training. Long, ff. Tr.

755 at 6-7. Since June 1984 Mr. Husted has worked as an Engineering .

i Assistant, Senior III in the Nuclear Assurance Division and deals with 1

the TMI replica simulator. Husted, ff. Tr. 330 at 1.

i 116. A full record was developed regarding Mr. Husted's .

l j

performance on the job. Six witnesses testified over two full hearing I j days. Mr. Donald R. Haverkamp, an NRC inspector with extensive experience at nuclear plants, conducted an inspection at TMI between February 25, 1986 and March 11, 1986, concerning Mr. Husted's 4

performance. Haverkamp, ff 641 at 3-4. Documents reviewed included employee evaluations and appraisals from 1974 to 1985, instructor performance monitoring reports from 1981 to 1984, and various

confidential memoranda related to the special monitoring of Mr. Husted a

57 which followed the cheating hearings. Haverkamp, ff. Tr. 648, Att.

(InspectionReport)at6-11.

117. Mr. Haverkamp's evaluation also was based on interviews to determine personal views of Mr. Husted. Mr.-Haverkamp concluded that Mr. Husted's performance "was maintained at an acceptable or satisfactory 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 documents regarding Mr. Husted's performance reflected favorably on his attitude and integrity."

M.at16.

118. Mr. Haverkamp interviewed ten individuals who had various contacts with Mr. Husted. They included: Michael Ross, Supervisor, i Plant Operations, TMI-1; Bruce Leonard, Mr. Husted's supervisor after he became Supervisor, Nonlicensed Operator Training; and Nelson D. Brown, who was Mr. Husted's supervisor from September 1980 until March 1983.

Also interviewed were others Mr. Husted worked with or instructed. M.

at Table 4.1. The purpose of the interviews was to detect concerns j

about Mr. Husted's attitude, integrity, or forthrightness, based on ubservations of his per formance and demeanor. M.at16.

119. The interview coments were generally positive. Mr.

, Haverkamp noted three coments that questioned Mr. Husted's demeanor.

One viewed him as outspoken, another that he sometimes shows bad judgment in what he says in oral discussions, and, a third, that he may at first appear flippant, but was truly serious. M.at21. Based on the generally positive or favorable comments from those interviewed. Mr.

l I

i 58 Haverkamp deterinined that Mr. Husted's integrity, forthrightness and demeanor were nomal to very good. M.

120. Mr. Husted's annual performance ratings also were reviewed.

The 1980 annual perfomance rating, prepared prior to the cheating incidents, rated Mr. Husted in the "high competent" to " low-comendable" range of the rating scale. Husted Ex. 15. The comments noted Mr.

Husted's " determination" to satisfy the demands placed on him by working extra hours, his individual initiative in obtaining his SRO license, and Mr. Husted's " honest and direct" personal interaction and "open and effective working relationships with his supervisor, peers, and j subordinates." Id.

121. Mr. Brown became Mr. Husted's supervisor in September 1980 and worked closely with Mr. Husted in 1981 and 1982. Brown, ff. Tr. 697 at 2. In preparing his annual evaluation of Mr. Husted for 1981. Mr.

Brown asked Mr. Husted to do a self-evaluation for Mr. Brown's consideration, and, in addition, Mr. Brown did an unusual preliminary

" snapshot" evaluation of his then impressions of Mr. Husted. ld,at d

9-10;Tr.708,718(Brown),Tr.898(Newton). Both of these preliminary inputs to the 1981 annual evaluation reflect the impact of the aftemath

of the cheating episode on Mr. Husted.

122. According to Mr. Husted, the TMI operators blamed the

Training Department for the cheating because the individuals engaged in passing papers had been unprepared for their examinations. Husted ff.

