ML20238D464
| ML20238D464 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 09/09/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#387-4387 CH, NUDOCS 8709110202 | |
| Download: ML20238D464 (58) | |
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TRANSCRIPT OF PROCEEDINGS UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL .
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In the Matter of: )
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1 GENERAL PUBLIC UTILITIES NUCLEAR )
(THREE MILE ISLAND NUCLEAR STATION ) Docket No. 50-289 (CH)
UNIT I) ORAL ARGUMENT ) !
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.d' Pages: 1 through 57 Elace: Bethesda, Maryland Date: September 9, 1987 fAl ,fk[clu del U" y,j - OW'#
Heritag Rep 'rting Corporation Official Reporters ,
1220 L Street N.W. f Washington, D.C. 20005 ,
(202) 628-48b8 D A 9
1 h 1 UNITED STATES NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD PANEL 3
In the Matter of: )
4 ) Docket No. 50-289 (CH)
GENERAL PUBLIC UTILITIES NUCLEAR )
5 (THREE MILE ISLAND NUCLEAR STATION )
UNIT I) ORAL ARGUMENT 6
7 Wednesday, September 9, 1987 8
9 4350 East West Highway 5th Floor 10 Bethesda, Maryland 11 The above-entitled matter came on for hearing, 12 pursuant to notice, at 10:00, a.m.
13 .
h 14 BEFORE: JUDGE ALAN S. ROSENTHAL, CHAIRMAN Atomic Safety and Licensing Board Panel 15 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 16 JUDGE THOMAS S. MOORE 17 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commssion 18 Washington, D.C. 20555 19 JUDGE HOWARD A. WILBER Atomic Safety and Licensing Board Panel 20 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 21 22 23 24 25 O
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(_j 1 APPEARANCES 2 On behalf of Charles Husted:
3 MICHAEL W. MAUPIN, Esq.
P.O. Box 1535 4 Richmond, Virginia 23212 5 On behalf of Gid Nuclear:
6 DEBORAH B. BAUSER, Esq.
Shaw, Pittman, Potts & Trowbridge 7 2300 N Street, N.W.
Washington, D.C. 20037 8
On behalf of the Nuclear Regulatory Commission:
9 JANICE E. MOORE, Esq.
10 GEORGE E. JOHNSON, Esq.
U.S. Nuclear Regulatory Commission .l 11 7735 Old Georgetown Road !
Bethesda, Maryland {
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l On behalf of Three Mile Island Alert:
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([-) LOUISE BRADFORD 14 1011 Green Street l Harrisburg, Pennsylvania 17102 I 15 16 1
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3 1 INDEX 2 ORAL ARGUMENT PAGE 3 CHARLES HUSTED by Michael W. Maupin 6 4
GPU NUCLEAR 5 by Deborah B. Lauser 21 6 NRC STAFF by Janice E. Moore 29 7
THREE MILE ISLAND ALERT 8 by Louise Bradford 37 i
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2 ' JUDGE ROSENTilAL: Good morning, ladies and gentlemen.
3 This Board is hearing oral argument this morning on 4- the appeal of Charles Husted, from the April 2, initial 5 decision of the Administrative Law Judge in this Special 6 Proceeding.
7 In that decision, the Administrative Law Judge 8 concluded that a previously imposed condition barring Mr.
9 Husted from supervisory responsibilities with regard to the 10 training of non-licensed personnel at Three Mile Island, should 11 not be vacated.
12 Mr. Husted's appeal is supported by the GPU Nuclear
-- 13 Corporation, and the NRC Staff. The appeal is opposed by Three k-) 14 Mile Island Alert.
15 The oral argument is governed by the terms of this 16 Board's August 11 order. As provided therein, each side will 17 be permitted 45 minutes for the presentation of its argument.
18 In this connection, we have been advised that the 19 time on the side of those parties supporting Mr. Husted's 20 appeal has been divided as follows. Mr. Husted, 20 minutes; 21 GPU Nuclear, 10 minutes; NRC Staff, 10 minutes; and 5 minutes 22 reserved for rebuttal by Mr. Husted and the Staff.
23 Now, I would stress to all of the participants in the 24 argument that there is no constitutional or statutory 25 requirement that counsel use their full time. That is Heritage Reporting Corporation (202) 628-4888 l
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(_/ 1 something which is not always recognized by the participants in 2 our proceedings.
3 In this vejn, I would observe, as was also noted in 4 our August 11 order, the Members of this Board are generally 5 familiar with the decision of the Administrative Law Judge, and 6 the appellate positions of the parties, as set forth, in their 7 briofs.
8 There, thus, will be no necessity for any participant 9 to commence his or her argument with a recitation of the 10 background of the controversy. Rather, each participant should [
1 11 proceed directly to the heart of the issues presented by the ]
1 12 appeal. ]
f~s 13 I will now call upon the participants in the argument i
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14 to introduce themselves formally for the record, and I will l
15 start with counsel representing Mr. Husted.
16 ??.. MAUPIN: My name is Michael W. Maupin, and I am a 17 member of the firm of Hutton & Williams in Richmond, Virginia.
28 JUDGE ROSENTHAL: Thank you, Mr. Maupin, and counsel 19 representing GPU Nuclear?
20 MS. BAUSER: My name is Deborah Bauser and I am with 21 Shaw, Pittman, Potts & Trowbridge, in Washington, D.C.
22 JUDGE ROSENTHAL: Thank you, Ms. Bauser.
23 And counsAl representing the NRC Staff?
24 MS. MOORE: My name is Janice Moore, and with me j i
25 today, is co-counsel George E. Johnson. j 1
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(..,) 1 JUDGE ROSENTHAL: Thank you, Ms. Moore.
2 And finally, the representative of Three Mile Island 3 Alert?
4 MS. BRADFORD: My name is Louise Bradford and I am 5 representing Three Mile Island Alert.
6 JUDGE ROSENTHAL: Thank you, very much, Ms. Bradford.
7 I am assuming that the order of presentation will be 8 Mr. Maupin, Ms. Bauser and Ms. Moore, and am I correct in that 1
9 assumption?
10 (No response.)
11 JUDGE ROSENTHAL: Hearing nothing, Mr. Maupin, you 12 are going to --
- 13 MR. MAUPIN: I plan to proceed first.
\'-) 14 JUDGE ROSENTHAL: All right, that is what I assume, and then I assume that Ms. Bauser and then Ms. Moore, is that i 15 16 correct?
17 MS. BAUSER: Yes, sir.
18 MS. MOORE: Yes, sir.
19 JUDGE ROSENTHAL: All right, then, Mr. Maupin, you 20 may start.
21 MR. MAUPIN: Mr. Rosenthal and Members of the Board, 22 Charles Husted has stood prohibited since May of 1984, from 23 working at the work for which he is experienced, trained for.
24 good at (if we believe the record in this case), and has wanted 25 to do.
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() 1 JUDGE ROSENTHAL: I don't understand that to be the 2 case at all, Mr. Maupin. I thought that the Commission had 3 indicated that pending the outcome of this proceeding, Mr.
4 Husted could be restored to the position of supervisor of non-5 licensed personnel training.
6 Now, if that is the case, it seems to me, that it is 7 GPU Nuclear and not this Commission, that has precluded Mr.
8 Husted from resuming this employment that you tell me that he 9 is anxious to engage in.
10 MR. MAUPIN: That is certainly a fair observation. ,
11 Mr. Husted was free to do any work that he pleased of course, 12 before the condition in A-Lab 772 was entered. Once that 13 condition was entered, he was forbidden to serve as a 73 V 14 supervisor of non-licensed operator training.
I 15 Once the NRC, once the Commission granted him a 16 hearing, then to be sure, it lifted the condition pending the 17 outcome of that hearing. What is a practical matter, and I ,
18 must necessarily go outside the record here, and you stop me, 19 if that is not acceptable, but I can guess that a company is 20 going to think long and hard before it puts someone in a i 21 position from which he may, at any day or any month be barred.
22 Folks tend to go along pre-determined career paths, 23 and I believe that it is fair under the circumstances to say 24 that he does not have the job today that he was trained to do, 1 i
25 and the position that he was in, in 1974, precisely because of i
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8 "1 () 1- the Appeal Board's Order -- an-order, entered without any 2- evidence before the Appeal' Board, at that time, as to how he 3 - performed that job.
4 Mr. Husted, of course, was not a' party, had no notice 5 to that proceeding, and as a result, he was granted this 6 hearing.
7 This hearing has resulted in, what I believe, is an 8 extraordinary ~ decision by the Administrative Law Judge to 9' uphold'the condition in.A-Lab 772; it is a decision that Mr.
10 Husted urges you to reverse.
11 JUDGE ROSENTHAL: Let me ask you this, Mr. Maupin.
12 MR. MAUPIN: Yes, sir.
13 JUDGE ROSENTHAL: In your view, who had the burden of
.D 14 proof in this_ proceeding?
