ML20214L073

Proposed Findings of Fact & Conclusions of Law Supporting Initial Decision ALAB-772 on C Husted.Restart Condition That Husted Have No Supervisory Responsibilities in Training of Nonlicensed Personnel Should Not Be Vacated

ML20214L073
Person / Time
Site:	Three Mile Island
Issue date:	08/21/1986
From:	Bradford L THREE MILE ISLAND ALERT
To:
References
CON-#386-438 ALAB-772, CH, NUDOCS 8608250099
Download: ML20214L073 (49)

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• s'\Q s DOCKETED August 15, 1986 USNRC UNITED STATES OF AMERICA hh jgg p)

NUCLEAR REGULATORY COMMISSION 1 27 cen. _"'

Before the Administrative Law Judge Lb ' ' '  !

In the Matter of ) .

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

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(Three Mile Island Nuclear )

Station, Unit No. 1) )

TMIA'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN THE FORM OF AN INITIAL DECISION ON CHARLES HUSTED I. INTRODUCTION

1. In ALAB-772 the Appeal Board imposed the following condition on the restart of TMI-1, that "Husted have no supervisory responsibilities insofar as the training of non-licensed personnel is concerned." ALAB-772 at 46. The Appeal Board had reviewed the record of the restart proceeding and found that it " supports the conclusions of both the Special Master and the Licensing Board about Husted's poor attitude toward his responsibilities as reflected in his failure to cooperate with the NRC investigators." ALAB-772

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at 43.

2. The Appeal Board noted the existence of an agreement stipulated between General Public Utilities Nuclear and the Commonwealth of Pennsylvania, wherein GPUN agreed to the following: ,

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2. Now and at any time in the future Licensee will not utilize Mr. [Husted] (whose attitude was criticized by the ASLB) to operate TMI-l or to train operating license holders or trainees.

3. Licensee will direct that the ASLB-mandated training audit specifically evaluate Mr.

[Husted's] performance and attitudes as an instructor and Licensee will comply with the findings in a timely and appropriate manner, but in no event would Mr. [Husted] be utilized for any function specified in paragraph 2, above. Prior to the audit Licensee will continue to monitor Mr. [Husted's] performance and assign work consistent with that performance.

3. The Appeal Board also took note of the fact that GPUN had promoted Husted to the position of Supervisor of Non-T,icensed Operator Training. Id. It was this action on the part of the company which prompted the Appeal Board to impose the condition on restart.

4. On September 11, 1984, The Commission took review of "whether 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 individual is not a party to the proceeding and has had no notice of a possible sanction or opportunity to request a hearing." CLI-84-18.

5. The Commission decided to give Husted an opportunity to request a hearing on whether the Appeal Board's condition

[ insofar as the training of non-licensed personnel is concerned should be vacated. CLI-85-2. On March 25, 1985, Husted l

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informed the Commission that he wished to take advantage of the opportunity for hearing afforded him by the Commission.

In addition, Husted requested that the scope of the hearing be expanded to address whether he is barred by concerns about his attitude or integrity from serving as an NRC licensed operator, or a licensed operator instructor or training supervisor. Sept. 6, 1984 Notice of Hearing.

6. The Notice of Hearing set out four issues for hearing, they are as follows:

(1) the alleged solicitation of an answer to an exam question from another operator during the April 1, 1981 NRC written examination; (2) the lack of forthrightness of his testimony

,before the Special Master; (3) his poor attitude toward the hearing on the cheating incidents; and (4) his lack of cooperation with NRC investigators.

Id. at 2. The Commission ordered the NRC Staff to " participate as a full party" and to " ensure that the record is fully developed." Id. at 4. The Commission further ordered that petitions to intervene should be filed within 45 days of the date of the Notice of Hearing. Id,.

7. The Commission app 6inted Administrative Law Judge Morton B. Margulies to preside at the hearing on September 12, 1985, and by order dated December 6, 1985, Judge Margulies J

• ~ a, found that petitioners Three Mile Island Alert, Incorporated (TMIA) and General Public Utilities Nuclear (GPUN) had estab-lished standing to intervene, and ordered them to file contentions. Dec. 6, 1985 Memorandum and Order at 4. Judge Margulies also established February 19, 1986 as the date for an initial prehearing conference in Harrisburg, Pennsylvania.

8. At the initial prehearing conference the parties agreed that the contentions filed by TMIA and GPUN were litigable, both parties were admitted as parties to the hearing. The contentions proposed by TMIA are as follows:

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

(2) Husted should be barred from serving as an NRC-licensed operator or licensed operator instructor or training supervisor by reason of his demonstrated bad attitude and lack of integrity.

GPUN's contention states:

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

Report and Order on Initial Prehearing Conference. The parties agreed upon a discovery schedule and established June 23, 1986 for the start of the hearing. Id.

9. A final prehearing conference was held in Harrisburg, Pennsylvania on May 20, 1986. The parties agreed on a list of factual issues to be litigated, they are as follows:

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

(ii) Did Husted's testimony before the Special Master lack forthrightness?

(iii) Lid Husted have a poor attitude toward the hearing on the cheating incidents?

(iv) Did Husted fail to cooperate with NRC investigators?

(v) What does Husted's performance of his responsi-bilities with GPUN reflect about his attitude and integrity?

(vi) In light of the answers to (i) through (v) , is any remedial action required with respect to Husted?

(vii) If remedial action is required, what is it?

Report and Order on Final Prehearing Conference.

10. The hearing began on June 23, 1986, and concluded on July 1, 1986, there were five days of hearing. At the hearing Judge Margulies added three more issues he ordered the parties to brief, they are as follows:

(1) Did the Appeal Board place an appropriate standard on Husted in regard to his promotion.

And if so, did he fail to meet it?

(2) Assuming that Husted did fail to meet the standard set by the Appeal Board, should he be forever barred from obtaining the position that he held?

(3) What does Husted's appearance and testimony in this hearing demonstrate as to his forthrightness, attitude and integrity?

Tr. 974-975 (Margulies).

II. FINDINGS OF FACT A. Did Husted solicit an answer to an exam question from P (Janes) during the April 1981 NRC examination.

11. On September 25, 1981, William J. Ward, Assistant Director, Office of Investigations, and Peter E. Baci, then Senior Investigator, interviewed David C. Janes, a shift foreman at TMI-1. ff. Tr. 140 attach.

~ ~3 . The interview was part of the second phase of the investigation into cheating at TMI. Janes was interviewed to determine what informa-tion he might have had regarding cheating. Id. at 2. In his testimony before the Special Master, Ward described how he had opened the inter-view with Janes; he said: -

"I recall a generalized discussion explaining to him why we were conducting the investigation and our areas of interest, and telling him what our primary concerns were.

Most people that we interviewed were concerned about how far we were pursuing rumors of -- in other words, what did constitute cheating? If somebody had, as we had earlier, gave as an example exclaimed about the difficulty of the exam aloud, was that cheating? Were we looking for that kind of thing?

I explained no, we were interested in management involve-ment, which is why he (Janes) had some comments regarding management involvement." ff. Tr. 140, attach. 2 at Tr. 25,461 (Ward.)

12. During the interview Janes' demeanor led Ward to believe that Janes believed a solicitation had taken place when Janes was alone in the examination room with Charles Husted during the SRO portion of the April 1981 NRC examination. Id. at 3.

13. Ward and Baci had testified before the Special Master in 1981, as part of a three-member panel. During that appearance, Ward

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0 had revealed for the first time an allegation Janes made while he was being interviewed. Ward described how they had obtained the information from Janes. He said:

"So withinthat framework, by that time we had estab-lished there were only two people in the room, Husted and himself, that it would be worth pursuing that matter a little bit further. And I then said to him the reason why you are so upset about this is it puts you in an awkward position when Husted asked you a question, and he looked startled, and he started to hesitate. And I said something to the effect that we knew he [Husted] had asked the question, and he [P]

said well, he only asked one question ... I was playing out the thing which I assume Ms. Bradford noticed when she looked at the statement that he seemed to be very upset about -- more upset about the situation than a hypothetical situation would warrant. So it was within -

that context to the fore.

that the information about Mr. Husted came We pursued it a bit further. He [P]

related that it was just one attempt. He could not remember specifically what it was, to my recollection.

