ML20236P016
| ML20236P016 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 08/03/1987 |
| From: | Bradford L THREE MILE ISLAND ALERT |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-4190 ALAB-772, CH, NUDOCS 8708120189 | |
| Download: ML20236P016 (16) | |
Text
. _ _ _ - _ _ _ _
- ?y)ff UNITED STATES OF AMERICA :ma:n NUCLEAR REGULATORY COMMISSION "'>>P BEFORE THE ATOMIC SAFETY AND LICENSINS_ APPEAL BOgDAUG 10 A9 :23 in the Matter of ) Qg ,. ,
) :n w GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)
)-
, - (Three Mile Island Nuclear Station, )
Unit #1) )
TMIA'S BRIEF IN OPPOSITION TO THE APPEAL OF CHARLES k'USTED
- l
-Dated: August 3,1987 Louise Bradford for Three Mile Island Alert
) 8708120189.070003 '
DR ADOCK0500g9 4
4 _ _ _ _ _ - _ - - -
}'. .
C .-...
TABLE OF CONTENTS 1.' INTRODUCT5 ....................................................................................1 p -
A. Background and Procedural History.............................................1 B. Deciding the Nature of the Proceeding ........................................ 5 .
II. The INITIAL DECISION
- A. - The ALJ Correctly Applied the Appeal Baord's Standard..............................................................................................'7 B. Ths NRC Staff Enforcement Guideline.
M e m o ra n d u m '.. .. . . . . . . . . .. .. . . . . . . .... .. . . . . . . . . . . . . . . . . . . .. .. .. . ... .. . . .. .. .. .. . . .. .. . . . . .. . . 1 0
. Ill. C O N C L U S I O N ; .. . . .. . . . . .. . . . . . . .. .. . . . . .. . . .. . . .. . . . . .. . . . . . . .. .. . .. .. . . .. .. . . .. .. . . . . . . .. . . . . . . . . . . 1 2 I
i l ;
o l
. . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .i
(
, y ,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD s
in the Matter of - )
)
' GENERAL PUBLIC UTILITIES NUCLEAR ). Docket No. 50-289 (CH)
)'
(Three Mile Island Nuclear Station, )
- Unit #1); )
L TMIA'S BRIEF IN OPPOSITION TO THE APPEAL OF CHARLES HUSTED L
- 1. . INTRODUCTION
, -On Ap-il 2,1987, Administrative Law Judge (ALJ), Morten B. Margulies, issued his initial decision in the above captioned matter. In the Decision, the ALJ concluded that
~
the condition imposed by the Appeal Board in ALAB-772, which affected Charles Husted, should not be vacated. On May 18,1987, Husted filed a Brief on Appeal from the initial Decision (Husted Brf.). For the reasons set out below, TMIA opposes Husted's appeal.
A. Backaround and Procedural Historv On April 21-26,1981, the NRC administered reactor operator (RO) and senior -
. reactor operator (SRO) examinations to all operators at TMI. The Commission had ordered retraining and 100 per cent reexamination of all TMI operators after the 1979 accident at TMI-2. CLI 99-8; 10 NRC 141 at 144,145. Allegations that cheating had
. taken place during the examinations triggered an investigation into the matter (July 1981) which was conducted by NRC investigators from the Office of Inspection and Enforcement (OIE). Charles Hosted, then an instructor of !: censed operators, was interviewed on two occasions by the OIE investigators. The socond interview was 1
l deemed necessary because of Husted's refusal to answer all questions put to him during the first interview f.f Tr. 214, attachment 2 at 2, ff. Tr 402, attachment 4 at 2 (Matakas).
The Licensing Board appointed to hear the evidence in the restart hearing, was preparing its Partial Initial Decision (P.I.D) on Management issues when it learned of the cheating allegations. The Board decided not to delay the publication of its decision, but retained jurisdiction to consider the effect of the cheating on its findings.
Management PID at 1584 n.63. The Board reopened the record and appointed a Special Master to receive evidence regarding the cheating at TMI and to prepare an advisory report. Husted was deposed on October.23,1981 and testified before the Special Master on December 10,1981. On December 1,1981, William Ward, an investigator with OIE, testified that David Janes, an SRO at TMI, had alleged that Husted had solicited an answer to an examination question during the SRO examination. ff.140, Attachment 2 (Ward).
