ML20214G387

C Husted Brief on Appeal from Initial Decision.*

ML20214G387
Person / Time
Site:	Three Mile Island
Issue date:	05/18/1987
From:	Husted C, Maupin M HUNTON & WILLIAMS, HUSTED, C.A.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#287-3482 CH, NUDOCS 8705270050
Download: ML20214G387 (61)

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00CM-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Appeal Board In the Matter of )

)

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

)

(Three Mile Island Nuclear Station,)

Unit No. 1) )

CHARLES HUSTED'S BRIEF ON APPEAL FROM THE INITIAL DECISION Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 May'18, 1987 8705270050 DR 870518 ADOCK 05000289 h

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION Before the Atomic Safety and Licensino Anoeal Board t

. In the Matter of )

)

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

I

)

(Three Mile Island Nuclear Station,) .

Unit No.-1) )

CHARLES HUSTED'S BRIEF ON APPEAL FROM THE INITIAL DECISION ,

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Hunton & Williams , ,

!' 707 East Main Street i'

P.O. Box 1535 Richmond, Virginia 23212 i

4 May 18, 1987 ,

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Table of Contents I. Introduction ...................................... 1 II. Facts ............................................. 6 III. The Initial Decision ............................. 12' IV. Argument .......................................... 14 A. The ALJ erred in finding that Mr. Husted's attitude toward the regulatory process is unacceptable ................................ 15

1. The ALJ applied an erroneous legal standard in judging Mr. Husted's current attitude ............................... 15

2. The ALJ erred as a matter of fact in holding that the ALAB-772 condition should not be vacated ......................... 19

a. The findings favorable to M r . Hus t ed . . . . . . . . . . . . . . . . . . . . . . . . 21

b. The bases for the ALJ's finding that Mr. Husted has an unacceptable attitude toward the regulatory process ........................... 24

c. Favorable evidence not cited by the ALJ ........................ 37 B. The ALJ erred in his findings about Mr. Husted's 1981 conduct and attitude .................................... 38

1. The ALJ erred in finding that Mr. Husted failed to cooperate with NRC investigators in the First and Second Interviews ............ 38

a. The Second Interview .............. 40

b. The First Interview ............... 44

2. The ASLB's finding as to Mr. Husted's .

forthrightness before the Special Master does not justify retention ,

of the ALAB-772 contention ............. 48

3. The ALJ erred in finding that Mr. Husted had a poor attitude toward the 1981 hearing before the Special Master ......................... 50 V. Conclusion ....................................... 54 l

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Table of Authorities Duke Power Co., (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976) ........................................... 19 Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141 (1979) ................................. 7 Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-348, 15 NRC 918 (1982) .............................. 7, 8 Metropolitan Edison Co., (Three Mile Island l

Nuclear Station, Unit No. 1), LBP-82-56, i 16 NRC 281 (1982) .............................. 8, 9 i Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit No. 1), ALAB-772, 19 NRC 1193 (1984) ........................ 9, 10, 15 Netropolitan Edison Co., (Three Mile Island Nuclear Station, Unit No. 1), CLI-84-18, 20 NRC 808 (1984) ................................ 10 Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-2, 21 NRC 282 (1985) ............................ 10, 11 Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2),

CLI-78-1, 7 NRC 1 (1978) ......................... 19

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Anneal Board l

In the Matter of )

)

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

)

(Three Mile Island Nuclear Station,)

Unit No. 1) )

i l CHARLES HUSTED'S BRIEF l ON APPEAL FROM THE INITIAL DECISION Introduction l In April 1981, Ch.1 ries Husted took reactor operator and senior reactor operator examinations at the Three Mile Island Nuclear Station. He had been a good and valued em-ployee there for seven years, working in training and op-erations. Husted did not cheat or attempt to cheat on the examinations. Nevertheless, three years later, after two NRC investigation interviews and three NRC decisions, Mr.

Husted was found to have a bad attitude toward the regula-tory process, and, because he could conceivably have a bad influence on his students, the Appeal Board required that he be removed from his job. This occurred despite the fact that there was not a word of evidence in the record about how Mr. Hunted actually performed his job.

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Because Husted was not a party to that proceeding, had no notice of his jeopardy, had no counsel and had no oppor-tunity to introduce evidence, the Commission granted him this hearing. He has responded with unrebutted evidence that he has performed his job well for eleven years and that, in his work, he has displayed integrity and a serious and healthy attitude toward safety and the regulatory pro-cess. The NRC Staff agreed.

The result? The ALJ has found that while Husted has not cheated, concealed anything or attempted to mislead anyone, he nonetheless continues to have an unacceptable attitude toward the regulatory process and should not be permitted to resume his career, now interrupted for three years.

These are the ALJ's reasons: that Husted believes a 1981 finding about his credibility was wrong (denies the consequences of his actions), that he gave an incorrect an-swer during the current hearing (unreliable testimony),

that he offered more than one possible explanation for a five-year old event that he could not remember very well (inconsistent and contradictory testimony), and that he testified as to certain matters here that he had not raised in 1981 (selective memory).

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All cases that come before the Appeal Board are impor-I

tant. This one, however, merits special attention. Indi-viduals have rarely, if ever, been sanctioned by licensing boards. And make no mistake about it, the result here is a (

sanction, perhaps for life. The Initial Decision has pre-f 4

, cisely the same effect on Mr. Husted that license revoca-4 tion would have for a lawyer or professional engineer.

That fact alone merits the special attention of this Board.

l If the Appeal Board will give this record the careful review it deserves, it will, we believe, be uncomfortable

$ with the result. It will, we believe, conclude that the J

l record compels a different result, that as a matter of law

) and in the interest of public safety, NRC cannot toss aside so readily men with the record for performance and dedica-J l

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i tion to safety that Husted has displayed. ,

i j In carrying out its review, the Appeal Board should

) keep in mind at each turn these points:

1. Mr. Husted has not violated any regulation, has i not cheated or attempted to cheat, has not falsified any-thing, has not concealed anything, has not attempted to mislead anyone. His worst transgressions are that (a) he

continues to believe the 1981 findings about him were in-

correct and (b) he has proved to be an inexperienced and i

j sometimes poor witness.

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2. The ALJ characterized this case as being in the 4

nature of an enforcement proceeding. It should be borne in mind, however, that had it been up to the Staff, no en-forcement proceeding would have been brought against Mr.

Husted.' The Staff, as a result of a thorough investigation of-his job performance, agreed with Mr. Husted in this pro-caeding that the Appeal Board condition should be vacated.

1 Mr. Husted's employer, GPU Nuclear Corporation (GPUN), took the same position. Only the intervenor, Three Mile Island Alert (TMIA), supported the Appeal Board's condition, but, with the exception of causing the ALJ to subpoena one per-  ;

son to testify on a narrow point, it put on no direct tes-timony whatever. .

l 3. Mr. Husted did not have the burden of persuasion in this proceeding.

When witnesses other than Mr. Husted displayed 4.

l fading memories about events that occurred in 1981, the ALJ found that "this helped make their testimony persuasive,"

because " human memories dim with time." When Mr. Husted had difficulty remember.ing five-year old events, the ALJ

$ found him " unreliable."

S. On the other hand, when Mr. Husted testified in

-three respects to matters he had not raised before the Spe-f cial Master in 1981, the ALJ found him to have a " selective i

, memory." He did so despite the fact that Husted was I

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'- _ granted this very hearing precisely so that he would have an opportunity for the first time to give his side of the story. l

6. The evidence relied on by the ALJ.in finding that Husted continues to have an " unacceptable attitude" is ex-

traordinarily meager. Ordinarily we would not deal with f

details in an Introduction. In this case, however, we cite j one example because it both typifies the type of reasoning displayed throughout by the ALJ and is cited by the ALJ in connection with each of his adverse findings. One written version of.a July 29, 1981 NRC interview of Mr. Husted in-dicates that Husted said he "did not know whether the proc-tor left the room <[while Mr. Husted was taking his examina-L tions). Mr. Husted was asked by the Special Master, in

,,- December 1981,"hhatpercentageofthetimewouldyousay

, .w the proctor was in the rcom during the SRO exam." Husted

.,. 4 explained that.he had not kept track of the proctor's i whereabouts and then made what he called a " wild guess" that the_ proctor was in the room'around fifty percent of the time. Based on this so-called inconsistency the ALJ characterized Husted as " unreliable" and found that he

" lacked credibility." This tendency by the ALJ to draw in-ferences adverse to Husted from minor incidents, which are so much more reasonably explained as ordinary human con-

i duct, appears again and again in the Initial Decision. We

believe that an appraisal of each such incident will reveal that, at worst, it involves the kind of inconsistency or change in word selection that is typical of honest witness-es.

II.