It was more like what a certain concept was, well, what in the hell does this mean or words to that effect.

And when he [P] refused to answer it, no further questions were asked. That is my recollection of how that element of information came in.

Special Master's Report atS102. During Ward's testimony Baci remained silent.

14. Janes' allegation that Husted had attempted to cheat was not included in the OIE investigation report, but the summary of the Janes interview contained the following statement:

"P expressed anger about the NRC proctor (Bruce Wilson) leaving the examination room unproctored,

. . . P explained that he felt that the absence made him vulnerable to any allegation of cheating as it

' removed a potential witness to his honesty, and added that it also put him in the uncomfortable position where he could be solicited by other examinees."

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15. At the hearing before the Special Master, Janes denied having told the investigators that Husted had asked him a question during the exam. SMR at 104. He was questioned at length about

, when he became uncomfortable about being put in a position where that could occur. Janes never denied that he had been uncom-fortable, however he maintained that the discomfort did not occur until the investigation into cheating began. SMR atF107.

16. The Special Master did not believe Janes' explanation.

He pointed out that "one does not become uncomfortable retro-actively." SMR at 9108. The Special Master considered Janes' demeanor during his appearance and his incredible testimony on other issues. SMR at% 107. Taking these factors into con-sideration, the Special Master concluded that Janes had made the allegation against Husted. SMR at 9108.

17. Ward and Baci were called to testify at the Husted hearing. Ward reaffirmed his earlier testimony, Tr. 185 (Ward),

and was asked to describe again his impression of Janes' demeanor at the September 25, 1981 interview. Ward stated that Janes had been "non reactive" during the earlier portion of the inter-view. Ward described this as a " flat effect." Tr. 144-145 (Ward).

As the interview moved on to the setting where the examination took place, Janes became a little more agitated and emotional.

Janes expressed a sense of " outrage" about the conditions during the exam. Id. It was this contrast of reaction to the examina-tion setting as compared to the rest of the interview that led Ward to believe a solicitation had taken place. Ward said that l

Janes did not appear to be nervous or confused during the intere view, and Ward stated that he does not know now and did not know then what the question was that Husted asked Janes. Tr. 189 (Ward).

He further. stated, "I know I testified accurately in 1981. I am stating 1981 was as accurate a testimony as I could give." Tr.

185 (Ward). During his earlier appearance, Ward had testified that his impression of the question Husted asked Janes was that it was a " concept or formula," "what in the hell does this mean t

or words to that effect," which would have been useful in answer-ing an examination question. ff. Tr. 140 attach 2 at Tr. 25,463 (Ward). Ward said he drew the inference that it was definitely off the exam. It was related to the exam, and that what P said was true. SMR at9 102. At the restart hearing Ward character-ized the request as a " solicitation." He had testified at the restart proceeding that he was sure that Janes felt he had been solicited. Whrd said although he is now less certain of that fact, his impression closer to the event is probably more accu-rate. He ssid he had not changed his mind as to the truthfulness of Janes' statement during the interview in 1981. Tr. 150 (Ward).

18. Ward was asked why the allegation was not included in the investigative report. He said before he wrote the summary of the Janes' interview, he discussed the issue with Mr. Stello who was then Director of OIE. Together they decided that the incident was no more than an attempt to cheat and as such did not warrant further investigative effort. Tr.' 152 (Ward). Ward reaffirmed this testimony at the Husted hearing. He said that the decision to exclude the allegation from the report was his, it was "more of an administerial f allout from the discussion I had with him (Stello)." Tr. 180 (Ward).

I .- -- . - . .- - . - _ _ _ _ _ _ -_.

. 19. Janes testified at the Husted hearing. Janes reaffirmed the testimony he had given before the Special Master. ff. Tr.

278 at 3. He said that it is possible that he was confused about the identity of the lead interviewer. Id. He also stated that since he testified in 1981 he had recalled that he told the investigators that he had heard " groans and exclamations during one of the exams," he is not sure which exam. Tr. 317 (Janes).

He recalled the exclamation as."what the hell is that" or words to that effect. Tr. 312-313 (Janes) .

20. During the September 25 interview Janes now recalls being asked a hypothetical question, which was,what would he have done if someone had asked him a question during the April 1981 exam. He responded that he would have refused to answer i such a question. Tr. 283 (Janes).

21. In 1981, Janes had testified that during his interview, Ward interrupted Baci's questioning to state that Husted had solicited help. Before Janes could respond to Ward's statement, .

i Baci posed another question. Then Ward said that "he was not '

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interested in that particular fact," and Janes let Ward's i

suggestion slide. SMR att 104. 5

22. Having read Baci's testimony, Janes now believes that  !

e he somehow confused the two investigators in his mind and he now understands taht it was Ward who asked the majority of the  ;

t questions and Baci who interrupted with the statement. Tr. 290 (Janes) . Ward and Baci also said that the sequence of questions and answers concerning Husted's solicitation of Janes was entirely  !

between Ward and Janes. Tr. 191 (Ward); Tr. 243 (Baci). Bo th I 1

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- a, Ward and Baci deny having posed a hypothetical question regarding the possibility of cheating by Husted. Ward said:

"The question I posed to him was not a hypothetical.

My intent in asking the question the way I did was to get him to believe that he had independent infor-mation that the question was asked. "

Tr. 201 (Ward).

23. Ward had no recollection of Janes telling him about

" groans or exclamations" during the exam. Tr. 200 (Ward). And in 1981 Ward had testified they had specifically explained to Janes that they were interested primarily in management involve-

. ment and were not looking for information about exclamations.

ff. Tr. 140, attach 2 at 25,461 (Ward).

24. Furthermore, Janes' assertion that one of the investi-gators told him that they knew that Husted had cheated and then immediately said that he was not interested in that fact, is not credible.

It was not credible in 1981 and it his not become more credible since then.

, 25. Baci, who appeared with Ward in 1981, but remained silent during Ward's testimony about the Janes interview, also testified at the Husted hearing. He said that Janes clearly acknowledged that Husted had asked him a question. He was not sure of the nature of the question but a question was definitely asked. ff. Tr. 214 at 6 (Baci). Baci confirmed Ward's opinion that Janes was being truthful when he made the allegation.

26. Baci said that neither he nor Ward told Janes that they were not interested in Husted's attempt to cheat. Tr. 226 (Baci) .

He said he agreed with Ward's testimony before the Special Master and that if Ward said in 1981 that Husted " solicited" Janes, then

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he (Baci) was comfortable with it. Tr. 270-272 (Baci) . He also testified that if he had disagreed with Ward in 1981, he would have made that disagreement known at the time. Tr. 274 (Baci).

27. Despite the affirmation of their earlier testimony, both Ward and Baci now feel that the question asked Janes by Husted was probably a rhetorical one. Ward then said that his earlier testimony was probably most accurate, he said "at this point it is not crystal clear to me." Tr. 150 (Ward). Baci did not disagree with Ward in 1981, he said that he would have spoken out if he had disagreed, Tr. 274 (Baci) he remained silent. Ward's and Baci's equivocation about their earlier testimony must be examined in light of their obvious interest in avoiding reprimand for omitting the Janes /Husted episode from the OIE investigative report. When they appeared before the Special Master, they had no reason to believe that they might be censured for the omission.

Ward had discussed the incident with his supervisor, Stello, who agreed with Ward that no further investigative effort was war-wanted. At the time that he gave his testimony, Ward had no reason to believe that the Special Master or the ASLB would view the omission differently from his supervisor. Ward's 1981 testi-mony was clear and unequivocal and, as the Special Master noted,

" entirely forthright." SMR atT lll.

28. Mr. Husted's assertion that he did not read Ward's  !

testimony until 1986 contradicts his testimony that news of Ward's j

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testimony " changed his apprehension to outright fear." ff. Tr. f t

330 at 22. Furthermore, he testified that he never confronted l Janes with the reported allegation. Tr. 332 (Husted). It simply

.' is not credible that an innocent man accused of cheating would not read the report of the allegation or confront the person said to have made the allegation.