15 MR. MAUPIN: I am prepared to say that Mr. Husted did 16 not have the burden, either of going forward or the burden of 17 proof.
18 JUDGE ROSENTHAL: Well, all right, will you --
19 MR. MAUPIN: And Judge Margulies so ruled.
20 JUDGE ROSENTHAL: Well, I would like you then, to 21 explain to me, the significance of the statement in the 22 Commission's Notice of Hearing, to the effect that the hearing 23 will provide Mr. Husted with an opportunity to demonstrate his 24 fitness for the positions at issue.
25 Now, where I come from, that is a burden of proof O.
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(_/. 1 language.
2 MR. MAUPIN: It does appear to be. I think, in the 3 circumstances, I like to believe that the Commission was not 4 being terribly precise, given the reasons that it granted a 5 hearing to Mr. Husted. I believe that it would have been more 6 accurate to say, an opportunity for the world to demonstrate 7 that Mr. Husted ought to be removed from his job --
8 JUDGE ROSENTHAL: That is not what the Commission 9 said.
10 Now, don't we have to assume precision in Commicsion 11 orders? l 12 MR. MAUPIN: I would not assume that, in this case.
13 The ALJ did not assume it.
k 14 JUDGE ROSENTHAL: I understand that.
15 MR. MAUPIN: He came, I believe, to the right 16 conclusions.
17 JUDGE MOORE: Under the Regulations, Mr. Maupin, 18 where does the burden lie? Isn't it normally with the 19 proponent of any order, and here, your client was seeking to 20 have an order vacated, so that would he not be the proponent?
21 MR. MAUPIN: I don't mean to avoid a straight answer 22 to that question.
23 The difficulty that we have here, and the ALJ had 24 difficulty with it, was that we did not quite have any 25 precedent, any of us, was comfortable with, for determining how O
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I to deal with this case.
2 The conclusion was -- the ALJ's conclusion, and it 3 was the argument that I made in the lower courts -- was that 4 this proceeding was in the nature of an enforcement proceeding.
5 And in an enforcement proceeding, a person whose ox 6 stands to be gored does not have the burden of going forward or '
7 the burden of persuasion.
8 That seemed to be the best analogy in this case, and 9 I trust that it is one that will commend itself to you.
10 JUDGE ROSENTHAL: But we do, in order to accept your 11 position on burden of proof, have to assume that the Commission 12 did not mean what it said, in the Notice of Opportunity for z, 13 Hearing, because as you conceded, and if you take this language b 14 at face value, it imposed the burden of proof on your client.
15 MR. MAUPIN I simply am not able to agree that if it i 16 had meant something that precise, that it would have, that it l
17 would not, that the Commission would not have used language 18 with precision that was up to the task.
19 In any event, let me say, that I believe that Mr.
I 20 Husted, on this record, has clearly demonstrated his fitness i l
21 for the position -- testimony covering 11 years of the way that 1
22 he has performed his job, without a single indication of a l 23 substantial flaw.
24 JUDGE MOORE: So, at this point, it is a "no, never 25 mind harmless error", as to who had the burden or : lid not have Heritage Reporting Corporation (202) 628-4888 i
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1 it? t 2 MR. MAUPIN: I bolleve that to be right, but also --
3 JUDGE MOORE: But just as -- - s.
j 4 MR. MAUPIN: --
I believe that the burden was 5 properly allocated. ,
i 6 JUDGE MOORE: As an academic point, could you tell me 7 who had the burden?
8 MR. MAUPIN: I may not -- ,
9 JUDGE MOORE: Decause as I read what has transpired, 10 Mr. Husted did not; TMIA did not; the Staff did not; and GPU s
11 did not.
12 Now, I might be a bit old-fashioned, but I thought 13 that the only way to have an adjudicatory proceeding was to O 14 have someone with the burden of proof, otherwise we are into a 15 legislative hearing process.
16 MR, MAUPIN: I may not be completely on this and I 17 will trust Ms. Moore to correct me, but it s,eems to me that .
I 18 there was a time, when the Administrative Law Judge toyed with 19 placing that burden on the Staff, but it was a responsibility
"; 0 that the Staff on invitation, that the Staff declined.
21 And I have pondered on the metaphysical niceties of 22 that question. I have deciden that I represent a client and I 23 simply have to content myself that the conclusion that whoever 24 might have had it, he dia not. And whoever might have had it, 25 has not carried it, r) kJ Heritage Reporting Corporation 1 (202) 628-4888
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(_) 1 ' JUDGE MOOREr All right.
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2 JUDGE WILBER: Mr. Maupin, can I ask some questions I
g' 4.' , w 3L about the chronology in your brief?
4 On page 9, if I am reading it correctly, you say that
, 5- the agreement between the Commonwealth of Pennsylvania and GPU 6: occurred at'one point, and subsequent to that, or the company s
7 thereafter, promoted Mr. Husted to the position of Supervisor
'I' 8 of Non-licensed.
is. ,
9 Is this correct?
10 MR. MAUPIN: I believe that is correct, yes, sir.
11 JUDGE WILBER: Because the record indicates, if I am 12 reading the record correctly, indicates that he was promoted in
, 13 March of 1983, and the agreement was not brought into being
') - 14 until June of 1983.
15 The reason that I am asking is that it appears to me, 16 that that agreement did not do an awful lot to him because he 17 was now out of the instruction of licensed personnel; he was 18 out of the licensed activity, so to speak.
19 So, I am wondering what was the force of that 20 agreement?
21 MR. MAUPIN: First of all, let me say, that if I have 22 misstated the order in which those events have occurred -- and l
l 23 to be perfectly candid, I cannot remember right now, what the 24 record shows on that. I had some reason for doing this, but I 25 may well have gotten that wrong, and I will check on that when O
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.T < 1 LI get back'to my. table.
2- One of the central points of.the ALJ's decision is that, on the face of it, at least, this order affects Mr.
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L 4 Husted for a long time, if not forever, for a long time.
5 I don't think that we can assume that the fact that 6 he was out of the licensed work, meant that he would never.get
.7 back.into the licensed work. This forbade GPU Nuclear from 8 using him as a licensed operator. And surely there could be 9 opportunities in the future,.when he might want to get back 10 into licensed operating work.
11 JUDGE ROSENTHAL: Only at Three Mile Island, is that 12 not true?
13 MR. MAUPIN: True.
O- 14. JUDGE ROSENTHAL: GPU has plants in New Jersey, does 15 it not?
16 MR. MAUPIN: True, it does have a plant in New 17 Jersey.
18 JUDGE ROSENTHAL: They could have used Mr. Husted in 19 any capacity in the New Jersey facility, is that not true?
20 MR. MAUPIN: Yes, sir.
21 JUDGE ROSENTHAL: What is the -- from your client, I 22 mean you started out this argument by painting this really 23 horrendous picture as to what this condition that our 24 colleagues imposed on your client has meant in terms of your 25 client.
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14 i) 1 And it looks to me as if the consequences in the real 2 sense, are relatively few. He could be employed in a GPU plant 3 elsewhere, and he could be employed by any other nuclear 4 utility, is that not true?
5 MR. MAUPIN: Yes, sir.
6 JUDGE ROSENTHAL: So this 's a very limited condition 7 in terms of effect.
8 MR. MAUPIN: It is a very significant condition in 9 terms of his freedom to pursue the line of work that he is 10 trained for and experienced at, for 10 years --
11 JUDGE ROSENTHAL: At one plant.
12 MR. MAUPIN: -- prior to the order -- for the time 13 being, the stipulation applies to -- it certainly applios to 14 the type of work that he may do. Whether it extends only to 15 Three Mile Island, I am not prepared to say but the stipulation 16 will speak for itself on that.
17 Let's assume that --
18 JUDGE MOORE: The stipulation, once again, says now, 19 and at any time in the future, licensee will not utilize Mr.
20 DD, and I --
21 MR. MAUPIN: Yes, that is Mr. Husted.
22 JUDGE MOORE: Whose attitude was criticized by the 23 Licensing Board, to operate TMI I or to train operating license 24 holders or trainees.
25 And one can argue --
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..(_f 1 MR. MAUPIN: Yes, and that may mean, operating 2 license trainees for TMI and it may mean for Oyster Creek.- :
3 But, in any event, it.is a severe limitation 1on what
.' 4 Mr.-Husted is permitted to do and it all flows from the --
5' JUDGE ROSENTHAL: Well, part of the' limitation flows 6 from the fact that GPU Nuclear agreed w'ith the Commonwealth of 7- Pennsylvania, --
8 , MR. MAUPIN: No question.
.9 JUDGE ROSENTHAL: And that has nothing to do with the
- 10. NRC imposed condition and I would take it that no matter what 11- the outcome of this proceeding is, that the agreement reached 12 between the Commonwealth and GPU Nuclear carries the day unless 13 the Commonwealth'is willing to abandon it. Isn't that true?
