ML20234B998
| ML20234B998 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/31/1987 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | AAMODTS, GENERAL PUBLIC UTILITIES CORP., NRC OFFICE OF THE GENERAL COUNSEL (OGC), THREE MILE ISLAND ALERT |
| References | |
| CON-#188-5275 ALAB-881, CH, NUDOCS 8801060071 | |
| Download: ML20234B998 (29) | |
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jf7-7?I 00CMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gg gg; 4 p ATOMIC SAFETY AND LICENSING APPEAL BOARD
'ZO Uc Administrative Judges vuum # q p
Alan S. Rosenthal, Chairman December 31, 1987 Thomas S. Moore (ALAB-881)
Howard A. Wilber SERVED JAN -41988 In the Matter of
)
)
GENERAL PUBLIC UTILITIES NUCLEAR )
Docket No. 50-289 (CH)
)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
)
Michael W. Maupin, Richmond, Virginia, for Charles Husted.
Deborah B.
Bauser, Washington, D.C.,
for intervenor General Public Utilities Nuclear.
Louise Bradford, Harrisburg, Pennsylvania, for intervenor Three Mile Island Alert.
Janice E. Moore for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER Although the caption of this case reads General Public Utilities Nuclear and carries the docket number of Three Mile Island Nuclear Station, Unit 1, a more appropriate case name is In the Matter of Charles Husted.
Mr. Husted is an employee of General Public Utilities Nuclear (GPUN) who is before us on appeal seeking to return to his previously held position as supervisor of non-licenced operator training.
He was earlier barred from that post by a condition imposed upon GPUN in the proceeding involving the restart of TMI-Unit 1 by another Board of the Appeal Panel.
Because 8901060071 871231 PDR ADOCK 05000209 c d ]J' O
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2 O M 9..;- 0 El the condition placed upon the licensee directly impacted Mr.
Husted even though he neither was a party to the restart proceeding nor had notice of the condition or a chance to challenge it, the Commission, upon review of this Appeal Board action, offered Mr. Husted an opportunity to contest it.
In its hearing notice, the Commission confined the hearing to several specific issues precipitating the imposition of the restart condition, i.e.,
the agency's investigation into cheating on NRC operator licensing examinations.
To those issues, the designated Administrative Law Judge added another concerning Mr.
Husted's job performance at GPUN.
After taking evidence on all the issues, the judge below concluded that the restart condition should not be vacated.
As we explain more fully below, a jurisdictional deficiency in the proceeding leads us to certify a question to the Commission.
We take this step because we find, unlike the Administrative Law Judge, that the record evidence on the issue of Mr. Husted's job performance is pivotal to the outcome.
Yet that issue, inserted by the trial judge, is clearly beyond the scope of the hearing ordered by the Commission in its notice of hearing -- the document delineating the hearing officer's subject matter jurisdiction.
The structure and language of that notice is such that we cannot reasonably read it to encompass the issue of Mr. Husted's job performance at GPUN without
l 3
winking at reality.
In this circumstance, we think the best course is to certify to the Commission the question whether l
it wishes to expand retroactively the jurisdiction of'the proceeding to encompass the issue introduced by the trial judge.
The evidence in question is already in the record so there is no barrier to retroactive expansion of the subject matter jurisdiction and it well might be that the Commission 5
would have broadened the trial judge's charter initially had this question been anticipated.
I.
A.
After the accident at TMI-Unit 2, the Commission ordered that Unit 1 of the facility should remain in a cold shutdown condition until a hearing determined whether it could be operated without endangering the public health and safety.1 In the spring of 1981 while the restart proceeding for Unit I was ongoing, Mr. Husted, who was then an instructor of licensed operators atfithe plant, and a number of his fellow employees took NRC-administered reactor operator and senior reactor operator examinations.
Allegations of cheating on those examinations surfaced and the agency conducted an investigation.
As subsequent events would reveal, that investigation marked the beginning of Mr.
Husted's prolonged difficulties with the NRC.
1 CLI-79-8, 10 NRC 141 (1979).
e 4
3, l
The agency's initial investigation resulted in a series ofBoakdNotificationstotheLicensingBoardpresidingover
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the restar,t, proceeding that cheating on the examinations had
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occurned'.
