ML20209E552

Responds to TMI Alert,Inc Proposed Findings of Fact & Conclusions of Law in Form of Initial Decision on C Husted, Dtd 860815.Findings Not Adopted.Certificate of Svc Encl

ML20209E552
Person / Time
Site:	Three Mile Island
Issue date:	09/05/1986
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
CON-#386-650 CH, NUDOCS 8609110104
Download: ML20209E552 (34)

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. DOCHETED USNRC UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION 86 SEP 10 A10:42 OFMCE CF dif. T,w BEFORE THE ADMINISTRATIVE LAW JUDGE 00Cr;Lijh3 m rE uma In the Matter of )

)

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

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

NRC STAFF REPLY FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION

1. I have carefully considered each of the parties' proposed find-ings of fact and conclusions of law in my determinations. For the most part, however, I have not relied upon "TMIA's Proposed Findings of Fact and Conclusions of Law in the Form of an Initial Decision on Charles liusted," dated August 15, 1986 ("TMIA Findings" or "TMIA PFF"), for reasons which I will set out below. In addition, I have rejected those portions of " Charles Husted's Proposed Findings of Fact and Conclusions of Law," dated August 16, 1980 ("Husted Findings" or "Husted PFF"),

insofar as they find that the Appeal Board, in ALAB-772, failed to artic-ulate a legal standard, or adopted a new legal standard, with respect to the imposition of the condition affecting Mr. Husted, that Mr. Husted has had no notice in this proceeding of the legal standard against which the Appeal Board condition was to be judged, and that the Commission was without authority to impose the license condition affecting Mr. Husted.

The basis for my determinations is set forth below.

I 8609110104 860905 DSSIGNATED ORIGINAL PDR G

ADOCK 05000289 PDR ined BY; T '

. II. DISCUSSION A. TMIA Fh$ dings

1. General

2. As I indicated in the Report and Order On Initial Prehearing Conference, February 27,1986 (" Report and Order"), at 5-7, 10-11, the Commission has directed that Mr. Husted be given a hearing de novo on the issues specified in the September 5,1985 Notice of Hearing. This is not a proceeding to review the findings of the Special Master, or the Li-censing Board, or an appeal therefrom. Report and Order, at 6; see also, Commission Order, March 20, 1986. Further, I determined, in con-sonance with the Administrative Procedure Act and due process, that Mr. Ilusted did not have the burden of persuasion. Report and Order, at 8-9,12, as modified by Ruling On Staff Objectives to Prehearing Con-ference Order, March 26,1986, (" Ruling") at 2, 4.

3. My review of the TMIA Findings shows a failure to implement these rulings, which contain the fundamental legal underpinning of this case. I have not considered any finding or decision of the Special Master or Licensing Board in the earlier proceedings with respect to this matter as an adjudicatory fact on which my findings of fact and conclusions of i

law are based. See Metropolitan Edison Co. (Three Mile Island Nuclear Station , Unit No.1), LB P-82-34 B , 15 NRC 918; LDP-82-56,16 NRC 281 (1982). As I ruled in my prehearing orders, and noted during the hear-ing, Tr. 255 (Margulies, J.), this is a de novo proceeding, and neither

, the prior record nor the prior decisions are evidence in this case, except insofar as they may have been properly introduced into evidence herein.

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. 4. Unfortunately, the TMIA PFF have not heeded these directions, and have, at numerous points, relied on the Special Master's findings and conclusions to establish adjudicatory facts. See, eg, TMIA PFF 13,15, 16, 17, 21, 40, 42. In addition, on several points TMIA has proposed that I merely conclude that certain determinations of the Special Master were correct. See, eg, TMIA PFF 58,110. As I have indicated, this is a de_ novo proceeding, and the findings of the Special Master are not before me. These legal errors have reduced the usefulness of the TMIA Findings.

5. Second, TMIA has failed to apply my ruling that for a sanction to be imposed affecting Mr. Husted, the case for the sanction must be established by reliable and probative evidence. Ruling, at 4; Report and Order, at 8-9. Under these circumstances, a sanction operating against Mr. Husted cannot be supported on the basis of rejection of evidence proffered on behalf of, or in defense of, Mr. Husted, and cannot be founded solely on credibility judgments. The import of the posture of this case as in the nature of an enforcement proceeding against Mr. Husted, and the constitutional and statutory protections which attach in such circumstances, is that the Appeal Board condition cannot be af-firmed in the absence of reliable and probative evidence which establishes affirmatively (whether by direct testimony or by cross-examination or otherwise) that the condition regarding Mr. Husted should not be vacat-j ed. On virtually every issue, TMIA has relied on attacks on the credi-

. bility of Husted and Staff witnesses, and the need to disbelieve testimony i

and documentation which, if reliable, tends to support Mr. Husted's case against the Appeal Board condition. See, eg, TMIA PFF 24, 27-30 l

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. _4-(solicitation issue); PFF 55, 59, 66, 68-70 (cooperation issue); PFF 75, 85-90, 96,9f,102-104 (job performance issue). Except with respect to the issue of Mr. Husted's credibility itself, attacks on the credibility of the other parties' witnesses are simply insufficient to support the posi-tions TMIA would have me adopt.

6. TMIA has not shown that the evidence presented in support of Mr. Husted was not credible. As discussed more fully below, the possi-bility that a witness may have an interest in the outcome of the proceed-ing does not itself make such witness testimony incredible. Like any other fact, this, too, must be established by probative evidence. TMIA has not met its burden in this regard.

7. A final, but nonetheless, important reason for according little weight to the TMIA Findings are the numerous instances (examples are provided below) of misstatements of the record and selective choice of references , which have the effect of obscuring the import of the full record on particular factual issues. Because of these and other inaccura-cies and carelessness in preparation of its findings, I hr.ve not adopted TMIA's Findings.

2. Solicitation Issue

8. In its findings on whether Charles Husted asked for or solicited an examination answer from David Janes, the one other person taking the NRC SRO "B" license examination on April 24, 1981 in the room with Mr. Husted, TMIA relies extensively upon the findings of the Special Master to establish that Mr. Janes in fact alleged in an interview with NRC investigators, William Ward and Peter Baci, that Mr. Husted had sought an answer to an examination question from Mr. Janes. TMIA PFF J

. 13, 15-16, 24, 30. As noted above, the Special Master's findings are not evidence in this case, and cannot be relied upon for this purpose.

TMIA's reliance thereon to establish both that Mr. Janes made the allega-tion against Husted, and to disbelieve Mr. Janes' denial thereof, are therefore rejected.

