ML20214L658
| ML20214L658 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/05/1986 |
| From: | Hensley M GENERAL PUBLIC UTILITIES CORP., HUNTON & WILLIAMS |
| To: | |
| References | |
| CON-#386-620 CH, NUDOCS 8609100314 | |
| Download: ML20214L658 (9) | |
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}j 00LMETED USNRC September 5, 198%5 SEP -9 P4 :14 0FFICE OF St.. : iAe r UNITED STATES OF AMERICA 000dtima s sUwict.
NUCLEAR REGULATORY COMMISSION BRANCH Before the Administrative Law Judge In the Matter of
)
)
GENERAL PUBLIC UTILITIES NUCLEAR
) Docket No. 50-289 (CH)
)
(Three Mile Island Nuclear Station,)
Unit No. 1)
)
MR. HUSTED'S REPLY TO NRC STAFF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW This is Mr. Husted's reply to the NRC Staff Proposed Findings of Fact and Conclusions of Law, dated August 15, 1986.
We have but five comments.
1.
In Staff Proposed Finding 67, the Staff refers to testimony by Mr. Matakas that he may have read back to Mr. Husted the answers Mr. Matakas had written down during his September 18, 1981 interview of Mr. Husted.
The Staff then states:
This would appear to corroborate Mr. Hunted's testimony before the Special Master that questions were written out, his answers were written down verbatim, and he agreed to the answer as written.
Staff Ex.
2, at Tr. 26,967.
(Footnote omitted.)
C609100314 860905 PDR ADOCK 05000289 0
4 I Staff Exhibit 2, of course, is Mr. Husted's December 10, 1981 testimony before the Special Master.
It was admitted into evidence in this proceeding solely for the purpose of " serving as evidence of what Mr.
Husted was asked and answers that he gave on December 10, 1981."
See Tr. 490.
In the statement quoted above, the Staff appears to rely on a portion of Staff Exhibit 2 to prove the truth of certain testimony given by Mr. Husted before the Special Master; if it does, its use of the December 10, 1981 testimony is inappropriate. -
2.
Similarly, in Staff Proposed Finding 70 the Staff states:
Examination of the record, including the transcript of Mr. Husted's testimony before the Special Master (Staff Ex. 2), and testi-many concerning Mr. Husted's depositions of 2
October 23, 1981 and April 29, 1986, does not clearly establish that Mr. Husted believed what he heard near the coffee pot following the April 1981 exam was a rumor, or that he remembered or referred to what he had heard at the July 29, 1981 interview.
(Emphasis added.)
Again, Mr. Husted's testimony before the Special Master should not be relied upon in determining
. i' whether Mr. Husted believed the " passing papers" comment was a rumor.
3.
In Staff Proposed Finding 83, the Staff states that Mr. Husted identified certain answers that l
"he considered to be flippant or less.than serious.
That, we believe, is an incorrect characterization of Mr. Husted's testimony.
The gist of his 1986 testimony was that he believed certain of his 1981 testimony could have created the impression that he was being flippant and was failing to consider the questions in a serious manner.
See Tr. 609, 610 (Husted).
This distinction is more than a quibble.
The pivotal issue is Mr. Husted's actual attitude toward the 1981 hearing.
The appearance he created in 1981 is probative evidence of his actual attitude, but it is not in and of itself conclusive.
The Staff appears to treat it as though it were.
For example, in Staff Proposed Finding 87, the Staf f concludes that Mr. Husted "was flippant and failed to give serious and thoughtful answers.
" In Staff Proposed Finding 90, the Staff indicates that Husted's attitude during the 1981 hearing was " flippant or less than
A i serious."
Again in Staff Proposed Finding 94, the Staff would find that "Mr. Husted's testimony was flippant and less than serious."
The Staff concludes in its Proposed Finding 102 that "the evidence that Mr. Husted had given flippant and less than serious testimony was uncontroverted."
Finally, in what we believe is a non sequitur, the Staff concludes in Proposed Finding 105 that Mr. Husted conveyed a lack of a sense of responsibility, seriousness, and respect for the hearing process.