29. Furthermore, Husted's so-called independent recollection of the exclamation, the wording of which is identical to the one about which Ward testified in 1981, is not credible.

30. The most recent evidence continues to support the

.Special Master's findings which were made not so much on direct evidence, but on credibility judgments. Those judgments are still valid today, based on this record and Husted's continued lack of credibility.

B. Husted's lack of cooperation with the NRC investigators.

31. Husted was interviewed by Keith Christopher and Raymond H.

Smith on July 29, 1981 in connection with the cheating at TMI.

At the outset of the interview Husted was told that the purpose of the interview was to gain information regarding cheating on the April.1981 NRC examination. During his interview Husted refused to answer two questions put to him by the investigators.

32. Paul G. Christman, Manager of Plant Administration, TMI-1, accompanied Husted to the interview. Christman. testified that he has no independent memory of the interview. Tr. 355 (Christman). His notes of the interview confirm the interviewers' assertion that Husted refused to answer two questions concerning cheating or rumors of cheating on the April 1981 examination.

ff. Tr. 330 at 7 and 8. Christman's notes, however, state that

e Husted did answer the' questions when they were restated. However, the notes show that Husted did not answer with regard to his knowledge of other operators who might have cheated. Husted Ex.

1 at 3.

33. The first question that Husted refused to answer con-cerned his knowledge of unauthorized materials being brought into the examination room. The interviewers summarized Husted's response as follows: "For unknown reasons, he declined to respond to this question or explain his reluctance to discuss this issue."

Husted Ex. 26 at 39. However, Christman's notes indicate that the question was restated and Husted then responded "that he could only answer for himself and that he did not bring such articles to the examinations." Husted Ex. 1 at 3.

34. Christman said he was surprised when Husted refused to answer the questions. He said he would have expected a different response. Tr. 357 (Chris tman) . But overall he thought Husted was cooperative during the interview. His impression was based on the fact that Husted's refusal to answer did not appear to disrupt the interview. Tr. 357, 359, 361-63 (Chris tman) .

35. The second question that Husted refused to answer involved his knowledge of rumors of cheating on the examination. The NRC summary records the incident in the following way:

"He was also asked whether any rumors or comments regarding cheating on the exams had come to his attention. He acknowledged d3at he had heard rumors to this effect which he labeled as ' unconfirmed hearsay.' However, DD refused to reveal any specifics of the rumors he had heard or to identify the indi-viduals (if named) who were allegedly implicated.

Upon further attempted questioning, DD declared he could not recall anything concerning what he had heard."

Husted Ex. 26 at 39.

36. Christman's account as recorded in his notes differs significantly from the OIE version. The' notes state, "He refused to answer a question about whether he had heard any rumors or gossip in regards to cheating on the April examinations. When he was asked this question again, he answered that he cannot recall having heard any rumors or gossip in regard to cheating on the April examinations." Husted Ex. 1 at 3. Christman and Husted did not discuss the interview when it concluded, Tr. 366 (Christman) he wrote his report and sent it to Wilson. Tr. 370 (Chris tman) . He did not discuss his notes with anyone from the company. Tr. 363 (Christman). Christman does not recall Wilson contacting him after he supplied him wibh his report 6f the interview. Tr. 370 (Chris tman) . He told Husted that he "did OK" in the interview. Husted Ex. 12,

37. Christman did not use the term " unconfirmed hearsay" in his notes. He said that he " captured everything" in his notes, but admitted that he did not record the interview verbatim.

Tr. 367 (Christman). Of course, " unconfirmed hearsay" is another way of stating " rumor" or " gossip." Christman did use those words in his notes. Husted Ex. 1 at 3. Christman testified i that one of the purposes of his presence at the interview was  ;

to " learn about the subject under investigation." Tr. 365 r

(Christman) . The investigators, on the other hand, knew what kind of information they were looking for, it is unlikely that '

they would have attributed the phrase to Husted had he not used it. They had no motive to do so. Clearly Husted did use the

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, term " unconfirmed hearsay" in the manner that the summary of the interview reported that he used it.

38. Husted was reinterviewed on September 18, 1981. The purpose of this second interview was to gain an understanding of what Husted had meant when he used the term " unconfirmed hearsay."

Richard A. Matakas, an NRC investigator, was contacted by Mr.

Baci and told that he was to reinterview Husted. Matakas believes that this request was made by telephone. Tr. 436-437 (Matakas) . He was told that during an earlier interview Husted was reluctant to answer certain questions about operator cheating.

Id. He was also told that Husted had termed this information

" unconfirmed hearsay." Id. Matakas said that he was instructed to find out what Husted had meant by the phrase. Matakas said Baci either read the pertinent portion of page 39 to him or paraphrased it. Id_.

39. At the beginning of the interview Matakas told Husted that he was being reinterviewed based on a statement he had made during his earlier interview regarding " unconfirmed hearsay."

Tr. 409 (Matakas). Matakas made notes of the interview. The notes, for the most part, record Husted's responses but do not record the questions which elicited the responses. ff. Tr. 402, attach. 4. Matakas said from the neat, legible way in which the notes were written he is sure that he read the responses back to Husted once he had recorded them. Tr. 412 (Matakas). Husted told Matakas that within a week or two after the exam, he was passing the water cooler and he heard part of a conversation,

, individunlo whom ho was untble to idsntify, esy "thry ecw comeona passing papers in the exam." ff. Tr. 402, attach. 4. A comment in the margin of Matakas' notes beside this statement reads, "This is ' unconfirmed hearsay' statement." Id.. at 1. Matakas cannot recall if Husted was uncooperative at his second interview.

Tr. 421 (Matakas) . However, the way in which the summary is written leads the reader to believe that he was uncooperative.

, 4,0 . The two OIE reports, the testimony of the NRC.invehtikt gators and Husted's testimony and demeanor during his 1981 appear-ance convinced the Special Master that Husted had refused to cooperate with an NRC investigation. SMR at 109.

41. Husted has denied that he was uncooperative during his i- w.

He said that he had at first refused to answer the 3stion because it was too broad. He said he "was reluctant t

a blanket answer that might be thought to cover every exi in I had participated in since joining the Company."

ff. Tr. 330 at 7. He said that after the question was rephrased, he answered it. Husted was not sure whether he asked for clarifi-cation of the question or i there was a discussion about the .

question. Tr. 504-505 (Husted) .

Christman's notes do not indicate a discussion or clarifying questions. Husted Ex. 1.

Christman testified that one of the purposes of his presence at the interview was to protect Husted's rights. He said he would have accomplished this by asking for clarification during the interview if he had thought something was " amiss." Tr. 365 (Christman). Christman testified that he did not speak during the interview, and that the fact that his notes do not reflect that Husted engaged the interviewers in a discussion of the questions, probably means that the discussions did not take place.

Tr. 378 (Chris tman) . The Christman report does state that Husted answered the question, "did anyone bring unauthorized materials into either examination," by stating that he himself did not bring in such materials. Husted Ex. I at 3. His answer as recorded by Christman was not fully responsive to the question, and it is clear from the way the investigators wrote the summary of the interview that the NRC investigators believed that Husted was not being cooperative on this issue. Husted Ex. 26 at 39.

42. The OIE report was admitted into evidence before the Special Master.

Attorneys for GPU and the NRC had an opportunity to question Ward and Baci who were the principal investigators for the report, close to the time that it was written. No ambiguity about the report was uncovered at the proceeding before the Special Master.

43. Hurted stated in his testimony that he " recalls being displeased" with the question regarding his knowledge of rumors or comments about cheating." ff. Tr. 330 at 8. He denied with-holding information, (Tr. 553 (Husted), and denied that he had ever indicated that he had heard rumors of cheating. The OI summary reports that Husted used the term " unconfirmed hearsay." Husted, however, said in prefiled testimony that he never used the phrase during the first interview. ff. Tr. 330 at 10. He said that until very recently, when he looked up the word " rumor" in the dicti6 nary, he did not know that " unconfirmed hearsay" was a definition of the word " rumor." Tr. 429 (Husted). This is not believable, the words are self-exclanatory, anyone of marginal intelligence would know that the words mean rumor or gossip.