Tr. 330 at 11. Operator resentment grew even stronger with the NRC announcement thet the April 1981 NRC examination results were being i

i 59 voided because of the cheating incident. Id. at 11-12. Added to the generally low morale this caused was a greatly increased work load in the Training Department. Id. at 12. Mr. Husted stated in this input for his 1981 annual evaluation:

It is become increasingly difficult to maintain a positive working attitude which is leading to reduced production and increased reduction in motivation.

123. Mr. Brown's " snapshot" of Mr. Husted depicted irritability, flagging interest and productivity, resistance to change, and difficulty reacting positively and meeting schedules. Husted Ex. 3. Nevertheless, the general comments reflected an overall positive evaluation, despite problem areas resulting from the " adverse conditions" of that period.

Id. Mr. Brown felt that Mr. Husted maintained a professional attitude,

,i despite the "hard times" he was going through. Id., Brown, ff. Tr. 697 at 12. Mr. Brown's overall evaluation, based on a more studied review of work for the entire year was " average to above average." Id. He noted Mr. Husted was "a competent instructor . . . on his way to becoming an excellent instructor," but noted that the " adverse conditions of the last year have had their effect on . . . his projected attitude." Husted Ex. 4 124. Mr. Husted's next evaluation, in July 1982, was done by Mr.

Newton, Operator Training Manager, who noted improvements in Mr. ,

Husted's performance. Husted Ex.16, Newton, ff. Tr. 836 at 9-10. Mr.

Newton noted he had been " extremely diligent and professional in the use of his own time to prepare more thoroughly for classroom assignments."

He also noted that "[s]ince the completion of the restart hearings and

60 associated reports there has been a noticeable improvement in his enthusiasm and morale." Husted Ex. 16.

125. By this same time TMI-1 management had begun a special monitoring program to evaluate Mr. Husted's performance and attitude.

Long, ff. Tr. 755 at 3-4. The monitoring started in the first half of 1982 and continued until the end of 1983. Staff Exs. 3 and 4, Husted Exs. 9, 14. The monitoring consisted of periodic classroom teaching performance evaluations, quarterly perfonnance evaluations, regular annual performance evaluations, and periodic counseling sessions, including at least one meeting with the two vice presidents involved with training and operations at TMI--Dr. Long and H. D. Hukill. Staff Ex. 3, Husted Ex. 14, Long, ff. Tr. 755 at 2-3.

126. As part of the monitoring program, a contractor for GPU Nuclear evaluated the classroom performance of Mr. Husted. Staff Ex. 3, HustedEx.13,Tr.796(Long). The project manager in a telephone

]

conversation with Dr. Long, on August 27, 1982, stated that Mr. Husted

) did not display a damaging attitude. The project manager also said that

! Mr. Husted was not the most effective instructor, but that he was basically "okay" as an instructor. Husted Ex. 13, Tr. 802-803 (Long).

127. In Mr. Husted's 1982 annual evaluation, Mr. Brown rated Mr.

Husted "above average," noting his " attitude of ' quality,'" and his very

61 good performance in the classroom.10 llusted Ex. 5, Brown, ff. Tr. 697 at 14. Mr. Newton's December 1982 classroom evaluation noted "a highly l

professional attitude at all times." Husted Ex. 20. Characterizing his  ;

formal evaluation of Mr. Husted in a memorandum to Dr. Long and Mr.

Hukill dated October 17, 1982, Mr. Newton found "no problems pertaining to his attitude and demeanor," noted Mr. Husted's " professional manner," and observed nothing "out of line." Husted Ex. 24. By memorandum of the same date, Dr. R. A. Knief, Manager Plant Training, also comented, based on observation of Mr. Husted's classroom teaching on October 11, 1982, that despite student criticism, "he handled the session in a very professional manner in tems of both technical ability and attitude." Dr. Knief also noted a " positive attitude" in the post-evaluation discussion. Husted Ex. 10.

128. In commenting on~Mr. Husted's performance from November 1982 to January 1983. Mr. Newton wrote to Dr. Long that Mr. Husted's work in preparation of the written requalification examination was " superb," and that Mr. Newton was remiss in not writing a special letter of conwendation for Mr. Husted. Husted Ex. 25.