When it received this information, the Licensing Board'vihd alveady concluded the evidentiary hearing so it y
went ahead and issued its first partial initial decision.
At the same time, the Board retained jurisdiction and reopened the record o[rdli ef fect of the cheating incidents on the manuyement issues in the case.
It then appointed a
'Special Master to take evidence with respect to the cheating and instructed hip to issue a recommended decision.2 During the NRC staff investigation of the test irregularities, Mr. Husted was interviewed twice by investigators from the former Office of Inspection and Enforcement.
In prehearing discovery before the Special Master, he w.pc, alsp deposed by one of the interveners in the proceeding.'f Although the staff investigation uncovered a number of Individuals involved in cheating on the operator examinations, neither the staff investigation reports nor the pretrial discovery implicated Mr. Husted in such activity.
Before the Special Master, however, an NRC investigator testified that another operator had alleged that Mr. Husted solicited an answer to a question on the 2 See LBP 82-56, 16 NRC 281, 287-88 (1982).
f
a 5
senior reactor operator examination.
Thereafter, Mr. Husted was called as a witness and he was questioned extensively in the hearing.
In his report to the Licensing Board, the Special Master concluded that during the NRC examination Mr. Husted had solicited an answer from the other individual in the unproctored testing room and that he refused to cooperate with the subsequent NRC investigation.
In reaching this conclusion, the Special Master also found that Mr. Husted lacked credibility as a witness, had a flippant demeanor, and displayed an unacceptable attitude toward the hearing on the cheating incidents.
Because he could find no reliable standard for judging the seriousness of Mr. Husted's poor attitude and lack of cooperation with NRC investigators, the Special Master recommended that Mr. Husted not be removed from licensed duties but instead suggested to the Licensing Board that some unspecified lesser sanction might be appropriate.4 Finding insufficient reliable evidence to support the Special Master's conclusion, the Licensing Board rejected the determination that Mr. Husted had solicited an answer to an examination question.
The Board agreed with the Special LBP-82-34B, 15 NRC 918, 957-58, 960-61 (1982).
l Id. at 1045-46.
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Master, however, that Mr. Husted refused to cooperate with I
the NRC investigators.
It also generally concurred in the Special Master's determination that Mr. Husted's testimony was not credible and conveyed the sense that Mr.. Husted was 4
unconcerned whether or not he was believed.
Although the Board quc7tioned whether, as a training instructor, Mr.
o Husted would impart a sense of seriousness and responsi-b 11ty to TMI-Unit 1 operators, it found no evidence that Mr. Husted's attitude affected his performance as a teacher and concluded that his tescimony und conduct during the
. investigation were unrelared to his status as a licensed operator.
The Board therefore found th't any action against a
his license would be inappropriate; rather, it required GPUN to establish qualifications for its training instructors and to audit its training program, paying particular attention to Mr. Hustsd'r pc:formance.
A number of interveners and the Commonwealth of Pennsylvania, as an interested State,6 appealed the Li. censing Board's decision.
While the appeals were pending, the Commonwealth and GPUN entered into a stipulation to the effect that the Commonwealth would withdraw its appeal on j
i the condition that the licens;ee would not permit Mr. Husted i
5 16 NRC at 318-20, 6 See 10 C.F.R. 5 2.715(c).
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7 either to operate TMI-Unit 1 or to train operating license
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holders or trainees.
Even before GPUN entered into the stipulation, the licensee already had moved Mr. Husted from e.
his job as an instructor of licensed operators at TMI-Unit 1 to the position of supervisor of non-licensed operator training.
While the Commonwealth's action in dropping its appeal removed the specific issues before the Appeal Board with respect to Mr. Husted and his licensed duties, the Board, on its own motion, questioned GPUN's judgment in promoting Mr. Husted in the face of his documented past failure to cooperate with the NRC's cheating investigation.
Accordingly, the Board, as a condition of restart, barred GPUN from allowing Mr. Husted to have any supervisory responsibilities in the training of non-licensed personnel -- employees who normally were on a career path to-becoming licensed operators.
U In placing this condition upon GPUN, the Appeal Board I:
first determined that the record supported the conclusions of the Special Master and the Licensing Board regarding Mr.