9. More importantly, TMIA has provided no evidence to support its conclusion that Mr. Husted attempted to cheat on the April 24, 1981 ex-amination. TMIA PFF 26 implies that Mr. Baci believed Mr. Husted had attempted to cheat. TMIA, however, has improperly interpreted a "no" answer to the question, "Did you say anything which could have been interpreted as a lack of interest in Mr. Husted's attempt to cheat?" as a finding that Mr. Baci affirmatively concluded that Mr. Husted had cheated.

10. In fact, the contrary is the case. TMIA characterizes Mr. Baci's position to be that he agreed with Mr. Ward's testimony in 1981 that Mr. Husted " solicited" Mr. Janes. TMIA PFF 26. Mr. Baci's 1

testimony, however, was that he saw no basic inconsistency between his own position and Mr. Ward's earlier testimony because he did not inter-pret Mr. Ward's testimony as being a direct allegation that Mr. Husted had cheated on the exam. Tr. 275 (Baci). Contrary to TMIA PFF 26, Mr. Baci did not recall a solicitation in the sense of asking for a response to a test question, Tr. 271 (Baci) . Mr. Baci said he would not have used the term " solicitation" himself, id,. , and did not believe such an alle-

. gation was supported by the Janes interview. Baci, ff. Tr. 241, at 7.

11. TMI A , finding the prior 1981 testimony to establish a direct allegation of an attempt by Mr. Ilusted to obtain an examination answer

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- from Mr. Janes, would have me find that the " equivocal" testimony of Messrs. Ward and Baci before me on the same matter should not be given weight. TMIA PFF 27. However, I do not find any important difference between Mr. Ward's earlier testimony and his testimony before me. In' both instances, he indicated he was uncertain about the nature of the statement which he recalled Mr. Janes attributing to Mr. Husted. NRC Staff Proposed Findings of Fact and Conclusion of Law (" Staff PFF")

35-36. Mr. Baci testified before me that Mr. Janes was not sure of the nature of Mr. Husted's question, and that the question may well have been rhetorical. Staff PFF 37-38. TMIA's assertion that Messrs. Ward and Baci changed their testimony in fear of reprimand for omitting the Janes /Ilusted episode from their investigative report (TMIA PFF 27) is mere conjecture and is not based on any evidence in the record. It, therefore, is rejected.

12. TMIA PFF 28 states that an innocent man accused of cheating would have read the report of the allegation (the hearing transcript of Mr. Ward's 1981 testimony) and confronted the person said to have al-leged he cheated (Mr. Janes), and finds that Mr. Husted's statements that he took neither of these actions to be incredible. There is no war-rant for such a finding. Whether Mr. Husted read the hearing transcript or confronted Mr. Janes has no bearing on the reliability of any evidence in the record and supports no inferences about Mr. Husted's culpability or credibility. Similarly, I find no reason to disbelieve Mr. Husted's ac-

. count of the circumstances of his explanation during the April 24, 1981 examination. It is, in fact, corroborated by the testimony of three other witnesses. TMIA PFF 20 is rejected.

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13. In sum, TMIA has offered no probative evidence or reliable basis for its position that Mr. Husted attempted to obtain an exam answer from Mr. Janes during the April 24, 1981 examination.

3. Cooperation Issue

14. As with its findings on the solicitation issue, TMIA's PFF on whether Mr. Husted cooperated with NRC investigators is based on a se-lective reading of the record and a misinterpretation of the allocation of the burden of persuasion in this case. As I have indicated, Mr. Husted does not carry the burden of showing that the Appeal Board condition should be vacated, or of disproving any fact which would support imposi-tion of the condition. Further, any determinations must be supported by the entire record, not just based on only portions thereof.

15. TMIA has, nevertheless , proposed findings relating to Mr. Husted's cooperation with NRC investigators which fail to consider all of the evidence casting doubt on a finding that Mr. Husted withheld in-formation from the investigators at the July 29, 1981 and September 18, 1981 interviews , and which rely upon conflicts in the record and credibility judgments to affirmatively establish that Mr. Husted intentionally withheld information in circumstances where the substantial doubts created by the evidence in fact operate in Mr. Husted's favor,

s. Mr. Husted's Use of the Term " Unconfirmed Hearsay"

16. TMIA PFF 37 would find that "[c]learly, Husted did use the term ' unconfirmed hearsay'" as reported in the OIE summary of the

. July 29, 1981 interview with Mr. Husted (and thus admitted to hearing rumors of cheating). TMIA's rationale for accepting the OIE summary of the interview is that the interviewers knew what they were looking for l

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. l and had no motive to attribute a phrase to Mr. Husted which he did not make, and th'at NRC investigator Christopher's normal practice was to put quotes around key phrases. TMIA PFF 37, 44. In contrast, Mr. Christman, the GPUN employee who accompanied Mr. Husted to the first interview and took detailed notes (see Husted Ex.1), is quoted as saying he was only learning about the subject under investigation. TMIA PFF 37. Mr. Christman, it is noted , used the words " rumor" and

" gossip"--synonyms for " unconfirmed hearsay"--in his notes. Id.

17. TMIA's attempt to resolve the conflicting evidence to affirma-tively establish that Mr. Husted, during the July 29, 1981 interview, used the term " unconfirmed hearsay" to describe rumors of cheating he had heard, and therefore was then aware of rumors of cheating but re-fused to disclose the specifics thereof, is unpersuasive.

18. First, I find that the relative knowledge of the NRC investiga-tors and Mr. Christman about the subje::t of the interview, and a pre-sumed intent of the interviewers to be accurate, are not probative of the accuracy and completeness of the respective interview summaries. As I indicated in adopting Staff PFF 70, I am faced with the task of resolving conflicting hearsay accounts of these 1981 events, and for that purpose I must look to the direct evidence concerning their relative accuracy and completeness . While the OIE summary of the July 29, 1981 interview sug-gests that Mr. Ilusted did, in fact, use the term " unconfirmed hearsay,"

the accuracy and completeness of the OIE summary could not be attested to by either NRC investigator present at the interview. Staff PFF 51, 53, 61. Since Mr. Christopher could not recall the interview, and, in fact , believed he did not write the summary, the fact that

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Mr. Christopher's normal practice was to put quotation marks around key phrases does not tend to establish the accuracy of the OIE summary.

Christopher, ff. Tr. 386, at 2-6; Tr. 388, 396 (Christopher) . See, Husted Ex. 26, at 39. Mr. Christman's lengthy notes of the interview not only do not refer to the term " unconfirmed hearsay," but record that Mr. Husted denied hearing rumors, rather than having acknowledged that he heard rumors which he then labelled " unconfirmed hearsay." Staff PFF 54-56, 60-61; Husted Ex.1, at 3.