129. In March 1983, Mr. Brown recomended Mr. Husted for promotion to the position of Supervisor, Nonlicensed Operator Training, with a 10 During the hearing Mr. Brown was questioned on the extent to which he considered Mr. Husted's hearing conduct in his evaluation. He stated that he took such conduct into account, but that in view of its isolated nature, it did not have a significant bearing on the overall evaluation. Tr.733-734(Brown). 1

i 62

highly favorable evaluation, noting in particular a " positive

! professional attitude displayed in complying with requirements of the job." Brown, ff. Tr. 697 at 15 Husted Ex. 6, Tr. 736-737 (Brown).

130. Before approving the promotion in March 1983, Dr. Long stated that he questioned the training director and, through him, his staff, f

extensively as to whether they were satisfied that Mr. Husted was able to instill a sense of seriousness and to maintain integrity, discipline and appropriate attitudes toward nuclear safety and the regulatory I

l process. Tr.789(Long). After receiving sufficient assurance, and consulting the Office of the President of GPU Nuclear, Dr. Long approved i

the promotion. M. In his testimony, Dr. Long noted that Mr. Husted performed very effectively as Supervisor, Nonlicensed Operator Training, until June 1984, when the Appeal Board directed that he be removed from 3

that position. Long, ff. Tr. 755 at 6-7.

131. Following Mr. Husted's reassignment out of the Training Department to work on risk and reliability analysis in October 1984, Mr.

! Husted was rated as having "a very positive, enthusiastic attitude about the project" and doing "more work than is asked of him in order to

{

contribute and to learn." Husted Ex.17.

) 132. Dr. Long noted no evidence, from the extensive monitoring program and evaluation of Mr. Husted, of undesirable attitudes or lack of respect for the training or licensing process. Long, ff. Tr. 755 at

! 6. In addition to his review of the monitoring program, Dr. Long i continued to monitor and ir.eet with Mr. Husted during the past two years i

1 to discuss Mr. Husted's progress and to update his opinion on Mr.

3 I

63 i

Husted's attitude toward his responsibilities. M.at7. Dr. Long stated he knew of no ir'onnation to indicate Mr. Husted "has conveyed to his students or fellow workers an improper attitude toward safety, 1 toward the regulatory process, or toward the company or NRC training i

I processes." M.at8. Similarly, he had received no infonnation that Mr. Husted was flippant, displayed less than serious attitude toward his work, toward safety concerns, or toward the NRC, or as incredible or

! lacked integrity. Tr. 804 (Long). In evaluating Mr. Husted, it was Dr.

Long's intention to address the concerns stated in the Licensing Board l decision in the restart proceeding, and he was satisfied that any doubts i

4 about Mr. Husted's competence to install a sense of seriousness about the important need for integrity, discipline and public confidence in

- the TMI training program had been removed. Tr.806(Long).

i

Conclusion:

Mr. Husted's regular job performance reflected very

! positively on his attitude and did not present anything to adversely reflect on his integrity.

l 133. Very extensive evaluations were made of Mr. Husted's job performance over the years. They showed, overall, that his on-the-job j attitude has been professional and appropriate to his responsibilities. ,

3 This attitude has extended to safety, the NRC and regulatory requirements. He was able to overcome the challenges that the cheating i incidents caused and go on to perform conscientiously and with l 4 i enthusiasm. He was shown to be an employee who fulfilled the day-to-day I i job requirements of the positions he held in a more than adequate manner.

{

64 i F. Should the Appeal Board's condition barring Mr. Husted from supervisory responsibilf tfes insofar as the training of nonlicensed personnel is concerned be vacated?

134. The condition imposed by the Appeal Board in TMI-Restart.

ALAB-772, 19 NRC 1193, 1221-1224 caused Mr. Husted to be removed from the position he held with GPU Nuclear as Supervisor, Nonlicensed Operator Training.