Facts During the period April 21 through 24, 1981, 36 em-ployees at Three Mile Island Unit 1, including Charles Husted, took NRC-administered reactor operator and senior reactor operator examinations. Husted Ex. 26 at 1. It was subsequently discovered that two employees had cheated on the examinations. In the ensuing investigation by NRC'S Office of Inspection and Enforcement (OIE), Mr. Husted was interviewed by OIE representatives twice, first on July 29, 1981 (tne First Interview)1! and thereafter on September 18, 1981 (the Second Interview).2# Baci, ff. Tr. 214, Att. 2 at 39; Matakas, ff. Tr. 406, Att. 4 at 16.

1/ OIE produced a report of the First Interview. See Baci, ff. Tr. 214, Att. 2. So did Paul Christman, who accompanied Husted at the First Interview. See Husted Ex. 1.

2/ OIE produced a report of the Second Interview. See Matakas, ff. Tr. 406, Att. 4.

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At:the time of the cheating. incident, an Atomic Safety and Licensing Board vas in the process of determining whether the owner of Three Mile Island Unit 1 ought to be authorized to restart it. Seg Metropolitan Edison Co.,

(Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141 (1979) (initiating Restart Proceeding);

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• Metropolitan Edison Co., (Three Mile Island Nuclear Sta-

. tion, Unit No. 1), LBP-82-34B, 15 NRC 918, 923 (1982). In order to deal with the cheating, the Licensing Board ap-pointed a Special Master and instructed him to address in a hearing the effect that the cheating incident might have on certain management issues involved in the Restart Proceed-

.l ing. See Metropolitan Edison Co., LBP-82-34B, 15 NRC 918, 924 (1982),

i-Mr. Husted was deposed on October 23, 1981 in connec-tion with the forthcoming hearing before the Special Mas-ter. Husted, ff. Tr. 330 at 21. He testified before the Special Master on December 10, 1981. See Staff Ex. 2; Tr. 601 (Husted). On December 1, 1981, shortly before Mr.

Husted testified, an OIE investigator named William Ward had testified. Tr. 180. Ward had reported for the first

' time on certain information he had learned during a l

September 25, 1981 interview with Mr. David Janes, a TMI Unit 1 Shift Supervisor who had shared an examination room J

with Mr. Husted on April 24, 1981. According to Ward, Mr.

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Janes had. reported that Charles Husted had asked him.a question during the examination. Tr. 601 (Husted); Ward, ff. Tr. 140, Att. 2.at 25,462-63.

In a Report. issued on April' 28, 1982, the Special Mas-

-ter found that Mr. Husted (a) had solicited an answer to an NRC examination question from Mr. Janes, (b) had not been

. forthright in his testimony denying the solicitation, (c) had refused, at least initially, to cooperate with the I- NRC investigation,-and (d) had displayed an unacceptable

attitude toward the hearing and NRC investigators.

MetroDolitan Edison Co., LBP-82-34B, 15 NRC 918, 1045-1046, 11 316-317 (1982). The Special Master, however, could identify no " reliable standard" by which to judge the seri-ousness of Husted's conduct and thus decided that he could

-not recommend that Husted be removed from licensed duty.

Id. at 1045-1046. He recommended but did not impose a lesser sanction.

The Licensing Board rejected the Special Master's con-clusion that Mr. Husted had solicited an answer to an exam-ination question. Metropolitan Edison Co., (Three Mile Is-

' land Nuclear Station, Unit No. 1), LBP-82-56, 16 NRC 281, 315-317-(1982). It did, however, find that Husted had re-fused to cooperate with the NRC investigators and had given the impression during his testimony before the Special Mas-ter that he didn't care whether he was believed.

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Metropolitan Edison Co., LBP-82-56, 16 NRC 281, 318-319 (1982).- Although the. Licensing Board did not impose a di-rect sanction on Mr. Husted, it did-require GPU Nuclear Corporation (GPUN), the owner of Three Mile Island Unit 1,E/ to undertake a special review and surveillance of its training program, and it suggested that, as part of that program, the Company pay particular attention to Mr.

Husted's performance. Id.

After the Licensing Board decision was rendered but before the matter came on for appeal, GPUN and the Common-wealth of Pennsylvania, GPUN's adversary in the Restart Proceeding, agreed that Mr. Husted would not be utilized to operate TMI Unit 1 or to train operating license holders or

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trainees.A! See Metropolitan Edison Co., (Three Mile Is-land Nuclear Station. Unit No. 1), ALAB-772, 19 NRC 1193, 1222 (1984). The Company thereafter promoted Mr. Husted to the position of Supervisor Non-licensed Operator Training.

Long, ff. Tr. 755 at 6.

3/ GPUN became the licensed operator of TMI Unit 1 on January 1, 1982, replacing Metropolitan Edison Company.

Tr. 784-787 (Long).

1/ Mr. Long, GPUN's Vice President of Nuclear Assurance, testified that the Company entered into the agreement, not

'because it thought Mr. Husted's attitude or integrity re-quired it, but in order to remove a barrier -- a possible appeal by the Commonwealth -- to the restart of TMI Unit 1.

Long, ff. Tr. 755 at 6; Tr. 817 (Long).

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-Despite'the absence of "hard evidence on this record that Husted's bad attitude did, in fact, affect his teaching performance," the Appeal Board in the Restart Pro-ceeding held that GPUN should be forbidden to use him in the' position =of Supervisor Non-licensed Operator Training "given his documented past failure to cooperate with the

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NRC in its cheating investigation." Metropolitan Edison Co., ALAB-772, 19 NRC 1193, 1223-1224 (1984). In this Brief, we shall call this action the ALAB-772 condition.

Mr. Husted, of course, had not been a party to-the Restart Proceeding, had not been represented by counsel, had not been given notice that he might be punished during the proceeding, and had had no opportunity to put on a de-fense. The Commission was troubled by these facts. Thus, on September 11, 1984, the Commission took review of the question

[W]hether an adjudicatory board in an ongoing hearing has the legal authority to impose a condition on a licensee which in effect-operates as a sanction against an individual, where that indi-

'_ vidual is not a party to the proceeding and has-had no notice of.a possible sanction or opportunity to request a hearing.

' Metropolitan Edison Co., (Three Mile Island Nuclear Sta-i tion, Unit No. 1), CLI-84-18, 20 NRC 808, 811 (1984); see i also Metropolitan Edison Co., (Three Mile Island Nuclear E Station, Unit No. 1), CLI-85-2, 21 NRC 282, 314 (1985).

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After receiving briefs from the parties to the Restart Proceeding, the Commission declined to resolve the ques-tion. Instead it said In fairness to Husted . . . the Commission has decided to provide him an opportunity to request a hearing on whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be vacated.

Metropolitan Edison Co., CLI-85-2, 21 NRC 282, 317 (1985).

Mr. Husted did request a hearing. See Letter from Deborah B. Bauser to Chairman Palladino et al. (March 25, 1985). He also asked that it be expanded to address wheth-er he should be barred by concerns about his attitude and integrity from serving as an NRC licensed operator, a li-censed operator instructor or a supervisor of licensed op-erator training,E/ id. at 2, and the Commission granted Mr. Husted's request, Notice of Hearing (Sept. 5, 1985).

Morton B. Margulies was appointed as Administrative Law Judge (ALJ) to preside over the proceeding. Designation of Presiding Officer (Sept. 12, 1985). Seven issues were the subject of the proceeding. They were:

1/ A favorable decision on this question would provide a basis for Husted to attempt to have the GPUN agreement with the Commonwealth of Pennsylvania dissolved.

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ji l-(a) Did Husted' solicit an answer to an exam question from-P during the April 1981 i NRC examination?

(b)' Did Husted's testimony before the Spe- i cial Master lack forthrightness?

(c) Did Husted have a poor-attitude ~toward the hearing on the cheating-incidents?

-(d) Did Husted fail to cooperate with NRC investigators?

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

In light of the answers to (a) through f

(f)

(e), is any remedial action required with respect to Husted?

(g) If remedial action.is required, what is it?

!- Egg Report and Order on Final Prehearing Conference at 6 1 (May 27, 1986).

III.

The Initial Decision

} In his Initial Decision, the ALJ found no convincing evidence that Mr. Husted had solicited an answer to an exam question during the April 1981 NRC examinations. Init.

Dec. at 18. The ALJ did not find that Mr. Husted had con-

.cealed information about cheating during either the First

]

Interview, see Init. Dec. at T 88, or the Second Interview, see Init. Dec. The ALJ held that it was not shown that

- Mr. Husted had attempted to obscure any information during

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' his testimony before the Special Master. Init. Dec. at 1 100.

On the other hand, the ALJ found that Mr. Husted had '

failed to cooperate with.the NRC during both the First and Second Interviews, Init. Dec at 36, and that his testimony on December 10, 1981 before the Special Master was not

" forthright," which meant in the ALJ's view that it contained inconsistencies, contradictions and conflicts and reflected a lack of seriousness at times, Init. Dec. at J.

4 1 98. And, based principally on his findings of a lack of cooperation and forthrightness, the ALJ determiaed that Mr.

I Husted had in 1981 a poor attitude towards the hearing be-fore the Special Master. Init. Dec. at 1 102.