The Special Master issued his report on April 28,1982. The Special Master found that Husted had solicited an answer during the examination; withheld information from the NRC investigators; gave incredible testimony and displayed an unacceptable attitude toward the hearing. Special Masters Report at $317. The Special Master was unable to recommend that Husted be removed from licensed duties, since he found no standard against which to measure Husted's behavior. He deemed a lesser sanction appropriate but did not have sufficient information to recommend the sanction.11 On May 5,1982, the ASLB directed Licensee to inform any of tis employees promptly of their rights to comment on the SMR. Subsequently, five TMI employees l
l who were referred to in the SMR submitted comments to the Licensee. Husted did not 1 file comments.
2 l
The ASLB issued its Partial initial Decision (PID) on July 27,1982. The Board disagreed with the Special Master regarding Husted's attempted cheating. The Board found the evidence did not support a conclusion that Husted had made an attempt to cheat during the NRC exam. However, the Board was in agreement with the Special Master regarding Husted's refusal to cooperate with an NRC investigation, his incredible testimony during the hearing, and his generally poor attitude toward the NRC examination process. PID at $2165-2167.
Despite their findings that Husted had failed to cooperate with the NRC, gave incredible testimony and displayed a generally poor attitude toward the NRC examination process, the Board imposed no sanction against Husted directly, but instead required that the Ucensee establish an audit of its training program, and that that audit give particular attention to Husted. PID at 5 2168.
The parties filed exception to the July 27 PID. The Commonwealth of Pennsylvania took exception to the Board's lack of sanction against Husted.
On July 6,1983, the Commonwealth of Pennsylvania and GPUN entered into a stipulated agreement whereby GPU agreed not to use Husted to operated TMI-1 or to train licensed operators or trainees. Husted understood ana agreed to the need for the stipulation at the time it was made. May 14,1985, Husted Reply to NRC Staff Response Concerning Charles Husted's Request for Hearing, at 4; Tr 965 (Husted).
The Commonwealth withdrew its appeal on the same day.
Shortly prior to the signing of the agreement, GPU promoted Husted to the position 1
of Supervisor Non-Licensed Operator Training.
The Appeal Board reviewed the record and the events which had occurred following the close of the evidentiary hearing, including the stipulated agreement end the promotion of Husted.
1 i
I 3 [
1 L l
In ALAB-772, which it issued in May of 1984, the Appeal Board imposed as a condition of the restart of TMI-1 that Husted "have no supervisory responsibilities insofar as the training of non-licensed personnelis concerned." ALAB-772 at 46.
The Commission took review of ALAB-772 and questioned the Appeal Board's authority to impose the condition without providing Husted notice and an opportunity to request a hearing. CLl-84-18 at 1-2. The Commission requested comments from the parties on the legal question it had posed, specifically stating that it was concerned with the factual issues which underlay the Appeal board's decision to impose the condition.11 at 4. The Commission further stated that should it determine "that the Appeal Board erred will then decide whether to take enforcement action against Husted separate from the restart proceeding."liat 5. In CLI-85-2, the Commission, without having resolved the question of the Appeal Board's authority, posed a different question: should the Appeal Board's condition be vacated. CLI 85-2 at 54. Ti.s Commission gave considerable attention to Husted's right to a hearing on the issue of whether the condition imposed by the Appeal Board should be vacated. The Commission reviewed Section 189a of the Atomic Energy Act and relevant sections of federal due process for affirmative authority to grant Husted a hearing. The Commission was unable to cite affirmative authority, but nevertheless granted a hearing in " fairness" to Husted. The Commission granted the hearing, in part, because j in the Commission's view, Husted had not been asked for his views nor had an opportunity to comment.
On March 25,1985, Husted filed a request for a hearing, and, in addition, requested that the scope of the hearing be expanded to consider the factualissues which underlay the Appeal Board's condition. See Letter from Deborah B. Bauser, Counsel for Husted, dated March 25,1985. On September 11,1985, the Commission .
i granted Husted's request for an expanded hearing. I 4
I i
The Commission appointed Administrative Law Judge Morton B. Margulies to hear the evidence. The Commission ordered the staff to participate as a full party and to l ensure that the record was fully developed.
TMIA and GPUN both were admitted as parties to the proceeding, and on February 17,1986, the parties met in Harrisburg for a prehearing conference to decide among other things who had the burden of persuasion and of going forward, and what form the hearing should take. TMIA argued that since Husted had requested
- the hearing, it most closely resembled an appeal of the earlier decisions and therefore j Husted had the burden of persuasion and of going forward.