4 135. The Commission in deciding to provide Mr. Husted a hearing on whether the Appeal Board's condition should be vacated did not do so on the basis of a detennination that the law required it, but on a concept of fairness. TMI-Restart, CLI-85-2, 21 NRC 282, 314-317. In instituting the proceeding, the Commission looked for a decision on whether the condition should be vacated based on a factual detennination i

of the issues raised by the Connission relating to Mr. Husted's conduct.

l The Connission never questioned or raised for ' review the standard used l

by the Appeal Board in imposing the condition. Notice of Hearing, 50 Fed.RS.37098(1985).II ,

136. In imposing the condition barring Mr. Husted from supervisory ,

responsibilities insofar as the training of nonlicensed personnel, the Appeal Board employed the following considerations to make its 1

4 determination.

11 The Connission in its unpublished March 20, 1986 Order denying

]

l TMIA's March 4, 1986 Motion to Dismiss noted that the Intervenor contended the only issue involved was legal. The Connission said

! thatastothehearingofferedMr.Husted"[t]hefocusofthe '

1 (FootnoteContinued) l

+

k f

._ . _ _ , _ _ - _ , _ _ . . .--,---_._,_--_-_..-.-._.----._..m_-..__ _ . _ - _ . . , , _ _ _ . _ . - ~ _ - . , . . - . . , _ . , , .

l l

. 65 )

i

+

. . . [T]eacher competence . . . [ includes] the ability to communicate effectively a sense of responsibility as well as information . . . . Where, as here so much of the training i information to be conveyed concerns the need to comply with procedures . . . the instructors attitude toward--i.e.,

respect for--those perhaps subliminal) partprocedures of his or her becomes ability to teach.an integral (though.

' To be sure, Husted will no longer be permitted to train

licensed operators. Moreover, there is no hard evidence on 4

the record that Husted's bad attitude did, in fact, affect his i teaching performance . . . . But in his new position as Supervisor of Nonlicensed Operator Training, not only will l Husted be in a position to instruct personnel with important i

duties that affect the public health and safety (footnote omitted), he will have certain management responsibilities.

< As such Husted will presumably also have a role in establishing the criteria for training instructors and developing the audit program imposed by the Licensing Board, as least in part, as a remedy for his own failure to cooperate

with the NRC . . . . We seriously question licensee's judgement in promoting Husted to an important position with management responsibilities, given his documented past failure to cooperate with the NRC in its cheating investigation (footnote omitted) . . . .

I TM1-1 Restart, ALAB-772, 19 NRC at 1223-1224.

i 137. The Appeal Board in imposing the condition did not find it necessary to determine whether his unacceptable attitude toward the NRC 4

did, in fact, adversely affect his teaching performance or the exercise of his management responsibilities. Mr. Husted's failure to cooperate

! with the NRC and his actions in derogation of the regulatory process

! were deemed sufficient flaws to disqualify him from holding a supervisory positicn that affects public health and safety. In effect,

(Footnote Continued) hearing is not a legal one, but rather a factual determination of

~

whether the Appeal Board's condition should remain in place."

l l

! l l

i l l l l

66 l the Appeal Board held that his unacceptable attitude toward the

regulatory process had the potential of being transmitted to others or instilled in the system he was responsible for managing, all of which affect public health and safety.

138. The position of Supervisor, Nonlicensed Operator Training, relates to public health and safety. The person holding that position is responsible for training the auxiliary operators that work in the plant. Their functions on a daily bacis have the potential for initiating an event. They can also mitigate an event by their prompt action. The auxiliary operators are an extension of the licensed operators in the control room and their training is safety related. Tr.

4 736(Brown).

139. The Atomic Energy Act of 1954, as amended, grants NRC broad power in dealing with the regulation of nuclear energy. Section161(b) grants the Commission the authority to establish by rule, regulation, or order such standards to govern the use of nuclear materials as the Comission may deem necessary or desirable to protect health or to minimize danger to life or property. 42U.S.C.2201(b).