44. In the summary of Husted's first interview, the phrase " unconfirmed hearsay" appears enclosed in quotation marks.

Husted Ex. 26 at 39. When Keith Christopher testified at the Husted hearing, he said that he normally placed quotation marks around key quotes, and had no reason to believe that he deviated from his usual practice during the Husted interview. Tr. 394 (Christopher). Christopher had no motive to incorrectly attribute a statement to Husted.

45. On September 18, 1981, Husted was reinterviewed by Richard Matakas. Matakas was instructed to ask Husted what he meant by the term " unconfirmed hearsay." Matakas said he does not recall asking Husted a specific question, "did he use the term?

but the whole purpose of the interview was to find out what he meant by it." Id,. at 430 (Matakas) .

46. Husted told Matakas that sometime within a week or two after the April examination, he passed some individuals in the hallway of the training department and he had heard someone say they saw someone passing papers in the exam. ff. Tr. 402 attach.

4. Husted said that he did not know who the individuals were talking about, nor did he recall the identity of the person who made the comment. Id. He said he did not know if the comment was directed at him. Id.

47. Matakas asked Husted to characterize the statement he had overheard. Husted said, "It was one of those type statements that someone makes when he was mad and says to the first person he sees." Matakas noted in the margin of his notes that the

" passing papers in the exam" comment was the " unconfirmed hearsay" statement referenced at page 39 of the OIE report. Id.

48. When Husted appeared byfore the Special Master in 1981, he testified that the " unconfirmed hearsay" and the " passing papers in the exam" comment were the same incident. Staff Ex. 2 at Tr.

26,928-929 (Husted). He was asked why he did not provide the information to the investigators during his first interview. He responded:

O In the last paragraph on eage 39 [the report of the first interview), it states that you refused to reveal any specifics of the rumors you heard or identify the individuals who were allegedly implicated? Why did you refuse to answer that question?

A I do not know. Stupid, I think.

Q You were being interrogated by NRC investigators regarding cheating at TMI. You are a member of the training department. You ahve stated it is part of your responsibilities to help prevent cheating at TMI.

And you are telling me that you refused to answer a question regarding rumors of cheating at TMI because you were stupid?

A I did not like the way the investigation was conducted.

I did not like the questions that were being asked.

They were so broad and vague that I could not give a specific answer. And I think out of lack of anything other to say, I just told them that I did not want to answer the question.

Staff Ex. 2 at Tr. 26,928-929 (Adler, Husted).

i In further explanation of why he did not provide the information during his first interview he said:

"The words ' passing papers' which I remember vaguely having heard to me do not constitute evidence of cheating on an exam in themselves. They may have been talking about something totally unrelated to an exam. It was a conversation which I overheard in passing from my office to the men's room and I didn't feel that it was pertinent to any investi-gation into alleged cheating on an exam."

Id. at Tr. 26,931 (Hus ted) , and:

1 "I at no time thought that hearing part of a conver-sation, which I vaguely recalled hearing two words said, could in any wa cheating on an exam. y aid in any investigation into Otherwise I would have told them."

Id. at Tr. 26,932 (Husted.

49. With these statements, Husted has clearly explained that he did not provide the information to the investigators during the first interview, because in his judgment the information was not relevant and becuase he did not like the way the investigation was conducted.

50. During the Husted hearing, Husted was given an oppor-tunity to review the record of his appearance at the restart hearing and point out any corrections he would make to that record.

He pointed to line 5 of Tr. 26,929, as one example of how the record should be changed to reflect what he really meant to say. He said that he is sure that other changes should be made to his testimony to remove doubts about his integrity. He also said that during the restart hearing he had mistakenly agreed that the " passing papers" and the " unconfirmed hearsay" were the same incident. Husted went on to say that he corrected the -

mistake on 26,930 and 26,931 of the transcript. Husted is wrong when he says that he retracted his earlier testimony concerning the " passing papers" and the " unconfirmed hearsay" at 26,930, in fact, the cited pages contain statements which confirm the earlier testimony.

51. At the end of the interview Matakas asked Husted why he did not provide this information to the investigators during the earlier interview. Husted told him that the questions he was asked were too broad. This is the explanation he has

-~~. .

repeatedly given, it is the explanation he gave to the Special Master and repeated.in his most recent testimony. The statement is unsupported by bhristman'who said that he would have recorded it if it had occurred. The' absenceof any record of such an exchange in Christman's notes means' thaO it did not take place and Husted's explanation is a fabrication.

52. During the'most recent hearing, Husted expanded this explanation. He said that shortly before his first interview he recalled a conversation he had had with a Unit 2 shift foreman who told him that the NRC investigators asked broad, often trick questions. Tr. 513 (Husted). At the hearing it was pointed out to Husted that the investigators had told him at the beginning of ,

v the interview that their questions would focus on the April 1981 ,

NRC examinations. Husted agreed that this was true. Tr. 565 I

(Husted). He was then asked why, since he knew tha't the inves-(

tigators were interested in cheating on the April 1981 exami-  !

s I:

nations, he had interpreted their questions to mean every exam t i

he had ever taken at TMI. Tr. 579 (Bradford). Husted gave  !

j evasive answers to this question, (Tr. 580-581 (Husted); he did ,

i l not provide a satisfactory response to the question. He repeated i

instead what he had told the Special Master in 1981, that he did l

not like the investigators' questions. He said "if the question had been asked in such a broad sense, and the investigation centered solely around one single exam, then there should be no  !

problem with the investigators specifying that the question is i

related to simply thic exam." Tr. 580 (Husted).

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53. There is other evidence in the record which demonstrates that the " unconfirmed hearsay" refers to the " passing papers in the exam," and that Husted deliberately withheld information during his first interview. On October 5, 1981, Husted met with John G. Herbein for about two hours. Husted Ex. 11 at 2. Herbein testified that he was carrying out a directive from Robert C.

Arnold, then Vice President, General Public Utilities Nuclear, that he meet with all instructors to make sure that they under-stood and agreed with the company's policy on cheating. Tr.

911-912 (Herbein) . During this meeting the issue of Husted's lack of cooperation with the NRC investigators was raised, Husted expressed a number of concerns to Herbein. Husted Ex. 11 at 2-3.

Husted told Herbein that he was not sure that he had reported the comment that he had overheard in the hallway to Matakas. Id.

He wanted Wilson to call Matakas to confirm that he had passed on the information. Id,. Wilson said that it appeared to be a matter of great concern to Husted that the NRC have this information.

Tr. 474 (Wilson). Wilson made notes of the conversation. Those notes state:

Past water fountain, heard somebody say about somebody passed papers to somebody (O & W) passing papers back and forth Not exact who they were talking about at water fountain, What he heard was true Didn't bother to look to see who it was, it could have been O & W ctanding there.

2 words - " Passing papers" at water fountain Who said it - doesn't recall who said it. Before report, but within week and half of exams. May have been.

walking past water fountain

. . i Had he previously reported to  !

anyone in Company: today is first time he told anybody in Company, 2nd interview if anyone told him any rumors -- NO.

Explained to them heard something, but not sure if they followed it up.

Husted Ex. 2.

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54. The first nine lines of the notes appear to be state- l j

ments from Husted to Wilson describing the incident. The next  !

I eleven lines are in a question-and-answer format. The format is f distinctly different from that used in the earlier portion of the document. They-appear to be queries from Wilson to Husted regarding the statements in the first nine lines and Husted's responses to the queries. The last two entriss appear to be  !

notes regarding two phone conversations Wilson noted the follow-ing day. .

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55. Wilson testified that either Husted mentioned O & W at ,

I the beginning of the conversation or he inserted it to confirm whether or not Husted heard their names associated with the comment. Tr. 459-460 (Wilson). By October 5, 1981, it was general knowledge that O & W had cheated by passing papers back and forth. The statement, "what he heard was true" confirms that  !

Husted did hear O & W's names connected to the " passing papers" comment. Wilson said that the "what he heard was true" note I

was most likely his way of cryptically recording a question he had asked Husted, and that Husted's response was, "Didn't bother to look back to see who it was, it could have been O & W standing th ere . " Tr. 461-462 (Wilson). Wilson's interpretation does not l

t f

make sense, even assuming that the "what he heard was true" note wa.7 a question, the following entry would not be responsive to it.

