ML20206M804

Staff Proposed Findings of Fact & Conclusions of Law Vacating Condition Re CE Husted,Imposed on Licensee in ALAB-772.No Basis in Record for CE Husted to Be Barred from Serving as Licensed Operator.Certificate of Svc Encl

ML20206M804
Person / Time
Site:	Three Mile Island
Issue date:	08/15/1986
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
CON-#386-404 ALAB-772, CH, NUDOCS 8608210404
Download: ML20206M804 (66)

Text

__

~

DCCMETED usnne UNITED STATES OF AMERICA M AUG 18 P5:52 e

NUCLEAR REGULATORY COMMISSION CFFtr er ~cm - v a DOCr.:ip". ..,,x BEFORE THE ADMINISTRATIVE LAt1 JUDGE" In the Matter of )

)

GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-280 (CH)

)

(Three Mile Island NucIcar Station, )

Unit No.1) )

NEC STAFF PROPOSED FINDINGS OF FACT AND CONCLUSIO!!S OF LAPI

) ,

George E. Johnson Counsel for NRC Staff s

August 15, 1986 8608210404 860915 PDR ADOCK 0000028v_

G PDR F

DOCKETED USNRC

. W ME 18 P3 03 UNITED STATES OF AMERICA

~ NUCLEAR REGULATORY COMMISSIO{OCKETING a SLRVICLF BRANCH E2 FORE THE ADP.11NISTRATIVE LAW JUDGE in the flatter of )

)

GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-280 (CII)

)

(Three f.111e Island Nuclear Station, )

Unit No.1) )

NRC STAFF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW l

l i

' George E. Johnson

( A Counsel for NRC Staff i . August 15, 1986

TABLE OF CONTENTS Page I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND . . . . . . . . . 1 II. FINDINGS OF FACT ..................... 12 A. Did Husted Solicit an Answer to an Exam Question from P (Janes) During the April 1981 NRC Examinatior.? ........... 12

8. Did Husted Fail to Cooperate with NRC Investigators? . . . . . . . . . . . . . . . . . . 20 C. Did Husted's Testimony Before the Special Master Lack Forthrightness? ......... 34 D. Did Husted Have a Poor Attitude

-? Toward the Hearing on the Cheating Incidents? . . . . . . . . . . . . . . . . . . . . . . 41 E. What Does Husted's Performance of His Responsibilities with GPUN Reflect About His Attitude and Integrity? .......... 45 F. Commission Issues, Appeal Board Standard, Contentions and Remedies . . . . . . . . . . 57 III. CONCLUSIONS OF LAW .................... 63 IV. ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 n

o UOLKETED USNRC UNITED STATES OF AMERICA 86 NE 18 P3:03

. NUCLEAR REGULATORY COf1 MISSION OFFICE OF SELRt.TAHY 00CKETING & SERVICf.

- DEFORE TIIE ADfUNISTRATIVE LAW JUDGE BRANCH In the Matter of )

)

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

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

NRC STAFF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAU I. PROCEDURAL IIISTORY AND FACTUAL BACKGROUND

1. This proceeding was convened to provide Charles E. Husted, a former licensed operator and licensed operator instructor at Three Mile Island Nuclear Station (TtH), a hearing on whether a license condition, imposed as part of the Appeal Board's decision on management related issucs in the Three Mile Island, Unit I (TMI-1) restart proceeding, bar-ring Mr. Hucted from supervisory responsibilities insofar as training of non-licensed personnel is concerned, should be vacated.

General Public Utilities Nuclear (Three Mile Island Nuclear Station, Unit No.1), Docket No. 50-289(CH), Notice of Hearing (" Notice of Hearing"),

September 5,1985.

2. Due to the unusual manner in which this case arose out of the l

A TP11-1 restart proceeding, a short history of the proceeding and factual

, background is set forth below.

3. The instant proceeding arises out of events which ensued follow-l ing the administration at TMI in April, 1981, of NRC reactor operator l (RO) and senior reactor operator (SRO) examinations. These

examinations were administered to a total of 36 individuals seeking NRC licenses in connection with the proposed restart of TMI Unit 1. Husted

. Exhibit ("Ex.") 26, at 1. The examinations were requested by the opera-tor of TMI, then Pfetropolitan Edison Company, to demonstrate the compe-tency of T?ll's licensed operators. Husted Record Transcript (Tr.) 938 (Husted); Tr. 786 (Long).

4. Following discovery of marked similarities in the essay-style an-swers of two examinees, an NRC investigation into possible cheating was initiated. Ilusted Ex. 26, at 1. Both suspected individuals admitted to cheating on the I10 "B" and SRO "B" examinations administered on April 23 end 24,1981. Id. , at 1-2. Individuals designated by code as "O" and "W" admitted to NRC investigators that, during both exams, "O"

- sat at the same table as "W" and assisted "W" by placing his answer sheet face up on the table, where "W" was able to read and copy answers.

M. , at 46-48. They also exchanged answers orally, and at one point "W" provided an answer to "O" by passing a piece of scrap paper to "O."

M.,at48.

5. Although not implicated in cheating in either the NRC's August 11, 1981 Report of Investigation (admitted in this proceeding as Ilusted Ex. 26), or the subsequent October 13, 1981 Report of Investigation (see Prefiled Testimony of Richard A. Pfatakas, ff. Tr. 406, Attachment ("At-i tach.") 4, Charles E. Husted was interviewed twice by NRC investigators 1

in the course of the investigation into cheating at TPll. A summary of the first interview is contained in the August 11, 1981 report. Ilusted Ex. 26, at 39; Prefiled Testimony of Peter E. Baci, ff. Tr. 214, i

Attach. 2. A summary of the second interview is found at page 16 of the l

f i

October 13,.1981 URC Report of Investigation. Matakas , ff. Tr. 406, e

Attach. 4.

. 6. Mr. Ilusted's reluctance, at the first interview, on July 29, 1981, to answer certain questions concerning whether he was aware of reference materials being brought into the examinations, or of any rumors of cheating during the examinations, was reported in the NRC summary of that interview. Ilusted Ex. 26, at 39. That reluctance--particularly the investigators' report that f *r. Ilusted stated that he had heard rumors

(" unconfirmed hearsay") about che.ating but would not give specifics--was the focus of the second interview, which occurred on September 18, 1981.

Matakas , ff. Tr. 406, at 3, Attach. 4; Tr. 409 (Matakas) . The October 13, 1981 Report of Investigation also contains a summary of an

.- interview with David C. Janes (designated therein by the code "P"), who took the SP.O "B" exam in a room with Charles Husted. Prefiled Testimo-ny of William J. Ward, ff. Tr.140, Attach. 3; Testimony of David C.

Janes, ff. Tr. 278, at 1. That summary, however, makes no reference to Mr. Ilusted, and reported that Janes had not seen any cheating . Id.

7. As a result of the information concerning cheating by "O" and "W" in the April 1981 NRC operator licensing examinations, on October 2,1981, the Licensing Board in t**- TMI-1 restart proceeding i determined to re-open the management 9F i.se f the proceeding and ap-pointed Administrative Judge Gary L. Milhoinn as Special Master to pre-A side over a hearing on the relationship between information developed about cheating on the April 1981 NRC operatcr licensing examinations and l

the management issues previously considered or left open by the Licens-ing Board. Metropolitan Edison Company (Three Mile Island Nuclear l-i

(.

Station, Unit 1) ("TM1-1 Restart") , LBP-82-56, 16 NRC 281, 287-288 (1982). ,

8. In connection with the reopened hearings, Charles Husted was deposed on October 23, 1981, by counsel for intervenors in that proceed-ing. Testimony of Charles Husted, ff. Tr. 330, at 21.

9. IIcarings on the cheating issues were held before the Special f.! aster in the Fall of 1981. Under a sequestration order issued by the Special Master, certain licensee witnessess were excluded from the hearing room and prohibited from discussing among themselves certain matters.

TMI-1 Restart , supra, LBP-82-34B,15 NRC at 927.

10. At the hearings, William J. Ward, an NRC investigator who, along with Peter Baci, interviewed David Janes on September 25, 1981, testified that Mr. Janes stated during the interview that Mr. Husted had asked Mr. Janes a question during the April 24, 1981 examination, but that Jancs had not answered. Ward, ff. Tr. 140, at 4, Attach. 2 .

Both Mr. .f anes and Mr. Husted testified ' before the Special Master, f.fr. Janes denied telling Messrs. Ward and Baci that Mr. Husted had so-licited help. Testimony of David C. Janes, ff. Tr. 278, at 3. Likewise, Mr. Husted denied speaking to Mr. Janes. Staff Ex. 2, at Tr. 26,93G-37.

11. Mr. Husted also wes questioned intensively concerning his earli-er refusal to answer questions put to him when interviewed by NRC in-vestigators on July 29, 1981. Id. , at Tr. 26,924, et seq.

12. Although Mr. Husted was clearly not the focus of either the summer 1981 NRC cheating investigation, or the fall 1981 hearings before l the Special Master, his conduct" during the April 1981 NRC SRO "B" l

l i

examination, during the July 29, 1981 and September 18, 1981 NRC inter-views , and during his December 10, 1981 testimony before the Special

- Master, received extensive examination in the Report of the Special Mas-ter, issued April 28, 1982. TMI-1 Restart, supra, LBP-82-34B,15 MRC at 057-961, 1045-1046.

13. The Special Master. choosing to believe Mr. Ward's testimony that Mr. Janes (P) had told Messrs. Ward and Baci that fir. Husted had solicited en answer from Mr. Janes, and to disbelieve the denials of Messrs. Jancs and Husted, found that " fir. Husted solicited information from P during the NRC examination." d , at 961.

,I_d. The Special Master concluded that Mr. Ilusted "was not a credible witness." M. He based this conclusion on three considerations: first , fir. Husted, by not an-swering certain questions by MRC investigators on July 29, 1981, had refused to cooperate with the NRC investigation; second, Mr. Husted had testified in a flippant manner at the hearing; and third, Mr. Husted's -

testimony demonstrated an attitude which led the Special Master to con-clude that Mr. Husted had deliberately withheld information at the July 29, 1981 interview. Id., at 960-961.

14. Upon consideration of the Special Master's Report, the Licensing Board concluded that the Special f. laster's finding that Mr. Husted had solicited an answer from Mr. Janes (P) was unsupported by probative evidence. TMI-1 Restart, supra , LBP-82-56, 10 NRC 281, at 316-317.

p 15. Ilowever, adaiassing the collateral issues which were factored into the Special Master's findings on whether Mr. Husted had solicited an exam answer, the Licensing Board agreed with the Special Master find-ings , first , that fJr . Husted had refused to cooperate with the NRC

investigators by withholding information; second, that f.Ir. Husted had exhibited a flippant and less than serious demeanor while testifying; and

- third, f.Ir. Ilusted's testimony was inconsistent and incredible concerning whether he provided information he had about rumors of cheating to the NRC investigators. Id., at 318-319.

16. The Licensing Board found that Mr. Ilusted's conduct toward the NRC investigation and the subsequent hearing exhibited a problem concerning his attitude, rather than his performance as a licensed reactor operator. Id. , at 319. Yet, because of " doubts. ..about his competence to inctill a sense of seriousness about the important need for integrity, discipline and public confidence in the TMI training program," the Licens-ing Board required certain " changes to be made in the licensee's training

.- program, including establishment of criteria for qualifications of training instructors, and the auditing of training at the point of delivery." Id.,

at 320. The Licensing Board recommended that Mr. Husted receive par-ticular attention as part of those remedial actions. d.

17. During the pendency of appeals of the Licensing Board deci-sion , the Licensee (then GPU Nuclear Corporation 1_/) reached a stipulation with thc. Commonwealth of Pennsylvania, a party to the restart proceeding, wherein the Commonwealth withdrew its appeal, and Licensee agreed not to employ Mr. Husted at any time in the future to operate l

l 3

l

~1/

As a result of a request by the Presiding Officer, an explanation of i the change in Licensee from Metropolitan Edison Company to CPU l Nuclear Corporation was provided by Dr. Robert L. Long.

! Tr. 784-87 (Long) .

TMI-1 or to train operator license holders or trainees. TMI-1 Restart, supra, ALAB-772,19 NRC 1193, at 1201 n.1,1213,1222.

. 18. However, while the stipulation mooted some issues on appeal (i . e . , whether Mr. liusted should serve as a licensed operator, or in-structor of licensed operators) the Appeal Board, upon review, on its own raised the question of the appropriateness of the promotion, prior to the stipulation, of Mr. Husted to the position of Supervisor of Non-Licensed Operator Training, d. , at 1222,

19. The Appeal Board confirmed that the record supported the con-clusion below that Mr. Husted had a poor attitude toward his responsi-bilities, as reflected by his failure to cooperate with NRC investigators.

_Id .

The Appeal Board found that it was inappropriate, in light of Mr.