19. The difficulty created by the record in this proceeding is the presence of credible evidence for both positions on this matter. The OIE summary of the interview clearly attributes the statement to Mr. Husted, as well as the statement that Mr. Husted heard rumors. NRC Investiga-tor Richard Matakas clearly believed he was instructed to follow up on what Mr. Husted may have meant by the phrase " unconfirmed hearsay."

Tr. 407, 408 (Matakas); Matakas, ff. Tr. 406, at 3.

20. On the other hand, Mr. Christman's summary of the same inter-view was not only considerably more detailed and lengthy than the OIE summary , but Mr. Christman was available to testify about the circum-stances of its preparation, including the fact that it was prepared from notes shortly after the interview. Husted, Ex.1; Christman, ff.

Tr. 351, at 2, Tr. 353, 379 (Christman) . b While , as TMIA PFF 37 suggests , Mr. Christman could have heard " unconfirmed hearsay" and

-1/ I also have no reason to disbelieve Mr. Husted's statement that he was unfamiliar with the term " unconfirmed hearsay" at the time of the July 1981 interview. See, Tr. 529, 531 (flusted). (Note erro-neous citation to record, in~TMIA PFF 43.)

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written " rumor" or " gossip," I find it much less likely that he would have mistaken a negative answer for a positive answer.

21. It seems unlikely that now, some five years after the event, we will be able to determine precisely what was said at the July 29, 1981 interview. However, given the nature of this proceeding and the place-ment of the burden of proof, it is enough for our purposes that I find that Mr. Christman is no more likely to be mistaken than the NRC investigators.

22. As a result , I find that the contemporaneous record the July 29, 1981 interview does not establish that Mr. Husted used the term

" unconfirmed hearsay" or admitted hearing rumors to which he attached that label,

b. Whether Mr. Husted Intentionally Withheld Information at the First Interview

23. TMIA also seeks to establish, through Mr. Husted's testimony before the Special Master, that Mr. Husted intentionally withheld informa-tion during the July 29, 1981 interview. TMIA PFF 48-50. However, given Mr. Husted's admission that his testimony before the Special Master was not only incorrect and/or inconsistent, but appeared to be flippant and less than serious, I am not inclined to attach much weight to the substance of that testimony for purposes of establishing whether l

Mr. liusted failed to provide information to the NRC investigators at the July 1981 interview. 2_/ See Staff PFF 82-87. As Mr. Husted testified in 2/ The entirety of Mr. liusted's testimony before the Special Master was admitted into evidence solely for the purpose of showing what he testified to before the Special Master. Tr. 490 (Margulies , J.).

. 1 this proceeding, he became " rattled" and " confused" during the cross-

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examination or1 this subject. Husted, ff. Tr. 330, at 24-25.

24. TMIA PFF 51-52 would find that Mr. Husted's explanation--that he did not, at the July 1981 interview, provide information concerning the incident in which he overheard the words " passing papers" because the 2

interview questions were too broad--is a fabrication.

^

However, TMIA fails to provide a basis for not believing Mr. Husted's testimony.

., 25. First, as TMIA notes, Mr. Husted has consistently given this reason, both in the prior proceeding and in this proceeding. TMIA PFF

51. Second , TMIA provides no basis in the record for concluding the questions were not broad, or that Mr. Husted was not wary of broad i questions both before and during the interview. Mr. Husted's explana-tion to me as to his concern about his answers being misinterpreted was reasonable under the circumstances. See Tr. 612-13 (Husted) . While Mr. Husted's answers to TMIA questions on this matter were not directly responsive, they were consistent with his other testimony. See Tr. 579-81 (Husted). Mr. Husted's belief that he may have sought clari-l fication of one of the questions was not corroborated by Mr. Christman's i notes. See Staff PFF 57-58. However, the absence of such a request 1

itself does not establish that Mr. Ilusted's basis for not answering was incredible, b

-3/

Of course, the absence of such a request from Mr. Christman's sum-mary of the first interview, relied upon in TMIA PFF 51, has no bearing at all on the veracity of Mr. Husted's explanation to Mr. Matakas at the second interview as to why Mr. Husted did not provide information concerning the " passing papers" incident at the first interview.

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- 26. TMIA also finds that the notes taken by John F. Wilson, an attorney who represented the licensee in 1981, of a conversation between himself, Mr. Husted and John G. Herbein, then Corporate Vice-President of Nuclear Assurance, on October 5, 1981, support a finding that' Mr. Husted deliberately withheld information during the July 29, 1981 NRC interview. TMIA PFF 53-55. These notes, Husted Ex. 2, appear to contain the notes of an account given by Mr. Husted of the incident in which he overheard the words " passing papers" as he passed some indi-viduals in the hallway near his office. Id; Wilson, ff. Tr. 451, at 2; Ilusted, ff. Tr. 330, at 13-21.

27. TMIA would find that the notes show that "Husted did hear O &

W's names connected to the ' passing papers' comment ," and therefore Mr. Husted was aware of the relationship of the " passing papers" remark and cheating on the April NRC examinations at the time of the July 29, 1981 interview, but failed to reveal this information. TMIA PFF 55-56.

TMIA finds not credible, Mr. Wilson's explanation that the notes indicate that Mr. Ilusted, when asked if it were true that he had seen O and W in conversation when he heard the " passing papers" remark, said he

"[d]idn't bother to look to see who it was, it could have been O & W standing there." TMIA PFF 53, 55; Husted Ex. 2.

28. TMIA's Findings do not adequately summarize the record evi-dence on this matter, which includes not only the Wilson notes (Husted Ex. 2), but Mr. Wilson's written and oral testimony in which he attempts

, to recall the conversation. Wilson, ff. Tr. 451, at 2-3; Tr. 459 et seq.

(Wilson) . In his written testimony, Mr. Wilson stated Mr. Ilusted did not advise him that Mr. Husted had heard O and W associated with the words

passing papers. Wilson, ff. Tr. 451, at 2. Nor did he say Mr. Husted said he had seen 0 and W when he heard the remark. Id. On cross-ex-

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1 amination, Mr. Wilson again denied that Mr. Husted had told him he had either seen or heard reference to O and W at the time of the remark in question. Tr. 468-61 (Wilson) .