O 14 MR. MAUPIN: That is right, and let me leave this 15 thought with you -- you will have been struck, I am sure, by ;
16 the. fact that our brief dwells virtually for its entire -l 17 contents on the facts in this case.
18 I happen to believe, although I am going to leave to 19 -GPU Nuclear, the defense of some of the legal arguments this i
20 morning -- I am to believe that the decision is indefensible, 21 both on legal and factual grounds.
22 Let me tell you why I stress its factual 23 deficiencies. It is precisely because the condition in A-Lab j j
24 772 only constrains Mr. Husted once it takes effect again, in L .25 his role as Supervisor of Non-licensed Operator '.taining.
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c j; 16-() 1. In.the best of all possible worlds, I would like to 2- go from here'or at least a couple of months down the road, 3 armed with a decision that not only overturns the.
4- ' Administrative Law Judge's decision, but overturns it to the-5 extent that it'found that Mr. Husted hadfan unacceptable 6 attitude towards'the regulatory process in-1986, and overturns 7- it to the extent that it finds that he had an unacceptable 8 attitude towards the regulatory process in 1981.
9 Because that will arm me to go to the Commonwealth of .
1 10 Pennsylvania and say.that the premise on which you base your
- 11. insistence on this stipulation, I think, we can now demonstrate
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12 was'an incorrect premise. Mr. Husted has had his day in court, i
0 13 and he has been exonerated. Won't you agree not to enforce the.'
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-14 stipulation?
15 I don't mean to suggest that you.have an obligation 1 16 to1 decide the case on the facts. I simply want you to know 17 that --
18 JUDGE MOORE: Has GPU Indicated to you that they are 19 willing to essentially dismiss this stipulation and not abide 20 by it?
21 MR. MAUPIN: I have not asked GPU' Nuclear that 22 question. It seems to me that
the Commonwealth of 23 Pennsylvania'is willing to agree that it will not attempt to 24 ' enforce it, I am willing to take my chances with GPU Nuclear, 25 based on the position that GPo Nuclear has taken in this case, O
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() I which is, that Mr. Husted has been a good and valued employee 2 for 11 years.
3' JUDGE ROSENTHAL: I take it, that you have not had 4 any preliminary conversations with representatives of the l 5 Commonwealth as to what they might or might not do in the event 6 that we were to decide this case, as you would have it decided.
l 7 MR. MAUPIN: I have not, Judge Rosenthal.
8 I had thought that shortly after the ALJ's decision, 9 I might be in a position to do that. I have decided that 10 henceforth, I am going to wait to raise that conversation until 11 I have a favorable decision.
12 JUDGE ROSENTHAL: I think we're entirely familiar 1
7 13 with your argument on the facto. It's fully developed in your 14 brief. Let me just ask you this. I take it that in 15 substantial, although not entire measure, your case rests upon 16 the record evidence with respect to Mr. Husted's performance of 17 his duties, and indeed the ALJ's favorable findings on that 18 score.
19 I appreciate the fact that you do not agree with the 20 ALJ's finding of the matter of attitude and lack of 21 forthrightness and all of those.
22 But am I correct that you do put quite heavy emphasis 23 on the ALJ's affirmative findings with regard to the 24 performance of Mr. Husted? l 25 MR. MAUPIN: I do. I think that those findings are Heritage Reporting Corporation (202) 628-4888
H. 18 k 1 the linchpin.of'.the conclusion that whatever the -- well, that 2' he is qualified by virtue of integrity, attitude and
.3 competence, not a super star, but certainly qualified to.do the 4' work that he's been forbidden to do. That's the evidence that 5 was missingLin 1981 that your colleagues in 1984 did not'have 6 ~ before it. And I think that's.the critical evidence in terms 7 of.the question of whether he ought to be free to perform this
- 8 -training work.
L l 9 JUDGE WILBER: You say " qualified". You are talking l 10 about the evaluations, and these are the -- I don't want to p
11 know what choice of words --'the mechanical things that he can 12- instruct, he can perform the operations, or are you also 13 addressing his. attitude?
r O 14 MR. MAUPIN: No, I'm addressing - .lat terms of the 15 record in this case, I think.the record in this case indicates 16 .with. virtually no contradiction that he is qualified in terms l
17 of the nuts and bolts of the job since the previous meeting.
l 18 JUDGE WILBER: That's what I meant by mechanical
- - 19 aspects of it.
20 MR. MAUPIN: But Judge Margulies, among other things, 21 'found that he is qualified by virtue -- he has both an 22 appropriate and a professional attitude towards the discharge 23 of his duties insofar as the NRC regulatory process and safety 24 are concerned.
25 So both in terms of the nuts and bolts of his work,
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19 (f 1; and'in terms of.his professional attitude, and in terms of his -2 2 integrity, he qualifies on all those grounds insofar as this 1
3 record shows..
4' My data, if this machine can be trusted, indicate 5 that I have about.one minute left, and 19 pages of argument.
6 With that, I.shall -- j 7 ' JUDGE WILBER: Before you leave, I have some more l1 8 questions on the chronology.
9 MR. MAUPIN: Yes. !
- 10. JUDGE WILBER: If I followed the record correctly, 11 Mr. Husted took the examination in April of 1981, and I--- l 12 MR. MAUPIN: He took two.
I 13 JUDGE WILBER: -- think he took the examination in O 14 .- October.of '81, if I understand the' record correctly. Is 15 that - -
16 MR. MAUPIN I'm sorry?
17 JUDGE WILBER: He also took an examination in October
'18 of 1981; is this correct?
19 MR. MAUPIN: I think that's not correct. He took an 20 examination -- he~took two examinations in April of 1981.
21 JUDGE WILBER: That's the operator's and senior 22 ' operator's; yes, I understand that.
23 MR. MAUPIN: That's right. o 24 He was interviewed by the NRC, the so-called first
-25 interview in July of 1981.
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20-(( )., 1- JUDGE'WILBER: -Yes.
2l 1MR. MAUPIN: He was interviewed a second time by the' 3 NRC-in September of 1981. He gave a deposition before "4 lintervenors in the restart-proceeding-in October'of 1981, and 5 he testified beforefthe special master in December of 1981.
6 JUDGE.WILBER: But there was -- I thought the April 7 of '81 examinations.were all declared void. And does that mean 8 that his license stopped at that point?
9 MR. MAUPIN: I'see. I believe, as well as a later 10 date - I believe-that.all of the examinations that were taken 11- in April were sort of like off the books-and had to be retaken.
12 I don't know when those examinations were retaken.
.13 JUDGE WILBER: But he did take them? l O.. 14 MR. MAUPIN: I don't know what the record shows on 15 .that. I believe he retook -- I believe the record shows he i 16 retook them and got a good grade on them.
17 ' JUDGE WILBER: Okay, and it's not only the written !
18 exam, but the operating examinations as well.
19 MR. MAUPIN: I don't know that.
20 JUDGE WILBER: I'm trying to find out when his j i
21 licensed stopped. I thought that the April examinations had l 22 been declared void because of the cheating incidence, and.I 23 would think then his license would not be valid.
1 24 MR. MAUPIN: I regret to say I do not know at this L
25 moment whether that inforection is in the record. I can try l
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to - 11can. provide you with that information, or I can tell 1 v 2 you whether it's in the record or not.
3 'Could I do that?
4 JUDGE WILBER: . Yeah. Well, the point is'that.if this 5 is correct,.then he had no' license long before any actions were 6~ -taken,'whether it's'the agreement with the Commonwealth of 7 Pennsylvania, or the appeal panel's action, or the licensing 8' board or hearing examiner. This is what I'm curious about.
9- I don't know when his license ceased to be.
10 MR. MAUPIN: I'll get you an~ answer to that.
11 JUDGE ROSENTHAL: Thank you, Mr. Maupin.
12 Ms. Bauser?
13 MS. BAUSER: Mr. Chairman, gentlemen.- I appreciate
.O. '14 the opportunity to be able to discuss this case with you today. 1
, 15- JUDGE ROSENTHAL: I would like to hear you on this i
16 . burden of proof question. i 17 I tend to agree with my colleague, Mr. Moore, that 18 the burden of proof has to be on somebody in a proceeding, and
- 19. perhaps you will be able to enlighten us as to which party had 20 it.
21 MS. BAUSER: I am not sure I can do much better than 22 Mr. Maupin. I do agree with Mr. Maupin that the burden of j 23 proof cannot properly be placed on Mr. Husted. I think -- )
1 2.4 JUDGE ROSENTHAL: So you agree then with him that the i 25 Commission simply didn't mean what it said.
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() 1 MS. BAUSER: I think that's correct. I think that 2 the Commission did not analyze the issue of -- the implications 3 of its questions about A Lab 772.
4 Having said that it was not clear whether Mr. Husted ,_
i l 5 had a fair opportunity to present his side of the case and l
6 therefore it was going not give that to him, it would be 7 inconsistent to burden him, in effect, with a presumption that 8 he was incompetent to hold the license and put him in a 9 situation where he had to go forward on that basis.
10 JUDGE ROSENTHAL: Well, if you are asking us to take 11 what I regard as the remarkable step of telling our superiors 12 in effect that they didn't mean what they said, it seems to me 13 that you have some obligation to tell us who had the burden of O 14 proof.
15 MS. BAUSER: No, I think that you have to look at all 16 of what the Commission said, Mr. Rosenthal. And I think that 17 the critical element of the Commission's decision was that it 18 felt that Mr. Husted needed to have his day in court. And you 19 are not giving an individual his day in court if you place on i
20 him a presumption whj;h he has to disprove that he's guilty 21 before he can -- so that he has to establish his innocence.
22 And I think to make that stetement would be 23 inconsistent with the Commission's order.
24 JUDGE ROSENTHAL: Even if that's the case, we are 25 still left with the question, who had the burden of proof.
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() 1 Now I, in all of the years that I am been at the 2 bar, I have never seen a case where the parties were not 3 prepared to say with some degree of confidence that the burden 4 of proof lay with some opponent. And in this case, I can't get 5 an answer out of either Mr. Maupin or you as to who has the 6 burden.
7 MS. BAUSER: Well, the difficult in this case is that 8 there was no party, other than an intervenor, TMIA, who argued 9 that Mr. Husted should be barred from licensed duties and from 10 some of the other duties that were at issue in this case.
11 And, therefore, to place, in effect, artificially l 12 that burden on the staff, which is what was considered, didn't 13 make sense because the staff couldn't argue a position that it O 14 didn't believe in. And that's what cauued the quandary in the 15 case 16 Now it would seem logical that the staff, who is -
17 would be the logical one, but in this case it didn't make any 18 sense.
19 JUDGE ROSENTHAL: All right.
20 MS. BAUSER: I think that's why we are all stuck in 21 this issue.
22 JUDGE ROSENTHAL: Well, I don't want to take more of 23 your time than this, but I have got another question for you, 1
1 24 and that is, we are hearing from the parties on your side of 25 the case that Mr. Husted has demonstrated his fitness to O
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24, d 1 perform the. duties of the position from which the' appeal board 4
-j 2 condition has precluded-him.
3- Now if that's the case, it comes as something of a 4' surprise to me that GPU Nuclear didn't see fit.to restore him 5 to the position of supervisor of nonlicensed operator training 6 when the Commission gave GPU Nuclear the green line to do 7 precisely that.
8 Shouldn't I take that as being some indication of 9 perhaps a lack of full confidence on the part of his employer 10 that he was' totally fit in all respects, including attitude, to 11 fulfill that. responsibility?
12 MS. BAUSER: No, sir. I don't think that would be 13 .the correct presumption.
O' 14 First of all, that job position was no longer
.15 available. You know, we're getting into facts that were not 16 argued in this record, but there was a practical limitation in 17 what opportunities could be made available to Mr. Husted, which 18 really goes to the basic problem in this case, which is that by 19 the -- by the actions of the ALJ and earlier that Mr. Husted is 20 estopped from pursuing what would be a normal career path. And 21 in that case that's the very thing that happened.
22 There was absolutely no negative reaction, although I 23 will agree with Mr. Maupin's comment that there was a high 24 degree of sensitivity on the part of GPU Nuclear to not 25 offending anybody in terms of placing Mr. Husted in a sensitive LO l Heritage Reporting Corporation (202) 628-4880 1
25
). 1 position for which no record had.yet been established that he L2. ' qualified.
3 That doesn't mean that we didn't think he did. We 4 indeed think-he qualified,'and-we thought-he qualified when we-5 put. him in ~ that position, cn: 5na wouldn't have put him in it in
'6 the first place
, 7 JUDGE ROSENTHAL: Now do you regard your client as-8 being under any restriction with respect to the employment of 9 Mr. Husted'at some other nuclear facility that it might i
.10 operate?
11 1MS.'BAUSER: Let me make a distinction here. The
-12 stipulation with the Commonwealth of Pennsylvania is limited to
.13 TMI 1. However,.I do believe that the ALJ's decision is not so
.O--
14 limited.- The ALJ's decision suggests a lack of qualifications
'15 at any nuclear plant; indeed, plants other than those owned by-16 GPU.
17 I would also say --
1 18 JUDGE ROSENrHAL: I'm talking about the appeal board 19 condition, because all that the ALJ decided as the bottom line 20 was that the appeal board conditions should remain in effect.
21 So we are really looking at the appeal board condition.
I 22 Do you construe that as precluding Mr. Husted from i 23 serving as a supervisor of the training of nonlicensed ,
\
p 24- personnel at another fa'cility? 1
- 25. MS. BAUSER: Well, let me explain. I don't think it
.(:)
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r- .26 O 1 grec1uaee it, nut 1 taiax taere ere grectice1 aecieiooe.
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3 4
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7 8
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(,s) ,. 1 Oyster Creek is a BWR. And I am not familiar -- I don't 2 believe Mr. Husted has any experience at a BWR. He came to TMI 3 and trained as an auxiliary operator. That evidence is in this 4 record. I l
5 Whether it would be at all practical to move him to 6 New Jersey, begin his training over again, again you are in 7 effect creating a new career path for him. So I don't think 8 there is an obvious option there which is what I think that you f
9 are suggesting.
10 JUDGE ROSENTHAL: All right. So you are saying there 11 may be a practical problem whether or not there is a legal 12 restriction
, 13 MS. BAUSER: Yes, sir.
t)
14 JUDGE MOORE: Is there a practical problem to 15 restoring him now? Does he presently hold either an operator's 16 license or a senior operator's license? i 17 MS. BAUSER: I don't think he possibly can, because 18 those licenses have a two-year life, in effect, and they are i 19 automatically renewed I believe under the regulations if the 20 individual's enrolled in the training program. Of course, Mr.
21 Husted has not had that opportunity.
22 I think that obviously Mr. Husted, and I make this 23 point in my brief, has been penalized, and would take some time 24 for him to get back on track, in effect. That doesn't mean 25 though that he shouldn't be put back on track, and that he O
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()- 1 couldn't go back on track. He would have to go back into the 2 operator training program, . qualify under GPU's training program 3 at TMI, and seek to take the NRC examination over again.
4 That's the only way that he can proceed at this point.
5 JUDGE MOORE: And your client is prepared to have him 6 do that?
7 MS. BAUSERt Yes, sir. The reason is because we 8 have -- really, there is a number of reasons. !
9 One reason is that he has displayed a competence, and 10 the other necessary qualifications over a long period of time.
11 GPU has a vested interest in Mr. Husted.
12 There is also a morale question here, both to Mr.
,_ 13 Husted and to other individuals in GPU's employ. That is, if 14 Mr. Husted is indeed qualified and has in effect been severely 15 punished, perhaps more than he has been dt ., it is only fair 16 for GPU to give him the opportunity to work in the position 17 that he's in.
18 Now let me make one qualification about this. GPU
.19 made an agreement with the Commonwealth of Pennsylvania in a j 20 very difficult circumstance that it was in. At the time it 21 made the agreement it was clear to GPU that Husted was I
22 qualified, but nevertheless, Husted was estopping the forward l 23 movement, so to speak, of TMI 1 restart.
24 JUDGE ROSENTHAL: And your client was prepared to 25 throw him to the wolves, in effect, j l
f~)
s-Heritage Reporting Corporation (202) 628-4888
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() 1 MS. BAUSER: I think that practical necessities in 2 such circumstances are not unreasonable. I think that Mr.
3 Husted while himself, and agair. this is not on the record --
4 JUDGE MOORE: WAs his promotion directly related to 5 the stipulation between your client and Pennsylvania?
l l
6 MS. BAUSER: No, I would say indirectly; that is, we 7 were looking for a career path of some sort for Mr. Husted, who 8 is a very capable performer in the training department.
9 JUDGE MOORE: Has he been economically disadvantaged p 10 in any way by this?
11 MS. BAUSER: I can't give you the data on that. That 12 is not on the record. But I will say that there are special 13 dispensations, if you will, for operater, for the stringencies O 14 of operator requirements: the shift schedule, taking the exam 15 and and what not. I think there is quite an economic penalty.
16 JUDGE WILBER: Did he get benefits from that if he 17 was an instructor?
10 MS. BAUSER: He was not a licensed instructor. If 19 you are a licensed instructor, you do -- can you hear me if I 20 speak without the mike?
21 (Pause.) . , .
22 JUDGE WILBER: Are you back on with her?
~
23 MS. BAUSER: Yes, thank you.
24 As a licensed instructor, you do have to serve some 25 time so there would not be a distinguishing factor, I don't O
Heritage Reporting Corporation (202) 628-4888 i
p-30 lf l' believe. The answer is yes to'your question.
2' JUDGE WILBER: Al1~right. Now does he have to have a 3L . licensed to be an instructor?
4 MS. BAUSER: An individual has to have a license to.
5- instruct licensed operators.
6 JUDGE-WILBER: Is that part of the' regulation? I 7 didn't find it,fand I was just wondering where it is in the 8 regulation.
9 JUDGE MOORE: That's a license. distinct from an 10 operator or senior operator's license.
11 MS. BAUSER: I can't tell you anymore. I should know-12 this'because I did the training hearing at TMI, but I can't 13 tell.you any more; whether that's a regulatory requirement or
.Q. 14 that's GPU's internal training requirements.
15 I believe.that the NRC requires it, but I chn't say 16 that. ,
1 17 JUDGE ROSENTHAL: Why don't you supply a supplemental 18 memorandum on that~ point.
19 MS. BAUSER: Yes, sir. ;
20 JUDGE ROSENTHAL: Your time has expired. !
21 Ms. Moore? Can you help us out on the burden of 22 proof?
23' MS. MOORE: I can help you out as far as the staff is 24 concerned in that the staff had the burden of presenting the V
L 25 record on which the order could be judged, or presenting I ,
[
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() 1 presenting'the evidence on:which the order could be~ judged.
l 2 :. So , therefore, .the staff had'some burden.of going forward 3~ although we'specifically did not.have the burden of' supporting l 4- the order.
1 5 JUDGE ROSENTHAL: Well,'on that score, Ms. Moore, I ,j l
6 assume that1what you are alluding to11s the fact that the 7 notice of hearing stated in part that the NRC staff is to
'8 participate asia full party and is to ensure that the record is 9 fully developed.
-10 Is_that what you had in mind?
11 MS. MOORE: That's correct, as well as the 12 administrative law judge's. ruling that the staff would go 13 forward with-the record, but would not have the burden of
-O - 14 persuasion.
15 JUDGE ROSENTHAL: Well, now the duty that was imposed 16 upon the staff to ensure that the record is fully developed, do 17 'I take it that that charged the staff with the responsibility 18 of seeing that everything unfavorable to Husted was on the 19 table, as well as everything favorable to him?
20 MS. MOORE: Yes.
21 JUDGE ROSENTHAL: Well, did the staff do that? Did 22 the staff present anything at all that cut against Mr. Husted?
23 MS. MOORE: The staff did present the testimony of 24 Mr. War.1 who was the investigator who originally alleged in his i 25 December 1981 testimony that there had been a solicitation made f l L -( ).
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32 n) i x_ 1 by Mr. Husted in the April 1981 exam.
2 JUDGE ROSENTHAL: What purpose was that testimony 3 submitted?
4 MS. MOORE: The testimony was submitted to ensure 5 that the record contained the views of the staff members who 6 had participated in that investigation.
7 JUDGE ROSENTHAL: All right. Now in terms of Mr.
8 Husted's fitness in 1986 to fulfill the duties which he could 9 net fulfill by r ason of the appeal board condition, did the 10 staff present anything at all in that connection that might 11 have cut against Mr. Husted having the condition vacated, or 12 was everything the staff presented in Mr. Husted's favor?
13 MS. MOORE: In that instance the staff did conduct an
() 14 inspection, and the results of that inspection were favorable I
15 to Mr. Husted.
16 JUDGE ROSENTHAL: One hundred percent. There was j 17 nothing in the course of the inspection that might have l 18 possibly given reason for some concern?' Everything that the !
19 staff's investigation disclosed was 100 percent in favor of Mr.
J 20 Husted; is that correct? l 21 MS. MOORE: I believe that there was a frank 22 discussion of the interviews conducted during that inspection 23 in which they said that Mr. Husted was outspoken, but the 24 inspection results and even the results of those interviews 25 wero favorable to Mr. Husted, yes.
] 1 Heritage Reporting Corporation i (202) 628-4888 ,
.- l 33 LA.m) . 1l JUDGE ROSENTHAL: Well, did the staff feel at all
-2. ~ uncomfortable about having the dual role of, one, being'an 3-- advocate which the staff clearly was. It was called upon, to 4' -be sure against it's will, to take a position, and it did'take 5 a position. And at the same time being called upon to present 6- everything that might possibly cut against its position.
7- MS. BAUSER: I believe that's a difficult role for L
C 8 the staff. However, the staff was prepared, ready, willing and 9 able to do that since that is what it was ordered to do, and 10 the staff tried to_ maintain, or tried to the best of its 11- ability to present the entire record, or as complete a record 12 .as could be presented on the issue.
13 JUDGE ROSENTHAL: But it didn't present anything, did 14- it, that cut against Mr. Husted's fitness as of 1986?
15 MS. MOORE: To my knowledga, it didn't have anything 16 to present against'his --
17 JUDGE ROSENTHAL: So Mr. Husted, it turned out 18 Laccording to the staff, was one of those rare individuals that l 19 everything about him enured to his benefit. I mean there are 20 very few of us, Ms. Moore, that do not have a few warts. But 21- apparently in the view of the staff Mr. Husted was one of them.
- 22. Is that what I should assume from what you have stated?
23' MS. MOORE: I think what should be assumed is that
.24 .the staff investigated Mr. Husted'c performance of the tasks 25 which are related to health and safety, which is the staff's Lo I Heritage Reporting Corporation (202) 628-4888
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() 1J purview, and determined that in the. performance of.those tasks 2 he was competent and his attitude was appropriate.
3 I would not -- the staff did not do a thorough 4 investigation of Mr. Husted's. life as a whole. But in those
'5- areas in which the staff investigated -- the staff performed; L6 tits investigation, in those areas-related to public health and
-7 safety, Mr. Husted was found to be a competent employee with an
'8 appropriate attitude.
9 JUDGE ROSENTHAL: So you and the administrative were 10 just on polar extremes on that matter; is that correct?
11 Because apparently the administrative law judge felt that Mr. j
-12 Husted still-had some attitudinal problems, but the staff
. 13- didn't see'any,possible problems along that line.
14 MS.-MOORE: The difference, I believe, was in the.
15- interpretation of the critical question' here, and that was 16 whether'it was a general question of attitude which was-17 important, or attitude as expressed in Mr. Husted's job 18 performance.
19 And in that situation is where the staff and the 20 administrative law judge differed. The staff believed that 21- based on A Lab 772 the critical question was whether in Mr.
- 22. Husted's job performance he -- the record supported the appeal 23 board's belief that an instructor, for example, conveyed of 24 necessity his attitude along with the information he imparted.
25 JUDGE ROSENTHAL: Now when the staff took a look at O
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.1 Mr. Hustes.
d job performance, I take it that this was in terms I -2; ofl simply reviewing-the evaluations that Husted had gotten;from-
- 13l .his superiors. I take it.the staff'didn't go out and actually-4 . observe Husted performing his duties. Am I; r),jht about that?
, 5 MS. MOORE: The staff did not observe, to my-6 knowledge, did not observe him performing his duties. However, 7 they'did' interview, the' inspector interviewed employees who 8 worked with Mr'. Husted and were instructed by him. So.to that 9 extent they'did more than review documents concerning his ,
10 performance. They actually tried to determine whether there 11 were concerns in those people with whom he' dealt on a 12 day-to-day basis concerning Mr. Husted's attitude.
- 13. In addition, the staff believes that the evidence of-
- 14 record does support -- does not -- pardon me -- no longer 15 supports the appeal board's. belief that'Mr. Husted as'an a l
. 16 instructor would communicate his attitude to those he j
'l 17 instructed. j i
18 JUDGE WILBER: You say "no longer". Do you -- are j i
19 you implying that it did at one time?
20 MS. MOORE: No, sir; no, sir. I 21 Oh, the record? Oh, I'm sorry. No, it never did in l
22 that there was no evidence either way before the appeal board 23 in-1985.
]
'1 24 JUDGE MOORE: Well, now, counsel, the Commonwealth of i y 25 Pennsylvania obviously was disturbed about something involving LO Heritage Reporting Corporation (202) 628-4888 i
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(_) 1 Mr. Husted-when they agreed to dismiss their appeal based on 2 getting a stipulation that Mr. Husted would not operate or 3 train operators at TMI.
4 Did the staff endeavor as part of its investigation 5 to determine what lay at the base of the Commonwealth's 6 concerns about Mr. Husted?
7 MS. MOORE: I'm afraid I couldn't answer that 8 question. I do not believe that the inspection report, which 9 is in the record of this proceeding, makes any allusion to 10 dealing with the Commonwealth of Pennsylvania.
11 JUDGE ROSENTHAL: Wouldn't that have been a relevant i 12 matter to explore?
13 MS, MOORE: It could be. However, I am unaware at
.[~)
this point of the details of the negotiations of that 14 15 stipulation. And --
16 JUDGE MOORE: In 1981, when there were the incidents 17 of cheating on operators' exams at TMI, did the staff 18 investigate Mr. Husted in regards to those matters other than 19 the two interviews that we have been apprised about in this 20 record?
21 MS. MOORE: To my knowledge -- l 1
22 JUDGE MOORE: Did they go further in the ]
23 investigation of Mr. Husted in 1981?
I 24 MS. MOORE: To my knowledge, they did not. I 25 JUDGE MOORE: So in 1981, there was no other basis !
O (V
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37 for th'e staff to have been looking at Mr. Husted.
~
1 2' MS. MOORE: That's correct.
3 JUDGE MOORE: And Just so I am clear on this, that
.4 the staff didn't feel'that it needed to in any way, shape, or 5 form deal with the Commonwealth to see if the Commonwealth had L l6 uncovered any.information about Mr. Husted that may be of.
l l 7 interest concerning his fitness.
8 MS MOORE: I'm afraid I couldn't answer that as far 9 as-1981 was concerned. I do'not know, for example, whether 10 there was discovery conducted which gained-information from the 11 Commonwealth of Pennsylvania on this subject. Because in 1981, 12- to the best of my knowledge, outside of Mr. Ward's interview 13 with'Mr._Husted, there'was no indication that Mr. Husted was O 14 the subject of the main cheating investigation. l 15 -JUDGE ROSENTHAL: Your time is -- oh,' excuse me.
16 JUDGE MOORE: Could you, just as an academic matter, 17 -I recognize that you, the staff did not have the burden in this 18 proceeding, but could you give me some help as where that 19 burden may have lain?
20 MS. MOORE: That's a very difficult question because 21 of the circumstances of this case. And I --
'22 JUDGE MOORE: Well, do you agree with me that it's 23 damn hard to have an adjudicatory proceeding where nobody has 24 the burden, and we have just generated into a legislative 25 hearing if we don't have somebody who has a burden of proof?
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(~n
(,) 1 MS. MOORE: I think that could happen. I think 2 however in this case it did not happen, because the parties all 3 undertook to present whatever evidence was available to them to 4 set forth a complete record in the proceeding. And I think 5 that the record does demonstrate by strong evidence that Mr.
6 Husted's job performance and his attitude in that performance 7 is appropriate and a professional attitude.
8 JUDGE ROSENTHAL: Your time has expired, Ms. Moore.
9 Ms. Bradford?
10 MS. BRADFORD: Good morning, gentlemen.
11 JUDGE ROSENTHAL: Good morning.
12 MS. BRADFORD: I probably have the least to say today 13 and the most time to say it in.
14 As you note from my brief, I was concerned about the 15 question of the burden of proof.
16 JUDGE MOORE: Do you know what was troubling the 17 Commonwealth of Pennsylvania as to why they would enter into a 18 stipulation to ensure that Mr. Husted would have nothing to do 19 with operating TMI and that was the price for them to dismiss 20 an appeal?
21 MS. BRADFORD: Other than what is stated in the 22 stipulation, I really don't have any other knowledge.
23 JUDGE ROSENTHAL: Do you have any feeling as to where 24 the burden of proof lays? All of the other three participants 25 have thrown their hands, figuratively into the air, and in a Heritage Reporting Corporation (202) 628-4888
39
() 1 sense, said, gee, this is a very unusual proceeding, and it is 2 difficult to determine where the burden is.
3 My colleague, Mr. Moore, is very insistent that 4 somebody had to have the burden and I was just wondering what 5 your thoughts might be on that subjact?
6 MS. BRADFORD: Well, as I look at it, and have said 7 repeatedly, is that the proceeding, in my mind, was closest to 8 an appeal.
9 Mr. Husted requested a hearing to have the issues 10 reviewed, and as such, the burden of proof was, in my mind, l
11 squarely ipon Mr. Husted.
1 12 Some of the other points that I would like to make 13 with regard to the work record of Mr. Husted, and the Staff O 14 invest.'gation of that work record -- my review of the Staff 15 Investigation Report, was that it did not extend beyond 16 reviewing documents with regard to his prior evaluations.
17 JUDGE ROSENTHAL: Well, Ms. Moore told us that the 18 Staff Investigator went out and actually spoke with some of the 19 folks who worked with --
20 MS. BRADFORD: That is correct, however, there was a 21 heavy reliance, it seemed to me, upon the earlier evaluations.
22 And nevertheless, the authors of those documents were not asked 23 why they held the opinions that they held.
24 And it seems to me that a thorough investigation 25 would have included such a discussion. And, in that regard, I O
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() 'l believe there were two documents that I can recall that were 2 not particularly favorable to Mr. Husted.
l
- 3 Albeit, that they were both draft documents,
- - 4 somebody, at some point, held those opinions which were not 5 favorable to Mr. Husted.
6 JUDGE WILBER: Were the people that performed those 7 evaluations, were they witnesses?
8 MS. BRADFORD: No, they were not.
9 JUDGE WILBER: They were not.
10- MS. BRADFORD: One of the documents, a draft document II -- yes, in fact, excuse me, Mr. Wilber, one of those persons 12 was a witness -- Mr. Brown.
13 And he had performed, I think possibly in 1983, an 14 evaluation -- I am not sure of the date -- cf Mr. Husted, in 15 which he made a list of very unfavorable comments.
16 The Inspection Report, itself, did not -- in fact, 17 the Inspector, who performed that report, attributed that 18 document to the wrong author.
19 Both of the documents which were unfavorable to Mr.
20 Husted were attributed to the v..ong authors. And, so, it seems 21 to me, that the investigation, itself, which came up with a 22 report very favorable to Mr. Husted did not go into any great 23 depth.
24 JUDGE ROSENTHAL: I take it that you are suggesting 25 that the finding of the Administrative Law Judge in Mr.
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(,) 1 Husted's favor, with respect to his performance on the job, 2 should be looked upon, by us, with some degree of suspicion.
3 Is that fair to say?
4 MS. BRADFORD: That is a fair statement, particularly 5 in light of the two documents, which were unfavorable, the two 6 draft documents which were unfavorable.
7 JUDGE ROSENTHAL: Now, if we were to uphold that 8 finding of the Administrative Law Judge, notwithstanding your 9 argument, that it should be viewed with suspicion, how can we, 10 at the same time, agree with the Administrative Law Judge's 11 ultimate conclusion?
12 In other words, if, in fact, Mr. Husted has been 13 performing his duties with regard to safety, with regard for h 14 NRC regulations, in a totally professional manner -- why should 15 not he be allowed to supervise the training of non-licensed 16 people?
17 MS. BRADFORD: Well, of course, as you said, I take 18 exception to that.
19 JUDGE ROSENTHAL: No, I understand that and I 20 understand your ergument that the Administrative Law Judge's 21 finding on that is wro::g, 22 But I am asking you now, to accept for the purposes 23 of discussion, alone, only for the purposes of discussion, that 24 we were to disagree with you on that point, and we were to 25 uphold that particular finding of the Administrative Law Judge O
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42
.n ij 'l -- I am asking you, how in those circumstances, could we uphold 2 the ultimate conclusion of the ALJ7 3 MS. BRADFORD: I think because the ALJ made a finding 4 in which he found that Mr. Husted has not changed his attitude 5 necessarily, although --
6 JUDGE ROSENTHAL: Attitude towards what?
7 MS. BRADFORD: To the NRC hearing.
8 JUDGE ROSENTHAL: Well, why is that important?
9 I mean, I might view the NRC's hearing process as 10 being ridiculous and --
11 JitDGE MOORE: Indeed it is --
12 JUDGE ROSENTHAL: -- I might regard the whole Agency 13 as being ridiculous. There are a lot of people, I suspect that 14 had that view, some of them, perhaps within the Agency, but 15 what does that have to do with whether an individual should be 16 able to hold a certain position.
17 If, in fact, notwithstanding, his attitude towards 18 the Agency, he is able to discharge his duties in a responsible 19 manner, with due regard to safety, etc., isn't that enough?
20 And, if not, why not?
21 MS. BRADFORD: Well, I do not think that it is 22 enough.
23 I think that, it seems to me, that the cere of the 24 Agency's effectiveness is its ability to hold hearings and to i
l 25 bring its licensees and individual licensees, into line.
)
}
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() 1 And if an individual shows disrespect for that 2 process, then I don't see how he can pass on an attitude to 3 those people who he trains, that would be different from that. .
4 It just -- I mean I don't think that it is possible If you hold one view that you can treat the
{
5 to do that.
6 hearing process in a cavalier manner, that you can necessarily 7 -- I mean there are regulations, there are NRC regulations that 8 once you are involved in the process, you perform in a certain 9 way, and that you --
You don't think that it is possible I 10 JUDGE ROSENTHAL: ,
11 for an individual to, on the one hand, believe that the NRC is 12 out to lunch; and on the other hand, tell his or her students, 13 look it, you have an obligation to follow NRC regulations to
( 14 the letter, whether you agree with them or not. And what I am 15 telling you, is th.a you had better fulfill that obligation.
16 You don't think that those two are possible??
17 MS. BRADFORD: Well, in as much as actions speak 18 louder than words, I don't know how effective it would be for 19 him to make those statements, while he was being criticized, 20 and it was, it seems to me well known, among his students that 21 he was being criticized for his behavior and his failure to -
22 follow regulations.
23 JUDGE WILBER: On the subject of being criticized, if 24 I recall, Mr. Husted testified -- I think that the word was 25
" chastised" for conctuct related to the deposition and also to O
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(_,) . 1 the two interviews by the Investigators.
2 Can you tell me where it is in the record, about the 3 chastisement, if that is what you want to call it for the two 4 interviews?
5! MS. BRADFORD: I believe that there was testimony 6 that one of the attorneys for GPU did chastise -- and I believe 7 that some notes were introduced.
8 JUDGE NILBER: Well, was it the GPU attorney?
9 MS. BRADFORD: Yes, who chastised Mr. Husted?
10 JUDGE WILBER: Yes.
11 MS. BRADFORD: Yes, I believe so.
12 JUDGE WILBER: That is for the -- not only the --
gs 13 MS. BRADFORD: I believe also there was another
(-) 14 instance, or that he was chastised by one of his superiors, Dr.
15 Long.
16 JUDGE WILBER: I see. For the interviews? I 17 understand the deposition.
18 MS. BRADFORD: For his behavior at the deposition.
19 JUDGE WILBER: Yes, I am thinking of the interviews, 20 I think t hat he mentioned, also the interviews, and that is 21 what I was having trouble locating.
22 MS. BRAD 1ORD: It seems to me that there was 23 testimony on the record, that a Mr. :.orbein, and ho had a 24 discussion.
25 JUDGE WILBER: All right, okay.
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(_) 1 JUDGE ROSENTHAL: What would Mr. Husted have had to 2 do at this hearing in order to demonstrate to your satisfaction 3 that he had had an attitudinal change?
4 Would he have had to say, yes, I have sinned in the 5 past, and I am very sorry that I have sinned, and I promise you 6 all that I shall sin no further?
7 I mean would he have had to get down and mea culpa or 8 would something less have satisfied you and perhaps, the 9 Administrative Law Judge or what?
10 Because I guese that we agree that everybody, Mr.
11 Husted included, is "rehabilitatable", or at 1: east we proceed 12 on that assumption.
13 Now, what precisely would he have had to do, at this 14 point, to reflect the attitudinal change that would have 15 satisfied you?
16 MS. BRADFORD: Well, I believe that he neeaed to 17 admit that the earlier decisions were correct.
18 JUDGE ROSENTHAL: But he did not think that thsy 19_ were, so that he would have had to, in effect, misrepresent his 20 beliefs on the subject, is that right?
21 MS. BRADFORD: Well, I am not sure, because in 22 defending his innocence, or his earlier innocence, he made 23 statements which the ALJ found not credible, and, in fact, that 24 in part, was responsible for his finding that he had not 25 changed his attitude towards the NRC.
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1 JUDGE ROSENTHAL: So, he would have had to confess 2 prior guilt, is that right, that he would have had to
! 3 acknowledge that he had sinned in the past?
4 MS. BRADFORD: I think that would have been l 5 approprie.te.
! 6 JUDGE ROSENTHAL: All right, but that -- more than 7 appropriate, if I understand you correctly, that would have j 8 been necessary?
9 MS. BRADFORD: Yes.
10 I don't believe that I have any more.
11 JUDGE ROSENTHAL: Well, as I said before, it is not 12 necessary to take one's full time and I can assure you, Ms.
13 Bradford, that we have considered and will continue to consider-
-O 14 the arguments that you have advanced, both in your brief, and 15 in oral argument, this morning, fully.
16 Thank you.
17 All right, there is five minutes for rebuttal which I 18 understand is divided equally between Mr. Maupin and Ms. Moore, 39 so that you have two and a half minutes, Mr. Maupin.
20 MR. MAUPIN: First of all, in terms of evaluations of 21 Mr. Husted that were included in this record, witnest3es who 22 were responsible, at least three witnesses, who were 23 responsible for one or more of these evaluations testified --
24 Brown, Newton, and Long..
l 25 And Number two, admitting error is never a very I
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() 1 pleasant thing to do. I think that --
2 JUDGE MOORE: Mr. Maupin, were all of the evaluations 3 of Mr. Husted included in the record, or were only selected 4 ones put in?
5 MR. MAUPIN: All of the evaluations I know of, of Mr.
6 Husted's work, by which I mean, written evaluations, either the 7 annuel evaluations that were typically done in this company or 8 the special evaluations that were done after the Licensing 9 Board suggested the keeping of a special eye on Husted's 10 performance, those evaluations were also in the record.
11 JUDGE MOORE: So there are no gaps in GPU Nuclear's 12 files on there, as far as Mr. Husted's evaluation, they were 13 all put into evidence -- good, bad and indifferent?
O 14 MR. MAUPIN: Well, to the extent that I know of their 15 existence, they are in there.
16 JUDGE WILBER: They are all part of the Exhibits?
17 MR. MAUPIN: They are in the record, yes, sir.
18 Number two, errors -- you are absolutely right, Judge 19 Wilber, the stipulation followed the assignment to Husted to 20 the position of Supervisor of Non-licensed Operator Training.
21 And so the word, thereafter, in the sentence that you referred 22 to, should not appear there, I think.
23 JUDGE WILBER: But the effect of that was, that it 24 had no effect on what he was doing at that time?
25 MR. MAUPIN: That would be correct, on the precise O
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' q'v 1 job ~that he was doing at that time.
2 Second, on footnote.7, of,page 19, of our brief, I 3' .want to be sure to point this out to you before I go. I have 4' got a sentence there that does not make any sense.
~5 It says, "We do not understand any part of the 6 initial decision, however, to be based on the ALJ's perception 7 of the credibility of Husted's testimony."
8 Now, obviously the ALJ said time, and time again, 9 .that he thought'that Husted's testimony was incredible, not 10 because, let me be quick to say, Husted was trying to mislead 11 him, but for this variety of reasons -- new exculpatory 12 . evidence he had not mentioned before and so forth and so on.
13 But the point that I meant there, I should have used, O 14 instead of the word, " credibility", I should have rewritten 15' that sentence to deal with, "demeador", which you will notice 16 is what the rest of the footnote deals with.
17 And.I want to be sure to point that out.
18 Number three, if I may answer the other question from 19 Mr. Wilber and Mr. Husted -- I cannot tell you to what extent
- 20. this appears in the record -- Mr. Husted took the follow-up 21 examinations that were in October 1981, and Husted took those, 22 he believes, that the written exaininations were administered, 23 though not the oral portion.
24 He believes that he receives a 96% on it, and he 25 believes that he lost his license in connection with the O.
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(_). 1 stipulation in the middle --
2' JUDGE WILBER: So then he took the operating exam, as 3 well, or was not an operating exam required?
4 This was the oral -- when.I say, operating exam?.
5 MR. MAUPIN: That is the problem. I never asked the 6 right follow-up questions,.but my. impression is that they were 7 taken back in April.
8 JUDGE WILBER: The operating exam.
9 MR. MAUPIN: By operating, you mean,
- hands-on", the 10 in-plant l portion?
-11 JUDGE WILBER: Yes, yes.
12 MR. MAUPIN: That is my impression, yes, sir.
13 If I find out that that is not so, I will report that O,..
14- back to you, but lt believe the "in-the-plant" portion was done 15 in April and-that that part, at least Mr. Husted rucalls, was 16 not repeated in October.
17 -JUDGE ROSENTHAL: Your time has expired.
18 MR. MAUPIN: All-right.
19 JUDGE ROSENTHAL: Ms Moore? ,
20 MS. MOORE: I just have one point of clarification of 21 something Ms. Bradford mentioned.
22 And that is,.to point out that the interviews 23 performed by the NRC Inspector are, in fact, summarized in the 24 Inspection Report, which is attached to Mr. Haverkamp's
! 25 -testimony.
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(_j 1 JUDGE MOORE: Ms. Moore, can you essentially Mr.
2 Maupin's statement that all of the employer assessments, if you 3 will, of Mr. Husted appear in this record, and that there are 4 no gaps?
5 MS. MOORE: I personally cannot. It is my --
6 JUDGE MOORE: That the bad was put in, as well as, 7 the gc.od?
8 MS MOORE: It is my -- I personally cannot do that.
9 It is my understanding that there are no gaps.
10 JUDGE MOORE: And did the Staff review all of them?
11 MS. MOORE: I believe Mr. Haverkamp testified that he 12 reviewed those as well as other memoranda and letters, any 13 documents that he could find that related to Mr. Husted's O 14 performance.