Husted's poor attitude toward his responsibilities due to L
his failure to cooperate with the NRC investigation of the cheating incidents.
It then stated that, in a field where h
so much of the material conveyed to trainees by instructors ALAB-772, 19 NRC 1193, 1221-24 (1984).
I i
8 concerns the need to comply with procedures, the ability to communicate a sense of responsibility is an important and I
integral part of the ability to teach.
Noting that the l
record contained no direct evidence on whether Mr. Husted's bad attitude affected his teaching performance, the Appeal Board drew that inference and placed the sanction on GPUN because Mr. Husted's new job as supervisor of non-licensed operator training would place him in a position to instruct personnel in areas affecting the public health and safety.
It also imposed the restart condition upon GPUN for a second reason.
The Board stated it was inappropriate for GPUN to elevate Mr. Husted to a supervisory position where he likely would have a voice in establishing the criteria for training instructors and in auditing the training program when the license condition regarding GPUN's training had been ordered, in part, by the Licensing Board as a remedy for Mr.
Husted's failure to cooperate with the NRC.0 In responding to GPUN's petition for review of the Appeal Board's decision, the Commission announced that, in 1
addition to the several issues urged upon it by the licensee, the Commission would review, on its own motion, the restart condition imposed upon GPUN by the Appeal Board.
Id. at 1223-24..
_______-_-________________a
9 9
The Commission noted, however, that it was not concerned with the underlying justification for the condition but rather with the question whether an adjudicatory board may l
impose a condition on a licensee that, in effect, operates as a sanction against an individual where the impacted employee is not a party to the proceeding and has no notice of the sanction or any opportunity to request a hearing.9 After briefing, the Commission then decided against resolving the issue it had posed.
Instead, it exercised its discretion and offered Mr. Husted an opportunity to request a hearing on whether the condition imposed upon GPUN by the Appeal Board should be vacated.
Mr. Husted subsequently requested a hearing, which stayed the effect of the restart condition pursuant to the terms of the Commission hearing offer.10 At the same time he requested a hearing, Mr. Husted also asked the Commission to expand its scope to include the question whether concerns about his integrity or attitude should exclude him from serving as a licensed operator, an instructor of licensed operators, or a training supervisor
-- the positions closed to him by GPUN's stipulation with the Commonwealth of Pennsylvania.
The Commission granted
' CLI-84-18, 20 NRC 808, 810-11 (1984).
O CLI-85-2, 21 NRC 282, 317 (1985).
10 Mr. Husted's request in its hearing notice, observing that the expanded scope would not require any additional agency resources.
It also pointed out to Mr. Husted that the Commission was powerless to undo the stipulation between GPUN and the Commonwealth barring him from certain licensed activities and that, for reinstatement, he would have to seek direct relief from those parties if the hearing evidence warranted.
It next directed that the hearing focus on whether the following four concerns regarding Mr. Husted are true, and, if so, whether they require that he not be employed in the jobs in question:
(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 coggeration with NRC investigators Finally, the Commission ordered that the hearing be held before an Administrative Law Judge and that "[t]he NRC staf f
. participate as a full party.
to ensure that the record is fully developed."12 50 Fed. Reg. 37,098 (1985).
I Id. at 37,099.
11 B.
In a number of prehearing orders, the Administrative Law Judge granted the intervention petitions of Three Mile Island Alert (TMIA) and GPUN and admitted their proffered contentions.
TMIA's contentions enveloped the issues identified by the Commission in the hearing notice and alleged that Mr. Husted's bad attitude and lack of integrity precluded him from supervisory responsibilities for the training of non-licensed operators as well as serving as a licensed operator or instructor or supervisor of such operators.
GPUN's contention was to the opposite effect.13 To the issues identified by the Commission as forming the scope of the proceeding, the trial judge added the question of what Mr. Husted's job performance at GPUN reflected about his attitude and integrity.14 Next, the judge below ruled that Mr. Husted was entitled to a de novo hearing on the factual issues and that the proceeding was 13 Memorandum and Order (December 6, 1985) at 4.
14 Report and Order on Initial Prehearing Conference (February 27, 1986) at 5.
Although the Administrative Law Judge's prehearing conference order listed two further matters at issue concerning whether any remedial action against Mr. Husted was required and what remedial action was appropriate, those questions merely particularized the Commission's question from the hearing notice asking whether Mr. Husted should be precluded from licensed or non-licensed operator training or supervisory positions.
Id. at 11.
See 50 Fed. Reg at 37,098.
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tantamount to a hearing on an agency enforcement action where the staff fulfills the role of the proponent of the l
sanction and has the burden of going forward and the ultimate burden of proof. 5 Even though the staff initially agreed with the trial judge that the proceeding was in the nature of an enforcement proceeding, the staff subsequently objected to the prehearing order claiming that it should not,be considered the proponent of the agency sanction with the concomitant ultimate burden of proof.
In reconsidering his earlier order, the judge below reiterated that the burden 1
Report and Order on Initial Prehearing Conference (February 27, 1986) at 7-8.
In reaching this conclusion, the Administrative Law Judge noted that the history of this matter and the vagueness of the hearing notice made it difficult to decipher the type of proceeding the Commission intended.
Nevertheless, he reasoned that because Mr. Husted was not a party to the restart proceeding, the Commission in ordering a new hearing found, in effect, that the record before the Appeal Board was insufficient and that there was the possibility of imposing on Mr. Husted the same sanction as the Appeal Board originally placed upon GPUN.
Thus, the trial judge concluded that the hearing best fit the mold of an enforcement action.
He buttressed this conclusion by noting that when the Commission ordered the hearing for Mr.
Husted and instructed the staff to participate as a full party there were just two parties so, at that time, the hearing only could be viewed as an enforcement proceeding.
He found, therefore, that the subsequent intervention of TMIA could not change the nature of the proceeding and that TMIA could not be saddled with the burden of proof.
Similarly, he concluded that constitutional constraints of due process precluded Mr. Husted, the target of the possible sanction, from bearing the burden of proof.
Id. at 7-9.
13 could not_ fall properly upon Mr. Husted.
But he accepted the staff's argument that it should not be directed to be an advocate for the sanction against Mr. Husted and to have the ultimate burden of persuasion on the propriety of the sanction.
His ruling was silent, however, as to what party had the ultimate burden although he instructed the staff to declare prior to the hearing whether it supported or opposed the sanction.16 Thereafter, the staff announced it advocated vacating the sanction affecting Mr. Husted.
The Administrative Law Judge heard the testimony of five staff witnesses, six witnesses on Mr. Husted's behalf (including Mr. Husted), and one witness subpoenaed by TMIA.
4 Like the Licensing Board in the TMI restart proceeding, the trial judge found, first, that there was no convincing evidence that Mr. Husted cheated on the 1981 senior reactor operator licensing test by soliciting an examination 10 answer.
Second, the judge below found that Mr. Husted failed to cooperate with the agency investigators probing the cheating incidents by providing unreliable and misleading information.
In this regard, he determined that, 16 Ruling on Staff Objections to Prehearing Conference Order (March 26, 1986).
Letter from George E. Johnson, Counsel for NRC l
Staff, to Judge Margulies (June 12, 1986).
18 ALJ-87-3, 25 NRC 345, 355-57 (1987).
14 although the agency investigators' first interview with Mr.
Husted was marked by Mr. Husted's resistance to answering questions and other deficiencies, it should not be viewed as an overall failure to cooperate with the investigation.
But when the deficiencies of the first interview were added to Mr. Husted's conduct in the second (where he concluded Mr.
Husted mislead the interviewer), the hearing judge found the record convincing that Mr. Husted failed to cooperate with the NRC-investigators.
Third, the trial judge found that Mr. Husted's testimony before the Special Master was not forthright (i.e., lacking ambiguity, straightforward) and that the internal inconsistencies in Mr. Husted's testimony resulted in testimony that lacked credibility and obfuscated what occurred.
The judge also found that Mr. Husted's explanations for the various inconsistencies, contradictions and lack of seriousness in parts of his testimony were unsatisfactory and evidenced a disregard for the regulatory 20 process.
Fourth, the judge below found that the evidence establishing that Mr. Husted had failed to cooperate with NRC investigators, and had been neither completely forthright nor serious in some of his testimony, also 19 Id. at 366-70.
O Id. at 370-73.
I
_____________________J
t 15 i
l demonstrated that Mr. Husted had a poor attitude toward the hearing on the cheating incidents.
The judge could find no basis for excusing or overlooking Mr. Husted's poor attitude and found that, in the current hearing, Mr. Husted continued to display some of the same traits that led to the initial conclusion about his bad attitude.21 With regard to the issue that he added to the proceeding, the judge found that Mr. Husted's job performance in a variety of positions over all his years at GPUN was satisfactory and that the uncontroverted evidence established that Mr. Husted's attitude toward his job, nuclear safety, the NRC, and regulatory requirements always had been professional and appropriate to his responci-bilities.
Further, the Administrative Law Judge found that Mr. Husted's classroom evaluations from his time as an instructor showed that he was a generally competent instructor who had never revealed any demeanor or I
attitudinal problems.22 Nevertheless, in deciding the last issue (i.e., whether the " punishment" fit the " crime"), the trial judge concluded that the original license condition should not be vacated and that Mr. Husted also should be l
l disqualified from serving as a licensed operator or an 21 Id. at 373-76.
2 Id. at 376-81.
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i l
instructor or supervisor of such operators.
In short, the judge found from Mr. Husted's failure to cooperate with the NRC investigators, his lack of forthrightness before the Special Master, and his continuing disregard in the current hearing for the regulatory process that "[t]he potential continues to exist that this unacceptable attitude toward the NRC regulatory process can adversely affect his teaching performance or the exercise of his management responsi-bilities contrary to public health and safety."23 II.
In his appeal from the trial judge's decision, Mr.
Husted claims the judge erred in refusing to vacate the condition barring him from his former position as supervisor of non-licensed operator training.
He argues that the judge below applied an erroneous legal standard that permitted the judge to ignore the favorable evidence regarding Mr.
Husted's job performance and attitude as an employee of GPUN.
Next, Mr. Husted ascerts that the hearing judge erred in finding that he (1) failed to cooperate with the NRC investigators, (2) was not forthright in his testimony before the Special Master, and (3) had a poor attitude toward the hearing on the cheating incidents -- the factual 23,I d. at 384.
24 Brief of Charles Husted (May 18, 1987) at 14-38.
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findings supporting the trial judge's determination not to vacate the license condition.25 The NRC staff supports Mr.
Husted's appeal and essentially mirrors his arguments.26 Similarly, GPUN supports Mr. Husted's appeal but it focuses its argument almost entirely on the legal standard it perceives the trial judge applied in continuing the disqualification of Mr. Husted from his former position.
On the other side of the coin, TMIA urges affirmance of the Administrative Law Judge's decision, arguing generally that the trial judge's factual findings are all supported by the-record.28 We initially address the second argument of Mr. Husted and the staff attacking the trial judge's factual findings.
We then turn to the other arguments of the parties.
A.
As the briefs of Mr. Husted and the staff recognize, we clearly have.the power in reviewing the factual findings of an administrative law judge or a licensing board to substitute our judgment for that of the fact finder if the record fairly sustains a different 25 Id. at 38-54.
26 Brief of NRC Staff (June 30, 1987).
27 Brief of GPUN (June 30, 1987).
Brief of TMIA (August 3, 1987).
4 18 result.
That is not to say, however, that in conducting our appellate review we may ignore the trial judge's findings and simply find the facts anew for "we are not free to disregard the fact that the Licensing Boards (and Administrative Law Judges] are the Commission's primary fact find [ers]."30 Rather, when we review findings of fact we will " reject or modify findings of the [ trial judge] if, after giving [his] decision the probative force it intrinsically commands, we are convinced that the record compels a different result."31 Thus, we must be persuaded that the record evidence as a whole compels a different conclusion and we will not overturn the hearing judge's findings simply because we might have reached a different result had we been the initial fact finder.32 Before us, Mr. Husted complains that the trial judge erred in finding that he failed to cooperate with NRC q
29 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 403 (1976).
30 Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 867 d
(1975).
Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 531 (1986).
See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972).
-d 19 investigators, was not it thright in his testimony before the Special Master, and hy a poor attitude toward the hearing on the cheating incidents.
He places these three i
findings under a microscope, arguing as to each that the judge below should have reached an opposite conclusion and thus that none of these findings can support the further finding that the license condition should not be vacated.
i We disagree.
When we apply the test under which we review factual findings, we can find no convincing bases upon which to dispute the Administrative Law Judge's findings.
33 Although in their briefs the parties ignore the question, our review of the trial judge's factual findings is not affected by the unusual circumstance in the hearing below that no party was assigned the ultimate burden of proof.
See supra p. 12 and note 15.
In spite of that, the parties presented evidence on each of the issues and the trial judge made his findings without turning his decision on the burden question.
Because the question of which party bears the burden is significant only where the evidence is evenly balanced and here the trial judge did.not find the evidence in equipoise, the burden question now is largely immaterial.
In this regard, we note that at oral argument each party was quick to disclaim that the burden fell on it or him but none could tell us where the burden properly lay.
At this point, the proceeding simply can be viewed as one where the burden fell on the proponent of the contentions encompassing the issues identified in the hearing notice.
But we think the far better view is the one initially expressed by the trial judge that the Commission intended the hearing to mimic a typical enforcement proceeding where the burden would fall upon the staff.
See supra note 15.
In that circumstance, if the staff felt, for whatever reason, that it could not prosecute the case pursuant to the Commission's instructions, the better course would have been (Footnote Continued)
20
)
The trial judge's findings on each issue and the support for them are set forth at length in his decision and no purpose is served by reiterating them here.34 Suffice it to note that we have reviewed the evidentiary record and closely examined the findings on each issue and conclude that they are supported by record evidence or valid inferences drawn from such evidence.
Likewise, we have scrutinized each of Mr. Husted's numerous arguments.
Although his.brief offers a multitude of interpretations, rationalizations, explanations and excuses for the critical evidence relied upon by the trial judge, Mr. Husted's arguments are no more credible for reaching his result than the explication presented by the Administrative Law Judge.
Further, in reviewing these factual findings, we must bear in mind that it was the trial judge, not us, that observed Mr. Husted as he testified and from that observation and testimony concluded that part of Mr. Husted's testimony
" lacked credibility" and that the witness had a " selective" memory that left a " negative impression." 5 We simply are not convinced, as we must be to overturn the trial judge's (Footnote Continued) for it to return to the Commission and seek to have the license condition vacated or the burden question clarified.
34 25 NRC at 355-85.
Id. at 376.
4 e
21 findings, that the record compels the conclusion that Mr.
Husted cooperated with the NRC investigators, was forthright in his testimony before the Special Master, and had a satisfactory attitude toward the hearing on the cheating incidents.
Indeed, after reviewing the entire record on these three issues, we cannot state with conviction that we would not have made similar findings had we been the initial fact finder.
(We might, however, have explained some of our findings differently.)
Moreover, although it has played no part in our decision, we note that the Special Master, the Licensing Board and another Appeal Board in the TMI restart proceeding reached essentially the same conclusions on nearly the same evidence.
Similarly, we cannot find from the evidentiary bases of those three findings that the trial judge's determination that the license condition should not be lifted is in error.
In reaching that conclusion, the judge below added to the equation his belief that Mr. Husted's conduct in the current hearing evidenced some of the same traits that led to the judge's other findings:
"Mr. Husted has been unable or unwilling to change his attitude toward the NRC's regulatory 1
process sufficiently for it to be found acceptable."36 But l
even without this added factor, and putting aside the 6 Id. at 384.
o 4
22 l
evidence-on the issue added to the proceeding by the hearing judge concerning Mr. Husted's job performance at GPUN (a U
subject we deal with in Part II.B.), the trial judge's determination that the' license condition should not be vacated is fully' supported by a valid inference drawn from the evidence underlying his other findings.
Thus, the judge found that "[t]he potential continues to exist that this unacceptable attitude toward the NRC regulatory process can adversely affect his teaching performance or the exercise of his management responsibilities contrary to public health and safety".and that the license condition should not be lifted.37 But that inference is valid only if the 37 I_d.
Rather.than simply reading the trial judge's findings as drawing an inference from the evidentiary facts that Mr.
Husted's. bad attitude toward the regulatory process was quite likely to carry over into his. work if he was allowed to return to his former position, Mr. Husted (joined by his supporters) took this finding as a legal standard by which the judge assessed Mr. Husted's-conduct.
Specifically, he argues the. hearing judge established a legal' standard to the effect that the mere existence of the potentiality that a bad attitude will adversely affect job performance is sufficient basis for job disqualification.
As Mr. Husted recognizes, the trial judge's decision on this score is subject to various interpretations.
We think the better
. view, however, is to read the portion of the hearing judge's initial. decision labeled " Findings of Fact" as factual findings, not as establishing a legal standard.
We note that our reading also comports with ALAB-772, 19 NRC at 1223-24.
There the Appeal Board, exercising its sua sponte review authority and its authority to make (Footnote Continued)
a f
23 uncontradicted evidence of Mr. Husted's job performance at GPUN cannot be considered.
We now turn to that issue.
B.
We agree with Mr. Husted, staff and GPUN to the extent they contend that the license condition barring Mr.
Husted from his prior position as supervisor of non-licensed operator training cannot stand in the face of the substantial, uncontroverted, direct evidence that Mr.
Husted's actual job performance at GPUN was satisfactory and his attitude at work toward safety, the NRC, and regulatory requirements was professional and appropriate to his responsibilities.
As previously indicated, the trial judge found Mr. Husted fulfilled his job responsibilities without showing any signs of a negative attitude toward the 8
licensing process or GPUN's training program.
But instead of accepting this evidence as controlling, the trial judge inferred from Mr. Husted's past conduct during the agency's l
(Footnote Continued) l supplemental factual findings based on the existing record (see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977), aff'd, CLI-78-1, 7 NRC 1 (1978)), inferred from the evidence supporting the Licensing Board's factual findings that Mr.
Husted's bad attitude likely would adversely affect his job performance.
(See supra pp. 7-8.)
Our interpretation of the trial judge's decision is also consistent with the Commission's view, cited by the trial judge in his findings (25 NRC at 381 note 11), that "[tlhe focus of this hearing is not a legal one, but rather a factual determination of i
l whether the Appeal Board's condition should remain in place."
Commission order (March 20, 1986) at 2.
0 25 NRC at 380.
l l
l
24 investigation and hearing on the cheating episodes and from his actions in the current hearing, that Mr. Husted's past and present bad attitude likely would infect Mr. Husted's teaching performance or management responsibilities to the detriment of the public health and safety if he were allowed to return to his prior positions.39 In the absence of any direct evidence to the contrary, this inference is not unreasonable and is sustainable from the< facts found by the hearing judge.
But that inference can no longer be. drawn reasonably in the face of overwhelming uncontroverted evidence that Mr. Husted always demonstrated a proper attitude in his job performance toward safety and the regulatory process.
Nor is there any question that the evidence convincingly establishes the correctness of the trial judge's findings regarding Mr. Husted's on-the-job performance and attitude.40 Thus, the inference the trial judge drew from the evidence underlying his other findings that Mr. Husted's bad attitude toward the hearings on the cheating incidents would corrupt Mr. Husted's job l
performance cannot stand if the direct evidence of Mr.
Husted's job performance is properly part of the record.
Likewise, the license condition supported by that inference 1
39 Id. at 384.
40 Id. at 376-81.
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-- Ab a.
25 must fall.
But the issue of Mr. Husted's job performance, and the corresponding evidence on that point, is beyond the subject matter jurisdiction ~of the Administrative Law Judge L,
. set.lur the commission in its hearing notice.
Consequently, that evidence cannot be considered as the case now stands.
It is well settled that NRC licensing boards and administrative law judges do not have plenary subject matter jurisdiction in adjudicatory proceedings.
Agency fact finders are delegates of the Commission who may exercise jurisdiction only over those matters the Commission specifically commits to them in the various hearing notices that initiate the proceedings.41 Thus, the scope of the proceeding spelled out in the notice of hearing identifies the subject matter of the hearing and the hearing judge'"can neither enlarge nor contract the' jurisdiction conferred by the Commission."42 Here, the Commission's hearing notice is clear and explicit regarding the scope of the' proceeding.
It states that the hearing shall " focus on whether the following four concerns regarding Mr. Husted are true, and, if so, whether they require that he not be employed in the 1 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985).
42 Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-235, 8-AEC 645, 647 (1974).
26 jobs in question."43 The notice then lists the four factual issues of whether Mr. Husted (1) cheated on the NRC l
licensing examination, (2) was forthright in his testimony before the Special Master, (3) exhibited a poor attitude toward the hearing on the cheating incidents, and (4) failed to cooperate with NRC investigators.44 The hearing notice limits the inquiry to the period of the NRC investigation into the cheating incidents and the subsequent hearing before the Special Master, and nothing in the notice authorizes a general inquiry into Mr. Husted's past or present job performance at GPUN.
Nor can such an inquiry be justified as part of the question whether Mr.
Husted should be barred from his former positions because the Commission expressly limited this inquiry to whether the four particularized factual issues should preclude Mr.
Husted from his prior jobs.
The trial judge, however, added the issue of Mr. Husted's job performance at GPUN to the heari.ng, declaring that "[a] full and fair hearing" requires 45 it and that such an issue is a " logical extension [ ] of 43 50 Fed. Reg. at 37,098.
44
_I_d.
45 Report and Order on Initial Prehearing Conference (February 27, 1986) at 5.
0 27 i
[the other] factual issues."46 But that ruling is simply contrary to the plain language of the hearing notice and 46 Jg. at 12.
The trial judge also sought to justify the addition of 1
this issue by relying upon the Commission's hearing notice.
He stated that the notice " calls for what is a de novo hearing to provide 'Mr. Husted with an opportunity to demonstrate his fitness for the position at issue.'"
Report and Order on Initial Prehearing Conference (February 27, 1986) at 5.
By taking the quoted language from the hearing notice entirely out of context, however, the judge below misapprehended the meaning of the Commission's notice.
As we pointed out previously (supra pp. 9-10), at the same time he requested a hearing, Mr. Husted asked the Commission to expand its scope to include the question of whether Mr. Husted should be excluded from the positions covered by the stipulation between the Commonwealth of Pennsylvania and GPUN.
Mr. Husted's request was premised upon the fact that an expanded hearing "would involve consideration of the same factual issues as would the proffered hearing."
50 Fed. Reg. at 37,098.
In granting his request in the hearing notice, the Commission relied upon the fact that the factual issues would remain the same so no additional agency resources would be required.
It then stated:
The Commission recognizes the rights of the parties to this Stipulation.
Nonetheless, the Stipulation resulted, at least in part, from an NRC proceeding to which Mr. Husted was not a i
party.
Therefore, in fairness to Mr. Husted the Commission has decided to grant Mr. Husted's request for an expanded scope of hearing.
This will provide Mr. Husted with an opportunity to demonstrate his fitness for the positions at issue, and, if results of the hearing are favorable to Mr. Husted, he can then take up the Stipulation with GPU Nuclear and the Commonwealth.
50 Fed. Reg. at 37,099.
As is evident from the full text, the language quoted by the trial judge does not support his expansive reading of the Commission's hearing notice.
e 28 such an issue cannot be fairly found within its four corners.
Although the considerable passage of time since the original hearing before the Special Master makes the evidence of Mr. Husted's job performance at GPUN useful in assessing whether the public health and safety require the continuation of the license condition, only the Commission can expand the subject matter of a hearing.
That principle is so fundamental to the agency's adjudicatory process that we simply cannot gloss over the addition of this issue to the proceeding by the trial judge even though such a step admittedly would be an easy and practical way to resolve the case.
Indeed, because maintenance of the public health and safety, not punishment, is the purpose behind every license condition, it is not unlikely that the Commission would have included this issue in the original hearing notice had the matter been brought to its attention.
Accordingly, we certify to the Commission the question whether it wishes to expand retroactively the subject matter jurisdiction of the proceeding to include the issue of Mr.
Husted's job performance at GPUN.
Because that evidence is already in the record no further hearing is necessary.
When the Commission responds to the certified question, we will then decide the appeal.
As we have explained, the evidence of Mr. Husted's job performance requires that the license condition barring Mr. Husted from his former position be
1
-f 29 i
I vacated.
On the other hand, if that evidence is excluded from the. record, we must affirm the trial judge's result.
k
.It is so ORDERED.
FOR THE APPEAL BOARD
(_ (-- \\&
- k C. J$pn Sfioemaker Secretary to the Appeal Board I
i