On February 27,1986, the ALJ issued Report & Order, An Initial Prehearing 1
Conference. He ruled that the hearing most clearly resembled an enforcement ,
proceeding and that the NRC staff bore the burden of going forward and of persuasion.
Repon and Order at p 8-9. The ALJ further ordered the Staff to make known its position as to whether the Appeal Board's condition should be vacated to the other parties seven days prior to the commencement of the hearings.
Seven days prior to the commencement of the hearing,'the Staff informed the parties that its position was the Appeal Board's condition should be vacated.
The hearing began on June 23,1986 and was completed on July 1,1986. On April 2,1987, the ALJ issued his initial decision in which he concluded that the condition imposed by the Appeal Board should not be vacated. Husted took an appeal from the initial decision and filed a brief in support of his appeal on May 18,1987.
B. Decidin: the Nature of the Proceedina Before discussing the Decision itself,it is first necessary to examine an earlier decision of the ALJ, namely that the subject hearing should take the form of an
, enforcement hearing. Absent a request from Husted, no hearing would have been set.
5 L _ _ - - - - - - - - . - - - - - - - - - -_--- _
Husted certainly did not request an enforcement hearing. He requested a hearing to review earlier decisions;in other words, an appeal of those decisions. Having made the decision that this was in the nature of an enforcement proceeding, the ALJ then assigned the burden of going forward and of persuasion by a preponderance of the evidence to the NRC staff.. The Staff, however, was reluctant to assume that position.
Seven days prior to the commencement of the hearing, the Staff made known its position; which agreed in all respects with that of Husted. As Husted points out on brief,if the Staff had had its way, no enforcement hearing would have been brought l
against Husted. Husted Brf. at 4.
We have, then, the peculiar situation in which an individual reouested that an l
enforcement hearing be brought against himself, and the party charged with the responsibility for developing the record and with the burden of persuasion that has no conviction that the action is necessary. The Appeal Board should bear this in mind when it considers the evidence before it.
II. THE INillAL DECISION The ALJ concluded the condition imposed by the Appeal Board should not be vacated. In support of this conclusion, the ALJ found that Husted had failed to cooperate with the NRC investigation, had given testimony before the Special Master which lacked forthrightness, and had been unable or unwilling to change his attitude toward the NRC's regulatory process sufficiently for it to be found acceptable. The record adequately supports these findings.
The ALJ based his finding of lack of cooperation primarily upon the evidence surrounding Husted's second NRC interview during the investigation into cheating.
Looking at the evidence in a manner most favorable to Husted, the ALJ was compelled to find that, at the very least, Husted misled Matakas. Ovent ,ihe ALJ found that 6
L------------------------- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- _ - ___ _
l l .
l Husted provided information tnat proved unreliable and misleading and undermined )!
the investigative effort. Dec. at 165. l l
Husted argues that the ALJ applied an erroneous standard in that the standard i i
implies that he has no more than the potential to adversely affect those that he instructs. According to Husted,in the absence of hard evidence that his bad attitude can adversely affect students, the Appeal Board's condition must be vacated. The standard utilized by the ALJ was appropriate.
A. The ALJ Correctiv Acolied The Acceal Board's Standard Judge Margulies reviewed the conditions imposed by the Appeal Board and correctly noted that the Appeal Board and found that Husted's failure to cooperate with the NRC investigators was sufficient cause to bar him from supervisory positions which would affect the public health and safety. Init Dec.at 1137. Judge Margulies also noted that the Commission had not " questioned or raised for review the standard imposed by the Appeal Board." Init. Dec. at i 135. Although the Commission originally '
questioned the Appeal Board's authority to impose the condition, it did not question the standard itself. Therefore, when Judge Margulies rnade essentially the same findings concerning Husted's behavior and attitude toward the NRC process, as fact finders, he correctly applied the same standard in deciding whether or not the Appeal Board's condition should be vacated. Judge Margulies had no authority to fashion another standard.
In reaching his decision that the Appeal Board's condition should not be vacated, Judge Margulies careful!y reviewed all of the evidence before him, including evaluations of Husted's job performance. The ALJ found that the evaluations "showed overall that Husted's on-the-job attitude has been professional and appropriate to his responsibilities and has extended to safety, the NRC and regulatory requirements /'
init. Dec. at 1133. However the ALJ was not persuaded that Husted's work record was 7
~
sufficient to overcome his lack of cooperation and the poor attitude he displayed during the cheating proceeding and continues to display. This decision was correct.