Clearly, the first note is not a question, it is a statement and it refers to the entries which precede it. Wilson's explanation does not make sense and it is not credible.

56. Furthermore, the second group of entriss,: which do appear to be questions and answers, are written in a distinctly different format from the entries on the first nine lines of the page. Each question, no matter how cryptically worded, is connected to its response by a hyphen. Husted Ex. 2.

57. The following day, according to Wilson's notes, Husted told Wilson that he was positive he had told Matakas about the incident during his second interview. He said he did not want to call the NRC or have anyone from the company call them. Id.

58. There is additional evidence in this record which supports the Special Master's conclusion that Husted failed to cooperate with the investigators.

59. Samuel L. Newton, former Group Supervisor, Licensed Operator Training, testified at the Husted hearing. He said that after he read the August 11 OIE report, he spoke with Husted. He believes he asked him why, if he had heard rumors, he did not give that information to the investigators. Tr. 886 (Newton). Newton said that Husted might have said he had not heard any ruraors, or if he had, he was reluctant to tell the investigators about the rumors he had heard. Tr. 889 (Newton). Newton also recalls Husted telling him that during the first interview, he was asked if he had heard rumors about passing papers. Tr. 886 (Newton). Newton said that I

< thic wng his bact end only recollection of the convarantien hs

,- hrd with Husted. ff. Tr. 836 at S. Newton went on to say that  ;

as a result of the conversation he was not concerned that Husted had withheld infonmation during his first interview. Id. at 6. I However, Newton's testimony was biased and unreliable. See para. 93 below.

60. Newton's memory of his conversation with Husted regarding his first interview supports the fact that Husted did knowingly withhold pertinent information from the investigators. The reason he gave Newton for withholding the information is not an acceptable one. Husted should not have taken it upon himself to decide what information was relevant to the investigation, and based on that decision, withhold certain information. It is the responsibility of the OIE investigators to gather infor-mation to further their understanding of the cheating at TMI.

It was Husted's responsibility to provide all information that he possessed, regardless of his view of its relevance, or his concern about protecting TMI personnel. Husted's failure to provide information was improper.

61. Newton also discussed Husted's October 1981 deposition.

During that deposition Husted was uncooperative and gave responses that Newton described as " flip" and Husted labeled " cute."

Tr. 891 (Newton). Newton told Long that Husted said he had " lost his temper" during the deposition and "that he felt that one of the intervenor'.s attorneys had deliberately tried to irritate him."

Husted Ex. 12 at 1; ff. Tr. 836 at 6. Newton counseled Husted about the need to stay calm and not let anyone irritate him "so that his answers would be thoughtful and professional." He said that Husted " appeared to understand and be receptive" to his comments. Id. at 6-7.

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62. Newton was wrong about Husted having understood and accepted his counseling. When Husted appeared at the hearing before the Special Master, he exhibited the same " flippant" behavior that he had displayed during the deposition.

63. Newton was wrong when his concerns about Husted's attitude were allayed and he was wrong when he felt satisfied about Husted not having withheld information.

64. The evidence demonstrates that Husted not only withheld information about his knowledge of cheating at TMI during the first interview, but that he continued to withhold information concerning the identity of the individuals who made the comment he overheard, as well as the identity of the persons who were the subject of the discussion.

65. Husted told Matakas that the comment he overheard was "the type of comment someone makes when they are mad and makes to the first person they see." ff. Tr. 402, attach. 4 at 1. This statement demonstrates that Husted heard more than two words. He could not have formed an opinion as to the individual's demeanor on the basis of having heard two words, " passing papers." He also told Matakas " don't even know if comment was directed at me." Id. He did not say that the comment was not directed at him. These two statements, when taken together, demonstrate that the individuals who made the comment were angry and told him why they were angry.

66. The information Husted provided to Wilson is further proof that the rumor he had heard concerned O and W, and that by the time he spoke with Matakas, he knew that the rumor was

true. It was in Husted's interest to tell Wilson that he was not exactly sure who they were talking about at the water cooler.

During his conversation with Herbein, which had prompted the telephone call to Wilson, Husted had expressed his concern about

" criminal penalties." Husted Ex. 11 at 3. Husted was asked about this comment, he said he has very little recollection of his conversation with Herbein, which is discussed in Husted Exhibit 11. Tr. 593 (Husted). He speculated that the note reflected his concern about O and W who were the only people he knew who were in j eopardy. Tr. 557; 595 (Husted). Of course, O and W were not the only individuals in jeopardy, by withholding information from investigators during an ongoing investigation, Husted had placed himself in jeopardy.

67. It is clear from this testimony that Husted withheld information from the investigators during the first interview because he did not like the way that the investigation was conducted and because he had decided on his own that the information was not relevant.

68. Husted's evasiveness further undermined his credi-bility. He plainly refused to answer questions put to him during an investigation.

69. Husted was also asked about his apprehension concerning the investigators' " trick questions," he had testified that after recalling his conversation with the Unit 2 shift foreman, he had become apprehensive, and that this apprehension created the appearance of uncooperativeness during the interview. Tr.

513 (Husted). Christman's testimony supported Husted's assertion t

that he was apprehensive about the interview. Christman said that he did not know why Husted was apprehensive but it was a

partial explanation for the tension he observed during the 4 interview. Tr. 355 (Christman). Although one of the reasons for Christman's presence was to protect Husted, Husted did not tell Christman that his apprehension was caused in part by his l l

concern that he might be asked broad, trick questions by the investigators during the interview. Tr. 563-564 (Husted).

70. At the hearing Husted was asked what motive he thought the NRC investigators would have to " trick" him with their questions. He said he thought their motive was to " ferret out the truth." Tr. 566 (Husted). Only a man with something to hide would be concerned about questions designed to " ferret out the truth."

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C. What does Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity?

71. Although Husted's present performance of his job respon-sibilities was not set out in the Notice of Hearing, it has become an issue at the hearing. Husted entered numerous evaluations of Husted's job performance and four witnesses testified as to his job-related competence.

72. Nelson D. Brown, formerly Supervisor, Licensed Operator Training, testified with regard to his evaluations of Husted.

Brown was Husted's supervisor from September 1980 until Husted's promotion in March 1983. ff. Tr. 697 at 2. In his capacity as supervisor, Brown prepared various evaluations of Husted's per-formance. He testified that it was his practice to prepare a "draf t" evaluation prior to producing the final evaluation.

Tr. 716 (Brown). In addition, Brown gave the employee an opportunity to submit a self evaluation. Tr. 720 (Brown). He then compared the two evaluations and arrived at a final evaluation.

73. In October of 1981, Brown prepared a draft evaluation of Husted. On the second page of the draft evaluation Brown listed eighteen comments which reflect the eighteen categories listed on the face of the document. Those comments follow:

1. Wants to work with others does not accept

" constructive" criticism well

2. Lacks depth in interest in assignments -

can tell which jobs he likes

3. Generally good but assignment interest shows

4. Not very tactful when dealing with others in J' or out of the department

5. Demonstrated creativity in setting up Turb.

Gen. Course

6. Makes it through "hard" times - tends to get sidetracked

7. Gets started but also gets sidetracked (see footnote)

8. Demonstrates interest - taking outside courses plus NRC prep.

9. Productivity lacks because of being " sidetracked" (NRC material, other)

10. knows job requirements and could exceed if not for adverse condition - has potential

11. Demonstrates analytical ability -

12.~Gets " sidetracked" on assignments is his weakness

13. Assembled material good

14. Shows resistance to change and unusual assignments

15. does not develope positive attitude - other items here okay

16. Has difficulty in reacting positively and meeting schedules

17. With "hard" times schedule slip OVERALL - Chuck is a competent instructor and could be an excellent instructor. Noted weaknesses are in the-areas of accepting criticism and sticking to the job even if you don't like it or in adverse conditions.

Visitors tend to distract and effect job performance Husted Ex. 3 at 2.

74. Many of the comments in the draft evaluation are critical of Husted's performance. They portray Husted as being unable to develop a positive attitude in his subordinates. _I_d.

75.