29. Husted Ex. 2 does raise the possibility that Mr. Husted was the person who introduced the connection between 0 and W and the remarks Mr. Ilusted heard near the water cooler, as is acknowledged by Mr. Wilson. Tr. 459-60 (Wilson). But the notes do not fully explain the circumstances of the statement, and Mr. Wilson's testimony does not sup-port the inference that Mr. Husted, at the time of the incident, or the first interview, had made the connection. TMIA offers no other eviden-tiary support for its positions on this matter.

30. The evidence concerning what Mr. Ilusted told Mr. Wilson does not establish that Mr. Husted was aware of the connection between O and W and " passing papers" at the time of the July 29, 1981 interview, but withheld that information.

31. Similarly, nothing in TMIA PFF 59-60, dealing with former

!!usted supervisor Samuel Newton's recollection of a conversation regard-ing the first NRC interview, causes me to alter my conclusion that

, Mr. Newton mistakenly telescoped several of his discussions with Mr. Husted. Staff PFF 55, n. 7. However, this assessment of Mr. Newton's recollection does not reflect adversely upon his credibility.

. Since Mr. Newton's testimony (albeit probably inaccurate) that Mr. Ilusted told him Mr. liusted was asked whether he heard rumors about " passing papers" during the first interview is adverse to Mr. Ilusted, there is no i

- reason to doubt the candor and honesty of Mr. Newton's testimony. 4I -

The fact that Mr. Newton did not believe that Mr. Husted's 1981 hearing and deposition appearances were a conscious attempt to perform improper-ly or negatively affected his job performance, and did not believe that Mr. Husted withheld information at the first interview, does not render his testimony incredible or biased. See TMIA PFF 59-60, 93.

c. Whether Mr. Husted Withheld Information at the Second Interview

32. Finally, TMIA would find that Mr. Husted's statements to Mr. Matakas at the September 18, 1981 NRC interview , and to Messrs. Wilson and Herbein in their October 5, 1981 discussions, show that Mr. Ilusted withheld information he knew concerning O and W at the time of the September 18, 1981 interview. TMIA PFF 65-66.

33. TMIA argues that if Mr. Ilusted knew the " passing papers" comment was "the type of comment someone makes when they are mad and makes to the first person they see," Matakas, ff. Tr . 402, Attach. 4 at 1, then the conversing individuals also told Mr. Ilusted they were angry and why. TMIA PFF 65. I find no record basis for this inference by TMI A . Mr. Husted's ability to recollect the tone or inflection of a com-ment does not establish either that Mr. Husted knew that the individual he overheard was angry, or that he heard more than the words " passing papers." TMIA's finding that Mr. Husted was given an entire explanation of the conversation has no basis in the record.

4/ Mr. Newton's acknowledgment of his sympathetic reaction to the man-

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ner in which Mr. Ilusted dealt with the consequences of his hearing conduct similarly reflects candid testimony. Tr. 906-907 (liewton).

- 34. With respect to Mr. Husted's withholding from Mr. Matakas in-formation he had heard at the water cooler, TMIA fails to distinguish be-tween the possibility, acknowledged by Mr. Husted and Mr. Wilson, that prior to the September 18, 1981 interview Mr. Husted connected the

" passing papers" remark to what he subsequently learned about O and W's implication in cheating in the April 1981 NRC examinations, on the one hand, and the information Mr. Husted overheard or learned at the time he overheard the remark, on the other. See, Husted, ff. Tr. 530, at 11-13, 17, 20; Tr. 450-60 (Wilson). At the time of the second interview, the i

information about O and W had been published by the NRC. Husted Ex. 26. This information certainly was known to Mr. Matakas. The sub-ject of the second interview was Mr. Husted's personal knowledge about cheating during the April exams, not what he had Icarned from the NRC.

TMIA has offered no basis for finding that Mr. Husted was aware of the cheating incident at the time he overheard the " passing papers" remark, and therefore TMIA PFF 65-66 are rejected. b i

i 35. In sum, I find nothing in the TMIA findings to alter my conclu-sions that Mr. Husted did not attempt to withhold information during ei-ther the .luly 29, 1981 or September 18, 1981 interviews, i

l 5/ I note parenthetically that TMIA takes inconsistent positions on what Mr. Husted told Mr. Wilson. TMIA PFF 55 would have me find that

. Mr. Ilusted in fact told Mr. Wilson he had overheard information about O and W, whereas TMIA PFF 66 would have me find that Mr. Husted, fearing criminal penalties, denied such knowledge.

TMIA's inferences here are not only inconsistent, but unsupported by the record. See, Tr. 595 (liusted).

4. Job Performance

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36. The thrust of TMIA PFF 71-105, concerning what Mr. Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity, is that none of the testimony or evaluations of Mr. Husted introduced into evidence in this proceeding are credible and, therefore, should be disregarded. As discussed below, I do not agree that the tes-timony provided by the GPUN and Staff witnesses on the issue was either biased or unreliable. Though TMIA makes numerous assertions of bias, inconsistency and lack of credibility, these claims are not supported by the record. Moreover, none of the evidence which TMIA would have me disregard has been controverted. Under Section 7(c) of the Administra-tive Procedure Act , 5 U.S.C. I 556(d), I am not free to ignore this evidence. - As a result, TMIA's Findings provide no basis for altering my findings that Mr. Ilusted's performance with GPUN reflects positively on his attitude and integrity. See Staff PFF 106-134.

-6/ The legislative history of the Administrative Procedure Act addresses consideration of evidence in cases where an agency sanction or li-cense is under consideration:

... the requirement that no sanction be imposed or rule or or-I der be issued except upon evidence of the kind specified means l that the proponents of a denial of relief must sustain such de-

nial by that kind of evidence. For example, credible and cred-l ited evidence submitted by the applicants for a license may not l

be ignored except upon the requisite kind and quality of con-trary evidence. No agency is authorized to stand mute and arbitrarily disbelieve credible evidence.. ."

S. Rep. N. 752, 79th Cong. ,1st Sess. (1945), quoted in Environ-l

. mental Defense Fund v. EPA, 548 F.2d 998 (D.C. Cir.1976), cert.

l denied, 431 U.S. 925.

! Here, TMIA has proffered neither a substantial basis to discredit the evidence in the record, nor the " requisite kind and quality of con-l trary evidence."

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. 37. One of the principal bases TMIA proffers for finding the per-

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formance evaluations and the testimony of Messrs. Brown , Newton and Long unreliable is that their evaluations do not adequately take into con-sideration Mr. Husted's poor conduct during his direct involvement in the restart hearings. TMIA notes that Messrs. Brown and Newton either did not include Mr. Husted's hearing conduct in their evaluations, or gave such conduct inadequate weight, and that Dr. Long's evaluations relied on those of Messrs. Brown and Newton. TMIA PFF 88-89, 91, 93, 96-97.