140. The Commission's regulations do not address qualifications for the position of Supervisor, Nonlicensed Operator Training. However, where the holder of that position may adversely affect public health and  ;

safety because of attitudes and behavior toward the NRC and .its i i

regulatory process, the Comission can take necessary action that will provide reasonable assurance that the activities authorized by the operating license will be conducted without endangering the health and 2

1 67 i safety of the public. See 10 C.F.R. 50.57(a)(3). This is so even if the result is to disqualify an individual from being employed in a particular job category.12 141. The Appeal Board discussed the legal authority employed for imposing the licensing condition that worked against Mr. Husted.

142. In ALAB-772, the Appeal Board explained the manner in which the issues being reviewed in that decision concerning reactor operator training and management capability related to the underlying question as to what actions "are necessary and sufficient to provide reasonable assurance that [TMI-1] can be operated without endangering the health and safety of the public . . ." ALAB-772, 19 NRC 1193, 1202-1203 (1984). Similarly, it noted that the findings which were anticipated from the reopened hearings on the April 1981 cheating incidents were important to its overall findings on the issues of licensee management integrity, the quality of the licensee's operating personnel, the licensee's ability to staff the facility, its training and testing program and the NRC process for testing and licensing operators. Id_. at 1204 12 The Consnission in enforcement actions taken under Section 103 and/or Section 186 of the Act and applicable regulations requiring cooperation with NRC inspection activities has conditioned licenses requiring the removal of particular individuals from nuclear related responsibilities. Niagra Mohawk Power Corp. (Nine Mile PointNuclearStation),45 Fed. Reg. 80834-80835(1980), Detroit EdisonCo.(Fermi-2),51 Fed. Reg. 25411(1986).

68 143. Although the Appeal Board noted the absence of specific l - standards for judging the integrity of licensees' management and

! operation, id. d at 1206, it found authority for its judgments in the i Atomic Energy Act Section 103b requirement that licensees comply with Commiission requirements for the protection of the public health and safety, and in the provision in Section 182a for consideration of a

! licensee's " character." I_d. at 1206-07. Finally, it observed that the l Consission earlier noted that " abdication of responsibility or ,

l l

abdication of knowledge . . . could form an independent and sufficient basis for revoking a license . . ." based on licensee's competence or

character. While noting the absence of " precise standards against which ,

to measure licensee's conduct," the Appeal Board found the guidance f

! there as a basis for appellate review. Id. at 1207-08.

, 144. Thus, when the Appeal Board found that an instructor of nonlicensed operators must have the ability to effectively communicate a l

l sense of responsibility as well as information and respect for

procedures, and used this criterion for requiring, as a condition on the licensee (GPUNuclear),thatMr.Husted"havenosupervisory

respcnsibilities insofar as the training of nonlicensed personnel is concerned,"j,d,.at d 1223-24, it was doing so on the bases of the licensee's responsibilities to protect the health and safety of the public and to demonstrate " character."

145. The Appeal Board in imposing the condition upon the licensee, i which disqualified Mr. Husted from continuing in the position he held 1

l cited the authority under which it acted and the considerations it m.-.. . - . . _ . - - . _ _ . ,..,--.-,.,.._.-,w., ..,.-,r_...mm_-. - , . - . , _ . . , - - , - - . , . ,

- ,, . . . - ,,m,y-.. _ . --., . r ..

-_2,- --.. .,- - - --..---t ,~r,.

69 employed. The Commission in instituting this proceeding expected the same standards to be applied to the factual determination reached here.

They are so applied.

146. Although the condition imposed by the Appeal Board attached to the license and the licensee was required to fulfill it, the condition also directly affected Mr. Husted. Because of that consequence, this case was considered in the nature of an enforcement proceeding and Mr. Husted was afforded the protections provided for under the Administrative Procedure Act, 5 U.S.C. 551 et, seg. At no time during the course of the hearing did Mr. Husted raise any objections to the adequacy of the hearing provided him. Considering the case in the ,

nature of an enforcement proceeding did nothing that would alter the standard used by the Appeal Board in imposing the condition and applying ,

it in this proceeding.

Conclusion:

The Appeal Board's condition barring Mr. Husted from supervisory responsibilities insofar as the training of nonlicensed personnel is concerned should not be vacated.

147. In applying the Appeal Board's standard for imposing the condition barring Mr. Husted from supervisory responsibilities for the training of nonlicensed personnel to Mr. Husted's conduct as disclosed by this hearing, it is concluded that the condition imposed should not be vacated.

148. Although the record did not show that Mr. Husted solicited an answer to an exam question during the April 1981 NRC examination or that he concealed knowledge of cheating at the July 29, 1981 interview, it did establish that he had failed to cooperate with the NRC

70 investigators. It also established that his testimony before the Special Master lacked forthrightness and that he had a poor attitude toward the hearing on the cheating incidents. Also, it showed that he continued to display some of the same elements of lack of regard for the NRC hearing process that led to the finding that he had a bad attitude -

toward the hearing on the cheating incidents.

149. Mr. Husted has been unable or unwilling to change his attitude toward to the NRC's regulatory process sufficiently for it to be found acceptable. The potential continues to exist that this unacceptable attitude toward the NRC regulatory process can adversely affect his teaching perfomance or the exercise of his management responsibilities contrary to public health and safety.

150. The record has established that in Mr. Husted's regular job perfomance his attitude has been professional and appropriate to his responsibilities; this attitude extends to safety, the NRC and the regulatory requirements. The Appeal Board standard for imposing the condition cannot be viewed as so inflexible that it would deny Mr.

Husted the ability to requalify for his former position considering his positive on the job attitude, if he had shown that he had rid himself of his poor attitude for the regulatory process. He failed to do this and the condition imposed by the Appeal Board should stand.

151. Because the license condition has not been lifted Mr.

Husted is unable to regain his position as Supervisor, Nonlicensed Operator Training. This is not done as a sanction, nor is done to forever bar him from that position. It is a matter of providing

I 71 reasonable assurance for the protection of public health and safety.

Mr. Husted cannot regain the position until he demonstrates that he is ,

qualified under the Appeal Board standard, as previously discussed.

152. There is no basis to come to a different finding in regard to l Mr. Husted serving in those licensed capacities in which the licensee  !

and the Cosmonwealth of Pennsylvania stipulated that he should not serve.  ;

153. On the basis of the foregoing I find in TMIA's favor as to its two contentions because of a demonstrated poor attitude on the part of Mr. Husted and against GPU Nuclear on its single contention. 1 Ultimate Conclusion and Order Based upon all of the evidence of record in this proceeding and in light of the foregoing findings and discussion, I hereby find:

That the conduct and attitude of Charles Husted requires that he not be pennitted to serve as a supervisor of nonlicensed operator training, or as an NRC licensed operator or licensed operator instructor i or training supervisor.

It is hereby ordered that the condition regarding Charles Husted  ;

imposed in ALAB-772,19 NRC at 1224, requiring that he have no supervisory responsibilities insofar as the training of nonlicensed personnel is concerned, shall not be vacated.

In accordance with 10 CFR 2.760, this initial decision will constitute final action of the Connission thirty (30) days after its l l

dcte, unless an appeal is taken in accordance with 10 CFR 2.762.  ;

i Pursuant to 10 CFR 2.785, the Connission, in the Notice of Hearing, has l

p 72 s

authorized the Atomic Safety and Licensing Appeal Board to exercise authority and perform the review functions which would otherwise be exercised and performed by the Comission.

- )

Morton B..Margulies f)

ADMINISTRATIVE LAW JUUSE Dated at Bethesda, Maryland this 2nd day of April,1987.

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