Brown testified the comments reflect his evaluation of a one-day or " snapshot" event. Tr. 708; 716 (Brown). This testi-mony is not credible and it is at odds with the content ---

of the comments, for example, Items No.:

i

5. Demonstrated creativity in setting up Turb.  !

Gen. Course i

14. Shows resistance to change and unusual i assignments  ;

Justed Ex."3 at 2. It is not' credible that Brown made these observations based on a one-day, " snapshot" event.  !

1

. 76. A rsview of Hueted's p;rformcnce in the hearing process adequately demonstrates that Brown's so-called " snapshot" evaluation was, in fact, a well-considered opinion based upon observation of Husted over a period of time.

77. Husted, by his own admission, did not like the questions posed by the NRC investigators, and for that reason he refused to answer two questions. He testified totthat fact in 1981 and reaffirmed this position in the current proceeding. Tr. 580.

(Husted) . During the October 1981 deposition Husted told the intervenors that he thought their questions were " ridiculous" and he refused to answer until the question was rephrased. Tr. 620 i

(Husted). At the restart hearing he said he felt attacked and chastised by counsel during cross-examination, he gave flippant responses. These examples of Husted's arrogance support Brown's evaluation that Husted "does not accept ' constructive' criticism well."

78. Newton testified that he did not agree with the comments Brown made in the 1981 draft evaluation. He felt that the criticism was not always constructive. He said that Husted did not respond to " destructive criticism" in a " happy fashion."

Tr. 894-895 (Newton) . Mr. Newton was Brown's immediate supervisor, he had recommended Brown for promotion in 1980. Tr. 880 (Newton) .

In May of 1982 Newton told Robert Long, Vice President for Nuclear Assurance for GPUN, that he felt that Brown " lacks supervisory skills." Husted Ex. 12 at 2. He explained that difficulties sometimes arise when one individual from a group of peers is chosen as the supervisor. Tr. 882 (Newton) . Newton said Brown's subordinates adjusted to his promotion slowly, he could not put 4

a date on it, "it was a gradual maturing process." Tr. 883 (Newton).

, He also told Long that "Husted and Toole have never gotten along,"

(Ronald J. Toole is Operations and Maintenance Director of TMI-1) and " Brown and Husted also have trouble interacting." Husted Ex.

12 at 1 and 2. Brown was Husted's immediate supervisor from September 1980 until March 1983, and Newton testified that Brown and Husted interacted on a daily basis, ff. Tr. 836 at 8.

79. Newton testified that Husted is " blunt," it was the explanation Newton offered for Husted's poor relationship with

'Toole. Tr. 881 (Newton). It would appear from the manner in

which the summary of Husted's July 1981 interview was written, that Husted was not " tactful" With the OIE investigators. And he was not " tactful" during the October 1981 deposition. Tr. 620 (Husted).

Item No. 4 of Brown's draft evaluation states "Not very tactful when dealing with others in or out of department." This obser-vation is well founded and indicates other problems.

80. Brown wrote an OVERALL evaluative comment in the "draf t" evaluation. The OVERALL comment takes into account Brown's I

concern about Husted's resistance to constructive criticism t

and his tendency to get " sidetracked." Husted Ex. 3 at 2. However, the summary does not reflect Brown's opinion that Husted "does not develope positive attitude: in his subordinates. In Husted's case, his subordinates would be the students he instructs. In fact, Brown states Husted "is a competent instructor and could be an excellent instructor." These statements are contradictory. Husted Ex. 3 at 2.

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81. The evaluationoforms do not contain a category that would allow the supervisor to evaluate an instructor's ability to communicate a sense of responsibility to his students. The only evidence of Hdsted's competence in that regard is contained in Item No. 15 of the draft evaluation completed by Brown.

Husted Ex. 3 at 2.

82. Brown said that the draft evaluation is reflected in the final 1981 evaluation. Tr. 709 (Brown) . However, none of the concerns Brown expressed about Husted's performance in the draft evaluation appear in the final evaluation. Husted Ex. 4.

83. Another evaluation of Husted was prepared in July 1982.

Brown signed this document as though he himself has performed the evaluation. Husted Ex. 16. He testified th 2 although he signed it as though he himself had prepared it, it was Newton who performed this evaluation of Husted, Tr. 713-714 (Brown) but Newton testified that it was Brown who interacted with Husted on a day-to-day basis and was in a better position to observe and evaluate Husted. Both Brown and Newton say they are unable to remember why Newton completed the evaluation instead of Brown.

ff. Tr. 697 at 14; ff. Tr. 836 at 9. The evaluative comments describe Husted as " extremely diligent and proffessional." It is a very favorable evaluation. Husted Ex. 6.

84. The company had switched to a new evaluation form by the time the 1982 annual evaluation was due. Husted Exhibits 5 and 6 are examples of the new evaluative format. The new F

evaluation form is more detailed than the one which preceded it.

The rating system indicates a range of 1 to 6 with 6 being the upper end of the scale.

Brown testified that the system had been changed such that 5 is now the highest mark attainable but the evaluation form was not changed. Tr. 723.

On the new form there is a category entitled Special Assignments; the entry "ASLB hearings" appears at Item 1 of this category in both Husted Exhibits 5 and 6.

In both cases Husted has been marked 4 on this category, 4 is an above-average mark. At the hearing Brown explained the special assignment "ASLB hearings" as follows:

(T)he ASLB hearing reflected in Exhibit 5, which dealt with the November 1981 to 1982 time frame, and the ASLB hearings reflected in Exhibit 6, which went from November of 1982 to March of 1983, reflected the continuing support that, as a supervisor I was looking for, to show that my employee was, in fact, participating with the nuclear regulatory process.

As we are looking at with this comment of ASLB hearings to show that there was satisfactory response in that area.

It was an accountability that, as I recall, that I had imposed cn myself, that it was imposed on the employees working for me and it was an area that all supervisors were evaluating to insure that everyone, not just Mr. Husted or myself, that we were all giving the nuclear regulatory process the appropriate attention.

Tr. 723-724 (Brown).

Brown had explained the special assignment in response to an interrogatory, in that explanation he said:

". . . this entry was made because members of the training department, including Mr. Husted, were having to spend considerable time reorganizing and refiling large quantities of training documents that had been requested by and produced to parties to the TMI restart proceeding."

Tr. 725 (Brown).

85. Brown has said that there is no inconsistency between the two responses. The two statements are inconsistent 7 They can only be seen as consistent if one were to believe " participating with the nuclear regulatory process" and giving that process "the appropriate attention" involved no more than the collection of documents for a hearing. This view of his job responsibility make it appear that Husted was little more than a clerk.

86. Newton was also asked to explain the "ASLB hearing" category.

He said that an " assignment needed to be something which occupied a significant portion of the individual's time" in order to be listed as a special assignment. The most time consuming activity was the collection of documents in support of the restart hearings. Newton said that there was a respite in this activity "during part of '82 and

'83." Tr. 900-901 (Newton).

87. The explanation offered by Newton and Brown does not explain the "ASLB hearing" entry in Husted Exhibit 6, which covered the time period November 1982 to March 1983, a time in which, according to Newton, there was a " respite" from the need to assemble documents. .

88.

Brown was asked if his evaluations took Husted's conduct in the restart proceeding into account. He said he was  ;

not able to evaluate Husted's conduct at the hearing because he was not present "to actually monitor and supervise what was actually going on." Tr. 712 (Brown). Had he been able to I  ;

j  :

(' attend the hearing, he would have made it part of his evaluation.

He said had he used the Special Master's Report as a basis for an evaluation of Husted's performance in the restart proceeding, he would not have entered that evaluation in the "ASLB hearing" category.

Brown then admitted that he did not enter an evaluation of Husted based on his performance during the restart proceeding, in any category of Husted Exhibit 6. Tr. 731 (Brown).

59. Brown explained the reason that it did not appear in Exhibit 6. was because that evaluation covered a later time period and the hearing was over when he completed the evaluation. Tr.

731 (Brown). He said that the evaluation of Husted's hearing-related performance does appear in Husted Exhibit 5, in the supervisor's comments.

Those comments state:

( The attitude of " Quality" has resulted in meaningful instruction and weekly examinations in the Requalification Program.

Brown said if Husted "was flippant and not concerned," he would not "have a positive attitude toward quality." Tr. 732 (Brown).