Going beyond the events of 1981, the Initial Decision cited the extensive and unrebutted testimony by both Mr. Husted's witnesses and the Staff's witness to the ef-fect that Husted's job performance from 1974 until the time of hearing had been " good to excellent." This uniformly positive evidence led the ALJ to make this finding:

4 . The record has established that in Mr. Husted's regular job performance his attitude has been professional and appropriate to his responsibilities; this attitude extends to safety, the NRC and the reculatory requirements.

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Init. Dec. at 1 150 (Emphasis added).

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L InLthe very next sentence, however, the ALJ said The Appeal Board standard for imposing

, the condition cannot be viewed as so inflexible that it would deny

. Mr. Husted the: ability to requalify for his'former position considering his '

positive on the job attitude, if he had shown that he had rid himself of his poor attitude for the regulatory pro-cess.- He failed to do.this and the condition imposed by the' Appeal Board >

should stand.

Id.

These findings -- that Mr. Husted has a " professional and appropriate" attitude towards " safety, the NRC and the regulatory requirements" and, at the same time, that he does not -- are the crux of the Initial Decision.

IV.

Araument The ALJ's ultimate conclusion that the ALAB-772 condi-tion should remain in effect is based on one of two possi-ble' mistakes. Either the ALJ applied an erroneous legal standard -- one that permitted him to ignore the uniformly

. favorable evidence about Mr. Husted's job performance and attitude -- or, in assessing that evidence, he erred in concluding that Mr. Husted had an unacceptable attitude to-ward the regulatory process.

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4 The ALJ also erred (a) in finding that Mr. Husted had failed in 1981 to cooperate with the NRC investigation, (b) in the significance he attached to the finding that Mr.

Husted was not " forthright" in his December 10, 1981 ap-pearance before the Special Master, and (c) in finding, based on his perceived lack of cooperation and forth-rightness in 1981, that Mr. Husted then had an unacceptable attitude toward the hearing before the Special Master.

A. The ALJ erred in findino that Mr. Husted's attitude toward the reculatory process is unacceptable.

1. The ALJ applied an erroneous leoal standard in iudoino Mr. Husted's current attitude.

In 1982, in imposing the ALAB-772 condition on Mr.

Husted, the Appeal Board acknowledged that there was "no hard evidence on this record that Husted's bad attitude did, in fact, affect his teaching performance."

Metropolitan Edison Co., ALAB-772, 19 NRC 1193, 1223 (1984). In light of the possibility that Mr. Husted might convey his " bad attitude" to his students, however, the Ap-

- peal Board stripped him of his right to work at his chosen career.

We would have thought that the Commission granted Mr. Husted a hearing, in part, precisely because there was no evidence about his actual job performance before the Ap-peal Board. Indeed, the Commission described this hearing

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as "an opportunity (for Mr. Husted] to demonstrate his fit-ness for the positions at issue . .

" 5/ Notice of Hearing at 3 (Sept. 5, 1985).

We would also have thought, given the Commission's ob-vious. concern about the Appeal Board's action, that the ALJ would have subjected the Appeal Board's analysis in ALAB-772 to a discerning review. That does not appear to have happened. Instead, the ALJ sought to define the ALAB-772 standard so that he could apply it. There is no indication on the face of the Initial Decision that the ALJ questioned either the legality or the wisdom of that stan-dard. The ALJ appears to have read into ALAB-772, and to have approved, the following test: "where there is a pos-sibility that an employee will transmit an unacceptable at-titude to others, evidence that he has not done so and is unlikely to do so is irrelevant."

This is an inference fairly drawn from this statement by the ALJ:

The Appeal Board in imposing the condition did not find it necessary to determine whether his unacceptable at-titude toward the NRC did, in fact, ad-versely affect his teaching performance or the exercise of his management responsibilities . . . . In effect, the Appeal Board held that his 1/ Given the ALJ's allocation of the burden of persua-sion, it would be more correct to say "an opportunity to see whether anyone can demonstrate that Mr. Husted is unfit ,

for the positions at issue."

unacceptable attitude toward the regu-latory process had the potential of being transmitted to others or in-stilled in the system he was responsi-ble for managing, all of which affect i public health and safety.

Init. Dec. at 1 137.

The ALJ.then proceeded, without citing a word of au-thority, to the conclusion that "[t]he Commission in instituting this proceeding expected the same standards to be applied to the factual determination reached here."

Init. Dec. at 1 145.

There are at least three problems with this "stan-dard."

First, we doubt that the Appeal Board in ALAB-772 in-

tended to construct such a standard; it meant merely to in-dicate that in the absence of "hard evidence" of job per-formance it was willing to base its decision on its perception of Husted's attitude and the possibility that he might pass it to others.

Second, the standard puts Husted, and would put oth-ers, in an impossible position. The ALJ states after declining to vacate the ALAB-772 condition:

This is not done as a sanction, nor is (it] dcne to forever bar him from that It is a matter of providing position.

reasonable assurance for the protection of public health and safety.

Mr. Husted cannot regain the position until he demonstrates that he is quali-fled under the Appeal Board standard . . . .

Init. Dec. at 1 151.

How is Mr. Husted ever to demonstrate that he is qual-ified? The ultimate question is how he performs his job;

~ his job, after all, is what is at issue. On that score, he put on an overwhelming case here. Virtually every word in

- the record that' deals directly with his job performance is I

favorable. Here, once more, is the ALJ's own characteriza-tion of what Husted proved in this case:

.The record has established that in RMr. Husted's regular job performance his attitude has been professional and appropriate to his responsibilities; this attitude extends to safety, the NRC and the regulatory requirements.

Init. Dec. at 1 150.

How better can Husted show that he ought to have the condition lifted than by showing that he has performed his job well, performs well now and is likely to continue to perform well? We are at a loss to know what else he can do to regain his position, now or in the future. He is, in short, stymied and, it appears, permanently so unless the ALJ's decision is reversed.

This leads to the third and final point. The standard does not make sense. A standard that permits a trier of fact to disregard hard evidence and rely only upon what is possible is irrational, will produce irrational and unfair results and should not be upheld.

2. The ALJ erred as a matter of fact in holdinc that the ALAB-772 condition should not be vacated, f In fairness to'the ALJ, he may have simpl'y weighed'all  !

the evidence, favorable to Husted and unfavorable, in reaching the conclusion he reached. But if that is what he did, he reached the wrong conclusion.

l There can be no' question.that the Appeal Board may re-view the ALJ's factual findings.1!- The Appeal Board has

). said:

Where-the administrative record consid-I ered as a whole will fairly sustain a result deemed preferable by the agency

- to the one selected by its initial de-

- cision maker, the law is clear that the agency may substitute its judgment for j its subordinate's.

Duke Power Company,.(Catawba Nuclear Station, Units 1 and l 2), ALAB-355, 4 NRC 397, 403 (1976).

i Two preliminary points. First, we emphasize what is not at' issue here. The case involved at the outset more than Mr. Husted's attitude. The contentions accepted by d

4 2/ The Appeal Board's review has been "somewhat limited"

. only where the issues involve the credibility of witnesses.

• i lPublic Service Company of New Hampshire, (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 29 (1978). We do not understand any part of the Initial Decision, however, to be based on-the ALJ's perception of the credibility of Husted's testimony before him. The ALJ does not at any point indicate that his visual observation of Husted's de- ,

meanor played a significant part in his findings. The ALJ based his findings on what Husted said, not how he acted when he said it, and the Appeal Board can review those words as effectively as the ALJ did.

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the ALJ also raised the question whether Husted should be banned from training work by reason of a " lack of integri-ty." Init. Dec. at 7. The ALJ did not find that Husted i

attempted to solicit help on the April 1981 examinations.

Init. Dec. at 1 23. The ALJ found that Mr. Huste'd did not conceal information from the NRC investigators at the First Interview. Init. Dec. at 1 88. He did not find that Husted withheld information during the Second Interview.

ggg Init. Dec. There was no finding that Mr. Husted I testified untruthfully in his October 23, 1981 deposition.

The ALJ found that Mr. Husted did not attempt to "ob-Id. '

scure" information in his testimony before the Special Mas-

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ter. Init. Dec. at 1 100. As might have been expected, 2

l then, the ALJ did not make any finding adverse to j Mr. Husted with respect to his integrity. We are dealing i

here solely with the question of Mr. Husted's attitude to-ward the regulatory process.

l Second, we assume, solely for the purpose of this ar-gument, that Mr. Husted was uncooperative in 1981 during the NRC interviews, gave conflicting testimony before the Special Master in 1981 and displayed during 1981 an unacceptable attitude toward the hearing before the Special Master. E# We do so because we believe that if the ALJ had l 1/ We do challenge some of these conclusions in Section B of this brief.

i i

.l

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

I -

seen those as Mr. Husted's only shortcomings, he would have

! been persuaded by the uniformly favorable evidence on job performance to vacate the ALAB-772 condition. Paragraph 150 of the Initial Decision indicates as much.

1 The problem is, the ALJ found that despite all the'fa -

vorable evidence about his job performance, Mr. Husted re-mains unreconstructed. That is the finding that we chal-lenge and to which we now turn.

a, .The findinos favorable to Mr. Husted.

As we have said, the ALJ found that:

Mr. Husted's regular job perfor-mance reflected very positively on his attitude . . . .

v Init. Dec. at 63.

! And again:

4 (I]n Mr. Husted's regular job perfor-I mance his attitude has been profession-al and appropriate to his i responsibilities; this attitude extends

! to safety, the NRC and the regulatory requirements.

Init. Dec. at 1 150.

In fact the ALJ could have reached no other conclu-sion. As he pointed out, "[slix witnesses testified over two full hearing days" on Mr. Husted's job performance.E!

j 2/ We count five such witnesses: Haverkamp, Long, Brown, Newton, and Husted.

Init. Dec. at 1 116. These witnesses included three GPUN employees, a former GPUN employee and a Staff witness who had made a thorough investigation of the subject. They gave testimony uniformly favorable to Mr. Husted.

Mr. Husted was hired by GPUN's predecessor, Metropoli-tan Edison Company, in February 1974 as an Auxiliary "A" Operator-Nuclear. In 1977 he became a control room opera-tor, obtaining his Reactor Operator license in June 1978.

He joined the Training Department as an Administrator, Nu-clear Technical Training in July 1978. From then until September 1980, he taught auxiliary operators nuclear plant operations. He was promoted to full-time instructor in Li-

! censed Operator Training in September 1980 and taught li-censed reactor operators until March 1983. From March 1983 until the ALAB-772 condition was imposed, Husted served as Supervisor Non-licensed Operator' Training. After the con-dition was imposed, he was made an Engineering Assistant, involved in replica simulator work. See Haverkamp, ff. Tr.

648, Att. (Inspection Report) at 3. The testimony about I

his job performance covered an eleven-year period, some 20,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br />, Tr. 667 (Haverkamp); during eight of those years he was involved in operations and training, the work that is the principal subject of this proceeding. l i

{

23 -

Don Haverkamp, an NRC inspector, reviewed Mr. Husted's

. employee evaluations'and appraisals for the period 1974-1985, certain monitoring reports on Husted's perfor-mance as an instructor during 1981-1984, and several memoranda involving the special assessment of Husted's work that followed the cheating hearing. See Haverkamp, ff. Tr.

648, Att. (Inspection Report) at 6-16. Mr. Haverkamp also

- interviewed ten people who had had various contracts with Husted. Haverkamp, ff. Tr. 648 at 4; Att. (Inspection Re-port) at 16-22. Haverkamp concluded that Mr. Husted's

! performance:

was maintained at an acceptable or sat-isfactory level. During most of his employment, particularly while assigned as an operator instructor or supervisor of instructors, his performance ap-peared to be good to excellent. The i many documents regarding Mr. Husted's performance reflected favorably on his

! attitude and integrity.

Haverkamp, ff. Tr. 648, Att. (Inspection Report) at 16. .

The testimony of Messrs. Brown, Newton and Long supports E

Haverkamp's findings. See Brown, ff. Tr. 697 at 15-16; Newton, ff. Tr. 836 at 12; Long, ff. Tr. 755 at 5-8.

After the cheating hearing, in response to the Licens-i ing Board's recommendation that Husted's qualifications and performance receive "particular attention" from GPUN, the Company began a special monitoring program for that pur-pose. Long, ff. Tr. 755 at 2-4. It consisted of periodic I

o 4

+.p.,= % - - ----w-, , . y-w-r-,,,,., - ,,..,.,.r,,,,%=m,..m.-.-,- ---,w--,,-.,,-.,,-..--,y,,~,-~>,e---,- , - . _ -. ..+,.-.---,.m---,,.  %-,,,.- . ... ,-r-.

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

L classroom tracking evaluations, quarterly performance eval- l 1

uations, regular annual performance evaluations and period- l

.ic counseling sessions. Init. Dec. at 1 125. This program i

revealed that Mr. Husted was performing satisfactorily and I that there was no evidence of undesirable attitudes or lack of respect for the training or licensing processes. Long, ff. Tr. 755 at 5-6.

Based on these favorable results, the Company promoted Mr. Husted to Supervisor Non-licensed Operator Training be-cause it was satisfied that he was able to instill a sense of seriousness and to maintain integrity, discipline and appropriate attitudes toward nuclear safety and the regula-tory process. Tr. 788-789 (Long). We can do no better than urge the Appeal Board to review carefully pages 55-63 of the Initial Decision, where the ALJ recites the positive evidence about Husted's attitude toward safety and the reg-ulatory process.

~

b. The bases for the ALJ's findina that-Mr.

Husted has an unacceptable attitude toward the reaulatory orocess.

What, then, persuaded the ALJ that the impressive job performance record compiled by Mr. Husted was not disposi-i tive and that, in this hearing, he " continued to display some of the same elements of lack of regard for the NRC hearing process that led to the finding that he had a bad

,c wa ,--,.-.-,,-,,a.-,,----me, -

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i attitude toward the hearing.on the cheating incidents"?

Init. Dec. at 1 148. The ALJ acknowledged that Husted ap-

proached-this proceeding "much more seriously" but faulted him because he did not appear fully to understand the error of his past conduct. Init. Dec. at 1 106. The ALJ identi- .

fied six bases for this conclusion. We shall examine each of them carefully.

4 At the threshold, we observe that the ALJ applied a microscope to Husted's testimony that few men could sur-vive, attributing great significance to virtually every a

word selected by an unsophisticated witness and resolving every doubt against Husted, in most cases on subjects de-cidedly incidental to the matters at the heart of this pro-ceeding. We urge the Appeal Board, instead, to review each item with a healthy ration of realism, realizing that it is dealing with a man, not a computer that can reproduce its outputs forever, each version identical to every other.

(a) The ALJ, while stating that Husted was "not expected to be contrite," cited the following Husted testi-mony:

Q. Your testimony was to some extent inconsistent, and your question of your forthrightness in your testi-mony before the Special Master has become an issue, and I would like ,

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

i i

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

'Using your last question [about.

the whereabouts of the proctor] as an example, it is very apparent.to me that during the exams.I showed little concern at all as to who the proctor was, therefore, I can very easily understand why, when asked a lot of questions about who 4 the proctor was and how often the proctor was there, that.I could have easily not have a consistent answer from one question to anoth-er.

The primary concern in taking on 4 these exams is to pass. In order to do that it requires a great deal of concentration. Keeping track of the whereabouts of the proctor would not be in.the best interest of anyone taking that exam. Therefore, it doesn't trouble me at all that I didn't remember who the proctor was or when the proctor was and was not in the room.

! In fact, the proctoring of the exams changed hands from time to i time without my knowledge, one time Mr. Haverkamp was in, another time Mr. Wilson vould be in, some other time someone else would be in, sometimes there was no proc-tor. But I did not keep track of it, therefore, I don't have any 4 trouble understanding why, when pressed on the issue, I may give inconsistent answers.

Init. Dec. at 1 107.1E/

, 10/ It may help the Appeal Board capture the flavor of the ,

Special Master's hearing -- and assess the ALJ's findings i-(Continued)

27 -

l l

This passage is typical of the grounds relied on by

( the ALJ for his conclusion that Husted's attitude toward the hearing process continues to be unacceptable. It deals with a matter -- not irrelevant by any means but nonetheless subsidiary.to the question of cheating -- with which the ALJ displayed an inordinate preoccupation during the hearing.11/

Mr. Christman's notes of the First Interview, which were not introduced before the Special Master, indicate that Mr. Husted said to the NRC on July 29, 1981 that "he

did not know whether the proctor left the room during ei-ther examination."12/ Husted Ex. 1 at 2. Before the 1

(Continued From Previous Page) 4 that Husted's 1981 testimony " obfuscated what occurred,"

Init. Dec. at 1 92 -- to review the colloquy between Husted and the Special Master on who actually proctored the Husted

, examinations. See Staff Ex. 2 at 26,942-44. This colloquy provided another basis on which the ALJ concluded that Husted gave " inconsistent" testimony before the Special Master. See Init. Dec. at 1 92.

4

11/ The ALJ also cites this incident (a) as a basis for

~

his finding that Husted was uncooperative during the First

. Interview, Init. Dec. at 1 83 (Husted " contradictory and unreliable"), and (b) as a basis for finding that Husted was not forthright before the Special Master, Init. Dec. at 1 92 (Husted " lacked credibility and obfuscated what occurred"). We are constrained to wonder whether anyone has ever been penalized so harshly for such a minor failing, if indeed it is a failing.

12/ Note that the OIE notes of the First Interview indi-cate that Mr. Husted said he could not " comment on the amount of time the proctors were actually in the class-(Continued)

- y ,wwv. , - - ,, -- ,---rm-vv.m. w. . - - -,---v -

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Special Master, some four to five months later, Mr. Husted was asked "what percentage of the time would you say the proctor was in the room during the SRO exam?" Mr. Husted's entire answer was this:

l A very rough guess would be somewhere around 50 percent. I did not make it a practice of keeping track of anyone's com-ings or goings. I had an exam to take. So he could have gone for an hour and it may have appeared to me to be five minutes. I was very busy. So I did not watch my watch or keep track of time.