As a result, I find that Mr. Husted had a poor attitude toward the cheating hearings.
In short, the Staff's view appears to be that because Mr. Husted appeared flippant he had a bad attitude.
We disagree.
To be sure, the Staff acknowledges the testimony about the stress and apprehension to which Mr. Husted was subject when he testified, but it cites that evidence as a basis for concluding that Mr. Husted did not purposely give obscure testimony or attempt to withhold information from the Special Master.
The Staff does not appear to consider that evidence in determining whether in fact Mr. Husted's apparent demeanor during the 1981 hearing reflected his real
a I attitude.
We believe that Mr. Husted's 1981 attitude cannot be accurately assessed on the basis of his demeanor alone but must be determined in light of all the facts including the stress he was under.
Reviewing all the testimony on the subject, we believe it has not been shown by a preponderance of the evidence that he in fact had a bad or unacceptable attitude toward the hearing itself.
4.
In its Proposed Finding 141, in dealing with the applicable standard, the Staff says in footnote 26 that, pursuant to 10 C.F.R.
S 55.23(1), an applicant for an RO or SRO license must demonstrate an under-standing of "[t]he necessity for a careful approach to the responsibility associated with safe operation of the facility."
It is important to stress that S 55.23(1) does not deal with RO and SRO qualifica-tions generally.
It deals entirely with the scope of the operating test to be, administered to prospective RO's and SRO's.
Thus, S 55.23 (1) stipulates that
e
. 1 The test
. requires the applicant to demonstrate an' understanding of:
(1) The necessity for a careful approach to the responsibility associated with the safe operation of the facility.
5.
After a good deal of inconclusive wrestling with the legal standard applicable in this proceeding, the Staff concludes in its Proposed Finding 142:
However, notwithstanding the absence of an express standard directed to the attitude and integrity of a supervisor of non-licensed operator training, the general requirement of 10 C.F.R. S 50.57, of
" reasonable assurance," cited earlier, appears to be more than adequate basis for conditioning a plant operating license on the barring of personnel the employment of which would raise ' substantial doubt about meeting the " reasonable assurance" of safe operation standard.
This conclusion, of course, begs the question.
There can be no serious doubt that the Commission may take action against a corporate licensee based on the
" reasonable assurance" standard.
But it is implicit in the very fact that the Commission granted Mr. Husted this hearing that the Commission may not simply rely on its enforcement power over a reactor
e 7-1 licensee as a basis for stripping the licensee's employee of his job.
Respectfully submitted, CHARLES HUSTED By N
- AIA4, Maria C.
Hensley, Co sel of Counsel Michael W. Maupin Maria C. Hensley HUNTON & WILLIAMS P.O. Box 1535 Richmond, Virginia 23212 Dated:
September 5, 1986 0
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DOLKETED USNHC September 5, 195 SEP -9 P4 :14 0FFICE Cf H > Et ItafiY 00CKETING A sEHviCf.
UNITED STATES OF AMERICA BRANCH NUCLEAR REGULATORY COMMISSION Before the 1.dministrative Law Judge In the Matter of
)
)
GENERAL PUBLIC UTILITIES NUCLEAR
) Docket No. 50-289(CH)
)
(Three Mile Island Nuclear Station,)
Unit No. 1)
)
CERTIFICATE OF SERVICE I certify that copies of Mr. Husted's Reply to NRC Staff Proposed Findings of Fact and Conclusions of Law were served upon the following persons today by deposit in the U.S. Mail, first class, postage pre-paid, or in the cases marked by an asterisk below by Federal Express, addressed to them at the following addresses:
Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 ATTENTION:
Chief, Docketing and Service Section
-7
a 6
- The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway 4th Floor Bethesda, Maryland 20014
- George E. Johnson, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Mail Stop 9604 Bethesda, Maryland 20814
- Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, Pennsylvania 17102
- Deborah B.
Bauser, Esquire Scott Barat, Esquire Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Nn A1.
. YB44,&
Maria C. Hensley,Coupel for Charles Husted Dated:
September 5, 1986
.