90. It is clear from this evidence that the formal evalu-ations have little reliability. This is true with regard to the i

questions concerning Husted's competence arising from his per-formance during the restart proceeding, and also as a measure of his ability to perform his routine responsibilities. Both Newton and Brown testified that the Special Assignment category covered activities which were not routine but which occupied a j

large amount of the employee's time. It was the reason both

, gave for evaluating Husted's performance in assembling documents i

1

( to support the hearing process. Husted was given high marks for this activity.

91. Husted's time was also spent in other, more direct hearing-related activities, the two OIE interviews, the October 1981 deposition and preparation for and actual appearance at the restart hearing. He was not evaluated on his performance of these activities, this was so despite the fact that reliable information in the Special Master's Report and GPU's own findings of fact was available which described his performance. That information indicated that Husted's performance was poor. This poor perform-ance was never considered in his annual or merit evaluations and was not a factor in the consideration of his promotion.

92. Husted was promoted to Supervisor, Non-Licensed Operator

( Training in March 1983. ff. Tr. 330 at 2. In June of 1983, the company agreed to remove Husted's operating license. They further agreed not to employ Husted as an instructor of licensed operators or trainees. ff. Tr. 755 at 6. This agreement was stipulated between GPUN and the Commonwealth of Pennsylvania to satisfy the Commonwealth's concerns about Husted and to facilitate the restart of TMI-1. Tr. 815-816 (Long). Long testified th a: he did not feel that the action taken against Husted as a result of the stipulation was justified based on the information available.

Long said that this view also represented the company's position.

ff. Tr. 755 at 6. The stipulation was entered into by the company in order to remove a barrier to restart.

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93. Newton also testified that he felt the conditions of the stipulation were unjustified, but considering the circum-stances, the action taken by the company was appropriate. Tr.

905 (Newton). Newton said that Husted's inappropriate behavior at the restart hearing gave him some concern in terms of Husted's personal growth, but it had no impact on the quality of his instruction, because it was a totally different environment.

Moreover, he did not believe that Husted performed improperly "through a conscious attempt on his part to do so." For that reason, Newton did not factor Husted's conduct during the restart proceeding into his performance evaluation. Tr. 904 (Newton) .

94. When the agreement was signed, Newton and other members i

of the training department were sympathetic to Husted's position.

They did not believe that they could have handled the situation.

Newton said that Husted's sacrificing his license for the overall welfare of the corporation affected the way they evaluated Husted. Tr. 906 (Newton).

95. In the summer of 1982 GPUN hired a contractor, Data Design Laboratories (DDL) to perform an independent assessment of some of the training programs at TMI. Husted's performance and attitude were to be given particular attention in the review.

j Tr. 795-796 (Long). Mr. Boyd, Project Manager for DDL, spoke with Long on August 27, 1982, he told Long that Husted was "Not the most effective instructor." Husted Ex. 13. Despite this finding i

by an independent auditor in August 1982, Husted's employee performance review completed by Brown, which covers that time

p3riod, rated Husted conaictently Ebova avarnga for his instructional abilities and assigned the highest rating attainable for the majority of those categories. Hu ted Ex. 5 at 2 and 3.

96. Husted's management did not feel that he was deserving of the conditions imposed by the company's stipulation with the Commonwealth of Pennsylvania. Newton did not believe that Husted's performance in the restart proceeding ha'd an impact on his job per-formance, he felt that Husted was not deserving of the conditions imposed by the stipulation, that opinion affected his evaluation of Husted's performance. Tr. 906 (Newton) Brown did not take Husted's performance in the restart proceeding into account when he prepared the performance evaluations. Tr. 731 (Brown) Long, who also was of the opinion that the conditions of the stipulation af fecting Husted were unwarrented, relied upon the evaluations performed by Newton and Brown when considering Husted for promotion. Tr. 788 (Long)

Those evaluations do not consider Husted's performance during the restart proceeding. They do not address Husted's ability to comuni-cate a sense of responsibility toward the regulatory process, to the trainees. The only indication of Husted's ability to foster a positive attitude in his students is contained in the 1981 draft evaluation which stated Husted "does not develope positive attitude" in his subordinates. Husted Ex. 3 at 2. At best the evaluations demonstrate that Husted has the ability to communicate technical information, yet an independent evaluation revealed that Husted is "Not the most effective instructor." Husted Ex. 13. The evaluations are biased and can be accorded little weight.

97. The Licensing Boara required GPU to establish a program to audit its training program and further required GPU to give par-ticular attention to Husted. Husted exhibits 10, 24, and 25 are 1

memoranda docum2nting tha Eudit of Hunted's p3rformance of hio

. job responsibilities. Newton performed an evaluation of Husted on 1

September 26, 1982 and another on October 26, 1982, he states that he "noted no problems pertaining to his attitude during these eval-i uations" Husted Ex. 24. Newton is not a disinterested observer. It i is his belief that Husted's imoroper behaviour at the restart hear-1 ing was unconscious, and he did not feel that that behaviour had an impact on Husted's ability to instruct or supervise. Tr. 904 (Newton)

On June 3. 1983 informed Long that for various reasons he had not i

conducted another lormal evaluation since the October, 1982 evalu-ation. Husted Ex. 25.

98. Another formal evaluation was conducted on October 27, 1982, by R. A. Knief. These three evaluations comprise the only evidence of GPU's response to the requirement imposed by the j Licensing Board, that Husted be monitored. On December 20, 1983, Long sent a memo to H. D. Hukill, Vice President and Director, TMI-1, informing him of his intention to discontinue the monitoring program.

i Husted Ex. 9.

99. In preparation for the Husted hearing, the Staff i

i conducted an inspection of Husted's performance as an employee

i. with GPUN and issued a report of that inspection April 23, 1986.

ff. Tr. 648, attach 2.

Donald R. Haverkamp, Reactor Licensing Engineer, Region I, conducted the inspection and prepared the report.

i Haverkamp testified that the purpose of the inspection j

1 was to " review Husted's performance over the years of his employ-i ment to see how they related to his attitude and integrity."

Tr. 673 (Haverkamp).

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, 100. In performing his inspection Haverkamp reviewed "various letters, memoranda, evaluations and other records regarding Mr.

Husted's performance as an employee with GPU Nuclear Corporation and with its predecessor, Metropolitan Edison Company." He also interviewed " ten GPU Nuclear Corporation employees who had worked with Husted in various supervisor / employee /co-worker relationships. "

ff. Tr. 648 at 4-5. Haverkamp testified that he did not contact the authors of the documents that he reviewed. He did interview-some of the authors of the documents but he did not question th'em about the information contained in the documents, nor did he learn why they had formed the opinions expressed in the documents.

Tr. 650 (Haverkamp).

101. During Haverkamp's testimony it was revealed that he had mistakenly attributed two draf t evaluations to the wrong authors. Tr. 651-662 (Haverkamp). O'ne of these documents, Husted Exhibit 3 contained the only evaluation of Husted which was critical of his performance. The other document, which Husted identified as a self evaluation contained the following statement:

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

Tr. 330 at 13.

Haverkamp testifi d that because he found the 1981 draf t evaluation in the file next to the evaluation dated 10-22-80, Husted Ex. 15, he made the assumption that one was a draf t of the other. He made the same assumption regarding Husted Exhibit 4 and the self-evaluation. Tr. 670-671 (Haverkamp).

s,

- 102. One of the purposes of the inspection was to gain an

(

understanding of Husted's attitude toward his job, both of the unsigned, undated drafts contained such information. The 1981 draft evaluation contained the only criticism of Husted's per-formance. Had Haverkamp performed a thorough inspection, he would have made an attempt to learn who had written those comments and why.

He would not have made the error that he did. His failure to question the authors of the documents he reviewed and the resulting errors he made in preparing his report, render the report unreliable.

103. In addition, the . report has other failings. Haverkamp conducted ten personal interviews, the individuals whom he inter-viewed had varying levels of awareness of the NRC decisions which affected Husted. Tr. 676 (Haverkamp). They had learned of these decisions generally during conversations with co-workers or directly from Husted. ff. Tr. 648, attach 2 at 16. These individuals were either close co-workers or personal friends of Husted. Id. They were not disinterested observers, and their opinions were biased.

104 Because of the errors contained in the report and Haverkamp's failure to question the authors of the evaluations I

he relied upon, and the bias of the individuals interviewed, the report is unreliable.

It should be accorded little weight in determining what Husted's performance of his job responsibilities reflects about his attitude and integrity.

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105. The various performancs evaluations, are of little value in determining attitude and integrity. They measure only Husted's

-ability to communicate technical information to the the operators.

. The only documentation of Husted's attitude in the performance of job was contained in the 1981 draft evaluation, Husted Ex. 3, and that document was not considerd in the determination of Husted's promotion. The best indicator of his attitude and integrity, is his appearance at the hearing, where once again he gave incredible testimony.

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

E. Did Husted's testimony before the Special Master lack forthrightness?

106. Husted not cooperate withe the investigators during his first interview. During his second interview he provided some infor-mation, he told Matakas that he had heard some individuals talking about "someone passing papers in the exam" ff. Tr. 386 attach. 2 at 1. He also told Matakas that the person making the statement was angry when he made it, "It was one of those type statements someone makes when he was mad and says it to the first person he sees." Id,.

f 107. When Husted testified at the restart hearing he admitted that he had refused to answer the interviewers question regarding his knowledge of rumours of cheating. He said that he did not like the way the investigation was conducted, he thought the questions were irrelevant. Staff Ex. 2 at Tr. 26,929; 26,931; 26,932. (ifusted).

Husted gave a similar explanation for why he gave " cute" responses

r-

. during hic Octobnr 1981 dsposition. Tr. 618- 619 (Husted).

108. Husted's attitude is unacceptable, in order for the NRC to effectively regulate the nuclear power industry, it must rely on licensee's and their employees to candidly respond to questions put to them by the NRC. Absent such candour, the regulatory system cannot function.

109. In addition to Husted's demonstration of. poor attitude and demeanor ~at the restart hearing and.his refusal to cooperate with NRC investigators, he exhibited similar behaviour during his October 1981 deposition. At the deposition the following exchange took place; Q. May I ask you, what happens to fuel pin temperature over core life if an oxidizing layer builds up on the cladding surface?

A. No , you may not.

Q. You don't know the answer?

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

Tr. 620 (Husted). Husted termed his answers to the intervenors

" cute", he testified that he had made several " cute" responses during his 1981 deposition. ff. Tr. 330 at 21. These additional examples of Husted's lack of cooperation and poor attitude, further support the Special Master's conclusions with regard to Husted.

110. The Special Master criticized Husted's attitude and demeanor at the hearing. He concluded that Husted is not credible.

This conclusion is well supported by the record before the Special Master and by this record.

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., F. What does Husted's appearance and testimony in this hearing demonstrate as to his forthrightness, attitude and integrity? ,

111. At the hearing Husted testified that he recalled having made a rhetorical exclamation during the SRO examination, to the

! effect "What the hell is this?" ff. Tr. 330 at 4,.he said that he i

7-had recalled the statement when someone asked him had he spoken

. during the exam. Tr. 336 (Husted). He was unable to recall when he was asked that question. He was then shown a statement in  !

Christman's reoort which states "In response to a question Mr. DD i

indicated the classroom was quiet during the examinations and the only disruptions occurred when the proctor was asked by one of the ,

people laking the test to clarify a question." Husted Ex.1 at 1.

Husted explained that when he was asked during his first interview he would not have " considered making a rhetorical statement, hope-I fully not loud enough to disrupt the room, as being talking during an exam." Tr. 339 (Husted). This explanation contradicts Husted's statement in his prefiled testimony that he did " speak aloud" l 4 during the exam. ff. Tr. 330 at 3. Husted later testified that the first time that he mentioned the exclamation to anyone from l

the NRC, was when he filed responses to Staff interrogatories,  !

4

) April 8, 1986. Tr. 497 (Husted)

112. Husted was asked if he was angry at the time of his 1981 deposition. He said that he "very seldom get(s) angry."  !

i ,

j Tr. 520 (Husted). This statement is not consistent with his  !

I explanation to Newton of his behavior at the 1981 deposition, I "he lost his temper and said things he regretted," Husted Ex. 12 r

j' at 1. And it is not consistent with his testimony that he I I i

j 1  !

t 9

y exclaimed "What in the hell is this?" j 113. The Licensing Board had been concerned that Husted's ,

attitude reflected a lack of sense of responsibility on his part for the 1981 cheating incident. PID atf92166-2167. At the hearing Hunted was asked if he felt a sense of responsibility for 1

the cheating. He said "I'm not certain I felt a sense of responsi-bility, certainly a sense of regret but I don't think responsi-bility." Tr. 942 (Husted).

114. When Husted was questioned about the inconsistent testimony he gave in the restart hearing, he explained that the inconsistencies were "most likely as a result of poor choices of

)

i words: Tr. 568 (Husted). He agreed that some of his responses

, could be viewed as inconsistent. Tr. 551 (Husted) . He agreed i .

that there was a basis for finding that he was " flippant" and "less than serious" Tr. 554 (Husted). He pointed out several 1

responses in his prior testimony which he characterized as 4

" flippant" or "less than serious" Tr. 609-610 (Husted). He was ,

] then asked whether he thought the Soccial Master had a basis for making his findings. Husted responded, "No, Sir, I don't." Tr.

609-610 (Margulies, Husted). It would appear that Husted is incapable of accepting responsibility for his actions.

115. Husted testified that the findings of the Special Master, the stipulation and the condition imposed by the Appeal  !

l Doard, have all had a significant and negative impact on his l

' personal life. He stated that the findings and conclusions of l the Special Master and the condition imposed by the Appeal Board

!(

t

} ,

6 were not justified. Tr. 958-959 (Husted) However, Husted testified that headid not comment on the Special Master's Report, he said he was not informed by the company that he had an opportunity to comment on the report. Tr. 963 (Husted) He also testified that he had agreed with the need to remove his license when the agree-ment with the Commonwealth was stinulated. Tr. 965 (Husted)

Furthermore, Husted said that he did not make an effort to respond to the Appeal Board's ruling which affected him because he did not know to whom he should respond and he made no effort to learn to whom he should respond. Tr. 967 (Husted). Given the effect these various actions had on Husted's life, it is simply not credible that he took no action to inform the various decision makers of innocence.

116. In 1981 Husted exhibited a poor attitude and demeanor, he lacked credibility. In this hearing, he exhibited the same attitude. His testimony was incredible. Only his demeanor is changed, he gave no " flippant" resoonses. Mr. Husted is a wolf in sheeps clothing, his testimony was not credible and his attitude toward his responsibility toward the NRC to give truthful testimony has not changed.

117. In June 1981 GPU stipulated an agreement with the Commonwealth of Pennsylvania, whereby Husted would not be utilized to operate TMI-l or to train operating license holders or trainees.

ALAB-772 at 42. In March 1983, Husted was promoted to Supervisor, Non-Licensed Operator Training. ff. Tr. 330 at 2. After reviewing the record and noting both the stipulation and Husted's promotion, the Appeal Board imposed the following condition on s

p-o' the restart: "That Husted have no supervisory responsibility insofar as the training of non-licensed oeprators is concerned." ALAB-772 at 46.

118. The Appeal Board's condition as it related to Husted was appropriate and remains appropriate. In light of Husted's refusal to cooperate with the NRC investigators during an inves-tigation, and his current opinion that he has the right to refuse to answer questions if he feels that they lack relevance or specificity, the condition must remain in effect. This is particu-larly so given the safety-related nature of the position he seeks.

F. If remedial action is required, what is it?

. 119. Des 6ite the evidence that llusted attempted to cheat, exhibited a poor attitude toward the NRC and gave incredible testi-many at the restart hearing, he refuses to acknowledge that he did these things. Absent such acknowledgement by liusted, the only effective remedial action available is that which was orescribed by the Appeal Board when it imposed its condition.

CONCLUSION The Appeal Board's condition af fecting Charles ilusted should not be vacated.

o MM444 N M/c-o[(+(b Louise Bradford u for Three Mile Island Alert, Inc.

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