38. The issue before me, however, is not whether Mr. Husted's conduct during tha restart hearing should have been included and weighed heavily in Mr. Husted's performance evaluations. The issue is what his on-the-job performance reflects about his attitude and integrity.

We are interested in the performance evaluations and other testimony and documentation of his job performance for this purpose. Issue No. 5 was not accepted to make further determinations about Mr. Husted's hearing conduct, but rather to see if that conduct carried over to his actions as an instructor, supervisor or operator. Therefore, although the evidence, in fact, shows that Messrs. Brown and Newton did not weigh heavily, if at all, Mr. Husted's poor conduct at the restart hearings in their evalua-tions, Tr. 733-34 (Brown), Tr. 903-904 (Newton), this evidence does not support an inference that the entire process by which Mr. Husted's job performance was evaluated over the period 1980-1985 is biased or unreliable.

39. While Mr. Husted's hearing performance was not specifically rated in his job performance evaluations, it is also clear that his poor performance at the restart hearing was noted, brought to Mr. Husted's

attention , and the subject of extensive and extended monitoring. See, eg, Newton, ff. Tr. 836, at 6-7,11; Long, ff. Tr. 755, at 2-7; Staff Exs. 3, 4. Furthermore, it should be noted that GPUN's concern predat-ed the Licensing Board's recommendation that Mr. Husted's performance be specifically monitored. d.; see, LBP-82-56,16 NRC 281, 320 (1982).

40. TMIA's specific attacks on the credibility of the Husted perfor-mance evaluations require only brief treatment. TMIA states that "it is not credible that Mr. Brown made these observations [those contained in his draft 1981 performance evaluation of Mr. Husted (Husted Ex. 3, at 2)], based on a one-day, ' snapshot' event." TMIA PFF 75. Although l

TMIA cites two observations (nos. 5 and 14) as somehow showing the con-trary, Mr. Brown testified that the " snapshot" evaluation reflected only

" initial impressions" about the "recent period," which he reevaluated in l

light of Mr. Husted's performance over the annual period under evalua-tion. Tr. 707-708 (Brown). TMIA's conclusion that the draft 1981 annu-al evaluation was "a well-considered opinion based upon observation of Husted over a period of time," TMIA PFF 76, appears to be directly con-tradicted by the record.

41. TMIA PFF 73-82 appear designed to elevate the draft 1981 eval-uation to a status superior to the resulting formal final evaluation, and to attack the credibility of the final evaluatian because the comments in the draft are not reflected directly in the final evaluation. There is no rea-son, however, not to find both the draft and the final evaluations reliable

. evidence of what Mr. Brown explains them to be. I find that the draft evaluation provides valuable insight into Mr. Husted's attitude during a crucial period under review--the fall of 1981. Mr. Husted himself admits

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to his low morale and attitude problem during this period. See, Husted, ff. Tr. 330, at 13. A review of all the periodic performance evaluations and of special evaluations of Mr. Husted's instruction, however, shows that the problems Mr. Husted had in reacting to direction and motivating others were short-lived , and a function of the strain of the specific cheating hearing events. See Staff PFF 114-134; Brown, ff. Tr. 697, at 5-9.

42. As indicated above, the inclusion of certain items in GPUN an-nual evaluations and exclusion of others is not at issue. The selection of time-consuming document collection and processing for the TMI hearings for inclusion, but not Mr. Husted's direct, personal participation, noted in TMIA PFF 84-91, was a judgment which does not bear directly on the reliability of the evaluation of Mr. Husted's attitude and integrity as an operator, instructor, or supervisor.

43. Moreover, Licensee conducted an extensive monitoring program to specifically assess whether the poor attitudes shown by Mr. Husted in the restart hearings carried over to his performance in these roles. See Staff Exs. 3, 4; Staff PFF 119-120. Whether Mr. Husted's hearing atti-tudes, themselves, were included in his formal performance evaluations is therefore of little significance. They were clearly in the forefront of management's attention and considered in taking personnel actions regard-ing Mr. Husted. See, Tr. 789 (Long). TMIA Findings 97 and 98 are aggregiously inaccurate and incomplete as a summary of this monitoring

. activity. They are rejected.

44. Similarly, I find nothing in TMIA Findings99-104 which cause me to alter my reliance on the inspection and report of NRC inspector

l l

. Donald R. Haverkamp. See, Staff PFF 110-113, 132; Haverkamp, ff.

Tr. 648, Attachment. The fact that Mr. Haverkamp mistakenly believed the draft 1981 evaluation done by Bir. Brown was a draft of an earlier 1980 evaluation did not have an important bearing on his conclusions and, in any event, was corrected on the record. Tr. 652-58, 671, 684-85 (Haverkamp). TMIA's assertion in TMIA PFF 101 that Mr. Haverkamp made a second error relating to Mr. Husted's self-critical, self-evaluation is not supported by the record. Tr. 680 (Haverkamp); cf. Tr. 670-71 (Haverkamp) . TMIA argues (TMIA PFF 202) that Mr. Haverkamp's failure to interview the authors of the evaluation reports summarized in the IInverkamp inspection report renders the report unreliable. However, TMIA offers no other evidence that tends to show Mr. Haverkamp's sum-maries are inaccurate. Moreover, many of the evaluations were admitted into evidence in their own right. See Husted Exs. 4-8, 10, 15-24; cf.

IIaverkamp, ff. Tr. 648, Attach, at 7-13. Finally, TMIA introduced or proffered no evidence to show that the information received by Mr. Haverkamp in interviews with co-workers was unreliable, or that the informants were biased. TMIA PFF 103 and 104 are therefore rejected.

See, Staff PFF 111-113.

5. Forthrightness, Attitude and Integrity as Exhibited in This Proceeding

45. TMIA argues (TMIA PFF 111-112) that Mr. Husted's testimony in this proceeding lacked forthrightness because: (1) he admitted stating that he made an exclamation during the NRC SRO "B" exam, Husted, ff.

Tr. 330, at 4, but stood by his prior statement at the first NRC inter-view that he had heard no talking in the exam, Tr. 339 (Husted); and (2) he testified concerning his 1981 deposition that he very seldom gets

- angry, Tr. 520 (Husted), but was reported by Mr. Newton to have told Mr. Newton that he had lost his temper at the deposition (Husted Ex.12), and, in fact, admitted exclaiming "What the hell is this?" during the exam.

46. Neither argument is persuasive. I find no inconsistency be-tween Mr. Husted's answer that he heard no talking during the April 24, 1981 SRO "B" extm, and that he made an exclamation during that same exam. Nor do I find that his statement that he very seldom gets angry to be refuted by his exam exclamation. TMIA's attempt to show that Mr. Husted attempted to deny he got angry at the 1981 deposition by saying he very seldom gets angry is based on a misstatement of the record. His response was not to a question concerning the 1981 deposi-tion, about which he acknowledged his annoyance, Husted, ff. Tr. 330, at 21, but to a question whether he was angry at the July 29,1981 inter-view . Tr. 520 (Husted). TMIA PFF 111-112 are rejected, b

47. TMIA Findings 113-114 describe Mr. Husted as continuing to portray a lack of sense of responsibility for the 1981 cheating incident or for his flippant and less than serious demeanor at the restart proceeding.

48. With respect to Mr. Husted's sense of responsibility for the cheating incidents, TMIA has not provided a complete summary of the

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TMIA's FFF 115, which proposes as "not credible" Mr. Husted's ex-planation for not seeking immediate redress from the findings con-cerning him in the restart proceeding, implies that Mr. Husted failed to meet some obligation to respond. The Commission has twice con-sidered this argument, and twice rejected it. See, Commission Or-der, March 20, 1986. I find nothing in the record to suggest Mr. Husted's account of his actions is incredible in this respect.

- record. While Mr. Husted did testify he did not feel responsible for the cheating that took place, he did state he felt a sense of regret, and did some soul-searching as to what role he may have had in those events.

Tr. 942 (Husted). While he said he did not feel he should shoulder the entire responsibility for any failings in the training department which may have led to examination cheating, he did admit that the training department could have done more to prevent cheating. Tr. 941-42 (Husted).

See also, Brown, ff. Tr. 697, at 8. TMIA has presented nothing which would cause me to change my conclusions regarding Mr. Husted's sense of responsibility concerning nuclear safety or the regulatory process. See Staff PFF 128-134.

49. TMIA's finding (TMIA PFF 114) that Mr. Husted failed to accept responsibility for his flippant and less than serious demeanor before the Special Master is incorrect. As even TMIA acknowledges, Mr. Husted clearly admitted that there was a basis for finding him flippant and less than serious . Tr. 554 (Husted). Mr. Husted did not, as TMIA sug-gests, disagree with the Special Master's findings in that regard. What he disagreed with was the Special Master's finding that he refused to l cooperate with the NRC investigation and the Special Master's inference from that that Mr. Husted lacked credibility. Tr. 610, 611 (Husted) .

l Given the evidence in support of Mr. Husted's position on the issue of I

his cooperation, I cannot find that his disagreement with the Special Mas-ter demonstrates an attitude of not accepting responsibility for his actions l

. in conducting himself properly in an NRC proceeding.

l l

i

- 6. Conclusion

50. In sum, I find nothing in TMIA's Findings which would cause me to alter my findings with respect to the factual issues before me.

Since TMIA's findings with respect to these issues have been rejected, there is no basis for TMIA's proposed remedial action, and I conclude there to be no basis in TMIA's Findings for changing my conclusion that the Appeal Board condition should be vacated.

B. Husted Findings

1. Mr. Husted's Arguments on the Appeal Board's Legal Standard i 51. In response to my direction to the parties to address the ap-propriateness of the standard employed by the Appeal Board to Mr. Ilusted's conduct, Tr. 974-75 (Margulies, J.), Mr. Husted has sub-mitted a lengthy challenge to the legal foundation of the present proceed-ing. Husted PFF 142-152. Mr. Husted argues that the Appeal Board, in applying the standard of " respect for procedure and ability to communi-cate a sense of responsibility," applied a new legal standard in an adjudi-i catory proceeding without adequately articulating its statutory or regulatory bases. Husted PFF 144. Mr. Husted explores possible regula-tory bases in 10 C.F.R., Part 55, and Part 2, Appendix C, relating,

respectively, to licensed operators and application of enforcement policies, and finds no basis therein for removal of Mr. Husted from any non-licensed position. Husted PFF 145-147.

l 52. Mr. Husted, assuming, arguendo, that agency authority exists

. to remove a non-licensed individual from his position, also finds that it is an abuse of agency discretion under SEC v. Chenery Corp. 332 U.S.

j 194, 203 (1947) and NLRB v. Bell Aerospace Co. , 416 U.S. 267 (1974),

. for an agency to announce new generally applicable standards in an adju-dicatory proceeding and to apply them to the very case in which the standard is announced. Husted PFF 148-150. Mr. Husted argues that the new standard announced was susceptible to adoption by general rule-making, that he would suffer substantial adverse consequences if it is applied in this case, and that he had no notice that violation of the new standard could lead to his termination by NRC action. Id.

53. Mr. Husted, in any event, proposes that, if I do adopt a new standard to apply retroactively to Mr. Husted's conduct , I adopt the standard applicable to removal of a licensed individual under Part 55--whether his employment in any non-licensed position in question would pose a hazard to the safe operation of a facility at which he is em-ployed. Husted PFF 151. However, Mr. Husted argues that even if a new standard may be adopted in this proceeding under Chenery and Bell Aerospace, Mr. Husted is nevertheless entitled to notice of the stan-dard and opportunity to supplement the record and make such additional argument as he believes appropriate. Husted PFF 152.

54. Finally, Mr. Husted would have me conclude not only that the favorable factual findings do not support any adverse action, but that, even based on negative findings on the factual issues, the record is in-sufficient to conclude that Mr. Ilusted's employment in the positions in question would constitute a hazard to the safe operation of the facility.

Husted PFF 153.

55. A review of ALAB-772, the Commission's September 5,1985 No-tice of Hearing, the Commission's March 20, 1986 Order, and my own pre-hearing conference orders of February 27, 1986 and March 26,1986, leads

. me to conclude that this proceeding rests on sound legal footing, that the i .

Appeal Board's application of the law to Mr. Husted was an acceptable articulation of the Commission's standards for judging the showing neces-sary to allow a nuclear power plant to operate, and that there is adequate authority and precedent for imposing the license condition concerning Mr. Husted if I were to determine that the record in this proceeding so warranted. Although Mr. Husted challenges the Commission's authority to terminate or remove him from his employment, the action under consider-ation remains a condition against the TMI-1 operating license, and thece is adequate legal authority to act against that licensee, notwithstanding the direct affect such action may have on a non-licensed person. Finally ,

1 Mr. Husted appears to have incorrectly interpreted the scope of this pro-ceeding and the scope of my delegated authority with respect to the legal questions raised. As a resuit, I have rejected most of Husted Findings 142-152.

2. The Legal Authority Underlying the Appeal Board Condition

56. First, Mr. Husted is incorrect in finding that the Appeal Board had no statutory or regulatory basis for imposing the license condition concerning Mr. Husted. In the restart proceeding, which was an en-forcement proceeding, b the Commission determined that the facility should remain shut down until, after a public hearing, the Commission determined that there was reasonable assurance that the licensee could restart and operate the unit without endangering the health and safety of l

-8/

See Three !.lile Island Alert, Inc. , et al. v. U.S. Nuclear Regulatory Emmission, 771 F.2d 720, 724 n.4, Y30 (3d Cir.1985), cert. denied, 106 S.Ct.1460 (1986).

l l

\

the public. 44 Fed. RS. 40461 (July 10,1979). See also, Metropolitan Edison Co. (khree Mile Island Nuclear Station, Unit No.1), CLI-79-8,10 NRC 141, 142 (1979). In ALAB-772, the Appeal Board explained the manner in which the issues being reviewed in that decision concerning reactor operator training and management capability related to the under-lying question as to what actions "'are necessary and sufficient to provide reasonable assurance that [TMI-1] can be operated without endangering the health and safety of the public . . . " ALAB-772, 19 NRC 1193, 1202-1203 (1984). Similarly, it noted that the findings which were antici-pated from the reopened hearings on the April 1981 cheating incidents were important to its overall findings on the issues of licensee manage-ment integrity, the quality of licensee's operating personnel, licensee's ability t.) staff the facility, its training and testing program and the NRC process for testing and licensing operators. Id., at 1204.

57. Although the Appeal Board noted the absence of specific stan-dards for judging the integrity of licensees' management and operation,

,id . , at 1206, it found authority for its judgments in the Atomic Energy Act Section 103b requirement that licensees comply with Commission re-quirements for the protection of the public health and safety, and in the provision in Section 182a for consideration of a licensee's " character."

d., at 1206-07. Finally, it observed that the Commission earlier noted that " abdication of responsibility or abdication of knowledge. . .could form an independent and sufficient basis for revoking a license..." based on

, licensee's competence or character. While noting the absence of " precise standards against which to measure licensee's conduct," the Appeal Board

. found the guidance it there reviewed as a basis for appellate review.

Id. , at 1207-b8.

58. Thus, when the Appeal Board found that an instructor of non-licensed operators must have the ability to communicate effectively a sense of responsibility as well as information and respect for procedures, and used this criterion for requiring, as a condition on the licensee (GPU i

Nuclear), that Mr. Husted "have no supervisory responsibilities insofar as i the training of non-licensed personnel is concerned," id., at 1223-24, it was not articulating a standard in a regulatory or statutory vacuum.

Rather, the standard was expressly tied to the licensee's responsibilities to protect the health and safety of the public and to demonstrate

" character. "

59. Therefore, to the extent that Mr. Husted claims that the Appeal Board failed to articulate the legal authority for its license condition, Mr. Husted is clearly mistaken, b

2. Whether the Commission Intended the Legal Authority for the Condition to be a Subject of this Proceeding

60. Although the Commission, in CLI-85-2, deliberately left unde-cided the question whether an adjudicatory board in an ongoing hearing has the legal authority to impose a condition on a licensee which in ef-feet operates as a sanction against an individual, where that individual is not a party to the proceeding and has had no

-9/

The Appeal Board's rationale for applying the statutory standards is entirely consistent with the rationale Mr. Husted approvingly notes was applied in Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir.1971). Husted PFF 150, n.19.

l notice sanction or opportunity to request a hearing of gpossible there is nothing in the Commission's decision suggesting that, apart from considerations of notice and opportunity for a hearing, the Appeal Board lacked authority to condition the TMI-1 operating license in a manner di-rectly affecting a licensee employee. None of the parties in the restart proceeding took the position , in addressing the question posed in C LI-84-17, that the Commission lacked such authority. See CLI-85-2, supra, 21 NRC at 315.

61. Moreover, the Commission suspended the operation of the condi-tion affecting Mr. Husted and gave him the opportunity for a prior hear-ing. Thus the Commission has satisfied the requirements of notice and opportunity for a hearing. The very purpose of this proceeding is to provide for a hearing on the facts on which a determination might be reached as to whether the condition affecting Mr. Husted should be rein-stated or vacated.

62. Thus, in rejecting TMIA's March 4,1986 Motion to Dismiss and For Stay, which argued that the only issue involved was legal, not factu-al, the Commission noted that because it had determined to grant Mr. Husted an opportunity for a hearing, l

[t]he focus of this hearing is not a legal one, but rather a i

factual determination of whether the Appeal Board's condition should remain in place.

l I

-10/ Metropolitan Edison Co. , CLI-85-2, 21 NRC 282, 314 (1985), citing CLI-84-17, 20 NRC 801, 811 (1984).

C

- March 20, 1986 Commission Order at 2 (emphasis added). N Apart from

~

the defects relating to notice and opportunity to be heard (which have now been corrected), the Commission found no legal defect in the Appeal Board condition, and did not intend the question of its legal authority to be adjudicated here.

63. In summary, there is nothing in CLI-85-2, the September 5, 1985 Notice of Hearing or March 20, 1986 Order to suggest that the scope

of this proceeding extended to the legal authority of the Appeal Board to condition the TMI-1 license to require Licensee not employ Mr. Husted as supervisor of non-licensed operator training. A fair reading of the No-tice of Hearing is that the Commission authorized a hearing to be con-ducted to determine whether, based on a record which would include relevant and material evidence which might be offered by Mr. Husted, the Appeal Board condition was adequately supported. This proceeding was not convened to determine whether the standard by which Mr. Husted was judged was appropriate.

3. Authority of the Commission to Condition the TMI-1 Operating License so as to Affect Mr. Husted's Employment i

64. Although it is agreed that the Appeal Board condition on the TMI-1 operating license operates as a sanction against Mr. Husted, the issue in this case is whether that Appeal Board condition should be va-cated . No order has been issued to Mr. Husted removing him from su-pervisory responsibilities insofar as non-licensed operator training is concerned, and no such order is here under consideration. Thus, to the l

y/ See also, the Notice of Ilearing, September 5, 1985 (50 Fed. M.

37098), enumerating the factual issues to be addressed.

. extent Mr. Husted's legal argument is based on the lack of regulatory provisions , in the Commission's statement of enforcement policies in 10 C.F.R., Part 2, Appendix C, or elsewhere, for entering enforcement orders against non-licensed employees of licensees, it is based on an er-roneous premise. b

65. Moreover, Mr. Husted falls to acknowledge Commission prece-dent for the proposition that the Commission has adequate authority, in the exercise of its enforcement function, to condition licenses upon the removal of stated individuals from nuclear-related responsibilities. In Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station), 45 Fed.

Reg. 80834-35 (December 4,1980), the Director, Office of Inspection and Enforcement, issued an immediately effective order adding a condition to the Nine Mile Point operating license requiring that the Site Superinten-dent, who knowingly allowed a false statement to be submitted to the NRC as evidence of satisfaction of actions required by the Commission to allow continued operation, be removed from involvement with nuclear matters for the licensee. The Director also issued an order to show cause why the licensee's Executive Vice President, who took no steps to assure the

-12/ Although I determined that this case was in the nature of an en-forcement proceeding, and characterized the action to be considered in this case to be an agency sanction against Mr. Husted, Report and Order, at 7-8, the Appeal Board's action clearly was an order directed at Licensee. Moreover, I found the case to be in the na-ture of an enforcement action principally for purposes of assuring that Mr. Husted was accorded due process with respect to the allo-cation of the burden of proof and notice. Although I noted that in this proceeding Mr. Husted was entitled to notice of the law and facts asserted against him, there is nothing in my orders which may be construed as questioning the authority of the Appeal Board to take the action it did. Id. , at 8-9.

. accuracy of his sworn statement, should not be removed from involvement with nuclear matters for the licensee. More recently, in Detroit Edison Co. ( Fermi-2 ) , 51 Fed. Rg . 25411, July 14, 1986, the Director, Office of Inspection and Enforcement, issued an immediately effective order modifying the Fermi-2 operating license to require that a nuclear shift supervisor not be assigned to duties requiring an operator license without licensee first demonstrating that such nuclear shift super-visor had been adequately trained and examined. The Commission has taken similar actions affecting materials licensee employees. El

66. The Commission's- action in these cases was based, inter alia, upon Section 103 and/or Section 186 of the Act and applicable regulations requirink cooperation with NRC inspection activities. Id. E Thus, there can be little doubt that the Commission has sufficient authority to condition licenses so as to assure there is reasonable assurance that the 13/ In Pittsburgh Testing Laboratory, 50 Fed. JRe . 23367 (June 3, 1985), the Director, Office of Inspection and Enforcement, issued an immediately effective order placing a condition on a byproduct mate-rial license that an individual employee who gave NRC inspectors i

false information not be employed as Radiation Safety -Officer or be

! involved in any licensed activities. Similarly, in Bloomington Hospi-tal, 51 Fed. R_eg. 17112 (May 8, 1986), by immediately effective or-der, the T)irector, Office of Inspection and Enforcement, placed a condition on a byproduct material license that a licensee employee be removed as Radiation Safety Officer and not be involved in any li-

. censed activities, bnsed on evidence that the employee--a physician--had obstructed an NRC inspection and provided false and i

misleading information.

M/ In each case, notice and opportunity for a hearing was provided.

health and safety of the public will be protected. See 10 C.F.R.

I 50.57(a)(3). b

67. In sum,1 find that the Commission has sufficient statutory au-thority to condition a license on the removal of a named individual, where such condition is necessary to assure that statutory and regulatory re-quirements are met. Second,1 find that the Appeal Board's conclusion that an instructor or a supervisor of non-licensed operator training be able to impart a sense of responsibility for nuclear safety and the regula-tory process and a sense of respect for procedure is not a new legal standard, but, rather , a case-specific articulation of the nexus between the statutory requirement for assuring protection of the health and safety of the public and the integrity of a licensee, on the one hand, and the function of an instructor or training supervisor in the training depart-ment of a nuclear power plant, on the other.

68. Since the legal basis for the Appeal Board's condition is ade-quately articulated in ALAB-772, I find that Mr. Husted had sufficient notice of the legal foundation of this proceeding. In addition, I interpret

--15/

Mr. liusted observes that he knows of "no regulation or statute that l imposes on employees an unqualified requirement of ' cooperation' with NRC investigations." Husted PFF 104. However, while the Commis-l sion does not have jurisdiction over non-licensees, it does have au-thority , under Section 161 of the Act and 10 C.F.R. I 50.70, to require cooperation of its licensees in the provision of information in connection with the Commission's inspection activities. Moreover, licensees can only act through their agents and employees. Thus, if the Commission is to be able to fulfill its regulatory mandate to pro-tect the health and safety of the public, it must be able to take ac-tions to assure that licensee-provided information is adequate for that purpose. As the above cited cases illustrate, the Commission has not hesitated to act against licensees where licensee employees have obstructed NRC inspections , or knowingly provided false information.

. the Notice of Hearing and Commission Order of March 20, 1986, not as authorizing me to reconsider the legal standard adopted by the Appeal Board, but, rather, to make factual findings on whether there is ade-quate basis for application of the standard on a record developed de no-vo, after appropriate notice and opportunity for a hearing. Although notice of the law and facts on which the condition was based are required by the Administrative Procedure Act, 5 U.S.C. I 554(b), Mr. Husted had ready access to ALAB-772, and adequate opportunity to argue before me any lack of notice in this respect.

69. Were I to adopt a new standard here, I would agree with Ilusted PFF 152 that Mr. Husted would be entitled to notice thereof, and opportunity to address it. However, I have not done so. See Staff PFF 138-143.

70. Finally, since I have found that no remedy concerning Mr. Husted is appropriate, and that the Appeal Board condition should be vacated , I need not address Mr. Husted's argument that additional evi-dence would have been Iequired to establish that Mr. Husted lacked the ability to communicate a sense of responsibility.

71. As a result, I have not adopted Husted Findings 142-152.

III. CONCLUSION

72. Based on the foregoing, I have not adopted TMIA's Findings, nor Husted Findings 142-152.

Respectfully submitted, t

6 eorge . Jo . son

' Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of September,1986

O UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of )

)

GENERAL PUBLIC UTILITIES )

NUCLEAR ) Docket No. 50-289 (CH)

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF REPLY 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 an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 5th day of September,1986:

• Morton B. Margulies

• 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. Noclear Regulatory Commission

, Louise Bradford Washington, DC 20555 Three Mile Island Alert 1011 Green Street

• Docketing and Service Section Harrisburg, PA 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq. Washington, DC 20555 Maria C. IIensley, Esq.

Hunton & Williams 707 E. Main Street Richmond, VA 23212 Deborah B. Bauser, Esq.

Shaw, Pittman, Potts & Trowbridge l

1800 M Street, NW

, Washington, DC 20036 o

j Y '

Tieorge E. N ohnson Counsel for NRC Staff l