Arcumen,1 i
The data on Husted's job performance came solely from GPUN, not a disinterested observer. There is no reliable information which is determinative of how the evaluations are performed, or how thoroughly they examine the issues in question.We do know that Husted's behavior at the hearing and related events was not considered, whereas his ability to file discovery documents was evaluated.
Each time that Husted's behavior has been subjected to independent review, he has performed badly. The fact that he is competent in his job is not in question. One expects competency from an employee as well as loyalty to his employer. However, Husted owes loyalty to a higher authority, that is the agency which regulates his activities.
Taking the evaluations at face value, Husted has demonstrated at the company level that he is a good employee. However, the evaluations are inherently unreliable.
These is no information concerning the standard GPUN used in evaluating Husted's performance. An example of this unreliability came to light at the hearing. Nelson Brown, Husted's immed! ate supervisor until recently, testified that he evaluated Husted on his ability to gather and file documents used in support of the restart hearings.
Brown did not include an evaluation of Husted's performance at the hearings and related proceedings even though reliable inforraation about the performance was available. See TMIA's Proposed Findings at j 88-91.
Husted's performance during the investigative interviews, the 1981 deposition, his appearance before the Special Master and his appearance before Judge Margulies reflect his poor attitude toward the NRC. In fact each time that Husted's behavior has been subjected to independent review, it has been criticized. His behavior demonstrates an antagonistic attitude toward the agency charged with the safety of the 8
industry and cannot be tolerated. Judge Margulies was justified in assigning greater weight to Husted's poor performance during the above listed activities.
Individuals engaged in safety related activities in the nuclear power industry must demonstrate that they have respect for the agency which regulates them, as well as I competence to perform their job-related duties. Without such a demonstration, there is i no assurance that those individuals will uniformly comply dth safety requirements.
A lack of forthrightness cannot be tolerated.
GPUN also addressed the appropriateness of Judge Margulies application of the Appeal Board's standard. Sae.GPUN Brief in support of Mr Charles Husted's Appeal (GPUN Brf. at 20. GPUN states that Husted has a Fifth Amendment Right to follow his chosen career path and argues that Judge Margulies' decision violates that right.
i GPUN Brf. at 27. (
At the outset, it should be pointed out that it was GPUN's action, with Husted's agreement, which initially deprived Husted of his operating license and interrupted his career as an instructor. Sag. Letter from Counsel for Charles Husted dated l
)
March 25,1985; Tr.065 (Husted). The reasons Husted has given for voluntarily '
relinquishing his license and his position as instructor are not important. The fact is that GPUN's agreement stipulated with the Commonwealth of Pennsylvania had the effect of removing Husted's license and altering his career path. Husted voluntarily agreed with the need for this action.
GPUN claims that there is insufficient nexus between Husted's wrongdoing and the occupation in which he seeks reinstatement. GPUN Brf. at 29 31. For this reason, GPUN claims that Judge Margulies erred when he applied the Appeal Board's i
standard. GPUN cites several cases in support of this position. The majority of cases j cited by GPUN deal with federal agencies whose responsibilities are distinctly different frorn that of the NRC. The NRC's primary responsibility is to protect the health and l safety of the public, licensing individuals to operate nuclear power plants is a !
i 9 j
l
[ i
U subsidiary responsibility, which must be performed with the primary responsibility in mind. Thus, when Husted continues to demonstrate a disregard for the NRC process as found by the ALJ, the Commission has a responsibility to remove him from a position which can affect the safety of the public.
GPUN's assertion that Husted's First Amendment rights are violated by the ALJ's decision is totally without merit and worse,is illogical. TMIA does not dispute the fact that Husted has a right to free speech. However, Husted did not climb on a soap box to criticize the NRC;instead, the ALJ found that he gave sworn testimony which lacked forthrightness. Init. Dec. at 198. Lack of forthrightness in sworn testimony is not a right guaranteed under the First Amendment. It would be a huge leap in logic to relate Husted's unforthright testimony to his right to express himself freely.
B. The NRC Staff Enforcement Guideline Memorandum Both GPUN and the Staff were compelled to go outside the record to bolster their contentions that a standard other than the one applied by Judge Margulies shou!d have been applied to Husted. . San GPUN Brf. at 15-16 and Staff Brf. at 17-18.