. .,- Husted's past failure to cooperate with the NRC, for Mr. Husted to be given responsibilities for the training of non-licensed operators, and for

' implementing the remedial programs in the training area directed by the Licensing Doord. Id_. , at 1224. As a result, the Appeal Board directed that Mr. Ilusted "have no supervisory responsibilities insofar as the training of non-licensed personnel is concerned." Id .

20. In its review of ALAB-772, the Commission took review of the question whether the Appeal Board had the authority to impose a license condition, which effectively operated as a sanction against an individual, where the individual was not a party to the proceeding and was given no a

notice of a possible sanction or opportunity for a hearing. TMI-1 Re-start, supra, CLI-85-2, 21 NRC 282, at 314 (1985) . After examining the statutory and Constitutional issues it raised, however, the Commission elected not to decide them, in favor of granting Mr. Husted an

opportunity to request a hearing "on whether the Appeal Board's condi-tion barring him from supervisory responsibilities _ insofar as the training

. of non-licensed personnel is concerned should be vacated." Id. , at 317.

The Commission also determined that should Mr. Husted~ request a hear-ing, the condition should not remain in effect during the pendency of the hearing. d.

21. On f. larch 25, 1985, Mr. Husted requested a hearing, 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 Ilearing, September 5,1985 (50 Fed. RS. 37098).

22. The Commission 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 writ-ten examination; (2) the lack of forthrightness of fir. Husted's testimony be-fore the Special Master; (3) his poor attitude toward the hearing on the cheating inci-dents; and (4) his lack of cooperation with NRC investigators. Id.

23. While expanding the scope of the hearing, as requested, the

! Commission also acknowledged "the rights of the parties to [the] Stipula-S tion . " The Commission noted that should Mr. Ilusted be able to demon-strate his fitness for the positions at issue, he could raise the Stipulation with GPU Nuclear Corporation and the Commonwealth of Pennsylvania. Id.

-g-

24. Finally, in addition to inviting petitions to intervene, the Commission stated: "The NRC Staff is to participate as a full party, and

. is to ensure that the record is fully developed." Id.

25. Following publication of the Notice of Hearing and appointment of the Presiding Officer, both GPU Nuclear Corporation ("GPU Nuclear,"

"GPUN" or " Licensee") and Three Mile Island Alert, Inc. ("TMIA") peti-tiened to intervene in the proceeding, and were admitted as parties.

Memorandum and Order, December 6,1985.

26. An initial prehearing conference was held in Harrisburg, Penn-sylvania on February 19, 1986, to discuss various procedural matters. A ;

Report and Order On Initial Prehearing Conference was issued February 27, 19P6, which admitted, as rephrased, the two contentions

.- proffered by TMIA:

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 reason 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 su-pervisor by reasen of his demonstrated bad attitude and lack of integrity.

GPU Nuclear's single contention was also admitted:

The conduct and attitude of Charles Husted with which GPU is familiar indicates that the NRC should not disqualify Mr.

Husted from swerving (sic) as an NRC-licensed operator or an instructor of licensed or non-licensed personnel.

0 Id. , at 4.

27. In his February 27, 1986 Order, the Presiding Officer deter-mined that the matter before it was in the nature of an enforcement pro-

coeding requiring development of a new record through a hearing de novo.

. 28. The burden of going forward, the burden of persuasion, and the burden of satisfying Mr. Husted's right to appropriate notice under the Administrative Procedure Act were determined to be with the NRC Staff. Id.,at 7, 8. The order also directed the Staff to be the propo--

nent of the enforcement order. ,Id_., at 8. However, following the filing of written objections by the Staff to being cast in that role, the Presiding Officer cilminated that requirement on the Staff, and, in addition, modi-fied its prior ruling by specifying that the Staff would be " required to go forward with the presentation of a record on which the Appeal Board's condition may be judged." Ruling on Staff Objections to Prehearing Con-ference Order, March 26, 1986, at 4. The Staff was, nevertheless, di-rected to make its position on the Appeal Board condition known at least seven days in advance of the hearing. Id. , at 6.

29. Pursuant to the request of the Staff, GPU Nuclear and Mr. Ilusted, the Presiding Officer specified that, in addition to the four factuel matters directed to be considered by the Notice of Ilearing, the proceeding would also consider the following questions:

, o What does Husted's performance of his responsibilities with GPU reflect about his attitude and integrity?

i a o In light of the answers to the first five factual matters, is any remedial action required with respect to !!usted?

o If remedial action is required, what is it?

February 27, 1986 Order, at 11. The Presiding Officer also determined that by providing Mr. Ilusted with an opportunity to demonstrate his

k fitness for the position at issue and for a hearing de novo , the Commis-r sion Notice permitted the Presiding Officer to consider not only evidence

' - available to the Appeal Board, but evidence bearing on Mr. Ilusted's qualifications to be employed in the job in question, without limitation as to the time frame to which the evidence may relate. M.,at5.

30. Finally, the Presiding Officer determined it appropriate to ad-dress, in the course of the proceeding, the legal question as to the stan-dards to be applied in determining whether Mr. Husted should be barred from any of the positions under consideration. M.,at11.

31. A final prehearing conference was held on Play 20, 1986, in Harrisburg, in which various determinations regarding the procedures and order for the presentation of evidence at the hearing were made. Report

, a,7

,- and Order On Final Prehearing Conference, May 27, 1986. E

32. I!carings were conducted in Harrisburg on June 23-26, and July 1,1986, after which the record was closed. The Presiding Officer heard testimony from five witnesses called by the Staff, six witnesses called by

-2/ The Presiding Officer wishes to commend the parties for the exten-sive efforts made in meetings prior to each prehearing conference to a uddress the numerous , and sometimes difficult, procedural issues relating to this somewhat unusual proceeding. Prior to each pre-hearing conference, s memorandum of the parties' consideration of these matters, along with their agreements (and disagreements) as well as recommendations to the Presiding Officer, was prepared by counsel for Mr. Husted. These efforts did not go unnoticed, and the parties' efforts in this regard measurably advanced the focusing and resolution of procedural issues.

i l

- - , . - - - - , - - . - , ~ .- - - - > - - - - - -

1 i

'~

Mr. Husted, including Mr. Husted himself, and one witness, a former GPU Nuclear Corporation employee, subpoenaed on behalf of TMIA. 3_/

33. At the conclusion of the hearing, the Presiding Officer directed that proposed findings of fact and conclusions of law be served in hand by August 18, 1986, with replies likewise due in hand, September 8, 1986. The parties were requested to address the seven factual issues considered. In addition the parties were directed to address:

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

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

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

(4) 1,'hether or not Mr. Husted met the standards of the Ap-peal Board previously, does he meet them now? and (5) V' hat 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 (Margulics , J.) . These matters are considered below.

II. FINDINGS OF FACT A. Did Husted Solicit an Answer to an Exam Question from P (Janes)

During the April 1981 NRC Examination?

34. As indicated above, the allegation that Mr. Husted solicited an answer to an exam question from Mr. Janes during the NRC SRO "B"

-3/ One Staff witness, originally intended to be presented by the Staff, was unable to testify due to serious illness. See, letter from George E. Johnson to Morton B. Margulies, Esq., dated July 11, 1986.

cxam given on April 24, 1981, esme in the oral testimony of NRC investi-gator William J. Ward before the Special Master in 1981. Ward, ff.

o Tr. 140, at 4, Attach. 2. Mr. Janes was interviewed by NRC investigators Ward and Peter E. Baci on September 25, 1981, concerning possible cheating on the April 1981 NRC licensing exams. Id., at Attach. 3. Mr. Janes told the investigators he took the RO and SRO "B" examinations on April 23 and 24,1981. M. He stated that he had not seen anyone cheat and had not assisted anyone during the examinations.

M. However, during the interview, Mr. Janes, who had been speaking in a monotone voice, expressed outrage over the absence of an NRC proc-tor from the examination room. Tr.144 (Ward) . According to the sum-mary of the interview written contemporaneously, Mr. Janes exclaimed

. "I'm really [ mad] at that guy being gone all day." Ward, ff. Tr.140, at Attach. 3. Mr. Jones explained that he felt the proctor's absence made him vulnerable to an allegation of cheating. Id. Mr. Janes and Mr. Ilusted were the only examinees in the exam room in which they took the April 24, 1981 examination. Testimony of David C. Janes, ff.

Tr. 278, at 1. During his prior testimony, and again in his recent testi-mony in this proceeding, Mr. Ward stated that he told Mr. Janes that the reason Mr. Janes was so angry was not because of the hypothetical possi-bility that he could have been solicited for an examination answer, but that Mr. Ilusted did in fact solicit an answer from Mr. Janes. Ward , ff.

4 Tr.140, Attach. 2 : Tr.149 (Ward).

35. In his testimony before the Special Master, Mr. Ward c%rac-terized on two separate occasions the key exchange between himself and Mr. Janes, which formed the basis of his belief that Mr. Husted had

asked f.1r. Janes a question during the exam. Ward, ff. Tr.140, at 4, c

Attach. 2. On the first occasion, Mr. Ward stated that Mr. Janes said

- that a fellow examinee had asked Mr. Janes a question on one occasion, but Mr. Janes had not answered, and that was the end of it. g.,at Tr. 25,316, lines 21-24. The second time the matter came up, Mr. Ward elaborated that he recalled Mr. Janes saying he could not remember spe-cifically what the question was . Mr. Ward stated: "It was more like what a certain concept was, well, what in the hell does this mean or words to that effect. And [when) he refused to answer it, no further questions were asked." M. , at Tr. 25,463, lines 12-15.

36. In his testimony in this proceeding, Mr. Ward subscribed to the accuracy of his earlier testimony, id., at 4, but even in that earlier tes-

- timony, Mr. Ward characterized Mr. Janes' statement as "somewhat ambig-uous." ,I d . , Attach. 2, at Tr. 25,316, line 20. Similarly, on cross-examination, he stated Mr. Janes could not then remember the exact words he had heard. Tr. 202 (Ward). Mr. Ward stated that Mr. Janes characterized what Mr. Husted said as an exclamation, but that the inter-viewers were not able to clarify whether the exclamation was an exclama-tion of concern over Mr. Ilusted's inability to answer the question that he saw on the exam, or was a question blurted out to Mr. Jance. Tr. 149, 162.163,164 (Ward).

37. Investigator Baci subscribed to Mr. Ward's account of the Janes i

interview, as documented in the transcript from the prior proceeding be-Profiled Testimony of Peter E.

fore the Special Master. Baci, ff.

Tr. 214, at 3-4. Mr. Baci testified that Mr. Janes clearly acknowledged that Mr. Ilusted had asked a question during the examination, but that

1 l

i Mr. Janes clarified his response by saying he was not sure of the nature -

7  :

of the question--that the question may well have been rhetorical. Id., at 1 6; Tr. 224 (Baci).

38. While both ?!r. Baci and Mr. Ward gave slightly varying ac-counts of the interview with Mr. Janes, they were both unwilling to char-acterize Mr. Janes as having told them that Mr. Husted had attempted to obtain from Mr. ,Tanes an answer on the April 24, 1981 exam. Tr. 174 ,

i 192-190, 200 (Ward); Baci, ff. Tr. 214, at 7; Tr. 250, 252 (Baci). It was Mr. Baci's opinion that Mr. Janes, in the midst of taking the exam, heard a question, heard somebody ask something, but that it did not reg-ister and Mr. Janes did not know what it was. Tr. 250, 267-68 (Baci).

39. As was brought out by cross-examination by counsel for

? Mr. Ilusted, the incident concerning the " solicitation" was not contempo-i ranccusly recorded in any form. Mr. Ward did not include the incident I in his written report of the interview, neither Mr. Baci nor Mr. Ward detailed the incident in their notes, and there was no tape or transcript u

l recording the interview. Tr.197-99 (Ward); Tr. 263-66 (Baci). Never-

! theless , each felt comfortable about their recollections of the interview, and their versions of the interview were very similar. Tr. 274 (Baci);

Ward, ff. Tr.140, at 5; Tr.190-91 (Ward).

i i

40. In his prefiled testimony, Mr. Janes denied that Mr. Ilusted t

had asked him anything about the examination. Janes, ff. Tr. 278, at 2.

It was Mr. Janes' view that a misunderatanding may have occurred con-i cerning the answers Mr. Janes gave during the interview. Id. , at 2-3.

Mr. Janes noted he had been asked two hypothetical questions--one, what he would have done had he been asked a question during the April 1981

+ r n - r - , - - - - ,,_.--.-_-----v., _ _-----,-,~+---.~,.,---4 ,,-,--.--,-,,~,,-+--.~.--.-.-_---r---- - ~ ~ , . - . - . - - - -

1 exam, and, two, what he would have done had he taken the exam on the date of the interview under the same circumstances. Id., at 5; Tr. 282-283 (Janes). In supplemental prefiled testimony, Mr. Janes ex-plained that shortly after the interviewer sitting behind him made a state-ment that Bir. Ilusted had asked him a question, the interviewer in front of him asked him a question to the effect: "What would you have done if Chuck llusted had asked a question during the exam?" To which ,

f.ir. Janes stated he believes he said: "Only one question? I wouldn't answer." Jancs Supplemental Testimony, ff. Tr. 278, at 1-2. Mr. Janes stated he thought it very likely that the misunderstanding occurred at thtt point. Id. , at 2. See also, Tr. 289-290 (Janes).

41. Also, Mr. Janes stated that at the end of the interview he indi-

' cated he had heard one or more groans or exclamations during the exami-nations as the people read the exams. Janes, ff. Tr. 278, at 5. See also, Tr. 312 (Jancs).

42. While Mr. Janes denied the accuracy of h1r. Ward's 1981 allega-tion concerning the " solicitation," Janes, ff. Tr. 278, at 2, he admitted that he was confused about the identities of the interviewers, Janes Sup-plemental Testimony, ff. Tr. 278, at 1; Tr. 290 (Janes), and appeared to contradict himself on the witness stand when describing when he became uncomfortable about being vulnerable to accusations of cheating.

, Tr. 298-304 (Janes).

43. Ilowever, what is striking is not the dissimilarities in the testi-mony of Mr. Jones, on the one hand, and Messrs. Baci and Ward, on the other, but rather, the similarities. Despite Mr. Janes' denial, he co'.-

firms saying words remarkably like those Messrs. Ward and Baci say ;ney

heard.- Janes Supplemental Testimony, ff. Tr. 278, at 1-2; Tr. 289-290 (Janes); Ward, ff. Tr. 140, Attach. 2; Tr. 149 (Ward); Baci, ff.

.- Tr. 214, at 3-4. Messrs. Baci and Ward are confident Mr. Janes charac-terized what he had heard as an exclamation. Tr. 149, 150, 162-64 (L'ard); Tr. 250, 267-68 (Baci). Mr. Janes also notes he told the inves-tigators he had heard groans and exclamations, and notes that what Messrs. Daci and Ward described in their testimony, concerning the ex-clamatory nature of what they say Mr. Janes described to them, is very similar to his own account. Tr. 281-85 (Janes). Finally, a review of the transcript reveals that the apparent inconsistency in Mr. Janes' cross-ex-amination testimony on when he became uncomfortable appears to be at-i tributable more to the imprecise recollection of Mr. Janes' cross-examint. tion answers, than to inconsistencies in the answers them-selves . Tr. 298-304 (Janes). The statement of Mr. Janes in question was: "The uncomfortable position would be if you were unproctored and someone made an allegation that there was cheating and being upset about i it would be the natural outgrowth of that." Tr. 298 (Janes). Apparent-ly, Mr. Janes linked the first two clauses as one set of circumstances, while his cuestioners interpreted him as ascribing his discomfort only to the first clause , i.e., being unproctored, See, g, e Tr. 302 i

(Margulics, J.) .

44. Thus, despite the lack of contemporaneous documentation of the t

interview, there is no reason to discredit the testimony of the eyewitness-cs to the interview, and I treat the main threads of it described above as reliable evidence.

l i

r l

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

45. Further, there is nothing in Mr. Husted's testimony which leads the Presiding Officer to a different conclusion. While Mr. Husted denies speaking to Mr. Janes during the April 24, 1981 SRO "B" exam, Testimo-ny of Charles Husted, ff. Tr. 330, at 3, he notes that he did speak aloud during the examination when he reached an exam question on ther-modynamh1. M. , at 4. As an operator instructor, he had prepared l'e sson plans for thermodynamics and heat transfer classes, g. IVhen he reached the section of the examination on that subject he found a ques-tion on a theoretical thermodynamic process--the "Carnot cycle"--for which he did not prepare his students. M. He became upset, and said something like: "17 hat the hell is this?" .Id . Mr. Ilusted testified that the exclamation was not directed at anyone in particular, and did not

? mention anything about the substance of the exam question. g. ;

Tr. 341, 344 (Ilusted).

46. As with the other witnesses, Mr. Husted's version of what hap-pened in the exam room was not inconsistent with the gist of his prior statements. Defore the Special Master, Mr. Husted stated he did not solicit an answer, and did not speak to Mr. Jancs. Staff Ex. 2, at Tr. 26,936, 26,937. At first, Mr. Ilusted testified that he had mentioned his exclamation before the Special Master, but later corrected himself, saying he did not. Tr. 346, 405-98 (Husted). There is no indication from his testimony before the Special Master that he did mention an excla-mation, nor does there appear to have been questioning which could rea-sonably have elicited that information, assuming Mr. Ilusted recalled it at that time. See, Staff Ex. 2, at Tr. 26,935-37, 26,947-48.

- - ._. 1-

47. It is also worth noting . Mr. Husted's response when he was asked whether Mr. Janes would have been a person likely to know the

. answer to the question on the Carnot cycle if Mr. Janes was one of his students. Tr. 345 (Uusted). Although a negative answer would certain-ly have served Mr. Husted's interest, Mr. Husted responded that Mr. Janes could well have prepared beyond the class instruction, and thus Mr. Ilusted did not know whether Mr. Janes would have had that knowledge or not. _Id . The Presiding Officer finds Mr. Husted's testimo-ny in this respect to have been thoughtful and candid.

48. In addition, Mr. Husted's account of what transpired during the SRO "B" examination on April 24, 1981 is fully consistent not only with his prior statements, including those to NRC investigators (see Ward, ff.

Tr.140, Attach. 3 and Husted Ex. 26, at 39) and testimony, but with the testimony of ?!essrs. Janes, Ward and Daci, as discussed above.

49. A review of the testimony and evidence admitted in this pro-ceeding, including prior testimony of Mr. Ward and Mr. Husted, reveals

}

no evidence that Mr. Ilusted in fact solicited an answer to an examination question from Mr. Janes during the April 1981 NRC SFO "B" examination

at Tfl!. The evidence strongly indicates that Mr. Ilusted in fact made an

, exclamation during that exem which may very likely have been phrased in the form of a question. However, there was no evidence to support an inference that the statement in question was other than an exclamation in the form of a rhetorical question, not directed at anyone, and not intend-

~

ed or perceived as a request for an answer to an exam question. ,

50. As a result, I find that the answer to the first question is in l the negative, and the evidence adduced on this issue does not support

,,r,, , - - - , , , - - - , --- -,,n--.w---. .-nn,, - . - - - .-n-~, - , .. , , . - - , - - , - - - _ . , , . , . - - . . , , , - . , , - - - _ _ , . - ~ , , . , - - , . - - - , , . . .

negative inferences concerning either Mr. Husted's conduct, attitude, or integrity.

B. Did Ilusted Fall to Cooperate Uith NRC Investigators?

51. As indicated in Part I, Charles Husted was interviewed on two occasions--on July 29, 1981, and September 18, 1981--during the NRC investigation into cheating on the April 1981 operator exams at TMI. See, I!usted, ff. Tr. 330, at 5-21; Ilusted Ex. 26, at 30; Prefiled Testimony of Richard A. Matokas, ff. Tr. 406, at 2, et seq. , Attach. 4. Three of the four witnesses to the first interview testified: R. Keith Christopher, who, with Raymond II. Smith, O interviewed Mr. Husted on July 29, 1981 for the NRC Office of Inspection and Enforcement, b Paul G. Christman, Manager, Plant Administration at TMI Unit 1; and Mr. Husted. Richard A. f.!atakas , an MRC investigator, who interviewed Mr. Ilusted on September 18, 1981, also testified, as, of course, did Mr. Husted. Un-like the case of the Janes-Ilusted " solicitation" remark, there was contem-poraneous documentation of the exchanges which gave rise to the question whether f *r. Ilusted failed to cooperate with NRC investigators, all of which was put in evidence. See, Husted Ex. 26, at 39; Matakas, ff.

Tr. 486, Attachs. 2, 3, and 4; Husted Ex.1.

50. At the July 29, 1981 interview, Mr. Ilusted was asked a number of questions concerning the circumstances of the April 1981 examinations, e

4/ Mr. Smith was originally to testify, but was unable to appear due to serious illness. See letter from George E. Johnson to Morton B.

~

Margulies, Esq. , dated July 11, 1986.

5/ See, Husted Ex. 26, at 39.

including questions related to possible cheating incidents. There were differences, however, among the accounts of the interview given in testi-

= mony by Mr. Ilusted and Mr. Christman, as well as in the two written summaries put in evidence--Mr. Christman's July 29, 1981 memorandum to

- John F. Wilson , Esq. containing notes of the interview ("Christman notes") (Husted Ex.1) and the summary of the interview contained in the

" Report of Investigation--Three Mile Island Nuclear Generating Station, Unit liinvestigation of .sileged Cheating On Operator Licensing Examina-tions ," August 11, 1981, at page 39 (" August OIE Report") (See, Ilusted Ex. 26; Baci, ff. Tr. 214, Attach. 2).

53. The August OIE Report states, in pertinent part, DD 6_/ was queried concerning the possibility of reference material being covertly brought into the classroom by 4 -

examinees. Ilowever, for unknown reasons, he declined to respond to this question or explain his reluctance to discuss this issue. Ile was also asked whether any rumors or com-ments regarding instances of cheating on the exams had come 4 to his attention. IIe acknowledged that he had heard rumors

- to this effect which he labeled as " unconfirmed hearsay."

Ilowever, DD refused to reveal any specifics of the rumors he .

had heard or to identify the individuals (if named) who were allegedly implicated. Upon further attempted questioning, DD declared he could not recall anything concerning what he had heard, liusted Ex. 26, at 39. Although the accuracy of this version of the July 29, 1981 interview played a crucial role in the determination affecting Mr. Ilusted in the Restart proceeding, there was no Staff witness who could attest to its accuracy in this proceeding. Mr. Christopher, though one of the two NRC investigators at the July 29, 1981 interview, could

-6/

DD was a code designation for Mr. Ilusted originally used in the restart proceeding. Mr. Ilusted did not seek confidentiality, howev-er, and the designation was subsequently dropped.

not recall the interview, and was unable to verify the accuracy of the

~

OIE Report. See, Christopher, ff. Tr. 386; Tr. 388, et seq. The other

- interviewer, Mr. Smith, was unable to appear. See note 4, supra.

54. The other written account of the interview was contained in the Christman notes. Mr. Christman's account of what appears to be the same questions and answers regarding reference materials being brought into the examination and rumors of cheating on the examinations varies in several significant respects from the OIE Report account. The pertinent portions follow:

Mr. DD was asked whether candidates are allowed to bring notebooks, pads of paper, textbooks, etc. to the examination.

Mr. DD did not answer this question. Ile was then asked did anyone bring articles as described above to either examination.

IIe responded that he could only answer for himself and that he did not bring such articles to the examinations. IIe did

,- state that the one textbook that he recalled being available in the classrocra was a set of Steam Tables.

e e e lie responded no when he was asked whether he had any knowledge of cheating. Ile refused to answer a question about whether he had heard any rumors or gossip in regards to cheating on the April examinations. When he was asked this question again , he answered that he cannot recall having heard any rumors or gossip in regard to cheating on the April examinations.

Ilusted Ex.1, at 3.

I 55. Mr. Christman recalled very little of the interview, although he attested to the accuracy of his notes. Christman, ff. Tr. 351, at 2-3.

• Mr. Christman, however, stated: "I recall that at two times during the interview, Mr. Ilusted refused to answer a question. I recall being sur-prised at his refusals. I think the interviewers were also surprised. I recall the interview was not friendly, on either side, and that Mr. Ilusted i

seemed tense and apprehensive throughout the interview." Id. , at 3.

See also, Tr. 356-357, 361 (Christman). He also stated that the OIE Re-port of the interview was not accurate and was not as complete as his e own. Tr. 374 (Christman). U

56. In his prefiled testimony, Mr. Husted pointed to the discrep-ancies between the two reports of the interview, as well as independent recollection of matters not included on either report. Ilusted, ff.

Tr. 330, at 7, et seq. Mr. Husted, however, did not disagree that he had not answered two questions posed by the NRC investigators. M.,at 7, 8. Tr. 504, 508 (Husted).

57. Mr. Ilusted stated that he recalls that he did not answer the question about examinces bringing reference materials into the classrooms at first because it was too broad. Husted, ff. Tr. 330, at 7. The ques-tion did not specify whether the question referred to authorized or unau- 1 thorized materials, and was not limited to a particular examination. M.

Ile stated: "I was reluctant to give a blanket answer that might be thought to cover every examination I had participated in since joining the Company." M.

-7/ It 'may be noted here that Mr. Newton testified that sometime after the August OIE Report came out, Mr. Husted told him he had been asked at the July 29, 1981 interview whether he had heard any ru-mors about passing papers. Testimony of Samuel L. Newton, ff.

Tr. 830, at 4. He also stated, Mr. Husted had discussed " passing papers" with him. Id. Similarly, notes by Dr. Robert L. Long of a

• meeting Dr. Long fiiid with Mr. Newton on May 27, 1982 report, "SLN [ Newton) remembers talking with Husted after IaE interview his ' passing papers' incident. Husted said Christman said he did OK." Ilusted Ex.12. In view of the conflict between these state-ments and the August OIE Reports and the Christman notes, as well as the 1982 date of the Long notes (not to mention Ftr. Husted's testimony to the contrary), it appears that Mr. Newton may have

! mistakenly telescoped several of his discussions with Mr. Ilusted.

58. Mr. Husted points to the Christman notes as indicating, as the 4

OIE Report does not, that he was asked a similar question pertaining to

• "either examination," to which he answered, that he could only say for himself that he had not brought unauthorized reference materials "to the examinations" (quoting the Christman notes). Husted, ff. Tr. 330, at 7-8. On cross-examination, Mr. Ilusted stated he sought clarification of the question, and answered it as rephrased. Tr. 505-506, 507 (Husted).

IIe acknowledged, however, that auch an exhange was not recorded in the Christman notes. Tr. 508 (Husted); see also , Christman, ff. Tr. 351, at 3.

59.  ?!ith respect to the second question, Mr. Husted recalled he was asked whether he had heard any rumors about cheating on examina-

-* tions, but was " displeased with the question and declined to answer it at first . " Ilusted , ff. Tr. 330, at 8. (Cf. Husted testimony before the Special Master, at Tr. 26,925, that he did not Ilhe the questions being asked by the interviewers at the first interview. Staff Ex. 2. )

Mr. Ilusted said he did not recall why he did not answer, or how he de-clined to do so. Husted, ff. Tr. 330, at8; Tr. 509 (Husted). (Ile speculated that he could have thought the questions were too broad.

Husted, ff. Tr. 330, at 9). Ilowever, he noted that the Christman notes indicate that the question about rumors was repested, and he answered that he could not recall having heard any rumors or gossip in regard to cheating on the April examinations.

60. Mr. Ilusted points to a major discrepancy between the Christman notes account, just described, and the August OIE Report, which states that Mr. Ilusted acknowledged he had heard rumors about

cheating, labelling them " unconfirmed hearsay," but refusing to give any specifics, then, when questioned further, stating that he could not recall .

, nnything concerning "what he had heard." Husted, ff. Tr. 330, at 9-10; Husted Ex. 26, at 39.

61. Significantly, Mr. Ilusted stated that he was quite certain he did not originate the words " unconfirmed hearsay" at the first interview.

Husted, ff. Tr. 330, at 10; Tr. 531 (Husted). In addition, neither an acknowledgment of hearing rumors nor the words " unconfirmed hearsay" 8,/ Husted Ex . 1.

appears in the Christman notes of the interview.

Indeed , NRC Investigator Christopher, who was in a position to have corroborated any acknowledgement of hearing rumors, or " unconfirmed hearsay," had no recollection of the interview. Keith Christopher, ff.

.. Tr. 386, at 2-6; Tr. 396 (Christopher). As noted above, he also could not verify the accuracy of the summary of the first interview. Tr. 397 (Christopher) .

62. In testifying about the September 18, 1981 interview, NRC In-vestigator Matakas stated that, prior to conducting the interview, he had been told by telephone--he beneves by Mr. Baci--that in a previous in-terview fir. Husted had been reluctant to answer certain questions related to cheating or alleged cheating on reactor operator exams at TMI. He 8/ Mr. Christman also had no recollection of the use of the words "un-confirmed hearsay" during the Husted interview, Christman, ff.

Tr. 351, at 3, Tr. 360-61 (Christman). He also stated he believed that his notes were a reasonably complete account of the interview.

Tr. 377-78 (Christman) . Given the importance of an acknowledge-ment of hearing rumors about cheating by Mr. Ilusted, it seems like-ly that it would have been recorded by Mr. Christman if it had occurred.

l was also told that Mr. Ilusted termed this information as " unconfirmed hearsay." It was Mr. Matakas' assignment to pursue what Mr. Husted

. meant by " unconfirmed hearsay." Tr. 407, 408 (Matakas); cf. Matakas ,

ff. Tr. 406, at 3.

63. Notes taken by Mr. Matakas during the course of his interview with Mr. Husted, as well as Mr. Matakas' draft write-up of the interview, were put in evidence with Mr. Matakas' testimony. Matakas, ff. Tr. 406, Attachs. 2 and 3. Of greatest interest are two notations.

64. First, Mr. Matakas wrote: "This is ' unconfirmed hearsay' staternent (see report p. 39)" in the left margin on the first page, next to his notes of what Mr. Ilusted told him about an incident he had heard.

These notes indicate that Mr. Ilusted

-' heard statement near coffee pot and men's room in trailer be-tween two classroomc. Someone (don't recall who)--don't even know if comment was directed at me--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.

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 e):ams.

M. , Attach. 2. Mr. Matakas' draft summary related the incident de-scribed in the notes, prefacing the description with a statement that "Mr. Ilusted was asked to clarify what he meant by ' unconfirmed heresay' (sic) in his previous statement." M. , Attach. 3. SI In his prefiled 9/ The pertinent portion of the draft summary stated:

(FOOTHOTE CONTINUED ON NEXT PAGE) l

testimony, P.ir. Matakas stated that either Mr. Ilusted gave the indicated response in an answer to a question as to what he meant by " unconfirmed

- hearsay," or, after he made the " response," he acknowledged that the statcaent referred to the same incident he was referring to when he used the phrase " unconfirmed hearsay" during the July 20, 1981 interview.

Id. , at 5. Mr. Matakas stated that Mr. Husted characterized the state-ment as a rumor. Ife noted, however, that Pfr. Husted's statement may have been voluntary, d.

65. On cross-examination, Mr. Matakas was less sure that the state-ment concerning " passing papers" was linked closely in time with *he words " unconfirmed hearsay," saying that he believes he referred to "un-confirmed hearsay" when explaining at the outset of the interview that his (FOOTMOTE CONTINUED FROM PREVIOUS PAGE)

Mr. Ilusted was asked to clarify what he meant by " unconfirmed hearsay" in his previous statement. He stated that he did hear one comment made during the time period of the NRC RO/SRO exams where someone (he did not recall who) said they saw someone (the unidentified person did not say who) passing pa-pers in the exam. Husted stated he heard the comment in the area near the coffee pot and men's room in the trailer that was located between the two classroom. He said he personally did not have any knowledge regarding either reference material or crib sheets being taken into the NRC exams. He said he did

• not know if the above mentioned comment relating to " passing papers" was being directed at him or not, and he did not know if the person was referring to the NRC exams or some other exam.

Ilusted concluded stating that he did not have any other infor-mation whatsoever relating to cheating on the NRC, RO/SRO, exams.

1

purpose was to follow up on the statement, and asked what Mr. Husted meant by the term. Tr. 409, 431, 439 (Matakas) .10,/ -

. 66. It was f.!r. Husted's testimony that he did not recall hearing the passing papers statement at the water cooler (between the coffee pot and the men's room in the trailer between the classrooms), which he related to P!r. ?,latakas on September 18, 1981, until after he learned that "O" and "W" had cheated by passirm pcpers in the April exams. Husted , ff.

Tr. 330, at 13,17. Ile stated that during a break in the questioning by Mr. Matakas, he volunteered the information he had remembered.

Tr. 5::7-28 (Husted). While agreeing with some aspects of the account of the statement recorded by Mr. Matakas, Mr. !!usted said he did not be-lieve he indicated that the " passing papers" comment made any mention about an " exam," and did not recall being asked what he meant by "un-confirmed hearsay"; however, Mr. Ilusted testified he did not recall the interview very well. Husted, ff. Tr. 330, at 15. Tr. 529-31 (!!usted);

accord, Husted Ex. 2.

G7. Also noteworthy in this regard are two statements by Mr. Mntakas. First, he noted that the first three paragraphs indicate "no" answers to the v'ritten statements. Matakas , ff. Tr. 416, at 4.

And second , Mr. Matakas stated that the neatness of his notes and first-person references suggest to him that he read back to Mr. Ilusted the answer Mr. Matakas had written done. Tr. 413 (Matakas) . This 10/ It may be noted, however, that the scope of the interview was broader than the " unconfirmed hearsay" statement, and Mr. f.fatakas in his draft summary characterized the reinterview as "due to his reluctance to answer all questions directed at him during a previous interview ." Matakas, ff. Tr. 416, Attachs. 3, 4.

t

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

would appear to corroborate Mr. Husted's testimony before the Special Master that questions were written out, his answers were written down verbstim, and he agreed to the answer as written. b Staff Ex. 2, at Tr. 26,967. It would also tend to support the accuracy of the Bfatahas notes. Nevertheless , since the side notation- "This is unconfirmed hearsay. . . "--appears to have been written after the answer was re-viewed , and perhaps after the interview, the equation of the incident with " unconfirmed hearsay" may not have been seen by Mr. Husted, and does not necessarily confirm that it was f.fr. Husted who equated the two statements.

68. The other statement of Mr. !!usted of particular interest, re-corded in Mr. Matahas' notes, which bears on whether Mr. Husted was

. consistent in his denial that he heard rumors, is the following notation:

Wasn't that I did not want to identify anyone last time inter-viewed. I couldn't identify anyone and did not want to spread rumors.

Matahns, ff. Tr. 406, Attach. 2. Mr. Matakas stated that this statement came when he asked why Mr. Husted did not provide the information as noted on the lower portion of the first page of his notes concerning

" passing papers" in the first interview.12/ Tr. 428, 442-43 (Matakas).

11/ This does, however, raise a question whether Mr. Husted's position that he only recalled hearing two words, " passing papers," is con-

. sistent with his agreeing to the answer written by Mr. Matakas, i.e. , " passing papers on the exam."

12/ Mr. Matakas also testified that at the end of the interview he asked

~~

Mr. Ilusted why he did not provide "this information" in the first place. Mr. Husted is said to have replied that the questions were so broad that he did not feel he could answer them. Tr. 400 (Matakas).

Based on above quoted answer, Mr. Matahas answered that Mr. Husted termed what he had heard as a rumor. Tr. 443 (Matakas).

69. Mr. Husted testified that he never thought of the passing paper information he heard as a rumor. Tr. 531-32 (Husted). He did not characterize the " passing papers" statement he had heard as a rumor in his testimony before the Special Plaster. Tr. 532-36 (Husted); see Staff Ex. 2, at Tr. 26,928, 26,930, 26,931. Similarly, Mr. Husted denied having heard rumors regarding passing papers from one person to anoth-er in the exams, when he was deposed by the Aamodts on October 23, 1981. Tr. 537 (Husted); Husted, ff. Tr. 330, at 21. When asked a sim-liar question in a deposition on April 20, 1936, Mr. Husted had stated:

it wasn't as though someone had came (sic) to me and said that they had heard someone say that they had seen, quote,

, "O" and "W" end quote passing papers. It was just a conclu- ,

sion I drew independently based on the knowledge that I had gained and that the cheating was facilitated by passing of papers.

Tr. 538-40 (Husted). See also, Husted, ff. Tr. 330, at 14. Mr. Husted stated he never knowingly characterized the statement about passing pa-pers to be a rumor. Tr. 541 (llusted).

70. The principal question here concerning Pir. Husted's statements at the two NRC interviews, as it was before the Special ?! aster, is wheth-er the evidence establishes that Mr. Ilusted was aware of rumors of cheating at the time of the interview of July 29, 1981 but withheld that information. The only direct evidence that Pir, liusted was aware of ru-mors of cheating in the April 1981 exams is contained in the August OIE Report. Although ordinarily an NRC Staff record is admissible hearsay, and the report was admitted here (Husted Ex. 26), the probative weight to be accorded is a matter in the Presiding Officer's sound discretion.

Three witnesses to the interview testified in this proceeding. One of the NRC investigators present at the interview, Mr. Christopher, could not verify the accuracy of the report. Tr. 397 (Christopher). The two oth-er witnesses Mr. Christman (relying on his notes) and Mr. Husted, de-nied the securacy of the OIR Report insofar as it portrayed f tr. Husted as stating he heard rumors- " unconfirmed hearsay"--but refusing to ex-plain further. Tr. 374, 382-83 (Christman); Husted Ex.1; Husted, ff.

Tr. 330, at 7-10. Examination of the record, including the transcript of fZr. Husted's testimony before the Special Master (Staff Ex. 2), and testi-many concerning Mr. Husted's depositions of October 23, 1981 and April 29, 1986, does not clearly establish that Mr. Husted believed what he heard near the coffee pot following the April 1981 exam was a rumor, or that he remembered or referred to what he had heard at the July 29, 1981 interview. The side notation by Mr. ffatakas in his notes of the September 18, 1981 interview that the passing papers incident was the canfirmed hearsay on page 39 of the August OIE Report appears to have been Mr. Matakas' characterization of the statement, rather than Mr. Husted's. Further, Mr. Matakas was not sure that he directly linked the " unconfirmed hearsey" statement to the " passing papers" statement in his questioning. Tr. 409, 431, 439 (Matakas).

71. liowever, when asked why he did not provide the information about passing papers at the first interview, Mr. Husted did not say he did not consider the incident to be a rumor and did not recall it at the time. Rather , he stated, according to Mr. Matakas, that he could not identify anyone and did not want to spread rumors, and/or that the questions were too broad. Matakas , ff. Tr. 406, Attach. 2, Tr. 409,

428, (Mata,kas) . Mr. Matakas considered the statement to be an admission that Mr. Ilusted believed the " passing papers" statement he heard to be a rumor which he did not want to spread at the first interview because he could not identify anyone involved. Tr. 442-43 (Matakas) . This is a plausible inference.

72. Ilowever, it is not the only plausible inference. On a number of occasions referred to above, Mr. Husted has denied hearing rumors about cheating on the April 198'1 exams, and maintained that since all he heard near the coffee pot was a fragmentary statement concerning " passing papers," he never considered what he heard to be rumor. Tr. 531-32 (flusted). Further, he stated that he was confident that he did not re-call the " pas. sing papers" incident until had learned of the mechanism by which "O" and "W" had cheated. I!usted, ff. Tr. 330, at 17. In view of these statemente and the Christman notes, which tend to support Mr. Ilusted's version of the facts, it is also plausible that fir. Husted answered incorrectly at the second interview, as he suggests, M. , at 16, or that, when he said he did not want to spread rumors, he was not re-ferring to the passing papers incident specifically, but maldng a general statement that at the first interbew be wan being careful not to start rumors where he had no sp'ecific information to convey.

73. While the matter is not free from doubt, Mr. Ilusted does not carry the burden in this proceeding of demonstrating he did not withhold information. Rather, in a case where, as here, a person faces possible agency sanction, the evidence against him must be in the preponderance to support a sanction. See, 5 U.S.C. I 556(d). The evidence here does

not establish by such a preponderance that Mr. Husted withheld

. r information about rumors of cheating at the first interview, and I so find.

74. Vlith respect to the broader issue of whether Mr. Husted failed to cooperate with the NRC investigators, the evidence is also somewhat equivocal. Mr. Husted admits that he failed to answer two questions posed by the MRC investigators. Husted, ff. Tr. 330, at 7-8. This is ,

corroborated by both the August ole Report (Husted Ex. 26, at 39) and the Christman notes (Husted Ex.1). However, both the Christman notes and Mr. Husted's testimony reflect that Mr. Husted did answer the first question, on whether reference materials were brought into classrooms by examinees when it was asked in terms of "either examination." Husted Ex. 1, et 3.

75. Mr. Husted indicated that as a result of being informed by the Unit 2 shift foreman that the NRC investigators were asking very broad questions , and often trick questions, he went into the interview deter-mined to be very careful to make sure that the questions were very spe-cific, so he could give a specific answer. Tr. 514 (Husted); Husted, ff.

Tr. 330, at 5. Mr. Husted indicated that he believed he sought clarifi-cation or siniplification of the question concerning :eference materials, and once rephrased, he answered it. Tr. 505 (Husted); Husted, ff. Tr. 330, at 10,

76. Mr. Christman noted that while Mr. Husted was generally co-operative at the July 29, 1981 interview , Mr. Christman was surprised that Mr. Husted did not answer two of the questions. Christman, ff.

Tr. 351, at 3, 4; Tr. 380 (Christman) . He could not conclude that Mr. Husted was fully cooperative. d. , at 4; Tr. 380 (Christman) .

77. As to the second interview, Mr. Matakas did not recall 4

Mr. Fiusted being uncooperative or not forthcoming. Matakas , ff. ,

, Tr. 406, at 7. Further, Mr. Matakas acknowledged the possibility that Mr. Husted had volunteered the information concerning " passing papers."

Id. , at 5. It was Mr. Husted's testimony that he volunteered the infor-mation. Tr. 527-28 (Husted). It also appeared that Mr. Husted was concerned in a conversation he had with John F. Wilson, a lawyer for the Licensee, that the information he had, concerning " passing papers," had been reported to the NRC. Tr. 457-58, 474 (Wilson); Husted Ex. 2.

While Mr. Finsted later was satisfied he had conveyed the information to f.!r. Matakas, Tr. 458 (Wilson), Mr. Husted's actions were not indicative of an uncooperative attitude.

78. Although it is clear that Mr. Husted did not answer all the questions posed to him by NRC investigators in the July 29,1981 inter-view, it does not appear that he was generally uncooperative, or that his failure to answer certain questions was other than an attempt to be cau-tious about misinterpretation of his answers. Since there is insufficient evidence to support a finding that he was attempting to withhold informa-tion, I find that the record does not establish by a preponderance of the evidence that Mr. Husted failed to cooperate with NRC investigators.

C. Did Husted's Testimony Before the Special Master Lack Forthrightness?

79. Because the meaning of " forthrightness" in the context of the d - factual issues listed in the Commission's Notice of Hearing is subject to at least a small amount of ambiguity, the Presiding Officer has considered its use in the prior decisions in the TMI-1 restart proceeding to obtain

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

l l

35 - j guidance. The Special Master contrasted Mr. Ward's " entirely forthright" testimony with Mr. Husted's sometimes flippant and less than serious man-

. ner in testifying. TMI-1 Restart, supra, LBP-82-34B,15 NRC at 960-61.

As a result of these observations, the Special Master considered Mr. Ilueted's testimony to be generally lacking in credibility, Id., at 1045. The Licensing Board, reading the transcript of Mr. Husted's testi-mony, did not believe Mr. Husted's explanation of why he did not answer questions at the first !!RC interview and that he later remembered some information, TMI-1 Restart, supra, LBP-82-56,16 NRC at 318, character-izing the testimony as " incredibly inconsistent." Id. , at 319. The Board also derived a sense that Mr. Husted "didn't care whether he was ' be-i lieved or not." d.

.,- 80. Although lach of forthrightness was not used by the Special Master and the Licensing Board in the prior proceeding to connote lack of

, truthfulness, it does appear to connote obscuring matters, and failing to provide meaningful answers which would have assisted the trier of fact.

In examining whether Mr. Husted's testimony before the Special Master 2

was " forthright," I will examine not only whether Mr. Husted gave seri-ous and thoughtful answers to serious questions, but whether the manner in which he testified indicates that his purpose was to obscure or deny the trier of fact with information in his possession.

81. The evidence that Mr. Husted testified before the Special Mas-ter in an inappropriate fashion is uncontroverted. Counsel for Licensee in the restart proceeding apparently was upset enough with Mr. Husted's testimony there to bring it to management's attention. Testimony of Sam-uel L. Newton, ff. Tr. 836, at 7. One attorney described Mr. Husted as i

i

, , - , , - e- , - - --.m.. > - , , , , , - , , - - ..e- -,.,..,,-.n, , r-- , - ,-.r,- ,- , -e, --- - ~ -

~

l sounding like a " smart ass." d. See also, Testimony of Robert L.

Long, ff. Tr. 755, at 3.

. 82. f.1r. Ilusted acknowledged in his testimony in this proceeding -

that his testimony before the Special blaster was inappropriate. He J

stated:

One answer that I gave during the testimony will always stick in my mind. The " stupid, I think" answer at Tr. 26,928 was a serious mistake. I regretted it the moment the words were out of my mouth. Given this remark, and my inconsistent testimony about the " passing papers" comment, I have no rea-son to doubt that I appeared flippant and to consider the questions in a less than serious manner.

Ilusted, ff. Tr. 330, at 25.

83. In addition to the " stupid, I think" remark, f.fr. Husted identi-fled several other answers he considered to be flippant or less than seri-

.- ous: (1) his agreement without serious consideration that the summary of the first liRC interview was accurate (Tr. 608 (Husted)); (2) his incon-sistent testimony about " passing papers" (Tr. 609 (Husted)); Husted, ff.

Tr. 330, at 25; and (3) his answer: "I did not like the questions that were being asked" (Tr. 609-10 (Husted)). He also identified as inappro-priate his statement at Tr. 26,929, line 5 (Staff Ex. 2)- "I stated that I i

think out of lack of anything to say, I just told them [the NRC investi-gators] that I did not want to answer the question." Tr. 613 (Husted).

84. hlr. Husted also acknowledged giving incorrect and/or inconsis- ,

tent testimony regarding: (1) whether the " unconfirmed hearsay" refer-ence in the OIE report of the first interview referred to the same incident as the " passing papers" incident (Tr. 541-43 (Husted); and (2) whether he knew Bruce Wilson was proctoring his exam (Tr. 547-48 (Husted)).

He also acknowledged his testimony about whether he was aware of i

_ _ , - , - - - , _ . _ - . _ _ _ , . -- _ _._ _.,.-. . _m_._ .__

l l

Mr. "P's" (Janes') goings and comings from the exam room could have been interpreted as inconsistent. Tr. 551 (Husted). ,

. 85. F.fr. Husted explained that the inconsistencies were more likely the result of poor choices 01 words, rather than lack of forthrightness.

Tr. 548-49 (Husted) . (In this regard, it is somewhat ironic that Mr. Husted relied on having made fine distinctions between the .words

" bothered" and "a burden" in defending his 1981 testimony that he was 4

bothered by the absence of the proctor [because it forced him to leave the room to obtain clarification], but that is was not a burden, because he did not mind getting out of his seat to walk around. See, Tr. 543-47 (Husted).

86. Mr. Husted-testified that he felt he had been truthful and hon-est in all his answers before the Special Master, and that he was sur-prised by the Special Master's characterization of his demeanor, integrity.

and forthrightness. Tr. 935 (Husted). However, he admitted there was a foundation in his own testimony for the characterization of his testimony as flippant and less than serious. Tr. 609 (Husted); Husted, ff.

Tr. 330, at 35.

67. The evidence in support of these latter characterizations is overwhelming. As a result I find that in his testimony before the Special l

Master Mr. Husted was flippant and failed to give serious and thoughtful l

l answers in a situation where nothing less was acceptable.

8S. While the effect of Mr. Husted's testimony clearly was to ob-scure the truth with respect to important questions before the Special

f. faster, the evidence that Mr. Husted's conduct was purposeful--that is,

i l

for the purpose of withholding information pertinent to the proceeding--is not strong. See, eg, Tr. 903-904 (Newton).

, 89. If, as the Special Master and Licensing Board concluded, Mr. Husted had withheld from the NRC investigators information in his possession at the time of his two interviews, a clear motive for obfusca-tion would exist. However, I have found the evidence insufficient to establish that Pir. Ilusted had withheld information from the investigators.

Evidence not presented to the Special Master raises serious doubts as to whether Mr. Husted acknowledged hearing rumors (see, discussion, supra at 21-32), and in the absence of reliable evidence that he did so acknowl-edge hearing rumors, Mr. Husted's inconsistent testimony before the Spe-ciel Master alone cannot support an inference that his inconsistent

.. testimony was a result of attempting to withhold such information. While Mr. Husted's testimony gave the impressicn that he had information but would not provide it, there is cther evidence, particularly Mr. Matakas' testimony, that Mr. Husted's description of the " passing papers" incident may have been volunteered (Matakas , ff. Tr. 406, at 5). N In _

addition, the notes of John Wilson and Robert Long suggest that Mr. Husted wanted to be sure that the NRC had received the information about " passing papers," also suggesting the opposite inference. Husted Exs. 2, 11. Again , there is no evidence in this record, save the uncorroborated August OIE Report statement and several inconclusive references in Mr. Matakas' notes that Mr. Husted acknowledged hearing rumors about cheating during the April exam. In light of the weakness g/ Mr. Ilusted also stated it was volunteered. Tr. 527 (Husted).

- - = - . .

of this evidence against Mr. Husted's position, as well as Mr. Husted's consistent denial that he had heard rumors about cheating in the April

. exams (corroborated by the Christman notes), and that he had ever con-sidered the " passing papers" statement to be a rumor, the careless and flippant manner in which Mr. Ilusted testified does not adequately support an inference that his conduct before the Special Master was for the pur-posc of obscuring the facts.

P0. I do not for a minute condone a flippant or less than serious attitude by a witness in any adjudicatory proceeding. However, I find a great contrast between Mr. Husted's conduct in this proceeding and his conduct before the Special Master. Perhaps this contrast is an indication of the importance of a person subject to possible sanction being given

.- adequate notice of the jeopardy he may be in, and the opportunity to prepare hit esse with counsel. It was, after all,- the lack of such notice and opportunity to be heard which prompted the Commission to provide t'r. Ilusted with this hearing.

91. In this proceeding, Mr. Husted was exceedingly well prepared, his testimony on the witness stand was serious, thoughtful, and candid, and his demeanor was determined and conscientious--the opposite of the flippant and careless demeanor he admits displaying before the Special Master.

02. Mr. Husted attributed his poor prior testimony to his state of mind. IIe was apprehensive about his appearance before the Special Mas-ter. Husted, ff. Tr. 330, at 22. When he learned, one week before his appearance, that he would not be merely a witness, but a person accused of soliciting an exam answer, his anxiety turned to fear. Id., at 22-23.

-e .- - -- . y ----..*,r-- -

l l

Decause of the Special Master's sequestration order, counsel for Licensee spent very little time helping !.lr. Husted prepare for his testimony. Id.,

, at 23. lifr. Husted did not carefully review the Christman notes or the OIE Reports of his interviews. d. He had not expected the interviews to be the focal point of his testimony. Id. His state of mind interfered with his ability to concentrate and think through the questions so as to give detailed responses. Tr. 552-53 (Husted). Given the nature and timing of the accusation against him, this seems quite plausible.

93. Mr. Husted also noted that the questioning felt like he was be-ing chastised and attacked. Tr. 610-11, 628-30, 632 (Husted). Witness Nelson D. Brown, who was f.!r. Husted's supervisor from September 1980 until ?.farch 1983, also complained that the sequestration order left him ill

,- prepared to testify and that he was being attacked with loaded questions.

Tr. 749 (B rown) . Witness Robert L. Long similarly testified that the sequestration order left him uncharacteristically nervous, because he was not able to discuss what was going on with counsel. Long, ff. Tr. 755, at 4-5.

94. In sum, ?!r. Husted testified poorly, but he testified under very adverse conditions. Were it not for the inferences made by the Special F. laster that f.1r. Ilusted had previously been withholding informa-tion about rumors of cheating from the NRC investigators, a more benign inference might have been drawn from Mr. Husted's conduct before the Special Master. Thus, returning to the original question, I find that while Mr. Husted's testimony was flippant and less than serious, it does not reflect a purpose to obscure the truth. His testimony before the Special Master cannot be considered completely forthright. However,

since his lack of forthrightness can be attributed, in part, to the adverse and somewhat unfair circumstances under which he testified and was not

, purposeful, I do not find his conduct sanctionable.

D. Did Husted Have A Poor Attitude Toward the Hearing on the Cheating Incidents?

95. Central to the findings which were reached with respect to Mr. Ilusted's conduct in the TMI-1 restart proceeding were concerns about Mr. Husted's attitude toward the NRC, the hearing process, and. ,

safety-related responsibilitics. See, TMI-1 Restart, supra, ALAB-772,19 NRC at 1222-1224; LBP-82-56,16 NRC at 319-20; LBP-82-34B,15 NRC at 1045. As an instructor of licensed personnel, and supervisor of training of non-licensed personnel, Mr. Ilusted was in a position in which he was

., required not only to convey information about, but also attitudes toward, regulated activities. Thus the Licensing Board was principally concerned with whether Mr. Ilusted was "able, or if abic, willing to impart a sense of seriousness and responsibility to the TMI-1 operators." LDP-82-56, supra, 16 NhC at 316 (emphasis added). Similarly, the Appeal Board invoked a standard of behavior for working in the role of a teacher and supervisor in the training department at TMI-1:

. . . teacher competence. . . [ includes] the ability to communicate effectively a sense of responsibility as well as information....

Where, as here, so much of the training information to be con-veyed concerns the need to comply with proper procedures. . .the instructor's attitude toward--i.e . , respect

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

96. A central aspect of the Appeal Board's reasoning appears to be that what is conveyed in such roles is crucial, and that attitudes are

! conveyed. Therefore, an attitude lacking a sense of seriousness,

responsibility, or respect about important safety-related activities--such cs an investigation into cheating, or a proceeding designed to assure the

. integrity of the operator licensing process--is a cause for serious concern.

97. The Appeal Board's standard--that those responsible for safety-related training activities be able and willing to impart a sense of respon-sibility, seriousness and respect concerning those activities--is consistent with the Commission's requirement that facility operating licenses may only be issued upon findings that There is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activi-ties will be conducted in compliance with the regulations...

10 C.F.R. S 50.57(a)(3). In view of the role of a training instructor and supervisor in conveying attitudes as well as information, in examining the evidence on this record concerning Mr. Uusted's attitude toward both the pretrial and trial aspects of the hearing on the cheating incidents, I have applied the standard of whether his attitude imparted or conveyed a sense of responsibility, seriousness, and respect for the hearing process. $

98. In his testimony, Mr. Husted admitted giving cute answers when being deposed by the attorney for the Aamodts on October 23, l

1981. Ilusted , ff. Tr. 330, at 21; Tr. 596 (Husted) . In fact, Mr. Husted was admonished for his inappropriate behavior, and his con-14/ I have also applied the Appeal Board standard in reaching my con-clusions on the contentions und ultimate issues concerning vac?. tion of the Appeal Board's condition, and Mr. Husted's employment as a i

licensed operator, instructor of licensed operators, or licensed or non-licensed operator training supervisor. See, infra.

l l

duct was held up to other Licensee employees as an example of how one

• should not conduct oneself during testimony. Husted, ff. Tr. 330 at 21.

Dr. Long, Licensec's Vice President of Nuclear Assurance, noted Mr. Ilusted had given a number of flippant answers, as did Mr. Newton, Mr. Ilusted's former supervisor. Long, ff. Tr. 755, at 3; Newton, ff.

Tr. 836, at 6. Notes of a May 27, 1982 meeting between Dr. Long and Mr. Newton reflect that Mr. Husted told Mr. Newton he lost his temper at the deposition and said things he regretted. Husted Ex.12. Although Mr. Ilusted said he did not understand fully the significance of the depo-sition prior to it, Tr. 597 (Husted), he later stated that he was aware the deposition was related to the restart proceeding. Tr. 616 (Husted).

99. There can be no doubt from the record that Mr. Husted gave

.. flippant and inappropriate answers to deposition questions. See, Tr. 618-20, 810-11. Particularly striking is the following exchange:

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

Answer: No, you may not.

Question: You don't know the answer 7 l Answer: Of course, I know the answer. I think it's a ridiculous question. You asked me if you may ask me and my answer is you may not.

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

Answer: It increases, i

- Question: Thank you.

Answer: You're welcome, i

l

I l

Tr. 620 (Husted). See also, Tr. 616-18 (Husted).

100. Mr. Husted also testified that he saw no relevance or

. seriousness to the deposition questions relating to his wife, and conse-quently gave a cute answer.

Tr. 619 (Husted). He was also annoyed at having to wait almost two hours beyond the time of his scheduled deposi-tion before testifying. Husted, ff. Tr. 330, at 21. Mr. Newton testified that Mr. I!usted had said he was very nervous about the deposition, and 4

the intervenor's attorney deliberately tried to irritate him. Newton, ff.

Tr. 836, at 6.

101. I find Mr. Husted's explanation to be inadequate justification for his flippant answers at the deposition. It appears from the evidence in the record that Mr. Husted conveyed precisely the attitude he had.

Mr. Ilusted clearly displayed a flippant and less than serious attitude toward his deposition testimony.

100. I have already treated at some length Mr. Husted's testimony l before the Special Master as it relates to his forthrightness. While I there found that his flippant and less than serious answers were not for the purpose of withholding the truth from the Special Master, the evi-dence that Mr. Husted had given flippant and less than serious testimony was uncontroverted. See, Ilusted, ff. Tr. 330, at 25; Tr. 609 (Husted);

Staff Ex. 2.

103. Mr. Husted, in his defense, stated:

The ironic thing about those characterizations , however, is that I could not have been more serious about the entire pro-

~

ceeding. I meant no disrespect toward the hearing process. I tried to testify truthfully to the best of my ability. But I became very confused during Mr. Adler's questioning. I felt throughout my appearance as if I were in direct, personal jeopardy. I can do no more than say that I was scared to

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

death, and I believe that fact best explains the unfortunate impression I conveyed.

Husted, ff. Tr. 330, at 25. See also, Tr. 553 (Husted). Mr. Husted explained his flippant appearance as an overreaction to his anxiety and fear, in an effort to appear calm. Tr. 605-606, 626 (Husted).

104. As has been noted above, Mr. Husted was subjected to very stressful circumstances in his appearance before the Special Master. His behavior may not have been representative of his attitudes toward the NRC and nuclear safety generally. This we will explore in the next sec-tion. IIowever, there can be little doubt, as Mr. Husted himself agrees, that he conveyed an unfortunate impression of being flippant and less than serious about his own and GPUN's responsibilities with respect to the cheating episodes which occurred during the April 1981 NRC reactor operator licensing examinations.

105. With respect to his two testimonial appearances related to the cheating henrings--first at the October 23, 1981 deposition, and later at his December 10, 1981 appearance before the Special Master--Mr. Husted conveyed a lack of sense of responsibility, seriousness, and respect for the hearing proceso. As a result, I find that Mr. Husted had a poor attitude toward the cheating hearings.

E. What Docs Husted's Performance of Ilis Responsibilities With GPUN Reflect About His Attitude and Integrity?

- 106. Because of its evaluation with respect to Mr. Husted's contri-bution to the cheating investigation and the hearing before the Special Master, the Licensing Board was troubled by doubts "about his compe-tence to instill a sense of seriousness about the important need for integ-rity , discipline and public confidence in the TMI training program."

TMI-1 Restart, supra, LBP-82-56, 16 NRC at 319, 320. EI In view of those doubts, the Licensing Board recommended that "the qualifications

. and delivery performance of Mr. Husted receive particular attention dur-ing the forthcoming review of the TMI training program." Id. , at 320.

107. As ' noted in Part I, the Presiding Officer added the issue of what Mr. Husted's job performance reflects about his attitude and integri-ty to permit the record to be fully developed concerning Mr. Husted's current fitness to hold the training positions at issue here. The issue also pernitted development of a record as to whether the above noted doubts of the Licensing Board were confirmed or rebutted by evidence of his attitude and conduct on the job.

i 108. A full record was developed regarding Mr. Husted's perfor-mance on the job. Six witnesses testified over two full hearing days.

The witnesses were: (for the Staff) Donald R. Haverkamp, an NRC Staff Inspector who conducted an inspection of TMI records and interviewed selected Tf1I personnel relating to Mr. Husted's performance 1_6,/ ; (for Mr. Husted) Nelscn D. Brown , who was Mr. Ilusted's supervisor from -

September 1980 until March 1983 E ; Dr. Robert L. Long, GPUN Vice President of Nuclear Assurance (and responsible for the TMI training ,

I0 Newton, Operator Training Manager between program) - ; Samuel L.

i 15/ The Licensing Board also characterized its concern in terms of Mr. Husted's ability or willingness to impart a sense of responsibility i

to the TMI-1 operators. d. , at 319.

16/ Prefiled Testimony of Donald P.. IIaverkamp, ff. Tr. 648.

l l H/ Testimony of Nelson D. Brown, ff. Tr. 497.

18/ Testimony of Robert L. Long, ff. Tr. 755.

I i

1981 and 1983, and subsequently Manager, Plant Training E;

' Mr. Ilust'ed; and (subpoenaed by TMIA) John G. Herbein, formerly GPUN

. _ Vice President of Nuclear Assurance. EI 109. In addition to the lengthy inspection report filed with Mr. Haverkamp's written testimony (NRC Inspection Report No. 50-289/86-04, dated April 23, 1984), more than a dozen formal evaluations of Mr. Ilusted were placed in the record, as were various Licensee memoranda and notes concerning the monitoring of Afr. Husted I

by Licensee (see exhibit list , submitted by counsel for Mr. Husted) .

110. Mr. Ilaverkamp, an NRC inspector with extensive experience at nuclear plants, conducted an inspection at Three Mile Island between February 25, 1986 and March 11, 1986, concerning Mr. Ilusted's perfor-

. mence. Haverkemp, ff. 641, at 3-4. Documents reviewed included em-ployee evaluations and appraisals from 19"4 to 1985, instructor performance monitoring reports from 1981 to 1984, and various confidential memoranda related to the special monitoring of Mr. Husted which followed the cheating hearings. See, Haverkamp, ff. Tr. 648, Attach. (Inspection Report), at C-11.

111. Mr. Haverkamp's evaluation, though based on review of docu-ments written by others and a limited number of interviews to determine others' personal views of Mr. Husted, was comprehensive in nature, and provides a valuable overview of Mr. Husted as an employee. (Many of the documents were, themselves, admitted in evidence.) Based on his

_19/ Testimony of Samuel L. Newton, ff. Tr. 836.

I

_2_0./ Tr. 909 _et seq. (Herbein).

l l

l l

document review , Mr. IInverkamp concluded that Mr. Husted's perfor-mance "was maintained at an acceptable or satisfactory level. During

- rrost 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 perfor-mance reflected favorably on his attitude and integrity." Id., at 16.

112. Mr. Haverkamp interviewed ten individuals who had various interpersonal contacts with Mr. Husted. Included were Michael Ross, Supervisor, Plant Operations, TMI-1, Bruce Leonard, Mr. Husted's su-pervisor after he became Supervisor, Non-IJeenced Operator Training, and Nelson D. Brown, as well as others he worked with or instructed.

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

-- about Mr. Ilusted's attitude, integrity, or forthrightness, based on ob-servations of his performance and demeanor. Id. , at 16.

110. Although the interview comments wera generally positive, Mr. Haverkamp noted three corrments concerning Mr. Ilusted's demeanor l which could be interpreted as pousibly negative. Ons viewed Idm as out-l l

spoken, another that he sometimes shows bad judgment la what he says in oral discussions, and, a third, that he may at first appear flippant, but l

was truly serious. d. , at 21. Based on the generally positive or favor-able comments from those interviewed, however, Mr. Haverkamp deter-i I

mined that Mr. Husted's integrity, forthrightness and de;neanor were i

normal to very good. Id.

l l

l 114. A picture of Mr. Husted as a competent training instructor prior to the cheating incidents emerges from Mr. Husted's annual perfor-mance evaluation for 1980. Husted Ex . 15. In this evaluation, F.A.

l l

L

' McCormick rated Mr. Husted in the "high-competent" to

" low-commendable" range of the rating scale. M. His comments noted

• Mr. Ilusted's " determination" to satisfy the demands placed on him by working extra hours, 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 subordi-nates." Id.

115. Mr. Brown became Mr. Husted's supervisor in September,1980

-and worked closely with f *r. 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" cvaluation of his current impressions of

%!r. Husted. M. , at 9-10; Tr. 708, 718 (Brown) , Tr. 898 (Newton).

Both of these preliminary inputs to the 1981 annual evaluation depict the impact of the aftermath of the cheating episode on Mr. Husted.

116. According to Mr. Ilusted, the TM1 operators blamed the Train-l ing Department for "O" and "lP having been unprepared for their exami-nations. Husted, ff. Tr. 330, at 11. Operator resentment grew even otronger with the announcement of the voiding of the April,1981 NRC examination results by the NPC due to the cheating incident. Id. , at 11-12. Added to the generally low morale this caused, the work burden of the Training Department greatly expanded. Id. , at 12. Mr. Husted stated in this input for his 1981 annual evaluation:

It is becoming increasin gly difficult to maintain a positive working attitude which is leading to reduced production and increased reduction in motivation.

M.,at13.2_1/

^

117. ' Mr. Brown's " snapshot" of Mr. Husted depicted an irritability,

, flagging interest and productivity, resistance to change, difficulty react-ing positively and raceting schedules. 2_2/ Husted Ex. 3. Nevertheless, the general comments reflected an overall positive evaluation, despite problem areas resulting from the " adverse conditions" of that period. d.

I_c Mr. Brown felt that Mr. Husted maintained a professional attitude, despite the "hard times" he was going through. Id. ; Erown, ff. Tr. 697, at 12.

Ilis overall evuluation, based on a more studied review of work for the entire year was average to above-average. M. He noted Mr. Husted was "a competent instructor...on his way to becoming an excellent in-structor," but noted that the " adverse conditions of the last year have had their effect on...his projected attitude." Husted Ex. 4.

118. By his next evaluation , in July, 1982, improvement in Mr. Ilusted's performance and his attitude were noted by ?!r. Newton, who filled out the evaluation. Husted Ex.1G; Newton, ff. Tr. 836, at 9-10. b  ?!r. Newton noted he had been " extremely diligent and i

j professional in the use of his own time to prepore more thoroughly for

i. classroom assignments." He also noted that "[s]ince the completion of the i

1

-21/ Mr. Ilusted's exceptionally candid self-appraisal tends to confirm l

other evidence that Mr. Fusted was outspoken, direct, and blunt in his communications. See, Haverkamp, ff. Tr. 641, Attach. (Inspec-

. tion Report) at 21; Tr. R81 (Newton); Husted Exs.11,12.

l 22/ It may be noted, however, that Mr. Newton attributed some of the l

communications problems to Mr. Brown's inexperience as a supervi-

sor, indicating that Mr. Brown's criticisms were not always construc-tive. Tr. 882, 883, 894 (Newton).

i 23/ See also, Brown, ff. Tr. 697, at 13-14.

l l

l 4

l

- restart hearings and associated reports there has been a noticeable im- l provement in his enthusiasm and morale." Husted Ex.16.

110. -Dy 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 performance evaluations, regular annu-al 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 II.D. Hukill. Staff Ex. 3, Husted Ex.14; Long, ff. Tr. 755, at 2-3.

. 120. f.lr. Husted apparently told the two executives, when informed that ' his attitude and performance would be closely observed, he welcomed the opportunity to demonstrate that both his attitude and performance l were satisfactory. Staff Ex. 3. The intensive evaluation program not only included monitoring by training department managers--Mr. Newton, Mr. Brown, Bruce Leonard, Operator Training Manager, and Dr. R. A.

Knief, Manager, Plant Training (Staff Exs. 3, 4; Husted Ex.10; Tr. 797 (Long))--but also involved the Operations Department personnel who ob-served fir. Ilusted, principally, Michael Ross (who was Supervisor, Plant Operations) . Staff Exs. 3, 4; Tr. 798 (Long); Haverkamp, ff. Tr. 648, l .

Attach. (Inspection Report), at Table 4.1). In addition, Dave Boyd, of

- Data Design Laboratories, a contractor for GPUN, evaluated the classroom performance of Mr. Husted, Staff Ex. 3, at 3; Husted Ex.13; Tr. 796 l (Long).

1 1

i

-~ , , , , ,- ,-,,..---,-,,-c.. , , , - , , , , , , - , - ---,,-,,-c--.. . . , - , - - - , , , , , - - - - , - - , , - ,, , , . - . - _ _ , , . . , ,,,,-n-

121. In his 1982 annual evaluation, 'Mr. Brown rated Mr. Husted 9

above average, noting his " attitude of ' quality,'" and his very good per-

. formance in the classroom, b Husted Ex. 5; Brown, ff. Tr. '697, at.14.

Mr. Newton's December 1982 classroom evaluation noted "a highly profes-sional attitude at all times." Husted Ex. 20. Characterizing his formal evaluation of Mr. Husted to Dr. Long and Mr. Hukill, in a memorandum, dated October 27, 1982, Mr. Newton found "no problems pertaining to his attitude and demeanor," noted his " professional manner" and observed nothing "out of line." Husted Ex. 24. Dr. Knief also noted, by memo-randum of the same date, 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 terms of both technical abili-I -' ty and attitude." Dr. Knief also noted a " positive attitude" in the post-evaluation discussion. Ilusted Ex.10.

122. In reference to the November, December 1982--January 1983 time frame, Mr. Ilewton wrote Dr. Long that Mr. Husted's work in prepa-ration of the written requalification examination was " superb," and that Mr. lieuton was remiss in not writing a special letter of commendation for Mr. Ilusted. Husted Ex. 25.

123. In March 1983, Mr. Brown recommended Mr. Husted for promo-tion to the position of Supervisor, Non-Licensed Operator Training, with a highly favorable evaluation, noting in particular a " positive professional 24/ 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 na-ture, it did not have a significant bearing on the overall evaluation.

Tr. 733-34 (Brown).

l attitude displayed in complying with requirements of the job." Brawn, o

ff. Tr. 697, at 15; Husted Ex. 6; Tr. 736-37 (Brown).

a 124. Before approving the promotion, Dr. Long stated that he questioned the training director and, through him, his staff, extensively as to whether they were satisfied that hir. Ilusted was able to instill a sense of seriousness and to maintain integrity, discipline and appropriate attitudes toward nuclear safety and the regulatory process. Tr. 789 (Long). After rceeiving sufficient assurance, and consulting the Office of the President of GPUN, he approved the promotion. Id.

175. In a July 1983 merit evaluation, f.!r. Leonard, evaluating f.fr. Husted's work in his new supervisory position, had the following favorable comments:

' o Despite a recent change in assigned responsibilities initi-ated by the Corporation, Chuck has maintained a profes-sional outlook. Ilis attitude towards his job has remained positive. His attitude in this situation is admirable, o His attitude is always professional and this has provided an excellent example for peers.

Husted Ex.17 at 3. P.ir. Leonard gave a similar evaluation the following June (1984)--including the following comments:

o Chuck has been a significant asset to the section. His positive and professional approach to the training program l

has maintained a high morale in the section. Despite un-l controllable influences on both his personal and profes-sional life he has continued to perform at a superior level. The diversity of his skills and his administrative abilities have made him a keystone of the operator train-ing section.

Husted Ex.19, at 5.

126. In his testimony, Dr. Long noted that 51r. Husted performed very effectively as Supervisor, Non-Licensed Operator Training, until

l June,1964, when the Appeal Board directed that he be removed from that . j position. Long, ff. Tr. 755, at 6-7.

. 127. Following Mr. Husted's reassignment out of the Training De-partment to work on risk and reliability analysis, Mr. Husted was rated, in October,1984, as having "a very positive, enthusiastic attitude about the project" and doing "more work than is asked of him in order to con-tribute and to learn." Husted Ex.17.

128. As witnesses in this proceeding, Dr. Long, and Messrs. Brown and Newton, gave their overall evaluations concerning Mr. Husted's atti-tude toward his work, with particular reference to Mr. Husted's integri-ty, his ability to communicate a sense of responsibility and seriousness concerning nuclear safety and the regulatory process.

129. Mr. Brown expressed no reservations in this regard. He not-ed Mr. Husted's efforts to give his students the best information avail--

able, his meticulous attention to safety in the control room. Brown, ff.

Tr. 697, at 15-16.

130. 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 continued i

to monitor and meet with Mr. Husted during the past two years to discuss Mr. Husted's progress and to update his opinion on Mr. Husted's attitude toward his responsibilities. Id. , at 7. Dr. Long stated he knew of no information to indicate Mr. Husted "has conveyed to his students or fellow workers an improper attitude toward safety, toward the regulatory pro-cess, or toward the Company or NRC training processes." Id., at 8.

l

. .. _ _ _ _ - = . , _ _ _ . _ _ _ . __ . _ _ _ _ _ _ _ . . _ _ _ _ _ . _ . _ _ _ _ _

Similarly, he had received no information that ?.1r. Husted was flippant, a

displayed less than serious attitude toward his work, toward safety con-cerns, or toward the NRC, or was incredible or lacked integrity.

Tr. 804 (Long). In evaluating fir. Husted, it was Dr. Long's intention to address the concerns stated in the Licensing Board decision in the restart proceeding, and he was satisfied that any doubts about Mr. I!usted's competence to instill a sense of seriousness about the impor-tant need for integrity, discipline and public confidence in the TMI train-ing program had been removed. Tr. 806 (Long).

131. Pir. Newton similarly summarized his own evaluations. He de-scribed ?.1r. Eusted as conscientious, taking work seriously, being re-spectful of the NRC, the regulatory process, and company examination

' requirements, and having conveyed a sense of seriousness and responsi-bility to TI.!! operators that he taught. Newton, ff. Tr. 836, at 12. See also, Tr. 804, 865, 874, 878 (Newton) . b 132. Fummarizing much of the same documentary information we have here considered, Mr. Haverkaup found no " specific indicators or characteristics of past poor performance or demeanor" which "should cause Mr. Husted to continue to be restricted from assignment to any

! positionc rith GPU Nuclear Corporation." He concluded that Mr. Husted's l

25/ Mr. Newton stated his view that Mr. Husted's difficulties relating to the hearing process related to his personal growth. He did not be-lieve the hearing-related conduct impacted much on what kind of instructor Mr. Husted was or what kind of supervisor he would turn out to be, because of the " totally different environment." Tr. 904 (Newton) . While I may not agree with Mr. Newton's assumption that Mr. Husted's hearing conduct was unrelated to his work, it does appear that Mr. Newton's conclusion regarding the impact on I

Mr. Husted's work was correct.

t

performance on the job " reflected favorably upon his attitude and profes-sional integrity."' Haverkamp , ff. Tr. 648, - Attach. (Inspection Report)

, at 22.

133. The evidence showing that f1r. Husted performed conscien-tiously and enthusiastically, and with appropriate attitudes toward safety, the NRC, and regulatory requirements, is very strong. Moreover, with respect _ to Mr. Husted's character and integrity, we find particularly noteworthy the statements of witnesses close to Mr. Husted, such as Mr. Newton and Mr. Brown, about the respect for_ Mr. Husted which Mr. Ilusted's demeanor on the job gave them. See, Tr. 902-903 (llowton); Brown, ff. Tr. 697, at 12. It was apparent that despite very deep wounds to his personal pride and challenges to his integrity from

.,- the increascd work load, voiding of exams, and other accusations which followed from the cheating episodes--actions Mr. Husted believed to be unwurranted based on his own personal performance--f.1r. Husted not only bore the pressure, but redoubled his efforts to prove his honesty, integ-rity and sense of responsibilRf and seriousness about nuclear safety and procedures. See, Tr. 935-41, 959-60, 962, 965 (Ilusted).

134. The record on this issue, including the serious, thoughtful and candid manner in which Mr. Husted testified in this proceeding, pro-vides strong evidence that whatever attitude problems Mr. Husted had during the 1981 cheating proceeding were not representMive of his atti-tude toward his nuclear safety and licensing responsibilities. To remove-doubts engendered by F.fr. Husted's conduct in the cheating proceeding, the questions raised have been- conscientiously addressed and resolved favorably to Mr. Husted. I find nothing concerning Mr. Husted's

performance on the job to indicate any problems with respect to his atti-tude toward nuclear safety, the NRC or the licensing process. There is likewise no evidence that Mr. Husted has ever conveyed a flippant or less than serious attitude about such matters to his students, co-workers, or supervisors. I so find.

F. Commission Issues, Appeal Board Standard, Contentions, and Remedies 135. As noted in earlier orders, the Commission ordered this hear-ing to be instituted to determine (a) whether the Appeal Board's condition barring Charles Husted from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be vacated; and (b) whether he is barred by concerns about his attitude or integrity from serving as an NRC licensed operator, or a licensed operator instructor or training supervisor.

136. Pursuant thereto, the Presiding Officer admitted two conten-tions of TTllA which would answer the Commission issues affirmatively, and one contention of GPUN, which would answer the issues negatively.

137. The Staff, although originally taking no position, informed the Presiding Officer that it would take a position favorable to Mr. Husted 4

i with respect to the Appeal Board condition--i.e . , for vacating that condition.

l 138. In addressing these ultimate issues, and in addressing at I

. length in these findings the underlying factual issues, I have framed the l

Issues using the standard by which the Appeal Board determined to deny i (by its condition) Mr. Husted the position of Supervisor, Non-Licensed Operator Training. That standard was whether Mr. Husted lacked the ability to communicate effectively a sense of responsibility and respect for l

l

.. - - . ~- - - -

d nuclear safety and the regulatory procest., as well as information. See, Tr. 974-75 (Pfargulies, 'J.)

- 139. During the proceeding, evidence concerning the safety-related functions of auxiliary operators, whose training would fall within the re-i, sponsibility of the Supervisor, Non-Licensed Operator Training, was ad-duced. Tr. 736 (Brown); Tr. 675 (llaverkamp).

140. The importance of the ability to convey appropriate attitudes was underscored in connection with the completion by Dr. Knief on l March 23,1983 (about the time Mr. Ilusted assumed the position of Su-pervisor, Non-Licensed Operator Training) of Mr. Ilusted's operator training instructor qualification card, which stated:

I have interviewed this instructor and hereby certify that the l

importance of the instructor's role in affecting student's atti-

? tudes and behavior toward rules, regulations, and regulatory

' bodies is understood and that this individual is ready in all respects to commence instruction."

i l

IIaverhamp, ff. Tr. 648, Attach. (Inspection Report), at 13. I see no reason for distinguishing the roles of the non-licensed operator instructor i or training supervisor from those of licensed operators with respect to these matters. Given the responsibilities of auxiliary operators for the

! manipulation of safety-related nuclear equipment, it is appropriate to pre-clude from supervision of such training, an individual who is demonstrat-ed to be unable to impirt the appropriate sense of responsibility and respect toward safety.

O j 141. Commission regulations do not appear to directly address quali-fications for the position of Supervisor, Non-Licensed Operator Training.

Nor do the requirements under Part 55, Operators' Licenses, directly ,

address such requirements. EI In implementation of personnel qualifications requirements in 10 C.F.R. I 50.34(b)(6)(i), the Commission

- has endorsed, in Regulatory Guide 1.8, " Personnel Selection and Train-ing," Rev.1-R (Sept. 1975), the ~ American National Standard Institute (AFSI) standard, ANSI N18.1-1971, " Selection and Training of Nuclear Power Plant Personnel." The Staff's Standard Review Plan (NUREG-0800) uses an updated standard, contained in ANSI /ANS-3.1-1981, " Selection ,

Qualification and Training of Personnel for Nuclear Power Plants," pub-lished by the American Nuclear Society, 1981. None of the foregoing documents directly addresses attitude or communication of a sense of re-sponsibility and respect.

ANSI N18.1-1971, Section 4.1. states:

. Nuclear power plant personnel shall have that combination of education, experience, health , and skills commensurate with their level of responsibility which provides reasonable assur-ance that decisions and actions during all normal and abnormal conditions will be such that the plant is operated in a safe and efficient manner.

The updated 1981 revision of Section 4.1, cited above, contains nearly identical language. Certification, including such considerations as de-pendability, stability and trustworthiness, required for licensed opera-tors, is not incorporated for supervisors of non-licensed personnel. See, A NSI/ A NS-3.1-1981, Section 4.5.1.2.d; c_f. , ANSI /ANS-3.1-1981, Section 4.0, .* .

-26/ An applicant for an operator or senior operator license is to demon-strate an understanding of "[t]he necessity for a careful approach to the responsibility associated with safe operation of the facility." 10 C.F.R. I 55.23(1) .

. ~

i.-

s -(.

' 7 .

142. Ilowever, notwithstanding the absence of an express standard directed to the attitude and integrity of a supervisor of non-licensed op-i

- erator training, the general requirement' of 10 C.F.R. I 50.57, of "rea-sonable assurance," cited cerlier, appears to be more than adequate basis for conditioning a plant operating license < on the barring of personnel the employment of which would raise substantial' kloubt about meeting the

" reasonable assurance" of safe operation standard.

143. It has fallen to the Presiding Officer, in this proceeding de novo, to determine whether the Appeal B' oard's condition, based as it is i on the standard of Mr. Husted's ability to communicate effectively a sense of responsibility and respect, as well as information, is supported by the weight of the evidence. Upon censideration of the entire record, I- find that the condition barring Mr. Ilusted from supervisory responsibilities insofar as the training of non-licensed personnel is concerned is not sup-ported by the weight of the evidence.

144. The evidence tending to show that Mr. Ilusted was not able to communicate a sense of responsibility concisted of Mr. Ilusted's inappro-priate conduct during his October 23, 1981 deposition and during his December 10, 1981 hearing testimony in the reopened hearings on cheating in the TM1-restart proceeding. It has been demonstrated that Mr. Husted's testimony and demeanor was flippant and less than serious I in both instances. While this conduct was indeed unfortunate, and not to be condoned, the inference that Mr. IIusted's hearing-related conduct was indicative of his conduct on the job, or of his conduct gene.rnlly, has not

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

U been borne out b) the evidence, b Mr. Husted was found to have an

~

attitude problem during the period of the cheating hearing, but there was

- 'no evidence in this proceeding that he at any time executed his responsi-bilities as an operator, instructor, or supervisor with less than the sense of responsibility, seriousness amd respect appropriate to the nuclear safe-ty positions entrusted to him.

145. Mr. Husted created doubts in the Licensing Board "about his competence to instill a sense of seriousness about the important need for integrity, discipline a vi public confidence in the TMI training program."

LBP-82-56, supra,15 NRC at 320. His conduct during the cheating in-vestigation and during the cheating hearing raised serious doubts on the record which was before the Licensing Board in the TMI-1 restart case.

,- This same conduct led the Appeal Board to conclude that Mr. Husted ought not to have responsibility either for instructing personnel with im-portant duties affecting the public health and safety, or for implementing the corrective actions required as a result of the restart proceeding.

ALAB-772, supra,19 NRC at 1223-1224. However, the record developed in this proceeding--apart from Mr. Husted's prior hearing-related conduct--does not confirm the doubts of the Licensing Board.

27/ As discussed fully above, I found that though the matters were not 3

entirely free of doubt, the evidence did not support findings either

- that Mr. Husted failed to cooperate with NRC investigators in the cheating investigations, or that Mr. Husted consciously or purpose-fully sought to withhold pertinent information during the prior hear-ing before the Special Master. There was no evidence that Mr. Husted solicited an examination answer from Mr. Janes during the April 24, 1981 NRC examination, and, as noted, supra, there is no basis for drawing any negative inferences therefrom about Mr. Ilusted's attitude or integrity.

i

146. Based 'on the record before me in this case, there is no basis for finding that, at the time of Mr. Husted's testimony before the Special Master, Mr. Husted, either as an operator or an instructor, was not con-corned with safety and regulatory requirements, or conveyed an attitude of non-concern about safety or regulatory requirements. The aftermath of the cheating episode, and the resulting proceeding, took a heavy physical and emotional toll, but the record shows that this did not prevent Mr. Husted from fulfilling his job responsibilities in a satisfactory manner.

147. As a result of the prior proceeding, however, a great deal of attention has been paid to Mr. Ilusted's attitudes toward safety and regu-latory requirements, as well as his integrity. This detailed attention re-

. vealed no information which reflects negatively on Ftr. Husted's ability to communiccte a sense of responsibility and respect concerning nuclear safety and the regulatory process.

148. In this proceeding, Mr. Husted testified on three separate occasions, including one full hearing-day. His testimony was thoughtful and candid, and reflected positively on his attitude and integrity. It should be remembered that ?Jr. Ilusted's testimony before the Special Mas-ter not only occurred under adverse personal circumstances, but, as the Commission recognized in providing this hearing, Mr. Husted had not been given appropriate notice of the possible jeopardy to which he was subject, or opportunity to be heard. This proceeding provided that no-tice and opportunity.

149. Even if I were to assume that Mr. Ilusted had failed to meet the Appeal Board's standard at the time the record in the prior

proceeding was closed, I would conclude that whatever inappropriate atti-tudes or conduct had been shown then, there is no basis now for impos-

, ing any remedy in the nature of a sanction against Mr. Husted. . His job performance, under adverse circumstances, has demonstrated a serious- ,

- ness and responsibility, as well as integrity. His cooperation and forth-rightness in this proceeding was entirely satisfactory and was in sharp contrast to his conduct in the cheating proceeding.

150. I therefore find that no remedy in the nature of a sanction against Mr. Husted is appropriate. b III. CONCLUSIONS OF LAW

' Unsed on the entire record before me, I conclude that 151.

Mr. I!usted should not be barred from supervisory responsibilities insofar as the training of non-licensed personnel is concerned, and the Appeal Beard condition should be vacated.

152. Further, I conclude that there is no basis in the record for concluded that Mr. Husted should be barred from serving as an NRC 11-censed operator, or a licensed instructor or training supervisor, because l

of concerns about his attitude or integrity.

153. Accordingly, I find in favor of the contention of GPU Nuclear, that the conduct and attitude of Charles Husted should not disqualify him

-28/ Having found that no remedy regarding Mr. Husted is appropriate, I need not consider whether, had Mr. Husted failed to meet the stan-dard of the Appeal Board, Mr. Husted would be forever barred from the position he held. However, I note nothing in the Notice of Hearing, defining the scope of my jurisdiction, which would preclude (FOOTNOTE CONTINUED ON NEXT PAGE) f

_m. _ . , - - _ , ___ _- __,m - . - _ _ _ - _ _ _ _ _ _ _

i s

I from serving as an NRC-licensed operator or an instructor of licensed or i

~

non-licensed personnel; and against the two contentions of TMIA.

9 IV. ORDER 154. On the basis of the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED:

155. The condition regarding Charles E. Ilusted imposed upon Li-cenece in ALAB-772,19 NRC, at 1224, is hereby VACATED.

156. In accordance with 10 C.F.R. I 2.760, this initial decision ulll constitute final action of the Commission thirty (30) days after its date, unless an appeal is taken in accordance with 10 C.F.R. I 2.762.

Pursuant to 30 C.F.P. 5 2.785, the Commission, in the Notice of Hearing, has authorized the Atomic Safety and Licensing Appeal Board to exercise authority and perform the review functions which would otherwise be ex-crcised and performed by the Commission.

Respe tfully submitted, 3 A corge E John Counsel or the RC Staff Dated at Bethesda, Maryland, this 15th dey of August,1906.

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) me from limiting the remedy granted, or the condition imposed. See, Report and Order on Initial Prehearing Conference, February 27, 1986, at 11-12.

i

\

r I

)

UNITED STATES OF AMERICA 7

NUCLEAR REGULATORY COMMISSION o DEFORE TI!F ADP11NISTRATIVE LAV1 JUDGE In the Platter of )

)

GENERAL PUBLIC UTILITIES )

NUCLEAR ) Docket No. 50-289 (CH)

)

(Three Mile Island NucIcar Station, ) ,

Unit No.1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW" in the above-captioned proceeding have been served on the following by express mail, or, as indicated by

a. asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of August,1986:

• Morton B. f fargulics

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

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

1011 Green Street

• Docketing and Service Section I

Harrisburg, PA 17120 Office o_f the Secretary i

U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq. Washington, DC 20555 hiaria C. IIensley, Esq.

Ilunton & Williams P.O. Box 1535 -

Richmond, VA 23212

• Deborah B. Bauser, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036

) [

4 /

Jpk R. Goldberg Ocunsel for NRC Stafr ff l

I

~

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