15 JUDGE MOORE: But you cannot speak to whether the 16 Staff offered any of those documents into evidence, that might 17 have been somewhat derogatory of Mr. Husted? !
18 MS. MOORE: I do not believe that they withheld any 19 documents which were derogatory. I am not sure that was the 20 thrust of your question.
21 And, I would point out, that the Staff also did 22 conduct an adversary deposition of Mr. Husted, so that they did 23 attempt to ascertain all of the facts involved in this case, 24 and that deposition is also part of the docket.
25 JUDGE ROSENTHAL: Did they similarly embark upon an Heritage Reporting Corporation (202) 628-4888 A
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(Nj 1 adversary deposition, as you put it, of some of the people who 2 were in a position to observe Mr. Husted's work?
L 3 I mean that might have been more illuminating, might 4 it not?
5 MS. MOORE: Mr. Chairman, the reason I am hesitating 1
6 over the answer to that question is, that I am unaware of the 7 extent of discovery. I can ascertain for you, very quickly,
'8 whether or not depositions were conducted of GPU employees who 9 performed evaluations of Mr. Husted, if you wish that.
10 JUDGE ROSENTHAL: Well, I am just wondering whether 11 it was done as a part of an investigation?
12 MS. MOORE: No, the adversary deposition was 13 conducted, was done as a part of this particular proceeding.
14 JUDGE ROSENTHAL: Well, it would seem to me, Ms.
15 Moore, quite frankly, that one of the things that troubles me 16 about this case is that we have lined up on the one side, Mr.
17 Husted, represented by a very competent counsel with presumably 18 substantial resources at his disposal; GPU Nuclear, represented 19 by very competent counsel with presumably considerable 20 resources at her disposal; the Staff, represented by competent l
21 counsel with considerable resources at its disposal.
I 22 And on the other side of this case, is Three Mile 1 l
23 Island Alert, and I don't mean at all to deprecate Ms. 1 24 Bradford's performance, as I think, indeed, she has handled l
25 herself extremely credibly, but the fact of the matter is, that O Heritage Reporting Corporation (202) 628-4888 l
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() 1 she is not a lawyer. She has very limited, if any, resources 2 at her disposal and she is lined up against this very 3 formidable amount of resources.
l 4 And the question that I have is, whether we have, in 5 fact, a record before us, that complies with the Commission's 6 desire that it be fully developed.
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7 And that is why I really get into the kinds of 8 probing that the Staff undertook, particularly when the Staff's 9 position was that there is no reason why this condition should 10 remain in effect.
! 11 That is the nagging concern that I have.
12 MS. MOORE: The Staff would submit that the probing lj was conducted and that the Staff made every attempt to discover O 14 whether there was existing evidence, which reflected adversely 15 on Mr. Husted's ability to perform his health and safety 16 related functions.
17 And this inspection, which is a part of the record, 10 was conducted to that end, and I believe that the questions 19 asked during the proceeding, as well as in the discovery 20 phases, were all geared toward that end to ensure that the 21 record contained whatever evidence existed concerning Mr.
22 Husted's attitude and ability to do his job and to perform his 23 safety-related functions.
24 JUDGE ROSENTHAL: Now, when these employees of GPU 25 Nuclear were interviewed, including apparently, Mr. Husted's O Heritage Reporting Corporation (202) 628-4888
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I students,1did the interviewer, the staff interviewer, conduct, 1
2 swhat.you would.say, a searching examination or was it simply,
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3 what did'you think of Mr.-Husted? Oh, I think that he is fine.
I
.4 Thank.you very much, that is'all that I need:from you.
-5 .Or do you know?
6 I mean there are.all kinds of interviews and lI 7 interrogations that can be conducted and some of them that I 8 have seen are extraordinarily' superficial and others really.go 9 into, okay,'what are your reasons for those conclusions and on 10 from there.
11 MS. MOORE: Mr. Chairman, for those details, I'am 12 afraid that I don't have them at my fingertips, but I would 13 have to refer you to the' Inspection Report, which is in the O 14 record, and I believe that it was a thorough inspection.
15 JUDGE ROSENTHAL: Okay, thank you.
16 JUDGE MOORE: Ms. Moore, you are asking us to 17 overturn the ALJ's -- a number of his factual conclusions, as 18 are other parties.
19 What is the standard that we must use in doing that?
20 MS. MOORE: In determining whether --
21 JUDGE MOORE: Now, normally in a typical proceeding, 22 for us-to overturn factual findings, of the fact finder, we 23 give.them the -- I think that our language is something to the 24' effect that, those findings are entitled to the deference they 25 are intrinsically entitled to -- and that we must be convinced O
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() 1 that they are wrong, before we will toss out factual findings 2 by the fact finder in the first instance.
3 But that standard presupposes a normal proceeding, in 4 which it is an adversarial contest with a burden of proof on 5 one party and where the facts are being contested.
6 In a proceeding, such as this, where that really was 7 not the procedure that was followed, what standards should we 8 adopt in tossing out, overturning factual findings of the ALJ7 9 MS. MOORE: The standard that was set forth in our 10 brief, was the traditional standard that the record in this 11 proceeding compels a different result. And, although, the 12 burden of proof question is a difficult one, I think that the 13 record demonstrates that the evidence was aired and was 0 14 competently presented and there was very competent cross-15 examination of that evidence, and, therefore, I think that you 16 can still use that traditional standard in judging this 17 particular record.
18 JUDGE ROSENTHAL: Ms. Moore, let me just pursue 19 something a little further with you, this interviewing of co-20 workers.
21 I now have table 4.1 before me, which reflects that 22 these are the interviewees. Mr. Adams was a close co-worker of 23 Mr. Husted. Mr. Bickford, a close co-worker, and Mr. Brown, 24 personal friend. Mr. Galletty, close co-worker. Mr, Leonard, 25 close co-worker. Then Mr. Neff is just a co-worker, and Mr.
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(j) 1 Noll, personal friend. Mr. Spath, personal friend. And now, .
l 2 it seems to me that it is scarcely likely that personal 3 friends, if they.are, indeed, personal friends, are going to 4 give adverse evaluations of an individual and I tend to think 5 that most "close co-workers" at least, are similarly going to 6 be loathe to give bad marks.
7 Now, that is why I get into the matter of whether T
8 this Investigator really probed and also whether he made an 9 effort to interview people that might have been more objective 10 in their evaluation of Husted than a close co-worker, and more 11 particularly, a personal friend.
12 MS. MOORE: I think that as far as the terminology 13 used, a close co-worker, while in some circumstances may be 14 unwilling to present adverse information, our Investigators 15 often find that these people are also the people who have the 16 most information to provide; who know his duties and know his 17 responsibilities and know his performance the best.
18 And I believe that our Investigators make every 19 attempt through their interviews to get beyond the relationship
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20 of a particular person and determitie --
1 21 JUDGE WILBER: Excuse me, Ms. Moore, I think that {
22 this was conducted by Mr. Haverkamp. I don't believe that he 23 is an Investigator, is he?
24 MS. MOORE: He is an NRC Inspector, to my knowledge.
25 JUDGE WILBER: Inspector, yec.
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56 I ~ 1: They have a little different background and training,
.2 I believe.
3- MS. MOORE: ' They do but they are also well-trained in 4 ferreting'out,t if.you please, technical problems and technical l '5' difficulties in a reactor and they do this through the same 6.- sort of mechanism. They do it through interviewing those 7 people who are most closely associated with the problem.
E8 . JUDGE ROSENTHAL: Why wasn't this done by an OI 9 Investigator. That is why we have OI, isn't it? To conduct 10 this kind of inquiry?
'll MS. MOORE: Mr. Chairman, I cannot answer that 12' . question. I could check on it for you, but I don't have that 13 answer.
14 JUDGE ROSENTHAL: All right, thank you, Ms. Moore.
15 All right, on behalf of the entire Board, I would 16 like to thank the participants in the argument, this morning, 17 for helpful presentations, even though we are still left sort 18 of in the dark on the burden of proof issue, but I can 19 understand why it is difficult to come to grips with it, and on 20 that note, Mr. Husted's appeal will stand submitted.
21' (Whereupon, et 11:20 a.m., the proceeding was 22 adjourned.)-
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57 1 CERTIFICATE h 2 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:
5 Name: Atomic Safety and Licensing Board Panel 6 General Public Utilities Nuclear .
(Three Mile Island Nuclear Station Unit.I) Oral Argument 7 Docket Number: 50-289 (CH) 8 Place Bethesda, Maryland 9 Date: September 9, 1987 t,
! 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 0 15 true and accurate record of the re. going proceedings.
16 /S/ F ,W "W L'
17 (Signature typed): Ann Lofquist 18 Official Reporter 19 Heritage Reporting Corporation 20 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
_