So I could -- 50 percent is just a wild guess.

See Staff Ex. 2 at 26,935.

The truth is, read in context the two statements are not inconsistent. Both say in effect that Mr. Husted didn't know what the proctor was doing.

The passage quoted by the ALJ and set out above is simply an effort by Husted to explain this so-called incon-sistency. To suggest, as the ALJ does, that Mr. Husted's answer shows a disregard for the regulatory process is, in a word, amazing.

(Continued From Previous Page) room," Baci, ff. Tr. 214, Att. 2, implying that the proc-tor was gone for some unspecified period of time. To be sure, the ALJ accepted the Christman Report and not the OIE Report of the First Interview, because no Staff witness was able to vouch for the OIE version. See Init. Dec. at 11 80-81. The ALJ was correct in this conclusion, but to treat Christman's report on this subsidiary point, and ig-nore the OIE version, as a basis for such a serious conclu-sion is to cut matters too thin.

To go on, as the ALJ does in paragraph 109 of his Ini-tial Decision, and state that Mr. Husted refuses to ac-knowledge inconsistencies in his testimony before the Spe-cial Master is not fair; in fact, it is incorrect. In the last sentence of the passage cited by the ALJ, and quoted above, Husted characterized the two answers on the proc-tor's whereabouts as " inconsistent." He did not try to duck the conclusion; he tried to " explain" it, which was, after all, what the ALJ asked him to do.

More to the point, the ALJ ignores Husted's prefiled testimony about his performance before the Special Master.

There, he acknowledged that he had given inconsistent tes-timony about the " passing papers" comment, that he had made a serious error before the Special Master in conceding the accuracy of the NRC reports of the First and Second Inter-views and had had to correct himself, and that he had no doubt that he had appeared to consider the testimony in a i

"less than serious manner." Husted, ff. Tr. 330 at 23-25.

(b) The ALJ next faulted Mr. Husted for being l surprised when the Special Master found in 1982 that Husted had failed to cooperate with NRC and that, as a result, he lacked credibility. The ALJ concluded from this that Mr.

Husted " continues to deny the consequences of his action and accept responsibility for them." Init. Dec. at 1 109.

l

I

• l l

l First, it is not unreasonable that a man who had en-i tered a hearing with no notice that he was on trial, tried to testify truthfully, and believed he had cooperated with

! NRC would be " surprised" by a finding that he had not been i cooperative and thus " lacked credibility".

Second, it is well to note that in evaluating Husted's surprise at the outcome of the 1981 hearing, the ALJ relies i on his own conclusion that Husted had been uncooperative 1

4 during the First Interview. 142 But the ALJ only reached that conclusion after a long and complex reasoning process, l first concluding that Mr. Husted had been uncooperative during the Second Interview, and then, based on this per-l ceived lack of cooperation, concluding that he had also 4 been uncooperative during the First Interivew. The Special Master, however, did not conclude that Husted had been

uncooperative at the Second Interview. In short, the ALJ l found Husted uncooperative during the First Interview for l reasons different from those cited by the Special Master; i

4 yet the ALJ faulted Husted for disagreeing with the Special

! Master's findings on the point. .

4 -t Moreover, Mr. Christman, who was with Mr. Husted at the First Interview and whose summary of it was accepted by i

! the ALJ, testified that Mr. Husted was cooperative overall during the First Interview. Tr. 369 (Christman). This is

! not to say at this point that Mr. Christman is necessarily b

i

,v . , , - , .__--~.--_,_m-,-_- v,.-_,,--_ .. ._,m_,_-- _ _ _ . _

l right and the-ALJ wrong.1E! But it is to say that Mr.

i' Husted's insistence that he was cooperative and that he disagreed with the Special Master's 1982 finding is not ev-idence of a disabling attitude; they are merely points on l which he and the ALJ apparently disagree.

(c) The ALJ found that Mr. Husted evidenced."in-cidents of unreliability in his testimony (before the ALJ]"

though "to a lesser extent than he had previously." Init.

Dec. at 1 110. Tne basis: Mr. Husted was asked by the ALJ whether he had testified in 1981 about an exclamation he made during one of the examinations. Tr. 346. He said he

! had, id., when in fact he had not, Tr. 495 (Husted).-

Mr. Husted's counsel called the ALJ's attention to the mis-take immediately, Tr. 347, and the matter was cleared up for the ALJ the following day, see Tr. 495. It was a mis-take about something that had happened five years earlier.

! There is no conceivable reason -- the ALJ cited none -- why Husted would have purposely given a wrong answer when the 1

right answer could have been easily ascertained from a re- '

t view of his prior testimony.

That the ALJ would put so much weight on such a minor

-- and human -- slipup is troubling. It is troubling be-cause the ALJ ignores his own guideline, applied in f avor J

13/ We do say this below at page 39.

I l

4

- 32.-

of other witnesses in this proceeding, that recollections become somewhat less focused with the passage of time, which is consistent with what usually occurs. This helped make

[those witness's] testimony persuasive.

Init. Dec. at 1 20. And, again, " human memories dim with time." Init. Dec. at 1 24. Husted's failure of memory should also be accorded the benefit of this presumption.

(d) In the same discussion with that of the ex-clamation, the ALJ faulted Husted because of an answer he gave when his counsel helped him clear up the mistake he had made the day before. See Init. Dec. at 1 17. The ALJ has misstated the record in some respects in connection with this ground, and so a careful review of the record is necessary.

The ALJ first describes Mr. Husted's explanation as to why he had made.the mistake the day before: he has a hard time remembering when specific things happened in the past.

Init. Dec. at 1 17. The ALJ states that "then" Husted's counsel asked "a question" whether Husted had been examined before the Special Master on " comments, utterances or dis-cussions" with Mr. Janes. (Emphasis supplied). The ALJ's use of the word "then" suggest that counsel's question fol-lowed the Husted explanation. In fact the question pre-ceded the explanation. See Tr. 495-498 (Husted). More-t over, counsel did not ask "a" question about " comments, utterances or discussions," as the ALJ indicates.

\

here is how the questioning went. Counsel asked Husted whether-he had been questioned in 1981 about "com -

ments and utterances." Tr. 495. Husted said "no," thus correcting his answer of the day before.. Id. (Husted).

Counsel then asked Husted whether he had been asked before the Special Master about'" discussions" with Mr. Janes. Id.

(Husted). Husted cited an instance in which he had been asked in 1981 about-discussing with Janes which of them would go for the proctor if-he were needed. Tr. 495-96 (Husted). Counsel then asked Husted whether he had been asked before the Special Master about " making comments aloud during the April 24 examination," and Husted repeated that he had not been asked directly about that. Tr. 496 (Husted)..

Finally counsel asked "Is there any other' point where the subject of the discussions between you and Janes'is raised in that transcript?" Tr. 496 (Emphasis added).

Husted said "no." Tr. 496 (Husted). It is this final "no" that the ALJ cites as evidence of bad attitude, because Husted did not mention having been asked in 1981 the fol-lowing question: "One'of the NRC investigators has testified, as you know . . . that Mr. [ Janes] said that you

. asked him a question during the exam. Is that true?" See Staff Ex. 2 at 26,937.

~This 1981 question -- unmentioned by Husted in re-sponse to counsel's question about "the discussions" with Janes -- was simply not responsive to counsel's question.

In Husted's mind, and as a matter of record, there simply had been no " discussions" between him and Janes during the l exam about an exam question. Moreover, counsel's question

.about "the-discussions" reasonably could have been con-strued by Husted to refer back to "the discussions" about.

going for the proctor if.necessary.

In short, far from being evidence of a poor attitude, Husted's answer to his counsel was correct.

(e) Another basis cited by the ALJ for his con-clusion that Mr. Husted has a bad attitude is that he "al-tered his testimony in ways that lacked credibility."

Init. Dec. at 1 111. First the ALJ faults Husted for tes-tifying that he believed the NRC's Second Interview report was incorrect and then acknowledging the possibility that

.!- it might be correct and Husted wrong. Actually, Mr. Husted testified I believe the [Second Interview report]

is not entirely accurate.

Husted, ff. Tr. 330, at 15 (Emphasis supplied). He then

explained in what respects he believed the report was wrong, and he said he did not " recall" the interviewer saying certain things. Id. But he also acknowledged in 4 his prefiled testimony that

in fairness I must sa remember the-[second]y that I cannotinterview very well at this-time.

Idz at 15. Thus, he_went on to acknowledge.in his prefiled testimony the: possibilities that he had misunderstood the interviewer or that he had simply answered the interview--

er's question incorrectly.. This is merely a case where Husted conceded what the ALJ emphasizes in his Initial De-cision: that memories sometimes fade with the passage of time. Here again, however, that condition, expected of other men, proves to be an indictment of Mr. Husted.

(f) The ALJ found, finally, that Mr. Husted had a so-called " selective memory" because he produced in this hearing "nowly disclosed exculpatory" information. Init.

Dec. at 1 112. Husted said for the first time in a deposi-tion preceding this hearing, and he repeated in his testi-mony, that he remembered making an exclamation during the April 1981 SRO examination. Tr. 501 (Husted). He also i

l said in this proceeding that he believes he asked during the First Interview for clarification of one question and permission to decline to answer another. Husted, ff. Tr.

330 at 7-10. Mr. Husted appeared before the Special Master i

in 1981, accused some nine days earlier of cheating, with-

- out counsel, with next to no preparation, with no opportu-4 nity to tell his side of things in a calm, systematic way and " scared to death." Husted, Tr. ff. 330 at 25. We had I

thought.that the purpose of this proceeding was to provide

~

~

him.with an opportunity to tell for the first time his side

. of the story. We find, however, that new information he has-submitted in hisLown behalf-is treated as evidence that he has a-bad attitude toward.the hearing process.1S/ One is

- led to wonder why a hearing was held in this' case at all.

To summarize, the.ALJ's bases for finding in Mr.

3-Husted an unacceptable attitude toward the regulatory pro-cess and-stripping him of his job are (a) his July 1981

' statement that he did not know the proctor's whereabouts and his December 1981 " wild guess" that the proctor was away 50% of the time,.(b) his surprise at the Special Mas-i ter's conclusion that he had been uncooperative with NRC and thus lacked credibility, (c) his innocent mistake con-l cerning:whether he had been asked in 1981 about his excla-l' i- mation in the exam room, (d) his acknowledgement in-

! prefiled testimony that his memory of the Second Interview micht be wrong and the investigator's correct and (e) his testifying to three recollections that he had not mentioned in the earlier hearing.

l li/ As the ALJ established through the question that Husted answered incorrectly and'then corrected, Husted was not asked in 1981 about exclamations. And Husted had told

Matakas during the 1981 Second Interview that the First In-l terview questions "were so broad that he just could not give specific answers." Matakas, ff. Tr. 406, Att. 4.

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i To be sure'Mr. Husted may not be an ideal witness.

'But that'is not the issue. .The ALJ has concluded, based on these grounds, that Husted has an unacceptable attitude to-o ward'the regulatory process, so unacceptable that it out--

weighs eleven years of salutary job performance, threatens L public. health and safety and requires that he be forbidden L

l to train others. Merely to state the conclusion, and de-scribe the evidence it is based on, is to indicate how far off the mark it is. The record compels a different result.

c. Favorable evidence not cited by the ALJ.

In addition to the evidence discussed by the ALJ on the subject of attitude, there is Husted's own testimony that the ALJ did not mention.

I do want to emphasize these things. I regret that I have done anything to raise concerns about my attitude toward reactor safety, toward the regulatory process,-toward the TMI training process or toward ex-amination requirements in particular. 'I am, above all, conscientious about my work assignments. I take it very seriously. I have always^ recognized and ap-preciated that a person in position to operate the-controls of a nuclear reactor, or to teach those peo-ple who do, holds a position of public trust. I have never knowingly done or said anything in the control ,

room, the classroom or in my other conduct at work that would indicate a disregard for nuclear safety. I do not believe I have ever given any student in any classroom or other setting any reason to believe that I did~not respect, or that he should not respect, the NRC's regulatory process or NRC or Company training and examination requirements. In the discharge of my training responsibilities over the years, I have made every effort to impart a sense of seriousness and re-sponsibility to the people in my classes. And this was true in the aftermath of the cheating episode, when my personal attitude and enthusiasm were at their

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

(

38 -

- lowest, just -as ' it was before the cheating episode and after-the effects of the cheating had run.their Course..

!l Husted, ff. Tr. 330 at 26-27.-

l The other evidence in the record.-indicates, of course, that Mr. Husted was successful in his efforts "to impart a sense of seriousness and responsibility" to the people he i

- taught.

4 B. The ALJ-erred in his findinas about Mr. Husted's 1981 conduct and attitude.

1. . The ALJ erred in findina that Mr. Husted failed

- to cooperate with NRC investicators in the First

- and Second Interviews.

, The ALJ did not find that Mr. Husted concealed infor-s mation in either NRC interview. Egg Init. Dec. at 1 88.

L i He did find, however, that Mr. Husted failed to cooperate His with NRC in both the First and Second. Interviews.

4

!! analysis is complicated, and this in itself is a ground for 1

skepticism. We say this because a straightforward view of I the record indicates that Husted was not uncooperative.

l i

Two written summaries of the First Interview were in-troduced into the record, one prepared by Mr. Christman, a-l GPUN employee, and one by NRC. Compare Husted Ex. 1 with Baci, ff. Tr. 214, Att. 2. Mr. Christman, whose summary

{

f was not introduced before the Special Master, testified be- .

fore the ALJ. See Tr. 350 et seq. (Christman). He said 1

that "overall" Mr. Husted was not uncooperative during the

! First Interview. Tr. 369 (Christman). Husted, of course, t

i i

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said the same thing. Husted, ff. Tr. 330 at 11. Only one of the two NRC participants in the First Interview testified, and he could remember nothing. See Christopher, L

ff. Tr. 386 at 1-6.

The ALJ said:

If one accepts the Christman version, it.shows that as to answering ques-tions, after some hesitancy, Mr. Husted ultimately did not fail to cooperate with [the NRC investigators).

Init. Dec. at 1 79.

The ALJ then held:

Mr. Christman's version of what occurred at the interviews is accepted as what happened, along with the con-d clusion that Mr. Husted answered ques-tions asked of him after initially refusing to do so.

i Init. Dec. at 1 81.

Logically -- if the Christman version does not show a failure to cooperate and the Christman version was accepted

-- one might have expected the ALJ to conclude that Husted did not fail to cooperate at the First Interview.

By the same token, only Husted and the NRC investiga-tor (Mr. Matakas) were present at the Second Interview.

Matakas testified -- and Husted testified -- that Husted was not uncooperative. Matakas, f f. Tr. 406 at 6-7; Husted, ff. Tr. 330 at 17-18. Logically one might also have expected the ALJ to conclude that Husted did not fall to cooperate at the Second Interview.

4 How, then, did the ALJ reach the conclusion that Mr.

Husted had declined to cooperate during both interviews and had provided information in both cases that was " unreliable 4 and misleading"? Egg Init. Dec. at 1 65.

a. The Second Interview.

The ALJ began with the Second Interview. Init. Dec.

at 1 66. Mr. Matakas recalled being instructed to question Husted about something Husted had allegedly said during the First Interview; Matakas was told that during the First In-terview Husted had acknowledged hearing rumors, which i

Husted had called " unconfirmed hearsay," about cheating but had declined to reveal any specifics about them.1E/ See Matakas, ff. Tr. 406 at 3. Matakas' task was to clear up

.t this matter. Id. During the Second Interview, according to Matakas' report, Husted told Matakas that he had over-heard an unidentified person say near Husted's office, l

around the time of the exams, the words " passing papers."

l 333 Matakas, ff. Tr. 406, Att. 4. Matakas' report indi-cates that Husted made this disclosure in response to a question from Matakas about the " unconfirmed hearsay" that l

l l 11/ This report to Matakas agrees with the OIE ReportThe of the First Interview. See Baci, ff. Tr. 214, Att. 2.

4 ALJ, of course, gave " virtually no weight" to this Report.

Init. Dec. at 1 80.

4

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Husted was said to have mentioned during the First Inter-view. 14, At the hearing before the Special Master, Husted first

< agreed that Mr. Matakas' written summary of the Second In-terview was accurate but then corrected himself; he testified that during-the First Interview he had not remem-bered any rumors about cheating and that he had recalled the " passing papers" comment only after the First Inter-view. Compare Staff Ex. 2 at 26,914-15 with Staff Ex. 2 at 26,930-31. Before the ALJ, Mr. Husted also testified that he first recalled the " passing papers" comment between the First and Second Interviews.15! Husted, ff. Tr. 330 at 10, 13, 17.

11/ With respect to Matakas' summary of the Second Inter-view, Mr. Husted said he did not "believe" it was entirely accurate. Husted, ff. Tr. 330 at 15. He acknowledged in his prefiled testimony, however, that in fairness I must say that I cannot remember the interview very well at this time.

Id. And he, therefore, conceded that he may have misunderstood Matakas' question or given an incorrect an-swer and that Matakas' report might thus be an accurate version of what was said. Id. at 16. As Husted testified he had made such a mistake before the Special Master, and it was possible he had done the same thing earlier with Matakas. Husted, ff. Tr. 330 at 16. Husted insisted throughout this hearing, however, that, whatever he may have said during the Second Interview, he remembered the

" passing papers" comment only after the First Interview.

The ALJ's finding that Husted was uncooperative at the Second Interview appears 11/ to be based on (a) his conclu-  :

. sion'that Husted led Matakas to believe that the " passing 4

L7/ We say " appears" because the ALJ made other observa-tions in the course of his analysis, and it is hard to tell for just what purposes. Several deserve comment. First, he said:

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

l~

Init. Dec. at 1 72 (Emphasis added). We believe the ALJ meant to say " inaccurate, but with a new wrinkle."

The ALJ then went on to discuss the "new wrinkle,"

namely Husted's candid acknowledgement in his profiled

testimony -- discussed in footnote 16 above -- that while

he believed Matakas' Report of the Second Interview to be E inaccurate in some respects, it was possible that Matakas

! ' had recorded the Second Interview correctly and that

Mr. Husted had made'the error. The ALJ, unfairly we sub-mit, faults Husted for this uncertainty. We believe this

! was unfair because the ALJ denied to Husted the benefit of

[ the presumption he accorded other witnesses, namely that

" human memories dim with time." Had Husted insisted that l only his recollection of the five-year old Interview could be correct, he doubtless would have been found to lack j " forthrightness" in the current proceeding.

Finally, we note paragraph 73 of the Initial Decision,

where the ALJ, apparently still referring to this hearing, states

I- Mr. Husted's actions (in conceding that his memo-ry of the Second Interview might be incorrect]

! showed a lack of reliability, credibility and re-sponsibility on his part, which most adversely

affected his discussion with Mr. Matakas . . . .

(

We are at a loss to understand how something 1

Mr. Husted said in a 1986 hearing could have adversely af-l fected his 1981 discussion with Mr. Matakas.

}

l e

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papers" comment was the' unexplained rumor -- the

" unconfirmed hearsay" -- mentioned in the OIE Report of the First Interview, Egg Init. Dec. at 1 68, and (b) the fact that Husted later denied, before the Special Master and the ALJ, that that was the case. Egg Init. Dec. at i- 11 71-73. The ALJ concluded that Husted, therefore, mis-l lead Matakas. Egg Init. Dec. at 1 68.

l' The ALJ's conclusion

We would make just this point.

-- his entire analysis -- is founded on the assumption

. that Mr. Husted indicated during his First Interview that 4 he had heard a. rumor about cheating - " unconfirmed hear-say" -- but would not disclose it. That assumption, of 4 course, is the principal reason the Second Interview was i held. In fact, the sole basis for this assumption is the OIE Report of the First Interview. The ALJ, however, re-l jected the OIE Report of the First Interview, 113 Init.

Dec. at 1 80, and accepted, instead, Mr. Christman's ver-sion, Egg Init. Dec. at 1 81. Mr. Christman's version 4 shows, and the ALJ has therefore found, that Mr. Husted said no such thing. Egg Husted Ex. 1. So we are left with i,

a lengthy analysis by the ALJ of a dialogue between Matakas and Husted about a remark that Husted, according to the ALJ's own finding, never uttered. At the very least, this introduces an element of confusion that casts serious doubt on the value of the ALJ's analysis.

1 i

i 4

-- , , - ,-,-m, ,,,,,e-e,n--,,w--n,-,---w,-~r,,w-,- --an,-,wa.,.,,sa,_a

T i

4 It may well be said that Mr. Husted might have helped l 4

avoid this confusion had he made it clear to Matakas during the Second Interview that the OIE report of the First In-tarview was inaccurate.1E/ But it might be said with equal

, force that the confusion could have been avoided had OIE summarized the First Interview correctly or, even better f

given the grave consequences for Mr. Husted, maintained transcripts of both.

)

! In any event, the ALJ's analysis is a thin reed indeed L to support a conclusion that Husted was uncooperative and l the resulting inference that he is a threat to the public 4

health and safety.

i

b. The First Interview.

i

[ Having determined that Mr. Husted had failed to coop-i

. erate with Matakas during the Second Interview, the ALJ  :

i' turned to the First Interview. He did not seem troubled by his finding that the Christman report of that Interview was I

correct and that it showed that "after some hesitancy, Mr.

Husted ultimately did not fail to cooperate with [the NRC investigators)." Init. Dec. at 1 79. Instead, he cited 11/ Presumably, Mr. Matakas would then have reported (a) i the " passing papers" comment and (b) Mr. Husted's conten-tion that OIE's First Interview Report was wrong. As it was, Mr. Matakas reported (a) the " passing papers" comment i and (b) the conclusion that that comment was what was meant i by the words " unconfirmed hearsay" in the First Interview Report. We do not understand the materiality of this dif-ference.

i

three reasons for concluding that Husted had nevertheless been uncooperative.

First, the ALJ faulted Husted for declining at first to answer a question about bringing materials into the ex-amination room. Init. Dec. at 1 82. Husted asserted that he had done so because the question failed to make clear just which examination was involved.1E/ The ALJ pointed out that Mr. Christman had recalled having no difficulty determining what examinations the NRC investigators were talking about. We would only observe that Mr. Christman 4

was not "on trial" in that Interview, that Mr. Husted was in some potential jeopardy, that Mr. Husted had been warned to be careful about overly broad questions by the NRC in-vestigators, Husted, ff. Tr. 330 at 5, and that Mr. Husted had every right to be absolutely certain he understood the question before he answered it.EE/ In short, Mr.

Christman's ox was not being gored; Mr. Husted's was.

12/ It is interesting to note that Mr. Christopher, an ex-perienced NRC investigator, testified that in his experi-(

ence interview witnesses have declined to answer.

investigators' questions " innumerable times." Tr. 392 (Christopher).

10/ The precise question as set out in the Christman re-

"whether candidates are allowed to bring note-port was:

books, pads of paper, textbooks, etc. to the examination."

4 Husted Ex. 1 at 3. Assuming this was precisely the ques-tion asked, is it crystal clear, given the use of the pres-

ent tense, that it dealt with only the April examinations?

Could it not have been interpreted as a question about gen-eral practice?

-._.,.,..,.,_.,~,.,,.,..,nn ,n.,, , . , -n_--,---..,,_,,-.,._.,,-.n ,-- ,_... , _ , ,

c-e- . - . - - ,

I Second, the ALJ falls back, once.more, on Mr. Husted's so-called " inconsistent" testimony about.the whereabouts of thel proctor, concluding that Mr. Husted " obscured what had '

occurred.in the classroom." 333 Init. Dec. at 11 83, 85.

We have addressed above-this oft-repeated criticism by the

i ALJ. .

i F ~ Third, the ALJ cited as evidence that Husted "was not candid" with the NRC investigators, Init. Dec. at 1 84, the' >

i t following incident: Mr. Christman's notes indicate that I Husted said the " classroom was quiet during the examina-t .

tions" and that the only " disruptions" that occurred were when the proctor was asked by "one of the people taking the

! i test" to clarify a question. Husted Ex. 1 at 2. On

! cross-examination in the-hearing before the ALJ, Husted was

asked whether this portion of the Christman notes indicated

! to Husted that he had told the interviewers there was no i

" talking," and Husted said it did. Tr. 339. Husted was then asked whether the Christman notes therefore indicated that he had not remembered during the First Interview the i exclamation he had made during the Senior Reactor Opera- ,

tors' examination. 142 Husted said ,.

I don't believe that I would have considered my having made a rhetorical statement, hopefully not loud enough to disrupt the room, as being talking dur-ing an exam. I would have considered  :

talking as being people carrying on a i conversation rather than grumbling or moaning while taking the exam.

- - - , - - - ~.--rw_.. .,-er.,m,mq. ..w.- r e m . .m .- ..--w,m_ ___,,ww -,%+

Tr. 339-40.

We detect no basis in this. incident for the conclusion that Husted was not candid with the NRC interviewers. In-deed, had Husted thought of and mentioned the exclamation during the First Interview, it could only have helped him, j given the suggestion, first made some four and a half I months.later, that he had solicited assistance during the examination. Moreover, Musted's explanation as to how he would have used the word " talking" is simply not implausible.

Fourth, and finally, the ALJ states that while Mr.

Husted's responses during the First Interview "cannot be viewed as an overall failure to cooperate, it involved some deficiency." Init. Dec. at 1 86. The ALJ then goes on to say that this " deficiency" must be considered along with Husted's "very basic failure to cooperate with Mr. Matakas." Egg Init. Dec. at 1 86. When he considers the evidence of both interviews together, he finds it " con-vincing" that Husted failed to cooperate during the First Interview. Thus, the ALJ's conclusions with respect to the First Interview must fall because they are based on his conclusions about the Second, and those, in turn, are sim-ply unsupported in the record for the reasons we have given.

2. The ASLB's findina as to Mr. Husted's forthrichtness before the Soecial Master does not iustify retention of the ALAB-772 contention.

Mr. Husted tried this case on the theory that the word

" forthright," used by the Commission in its Notice of Hear-ing, meant " honest." He knew that " forthright" could be defined as " lacking ambiguity." But he assumed that before depriving a man of his livelihood, one would expect to find some act or omission more fundamentally blameworthy than giving good faith, but ambiguous, testimony.AA/

If Mr. Husted's view of the word " forthright" were correct, then the ALJ's finding that Husted did not intend to mislead the Special Master ought to have disposed of the-matter in Husted's favor. If " forthright" means " lacking ambiguity and in all respects consistent," then we concede, as Husted conceded at the hearing, that he was not "forth-right" in his December 10, 1981 testimony.

Husted acknowledged in his prefiled testimony in this proceeding that, upon taking the stand before the Special Master, he mistakenly conceded the accuracy of the OIE Re-ports of the First and Second Interviews. Husted, ff.

Tr. 330 at 23. He also said that the " passing papers" com-l ment, which he had disclosed in the Second Interview, was 21/ See Charles Husted's Proposed Findings of Fact and conclusions of Law at 1 46 (August 16, 1986).

l

49 -

the " unconfirmed hearsay" referred to in the OIE report of the First Interview. 144 Shortly thereafter, however, he realized that he had been wrong'in these representations, ,

and he corrected them. 142 at 23-24. He also addressed his " stupid, I think" answer, which he termed a " serious mistake" that he regretted "the moment the words were out  !

j i of my mouth." ist at 25. He also conceded that he had

, given the appearance that he was flippant and had appeared to consider the questions in a'less than serious manner. ,

Idz Plainly, giving incorrect answers in sworn testimony is undesirable. Incorrect answers without more, however, are no basis for depriving a man of his livelihood. That result could only be justified if he had lied or attempted to conceal information or if his testimony were given as a result of a fundamentally bad attitude toward the hearing process. The ALJ'here has found that Husted did not lie or attempt to conceal information from the Special Master.

That only leaves the question whether he had a fundamen-tally bad attitude toward the NRC regulatory process, an attitude so blameworthy that it justifies the Draconian punishment that has resulted. It is to that issue that we now turn.

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

'3.. The ALJ'orred'in findino that Mr. Husted had a

. Door attutude toward the 1981 hearino before the

- Special Master.

The ALJ based his. finding-in'this regard in part on

.'his prior' findings that Husted had failed to' cooperate with i

i NRC and had.not been forthright before the Special Master.

Egg Init. Dec. at 1 102. We have dealt with those-issues-7

~a bove.III' It does not follow, however, even if one accepts the f

ALJ's prior conclusions, that Husted had a " bad" attitude l

toward the hearing.before the Special Master.EI/ At the l 22/ The ALJ also' relied on the fact that on October 23, L 1981, in a' deposition taken by intervenors, Mr. Husted gave

cute answers and lost his temper. Init. Dec. at 1 96. We

do not underestimate the importance of this conduct. We

! would point out, however, that the issue before the ALJ was Husted's attitude toward the " hearing," and'that "discov-j ery" and "the hearing" are two different things. Moreover,

! -any one who has ever been at a deposition knows that'they are.not free from tension and that they are'often battles of wills between the questioner and the. questioned; they are not for the' faint-hearted. Above all the accusation by Mr. Ward, which caused Mr. Hustedoto approach the hearing as seriously.as he did, occurred long after'the deposition.

It is also.true that prior to the December 10, 1981 hear-ing, Mr. Husted had been admenished by counsel for GPU and by his supervisor not to conduct himself in the hearing as he had in the deposition, agg It sted, ff. Tr. 330 at 21, Newton, ff. Tr.~836 at 6-7, and Husted had made up his mind not to conduct himself during the hearing as he had during the deposition, Husted, ff. Tr. 330 at 21. In fact, Husted's conduct at the hearing itself bore no resemblance to his conduct at the deposition.

21/ The ALJ made a critical error in inferring from Mr. Husted's conduct before the Special Master that he had an unacceptable attitude. The ALJ concedes that it was not shown that Husted's " lack of forthrightness" was an attempt (Continued)

outset, we should say that we define " bad" to describe an attitude that.would infect his work such that allowing him to perform that work would threaten the public health and safety.

The question is not whether Husted gave inconsistent testimony before the Special Master -- he clearly did -- or l

whether he gave the appearance of being " flippant" -- he has conceded as much. The question is one of underlying mental state. It is one thing to " appear" flippant under stress; it is quite another to have a cavalier attitude in i

fact. Attitude, of course, may be inferred from conduct.

4 But when the stakes are.so high, one must examine those in-ferences with special care. Can anyone reasonably believe i

that Husted failed to take the hearing before the Special Master seriously? When he walked into that hearing room,

}

l he did so with the knowledge that he had been accused a 4

4 (Continued From Previous Page) to obscure information from the Special Master. Init. Dec.

at 1 100. He then concludes:

The fact that obstruction of the investigation f was not established as a motive for Mr. Husted testifying as he did'does not mean his testimony was any more' forthright. It iust means the 2

reason for his doina so was not oroven.

Id. (emphasis added). It is clear beyond any question, then, that Mr. Husted cannot, on the strength of lack of l

forthrightness,'be found to have a bad attitude. He didIf l

not have the burden of persuasion in this proceeding.

1 his reason for so testifying was not shown, then necessari-ly it cannot be attributed to bad attitude.

4

. , ~ , - - ,, --,-,.,,.- .- - ,_ ,- --. , w_,,,,m_.-# _,_. ,,,,_,,,,,___.%..~,y ~ - - . . . - - , . -

.._,-------,_,.---,_-,---,3- , -

1 1

l mere nine days before of attempting to cheat on an examina-tion. His integrity as well as his career were at stake.  !

Here is what shaped his frame of mind:

The allegation that I had solicited help [on the exam] was false. But I had I suddenly been transformed from one of many witnesses in the proceeding to one who was in serious jeopardy.

I knew there was a great deal of publicity surrounding the hearing. I was concerned that my children would hear unpleasant rumors about their fa-ther, and I was concerned about the ef-I fect of the accusation on my reputation among my fellow workers and friends. I was in a terrible state of mind .aen I testified.

Husted, ff. Tr. 330 at 22-23.

The ALJ brushes these explanations aside as

" unsatisfactory." Init. Dec. at 1 99. That is to say, they are no " excuse" for his conduct. But the ALJ did not indicate that he did not believe Husted. Indeed, the ALJ acknowledged that Husted "was undergoing emotional and physical stress during the inquiry." Init. Dec. at 1 105.

That stress, in our view, lies at the heart of the attitude question. As Husted testified after conceding that his an-swers were inconsistent and might have appeared flippant:

The ironic thing about those char-acterizations, however, is that I could not have been more serious about the entire proceeding. I meant no disre-spect toward the hearing process. I tried to testify truthfully to the best of my ability. But I became very con-fused 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 im-pression~I conveyed.

Husted, ff..Tr. 330 at 25.

Another witness in this proceeding, Nelson Brown,=had also testified before the Special Master.- In this hearing 1-he described his 1981-appearance by saying it was as if-he "was being used as target practice in a bow and arrow con-test." Tr. 741 (Brown). And Robert Long, a Vice President of GPUN and an experienced speaker, said that he was "uncharacteristically nervous" about his appearance before the Special Master.- Long, ff. Tr. 755 at 4. He believed P

this resulted from a sequestration order in effect.in that hearing'and the resulting fact that he was unable to dis-cuss the matter with other employees and even with Company o

counsel.. Id. at 4-5.. Long concluded that while he did not I

approve of the appearance Husted created at times during the hearing

(~

i I can understand the stress he was under, because to some extent'I shared it.

Id.

To be sure, Chuck Husted was a rattled and poor wit-ness on-December 10, 1981. His performance could not be held up as a model for any prospective witness. That is a far cry, however, from concluding that he had a

fundamentally bad attitude towards the regulatory process.

And it is a farther cry still from concluding that resump-tion of his training work would threaten the public health and safety.

V.

Conclusion For the foregoing reasons, the findings with respect to (a) Mr. Husted's current attitude toward the regulatory process and (b) Mr. Husted's 1981 conduct and attitude should be reversed and the ALAB-772 condition vacated.

Respectfully submitted, CHARLES HUSTED By Michael W. Maupin, Counsel Of Counsel Michael W. Maupin l

HUNTON & WILLIAMS P.O. Box 1535 Richmond, Virginia 23212 Dated: May 18, 1987

00LKETED UY4RC May 18, 1987

'87 mY 20 P6 :15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OffEE L 'W1 00cKLmd - fW Before the WC" Atomic Safety and Licensina Anneal Board In'the Matter of )

)

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

)

(Three Mile Island Nuclear Station,)

Unit No. 1 )

CERTIFICATE OF SERVICE I certify that copies of CHARLES HUSTED'S BRIEF ON AP-PEAL FROM THE INITIAL DECISION, dated May 18, 1987, were served upon the following persons by deposit in the U.S.

Mail, first class, postage prepaid, addressed to them at the following addresses:

Secretary U.S. Nuclear Regulatory Commission

( Washington, DC 20555 ATTENTION: Chief, Docket and Service Section The Honorable Alan S. Rosenthal Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 The Honorable Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555

The Honorable Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission i

Washington, DC 20555 George E. Johnson, Esq.

Janice Moore, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, Pennsylvania 17102 Deborah B. Bauser, Esq.

Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.

Washington, DC 20037 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 J' W W ML W Michael W. Maupin, Counsel for Charles Husted Datedt May 18, 1987