Although TMIA feels that arguments based on material not in the record should not be considered by the Appeal Board, it also feels that further discussion of the proposed guidelines is warranted. Staff and GPUN point to the fact that the guidelines do not contain an indication that a poor attitude alone is sufficient cause for sanction.
However, the proposed guidelines suggest that sanctions will be imposed directly against individuals in exceptional circumstances. TMIA would suggest that Husted's ;
persistently bad attitude is an exceptional circumstance. Furthermore, the guidelines
\
do not have precise definitions of all of the activities which would disqualify a licensee from continuing his licensed activities. This imprecision is necessary since the guidelines are an attempt to regulate a wide range of behavior. It would be virtually impossible to anticipate and list every activity which could negatively impact safety.
} Who could have imagined that the NRC would have had to mention sleeping on the 10 l
l - - - - - -
l t
job as a sanctionable offense; yet, we now know that it has happened far too many times at a number of different plant sites. The fact that a persistently poor attitude toward the regulatory process is not listed in the proposed guidelines as a sanctionable offense is not helpful to Husted. The guidelines suggest that a license holder's offense should be considered on a case-by-case basis, and the appropriate j sanctions be applied. This is precisely what the ALJ did. 'Husted cannot complain.
Husted next asserts that Judge Margulies erred when he found that Husted continues to display an unacceptable toward the regulatory process. Init. Dec. at 1150. The ALJ found that Husted's testimony before him lacked credibility. Init. Dec. at 109. He arrived at this finding in part because Husted introduced two recently recalled, exculpatory facts which could not be corroborated. Init. Dec. at $$ 24 and 78.
Judge Margulies was also disconcerted by Husted's refusal to acknowledge the inconsistencies in his prior testimony and to admit that the Special Master had been justified in finding that Husted lacked credibility. But it was Husted's propensity to only
" concern himself with what he considers important and to act accordingly, irrespective of the consequerices on the validity i
of the inquiry and the effectiveness of the regulatory process." init. l I
Dec. at 1108. I which most disturbed the ALJ. This propensity was demonstrated by the Husted's j testimony before the ALJ. Id at i 107.
Husted complains that the ALJ attached too much significance to these findings l when he reached his ultimate conclusion. His complaint is unjustified. The irony is i that Husted, after requesting a hearing, repeated the same behavior he had exhibited 1
during the earlier proceeding.
In summary, the ALJ correctly decided the issues before him. His ultimate conclusion that the condition imposed by the Appeal Board should not be vacated is adequately supported by the record. The findings that he made are similar to the 11
d findings of other reviewers who have considered the same facts. Absent an abuse of discretion or an error of law, the ALJ's decision should stand. No party has raised a legitimate argument that would support a conclusion that the ALJ has made an errcr of
- law or abused his discretion.
I Ill. CONC.LUSION The decision of the Administrative Law Judge should remain undisturbed. i i
l
' August 3,1987 ' Respectfully submitted,- ;
i
. ~l Louise Bradford For TMIA 1
i 12
g UNITED STATES OF AMERICA M NUCLEAR REGULATORY COMMISSION !
E
, BEFORE THE ATOMIC SAFO. Y AND LICENSING APPEAL BOAfRD AUG 10 A9 :24 In the Matter of ) bd-
)
GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)
)
(Three Mile Island Nuclear Station, )
- Unit #1) )
. CERTIFICATE OF SERVICE
, I hearby certify that copies of "TMIA's Brief in Opposition to the Appeal of Charles Husted," dated A,ugust 3,1987, were served by deposit in the U.S. Mail, first class, postage prepaid, upon the following:
Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555
, The Honorable Alan S. Rosenthal Chairman ,
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission The Honorable Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission ,
Washington, D.C. 20555
4 L
I George E. Johnson, Esq.:
-Janice E. Moore, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission ,
Washington, D.C. 20555 Deborah B. Bauser, Esq.
Shaw, Pittman, Potts & Trowbridge l 1800 M Street, N.W.
Washington, D.C. 20036 Michael W. Maupin, Esq.
Hunton & Williams P.O. Box 1635 Richmond, Virginia 23212 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 j Atomic Safety and Ucensing Board. Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
_k & Louise Bradford #
_ . _ _ - - . _ _ _ _ _ . _ . _ _ _ _ . _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ - _ _ _ _ _