ML20216J895

NRC Staff Brief in Response to Appeal of C Husted.* Condition Imposed by ALAB-772 Re Prohibiting Husted from Supervisory Responsibilities Over Training of Nonlicensed Personnel Should Be Vacated.W/Certificate of Svc

ML20216J895
Person / Time
Site:	Three Mile Island
Issue date:	06/30/1987
From:	Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#387-3924 ALAB-772, CH, NUDOCS 8707070080
Download: ML20216J895 (37)

Text

,

1 9.,",I.,.P.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 JUN 30 P3 :28 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )

)

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

)

(Three Mile Island Nuclear Station, ) '

Unit No.1) )

NRC STAFF'S BRIEF IN RESPONSE TO THE APPEAL OF CHARLES HUSTED to Janice E. Mocre Counsel for NRC Staff June 30,1987 8707070080 870630 PDR ADOCK 05000289 o PDR

/

t

UNITED STATES OF AMERICA  ;-

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )

)

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

)

(Three Mlle Island Nuclear Station, )

Unit No.1) )

NRC STAFF'S BRIEF IN RESPONSE TO THE APPEAL OF CHARLES HUSTED Janice E. Moore Counsel for NRC Staff 1

June 30,1987 i

i 1

1 i

TABLE OF CONTENTS I

Page TA B LE O F AU TH O R I T I ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. INTRODUCTION................................................ 1

11. ST ATEM E N T O F TH E C AS E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Ill. Q U EST I O N S PR ES E N T E D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 IV. ARGUMENT.................................................... 10 A. The Administrative Law Judge Erred in His interpretation of the Standard Used by the Appeal Board in the imposition of the O riginal License Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

8. The Administrative Law Judge Erred in Finding That Mr. Husted Currently Exhibits a Poor Attitude Toward His Responsib111 ties. . . . . . . . . . . . . . . . . . . . 19 C. The Judge's Finding on Questions of Fact. . . . . . . . . . . . . . . 29 V. CONCLUSION................................................. 31 i

i I

T

- II -

TABLE OF AUTHORITIES ADMINISTRATIVE DECISIONS Pag _e Carolina Power and Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 531 ( 19 8 6 ) . . . . . . . . . . . . . . . . . . . . 19 in the Matter of General Public Utilities Nuclear (Three Mlle Island Nuclear Station, Unit No.1), LBP-87-11, slip . op . ( A p ril 2 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Metropolitan Edison Company, et. al. (Three Mile Island Nuclear Station, Unit No.1), CLI-85-02, 21 NRC 282 7

(1985) ......................................................

Metropolitan Edison Company, et. al. (Three Mile Island Nuclear Station, Unit No.1), CLl-84-18, 20 NRC 808 6

(1984) ......................................................

Metropolitan Edison Company, et. al. (Three Mile Island Nuclear Station, Unit No.1), ALAB-772,19 NRC 1193 5, 6, (1984) ......................................................

7, 10 . ee 11, 12 13 Metropolitan Edison Company, et. al. , (Three Mile Island Nuclear Station, Unit No.1), LBP-82-56,16 NRC 281 3, 4, (1982) ......................................................

5 Metropolitan Edison Company, et. al. (Three Mile Island Nuclear Station, Unit No.1), LBP-82-34b,15 NRC 918 2, 3, (1982) ......................................................

4 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 834 19 (1984) .....................................................

REGULATIONS 10 C . F . R . Pa r t 2 , A p p en dix C , n . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I 1

1 1

1

-ill-MISCELLANEOUS Enforcement Guidance Memorandum, 86-05, September 29, 1986 .... 18,

. Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station),

Order for Modification of License (Effective immediately) and Order to Show Cause, 45 Fed. Reg. 80384

• ( D ec e m be r 4 , 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17 Bloomington Hospital; Order to Show Cause Why License Should Not Be Suspended and Modified (Immediately Effective) 51 Fed . Reg . 17112 (May 8, 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Pittsburgh Testing Laboratory: Order to Show Cause Why License Should Not Be Suspended and Modified; (Immediately Effective) 5 0 Fed . R eg . 23 3 6 7 (J u ne 3, 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Notice of Hearing, 50 Fed. Reg. 37098 (September 11, 1985) ..... 7, 8 l

l l

l l

l

{

UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )

)

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

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

NRC STAFF'S BRIEF IN RESPONSE TO THE APPEAL OF CHARLES HUSTED

1. INTRODUCTION ,

On April 2, 1987, Administrative Law Judge Morton B. Margulies, the Administrative Law Judge designated to preside over the above-captioned proceeding , issued his decision on the matters before him.

i in The Matter of General Public Utilities Nuclear (Three Mile Island

]

Nuclear Station, Unit No. 1), LBP-87-11 (April 2, 1987). Judge Margulies ruled that the condition imposed on the license of General Public Utilities Nuclear Corporation (GPUN), which directly affects Mr. Husted, should remain in place. Id. slip op. at 70-71, f 150-151.

On Ap-il 17, 1987, Mr. Husted through his counsel filed a notice of appeal of the decision. On May 18,1987, Mr. Husted filed a timely brief in support of his appeal. O " Charles Husted's Brief on Appeal From The

-1/ Three Mlle Island Alert (TMI A) also attempted to appeal Judge

! Margulies' decision by filing an untimely notice of appeal on April 30, 1987. In its order of. May 5, 1987, the Appeal Board ordered TMIA to show cause why the appeal should not be dismissed as 'Jntimely, and to set forth the grounds for the proposed appeal. ,

(FOOTNOTE CONTINUED ON NEXT PAGE)

I

2.- .

• i l

Initial Decision" (hereinafter Appeal Brief]. For the reasons set forth I

)

below,' the Staff of the Nuclear Regulatory Commission (Staff) supports Mr. Husted's appeal.

I

11. STATEMENT OF THE CASE On April 21-24, 1981, the NRC administered Reactor Operator (RO) and Senior Reactor Operator (SRO) examinations to the operators at Three . Mile Island (TMI) Unit 1. See, LBP-87-11, supra, at 11; see, also, Metropolitan Edison Company, et. al. (Three Mile island Nuclear Station, Unit No. 1), LB P-82-34 b , 15 NRC 918, 922 (1982). It was i subsequently ascertained that some incidents of cheating had occurred during those examinations. During the NRC investigation of the cheating incidents which followed, Mr. Husted, who took the examination, and was a member of the Trainina Department, was interviewed by NRC investigators from the Office of Inspection and Enforcement (OIE) in July 1981.

2/ At that time Mr. Husted held the position of instructor, I Licensed Operators. " Testimony of Charles Husted" ff. Tr. 330, at 2.

In September 1981, Mr. Husted was interviewed a second time in order, according to NRC investigator Matakas, to follow up on certain information (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) ,

j i

By order of May 20, 1987, the Appeal Board dismissed TMIA's appeal )

on the grounds that it was untimely, and that TMIA was not injured '

by the Judge's decision. 1 2/ At that time, Mr. Husted was not suspected of any wrongdoing in connection with the April examinations.

I 1

obtained during the first interview. "Prefiled Testimony of Richard A.

Mataka' s " ff. Tr. 406, at 3.

The Licensing Board designated to preside over the TMI-1 restart proceeding still retained jurisdiction over some matters at the time the

. cheating incidents were discovered. See, Metropolitan Edison Company et. al. (Three Mile Island Nuclear Station, Unit No. 1), LB P-8 2-5 6, 16 NRC 281, 287 (1982). The Licensing Board appointed a Special Master to take evidence with regard to the cheating incidents and to make  ;

1 recommendations as to the effect of those incidents on previous licensing Board findings. Id. Mr. Husted, who was not a party to the proceeding and was not separately represented by Counsel, appeared as a witnen,s before the Special Master on December 10, 1981. 3_/ See, Tr.

26,909-26,980. -I Shortly before Mr. Husted was scheduled to testify before the Special Master, NRC investigator Ward testified that another TMI employee had alleged that Mr. Husted had solicited an answer to a question during the SRO examination. "Prefiled Testimony of William Ward" ff. Tr.140, at Attachment 2.

In his report the Special Master found Mr. Husted to have a filppant demeanor and to lack credibility as a witness. LBP-82-34b, supra, 15 NRC at 960-961, 1045. In addition, the Special Master found that

~3/ The hearing before the Special Master was conducted pursuant to a sequestration order which precluded certain named witnesses from discus' sing specified matters among themselves. LBP-82-34b, supra, 15 NRC at 927.

~4/ Mr. Husted was deposed before his appearance before the Special ,

Master, and his conduct during that deposition was discussed both before the Special Master and during the current proceeding.

i l

)

Mr. Husted had solicited a response during the examination and that he failed to cooperate with NRC investigators. id,., at 1045. The Special Master did not believe he had sufficient guidance to arrive at a soild conclusien with respect to Mr. Husted. Due to the lack of a standard for judging the seriousness of Mr. Husted's lack of cooperation, the Special Master could not conclude that Mr. Husted should be removed fr.om licensed duties. The Special Master concluded that some lesser sanction should be imposed, but went on to say that he did not have sufficient information to recommend one. Id. , at 1045-1046, in making its (iecision on various issues related to the restart of TMi-1, the Licensing Board presiding over the restart proceeding incorporated the record compiled before the Special Master into the evidentiary record of the restart proceeding. LBP-82-56, supra,16 NRC at 288. In accordance with 10 C.F.R. 9 2.722(a)(2) of the Commission's regulations, the Licensing Board viewed the Special Master's .

recommendations as advisory, but gave his report great weight. ,l d .

With respect to Mr. Husted, the Licensing Board determined that there was insufficient evidence to support the Special Master's conclusion that Mr. Husted had solicited the answer to an examination question. M.,at i

315. The Licensing Board determined, however, that Mr. Husted did not-cooperate fully with NRC investigators, and agreed with the Special Master that he testified in a filppant and less than serious manner. ,l d . ,

at 318. The Licensing Board questioned whether Mr. Husted was able or willing to impart a sense of seriousness and responsibility to the TMi-1 operators. M., at 319. However, the Board did not impose a direct ,

sanction against Mr. Husted. Rather, the Board recommended that

1 Mr. Husted's qualifications as an instructor be reviewed very carefully.

"I'he Board took this approach because it judged .his problem to be

~

M.

one of attitude, and found that the record contained no evidence that the attitude the Board criticized manifested itself in his performance as an instructor. _id. , at 319.

In reviewing the Licensing Board's decision, the Appeal Board took a diffe rent view of the matter of Mr. Husted's attitude. 5_/ The Appeal Board agreed with the Licensing Board's finding that there was insuffi-cient evidence to support the allegation that Mr. Husted solicited an answer to an examination question. Metropolitan Edison Company, et al.

(Three Mile Island Nuclear Station, Unit No.1), ALAB-772,19 NRC 1193 at 1221 (198t4 ) . The Appeal Doard confirmed that the record supported the Licensing Board's findina of a poor attitude by Mr. Husted toward his a0 responsibilities as evidenced by his failure- to cooperate with NRC investigators. Id. , at 1222. The Appeal Board defined competence of an i instructor to include the ability to communicate effectively a sense of responsibility as well as information to his students. Id., at 1223.

Unlike the Licensing Board, however, the Appeal Board' believed that in communicating information regarding a given procedure, for example, the attitude of the instructor toward that procedure would necessarily be communicated as well. The Board believed that attitude is an Integral, though perhaps subilminal, part of an instructor's ability to teach. d .

_I_d

--5/ During the appeal process the Licensee entered into a stipulation with the Commonwealth of Pennsylvania which precluded the employ-ment of Mr. Husted as an operator at TMi-1, as an instructor of .

(FOOTNOTE CONTINUED ON NEXT PAGE)

I 1

At the time of the Appeal Board's review of this matter, Mr. Husted had been promoted to the position of supervisor of nonficensed operator training. See, Id., at 1222. The Appeal Board was concerned that, although there was no hard evidence that Mr. Husted had in fact communicated his poor attitude to his students, there was the potential for him to do so. In his new position Mr. Husted would, according to the Appeal Board, also have responsibility for aiding in the establishment of criteria for training instructors and for audits. Id., at 1224.

Although the Appeal Board did not find that Mr. Husted had violated any regulations by his conduct, the Appeal Board required that Mr. Husted be removed from any supervisory position with responsibility for the training of nonlicensed personnel. Id. b The Commission took review of the issue of whether an adjudicatory board during an ongoing hearing has the legal authority to impose a condition on a licensee which in effect operates as a sanction against an individual, where that individual was not a party to the ongoing proceeding, had no notice of a possible sanction, and no opportunity to request a hearing. Metropolitan Edison Company, et al. (Three Mile island Nuclear Station, Unit No.1), CLl-84-18, 20 NRC 808, 811 (1984).

(FOOTNOTE CONTINUED FROM PREVIOUS PACE) licensed operators or as a supervisor of licensed operator training.

Metropolitan Edison Company, et al. (Three Mlle Island Nuclear Station, Unit No.1), ALAB-772, f9 NRC 1193,1222 (1984).

-6/ The Appeal Board appeared to view Mr. Husted's promotion as a reward for his failure to cooperate with the NRC, but its license ,

condition appears to be based on its concern about his attitude rather than on this belief. J

I 1

The Commission decided that, in view of the way in which the issue was presented, it would not resolve the issue. Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit No. 1), CLi-85-02, 21 NRC 282, 317 (1985). Rather, the Commission decided in fairness to Mr. Husted to provide him with an opportunity to request a hearing on whether the Appeal Board's condition should be vacated. M.

Mr. Husted requested a hearing on March 25, 1985. See, LBP-87-11, supra, slip op. at 6. In addition Mr. Husted requested that the scope of the hearing be expanded to include the issue of whether Mr. Husted is quallfled to hold positions concerning either the operation of TMi-1, or the training of licensed operators. U Notice of Hearing, 50 Fed. Rg. 37098 (September 11, 1985). The Commission granted Mr. Husted's request to expand the scope of the hearing . Id. The Commission provided for the filing of petitlens. to intervene, and ordered the Staff to assume the status of a full party to the proceeding with the obligation to insure the compilation of a full and complete record. M. 8_/

The hearing was held before Administrative Law Judge Morton B.

Ma rgulies. The issues considered during the hearing were as to !aws:

1. The alleged solicitation of the answer to an examination question from another person taking the examination during the April 1981 NRC written examination; I

l

-7/ Mr. Husted's removal from such positions was the subject of a j stipulation between GPUN and the Commonwealth of Pennsylvania, i See, ALAB-772, supra,19 NRC at 1222. )

4

-8/ Intervention was granted to GPUN and TMI A. In the Matter of ,

General Public Utilities Nuclear (Three Mlle Island Nuclear Station, Unit No.1), LBP-87-11, slip op. at 7 ( April 2,1987).

.. .. 1

• j i

l 4

l l

2. Mr. Husted's lack of cooperation with NRC investigators;

3. The lack of forthrightness of Mr. Husted's testimony before the Special Master;

4. Mr. Husted's attitude toward the hearing on the cheating incident; l

5. What does Mr. Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity;

6. In light of the answers to the five issues set forth above, is any remedial action required with respect to Mr. Husted; and

7. If remedial action is required, what should it be. See, 50 Fed.

Reg. 37098, supra: LBP-87-11, supra, slip op, at 10.

In his decision Judge Margulies found that the evidence did not support a conclusion that Mr. Husted had solicited an answer to an examination question. LB P-87-11, su pra , slip op, at 20, V 23. Judge Margulies went on to find that Mr. Husted failed to cooperate with NRC Investigators. ,ld. , at 36-37, 39-40, 43-44; ST 65, 73, 86. After making this finding Judge Margulies went on to conclude that though he did not cooperate, Mr. Husted did not withhold any information concerning cheating. LBP-87-11, supra, slip op at 44, f 87. Judge Margulies next found that Mr. Husted's testimony before the Special Master lacked forthrightness. Id., at 50-51, i 100. He concluded, however, that Mr. Husted did not purposely set out to mislead the fact finder. Id.

With regard to the fourth issue, Judge Margulies ruled that Mr. Husted had a poor attitude toward the hearing on the cheating incident. ,Id., at 51-52, if 102-103. With respect to the fifth issue, Judge Margulies found ,

that Mr. Husted's on-the-job attitude was professional and appropriate to

1

- 9 .:

l his responsibilities. He also found that this attitude extended to safety, l the NIIC , and regulatory requirements. Id., at 70, 1 150. Judge Margulies went on to conclude that remedial action against Mr. Husted was appropriate, and that the remedial action was to leave the Appeal Board's license condition unchanged. Id. , at 70-71, 1 151. In addition Judge Margulies saw no reason to come to a different conclusion with respect to Mr. Husted's serving in the capacities which were the subject of the stipulation between the Licensee and the Commonwealth of Pennsylvania.

M. , at 71, T 152.

As noted above, Mr. Husted has appealed Judge Margulies' decision.

Mr. Husted complains of several errors. Mr. Husted argues first that Judge Margulies applied an incorrect legal standard, or he erred in concluding that Mr. Husted had an unacceptable attitude toward the hearing process. Mr. Husted also claims that. Judge Margulies erred in finding that Mr. Husted did not cooperate with NRC investigators in 1981, he erred in the significance he attached to the perceived lack of forthrightness of Mr. Husted before the Specla! Master, and Judge Margulies erred in finding that because of his lack of forthrightness, Mr. Husted had an unacceptable attitude toward the hearing before the Special Master. Appeal Brief at 15. The Staff agrees with Mr. Husted that the Administrative Law Judge erred in portions of his findings, and that the decision should be reversed.

Ill. QUESTIONS PRESENTED Mr. Husted's appeal presents the following questions: ,

___-__-___________a

Whether the Administrative Law Judge correctly interpreted the Appeal Board's standard for imposing the original license condition.

Whether the Administrative Law Judge's findings concerning Mr. Husted's current attitude toward the regulatory process are

. supported by the record of this proceeding.

Whether in some instances where Judge Margulies' findings of fact are supported by the record, he erred in the significance he attached to these findings in his ultimate conclusion, s

IV. ARGUMENT A. The Administrative Law Judge Erred in His Interpretation of the Standard Used by the Appeal Board in the imposition of the Original License Condition and in His Choice of Sanction On appeal Mr. Husted first argues that the Administrative Law Judge erred in his interpretation of the standard used by the Appeal Board in imposing the license condition in A LAB-772. Appeal Brief at 14-17.

Mr. Husted argues that the Appeal Board imposed its condition because of the lack of evidence concerning Mr. Hdsted's job performance and the Board's concern that his attitude would be communicated. to his students.

Therefore, Mr. Husted argues, it was error for Judge Margulies to interpret the Appeal Board's standard in a way which makes evidence concerning Mr. Husted's job performance irrelevant. ,id., at 16. The Staff agrees, in ALAB-772 the Appeal Board considered two allegations concerning Mr. Husted. The first allegation related to Mr. Husted's alleged solicitation of an answer to an~ examination question on the SRO exam in .

1981. ALAB-772, supra, 19 NRC at 1221. The Appeal Board found it 1

I

unnecessary to review the Licensing Board's findings on this matter due to the stipulation between the Licensee and the Commonwealth of Pennsylvania which prohibited Mr. Husted from performing licensed duties. The issue of whether Mr. Husted solicited an answer was litigated again in the current proceeding. Judge Margulies found that there was insufficient evidence to support the allegation. LB P-87-11, supra, slip op. at 20, f 23. b The next allegation before the Appeal Board concerned whether Mr. Husted failed to cooperate with NRC investigators. A LAB-772, supra, 19 NRC at 1221. The Appeal Board did not determine whether this conduct was in and of itself sanctionable. b Instead, the Appeal E'oa rd viewed Mr. Husted's failure to cooperate as evidence of a poor attitude toward his responsibilities, as did the Licensing Board in the e6 9/ Had Judge Margulies reached the opposite conclusion, it would be consistent with other actions taken during the TMi restart proceeding to continue the imposition of the Appeal Board's sanction not based on Mr. Husted's attitude, but based on his conduct. See, e.g. , ALAB-772, supra ,19 N RC at 1212-13,1219-13,1219-21,1776, 1228.

~~-10/ The Commission has previously required the removal of certain people from specified activities where they knowingly contributed to the making of a material false statement to the NRC. See, Niagara Mohawk Power Corp. (Nine Mlle Point Nuclear Station), Order for Modification of License (Effective immediately) and Order to Show (

Cause, 45 Fed. Reg. 80384 (December 4, 1980). See also Bloomington Hospital: Order to Show Cause Why License Should Not Be Suspended and Modified (Immediately Effective) 51 Fed. Reg. I 17112 (May 8, 1986). (Radiation Safety Officer Removed for Wilful Failure to Report Diagnostic Misadministration); Pittsburg Testing Laboratory: Order to Show Cause Why License Should Not Be Suspended and Modified; immediately Effective, 50 Fed. Reg. 23367 (June 3, 1985) (Radiation Safety Officer Removed For Knowingly .

Dispatching an Unqualified and Uncertified Radiographer and Lying , l to the NRC). In ruling on the issue of Mr. Husted's failure to I' cooperate, Judge Margulies pointed out that Mr. Husted did not conceal any information within his knowledge.

l l

I

restart proceeding. I d_. at 1222. The Appeal Board agreed with the Licensing Board that Mr. Husted's testimony on this matter t was unbelievable and that he appeared not to care whether or not he was believed. ,l d . The Appeal Roard was concerned about the effect of this perceived poor attitude on Mr. Husted's abliity and willingness to communicate a sense of seriousness and responsibility to his students and subordinates. Id. at 1223.

Due to the lack of any hard evidence that his poor attitude did in fact affect his teaching performance, the Appeal Board inferred that he would communicate his attitude to those he instructed and supervised.

Id. , at 1223-1224. The Board based this conclusion on their belief that the communication of one's attitude is an integral part of the communication of information. ,l d ,

in determining whether to leave the Appeal Board's condition in place, the Administrative Law Judge has interpreted the Appeal Board's decision to mean that if an employee has a poor attitude toward the regulatory or hearing process, regardless of how he performs his duties, he has the potential to communicate that attitude to those he instructs. .

l LB P-87-11 supra , slip op. at 70, 1 149. Such a person should not ,

according to the judge's interpretation, be permitted to function in a training capacity. Pursuant to this interpretation Judge Margulies determined that the condition must remain in place. Although he made findings with respect to Mr. Husted's attitude in performing his dally ll responsibilities, Judge Margulies did not give this evidence any weight in determining whether the Appeal Board's condition should remain in effect. ,

Rather, the critical factor in Judge Margulies' decision appears to be ,

I l

I j

l whether Mr. Husted demonstrated a proper attitude toward the regulatory process in his testimony during the current proceeding. Judge Margulies' interpretation of the Appeal Board's standard thus makes the evidence of Mr. Husted's job performance irrelevant. The Appeal Board's decision in ALAB-772 does not support Judge Margulies' treatment of this evidence.

As stated above, since the Appeal Board had no evidence before it as to whether or not Mr. Husted had communicated a poor attitude to those he instructed, the Board concluded apparently based on its own perceptions, that he had the potential to do so. See, ALAB-772, supra, 19 NRC at 1223. The record which has been compiled during the current '

proceeding no longer supports such a conclusion. The evidence demonstrates that Mr. Husted is willing and able to communicate a sense of seriousness and responsibility to those he instructs and supervises.

LB P-87-11, supra, slip op. at 55-63, 1 114-133. Therefore, there is no need for Mr. Husted to be precluded from acting as a licensed operator, an instructor, or as a supervisor of training personnel.

Evidence was presented by Mr. Husted and the NRC Staff as to Mr. Husted's job performance. Mr. Husted presented the testimony of Mr. Nelson B rown , Mr. Samuel L. Newton and Dr. Robert Long who all supervised Mr. Husted and/or monitored his performance at various times from approximately 1980 to the present. b The Staff conducted an inspection of Mr. Husted's performance in 1986. "Prefiled Testimony of Donald R. Haverkamp" ff. Tr. 648, at 3-4. The inspector reviewed j i

1

~

11/ " Testimony of Nelson D. Brown" ff. Tr. 697; " Testimony of Robert ,

L. Long" ff. Tr. 755; " Testimony of Samuel L. Newton" ff. Tr. 836. 1 I

l 1

]

l i

documents pertaining to Mr. Husted's performance and interviewed employees who worked with Mr. Husted in various capacities. ,ld,, at 4.

Judge Margulies reviewed the evidence presented on this issue and found that Mr. Husted's attitude was appropriate to his responsibilities.

LB P-87-11, supra, slip op, at 55-63, TV 114-135. This finding is amply supported by the record of this proceeding.

Mr. Husted has been employed by Metropolitan Edison Company and CPUN in vortous positions for a number of years. " Testimony of Charles Husted" ff. Tr. 330, at 1. b He was evaluated by his supervisors on an annual basis, in addition, the Licensee set up a program in 1982 to monitor Mr. Husted's performance on a more frequent basis. Long ff.

Tr. 755, at 2-4. The monitoring program included quarterly performance evaluations and evaluations of Mr. Husted's classroom performance. This monitoring program indicated that Mr. Husted did not have a poor attitude toward safety or the licensing process. _ld., at 6. This finding is consistent with Mr. Husted's annual evaluations. See, Brown, ff. Tr.

697, at 11-15. In light of his performance, Mr. Husted was promoted to a supervisory position in 1983. Newton, ff. Tr. 836, at 10. In 1984 Mr. Husted was transferred to his current position as a Special Projects Assistant in the Nuclear Safety Assessment Department. Husted, ff. Tr.

330, at 1. Dr. Long testified that he has continued to monitor

-12/ At the time of the TMI-2 accident, GPU was the parent holding company of three operating utilities, inciuding Metropolitan Edison Company, and an administrative and technical support company common to the operating utilities. Tr. 784 (Long). In 1980 GPUN, an organization which evolved from a group formed in 1979 to dea! ,

with TMI gained operating authority over TMI-1. Tr. 785-786 (Long).

- 15.1 ,

Mr. Husted, and. that Mr. Husted has continued to ; < perform

~

conscientiously and ~ well. Long, ff. Tr. 755, at 7.

The. Staff conducted a comprehensive inspection to judge Mr. Husted's current attitude as well as his past and current job

. performance. See, Haverkamp, ff. Tr. 648, inspection Report 50-289/86-04. During this insoection Mr. Haverkamp, the Staff's witness in this proceeding, reviewed memoranda, letters, evaluations and other documents in . Licensee's files concerning Mr. Husted's performance, id.,

at 3. These documents came from files in the Personnel, Training ,

Nuclear Assurance and Operations departments. Id. Mr. Haverkamp also interviewed ten employees who worked with Mr. Husted in various capacities to detect concerns about his attitude. Mr. Haverkamp testified that the results of his inspection reflected favorably on Mr. Husted's attitude and integrity. Haverkamp, ff. Tr. 648, at 4. The evidence concerning Mr. Husted's consistently conscientious job performance and his professional attitude toward his job is uncontradicted as Judge Margulies correctly found. j l

Consequently, even if Judge Margulies was correct in finding Mr. Husted had a bad attitude toward the hearing process, and assuming that he still has one, an assumption with which the Staff does not agree, Mr. Husted has not communicated such an attitude to his fellow workers or supervisors. Therefore, the Appeal Board's assumption that he might communicate his attitude to his students were he to be allowed to resume j a position involving some duties as an instructor, or that his attitude could be reficcted in criteria for the training instructors or audits of the ,

training program, is contradicted by the evidentiary record.

It was not only Mr. Husted's failure to cooperate with NRC investig'ators which lead to the Appeal Board's imposition of the condition in question here. Rather, the Appeal Board was primarily concerned with the poor attitude which this failure to cooperate seemed to indicate, and the potential that Mr. Husted would communicate his attitude to others.

Therefore, in order to determine whether Mr. Husted should be precluded from performing training duties, one must look to whether in fact he is communicating such an attitude to those he trains. Due to his different interpretation of the Appeal Board's standard, Judge Margulies found it unnecessary to give ad h weight to Mr. Husted's actual conduct in making his determination. Thus, he erred in deciding that the Appeal Board's condition should remain in place.

In addition to determining questions of fact, Judge Margulies had to determine whether the sanction imposed upon . Mr. Husted through the Appeal Board's condition 'hould remain in effect. To that end, Judge Margulies inquired of the parties whether remedial action should be taken against Mr. Husted and what the remedial action should be. LB P-87-11, su pra , slip op. at 8. After hearing the evidence Judge Margulies determined that the Appeal Board's condition was appropriate given Mr. Husted's continuing poor attitude. As stated above, the Appeal Board did not base its license condition on Mr. Husted's conduct in falling to cooperate with NRC investigators, but rather on the attitude demonstrated by that conduct.

Judge Margulies also based his decision on Mr. Husted's attitude rather than on his conduct. The attitude with which Judge Margulies was ,

concerned was the attitude he observed at the hearing rather than the

attitude shown by. Mr. Husted in his job performance. As Judge Margulies agrees, there is no evidence of poor attitude in Mr. Husted's job performance. LBP-87-11, supra, slip op, at 62-63, 70, if 132,150.

Judge Margulies erred in looking only to Mr. Husted's hearing

. performance in determining whether a license condition resulting in a sanction of the severity of that imposed by the Appeal Board should remain in effect.

The Staff would agree that a finding of cheating by Mr. Husted should result in a severe sanction. However, that was not the case here.

Mr. Husted was not found to have cheated. The Staff would also agree that a failure to cooperate with the NRC which resulted in the concealment of safety related information could result in severe sanctions against an individual. See, Niagara Mohawk Co. (Nine Mile Point Nuclear ad Station), Order for Modification of License (Effective immediately) and Order to Show Cause, 45 Fed. Reg 80384 (December 4,1980). However, the Staff does not agree that a witness' attitude in a hearing which does not result in a de!! berate and intentional attempt to deceive' the trier of fact should result in a severe sanction.

There is no evidence of a poor attitude on the part of Mr. Husted toward health and safety matters in this record. What is present here is, at most, an indication of poor performance by a witness at a hearing.

This type of performance does not extend to Mr. Husted's normal responsibilities. The imposition of. a sanction of the. severity in question here is not consistent with the Commission's guidance to the Staff as to appropriate enforcement actions to be taken against individuals. ,

, l It is Commission policy to hold a licensee responsible for the conduct i i

of its employees as a general matter. 10 C.F.R. Part 2, Appendix C, l n.3. The Cemmission and the Staff have been engaged in an attempt to define those circumstances where enforcement actions against a licensed

. operator who has violated the Commission's regulations would be appropriate. See, Enforcement Guidance Memorandum, 86-05, September 29,1986. EI It is noteworthy that the circumstances in which action would be taken against licensed individuals would involve actions directly affecting safety. ,l d . at 2-3. With respect to an Individual's conduct in dealing with the NRC that would require some type of sanction, the Staff looks to activities that reflect the potential impact on safety and would consider such conduct as lying to or concealing information from the Commission as requiring severe penalties, but does not indicate that a poor attitude alone requires disciplinary action of the type taken in this case.

Judge Margulies did not find that Mr. Husted's conduct at either the current hearing or in 1981 was a deliberate attempt to mislead the trier of fact. Further, Judge Margulies did not find that Mr. Husted's failure to

- cooperate with NRC Investigators was an attempt to conceal information.

Therefore, the retention of the Appeal Board's license condition in this Instance is not warranted.

13/ A copy of this Enforcement Guidance Memorandum was provided to the Board and parties in this proceeding by Staff counsel in a letter dated June 17, 1987. To the Staff's knowledge the Commission has ,

not yet given final approval to the revisions of the Commission's Enforcement Policy which would incorporate this guidance.

4

]

B. The Administrative Law Judge Erred in Finding That Mr. Husted Currently Exhibits a Poor Attitude Toward His Responsibilities Because of his interpretation of the Appeal Board's language, Judge Margulies found it necessary to look at whether Mr. Husted's attitude toward the regulatory process, as exemplified by his appearance at this hearing, is still poor. He concluded that it was, and so the Appeal Board's condition should remain in place. LB P-87-11, slip op. at 70, 1 150. Mr. Husted argues on appeal that this finding is not supported by the record of the proceeding and that, in fact, the record compels a different result. Appeal Brief at 37. The Staff agrees.

Although the findings of a Licensing Board or, as in this case of an Administrative Law Judge, are intrinsically entitled to great weight by a reviewing Appeal Board since the judge is the primary trier of fact, once they have been accorded that weight the Appeal Board may substitute its own findings where the record compels a different result. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-781, 20 NRC 819, 834 (1984); Carolina Power and Light Co. and

_ North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 533 (1986). In this case that substitution is warranted.

Judge Margulies relies on several aspects of Mr. Husted's testimony to support his conclusion that Mr. Husted's attitude remains poor. The first is that Judge Margulies in reviewing Mr. Husted's testimony claims that Mr. Husted refused to acknowledge inconsistencies in that testimony.

Mr. Husted argues that this claim is incorrect. Appeal Brief at 29. The Staff agrees with Mr. Husted. Judge Margulies finds this refusal as he calls it, to be a sign of Mr. Husted's poor attitude. LBP-87-11, slip op.

)

1

- 20 ,

l at 52-53, 1 107. Mr. Husted argues that in fact he was attempting to be cooperative and to explain, as he was requested to do, the apparent

)

inconsistencies in his testimony concerning the identity and whereabouts  !

of the NRC proctor during the NRC examinations. Appeal Brief at 29. A review of the record . indicates that the question did ask Mr. Husted to explain, if he could, the inconsistencies relating to the proctor, and he attempted to do so. See, Tr. 548-49 (Husted). Judge Margulies also  ;

apparently believes that Mr. Husted's reasons for not knowing exactly who the proctor was or his whereabouts reflect a. propensity on the part of Mr. Husted "...to concern himself with what he considers important and .to act accordingly, Irrespective of the consequences on the validity of the inquiry and the effectiveness of the regulatory process."

LBP-87-11, supra, slip op. at 53-54, 1 108. The meaning of. this remark is unclear, but if it refers .to Mr. Husted's belief, as he testified, that it was reasonable for him not to remember exactly where the proctor was or who he was since he was attempting to take ~ an examination, this testimony does not indicate any lack of concern for the effect of his different statements on the regulatory process. His response merely ]

shows why the statements differed. With respect to his testimony before .

i the Special Master, it should be remembered that at the time of his i 1

testimony before the Special Master he was asked to give an estimate of I the proctor's whereabouts which he did, but qualified that answer by calling it a guess. Tr. 548-549 (Husted) . Since he felt compelled to give some answer to the Special Master, it should not be held against him as a lack of concern for the effects of his words. In addition, ,

Mr. Husted, as he states in his brief, did acknowledge that his testimony I

before the Special Master contained inconsistencies. Husted ff.; Tr. 330, In light of the above, the record does not reflect an at 22-25.

unwillingness by Mr. Husted to acknowledge that there were inconsisten-cies in his various statements. Thus, this finding is erroneous and cannot provide a basis for a finding of a continuing poor attitude on Mr. Husted's part.

The next ground set forth by Judge Margulies as a basis for determining that Mr. Husted still retains a poor attitude is the disagree-ment he expressed at the current hearing with the Special Master's findings of his lack of credibility and his lack of cooperation with NRC ,

investigators. LB P-87-11, su pra , slip op. at 54, 1 109. On appeal Mr. Husted argues that, given the state of the evidence, it is not unreasonable for him to express surprise at the Special Master's findings, and that he merely expressed his opinion, which does not in and of itself reflect a poor attitude on his part. Appeal Brief at 29-31. It was the Staff's position below and remains the Staff's position that the evidence concerning whether Mr. Husted cooperated with NRC investigators is equivocal. "NRC Staff Prooosed Findings of Fact and Conclusions of Law" at 33-34 (August 15, 1986). Judge Margulies' analysis of why he )

believes Mr. Husted was not cooperative with NRC investigators is complex, and is not entirely in accord with the testimony particularly of Mr. Matakas, the investigator who performed the second interview of 1 Mr. Husted. See, LB P-87-11, supra , slip. op. at 37-40, 11 66-74. j Judge Margulies concluded that. Mr. Husted misled investigator Matakas, provided unreliable information and undermined the investigative effort.. ,

M., at 39-40 5 73. The basis for Judge Margulies' opinion is his belief i

i

- 22 that Mr. Husted misled Mr. Matakas by leading him to believe that the "passincj papers" incident was the " unconfirmed hearsay" mentioned in the first interview. M., at 39-40, 1 73. Mr. Matakas stated under cross-examination, however, that the characterization in his notes of the information Mr. Husted provided concerning the " passing papers" comment i 1

as the unconfirmed hearsay of the first interview might have been Mr. Matakas's own characterization rather than Mr. Husted's. Tr. 432 (Matakas) . In addition, it should be noted that the notes of Mr. Christman, who accompanied Mr. Husted to the first interview, indicate that Mr. HusteiJ said he did not know of any rumors of cheating, and that the notes do not mention the term unconfirmed hearsay. See,

" Testimony of Paul G. Christman" ff. Tr. 351, at 2-3. Judge Margulies accepted Mr. Christman's notes as the only accurate description of that interview. LB P87-11, supra, slip. op at 42, . 81. The Staff's report could not be given any weight, according to Judge Margulies, since there was no witness who could testify to its accuracy or stand cross-examination on it. M. , at 42, f 80. During the current hearing Mr. Christman testified that, had he heard the words " unconfirmed hearsay" used during the first interview, he believed they would have appeared in his notes. Tr. 380-381 (Christman) .

Finally, Mr. Matakas personally observed Mr. Husted during his '

interview and could not recall Mr. Husted being uncooperative, hostile or negative toward the NRC. "Prefiled Testimony of Richard A. Matakas" ff. Tr. 406, at 6-8. Since there is even some disagreement between Judge Margulies' conclusions and Mr. Matakas's testimony about whether ,

Mr. Husted was cooperative during this interview, the record cannot be

- 23 said to provide strong evidence of his uncooperativeness. Therefore, Mr. Husted cannot be faulted for holding the opinion that even though he might have answered a question incorrectly, he was fully cooperative with Mr. Matakas and answered the investigator's questions to the best of his ability.

With respect to the first interview, Judge Margulies concluded that Mr. Husted's responses could not be viewed as an overall failure to cooperate, although he viewed them as somewhat deficient. LB P-87-11, supra, slip op. at 43-44, f 86. Judge Margulies also found no evidence that Mr. Husted concealed any information concerning cheating at the time of the first in'.erview. Id., at 44, 87. However, he went on to find a failure to cooperate when both interviews were taken together, ,l d .

Due to the nature of the evidence in the record as to his actions no especially at the second interview, and since .ludge Margulies bases his finding of uncooperativeness primarily upon what he believes took place at the second interview, the Staff submits it is error for Judge Margulies to use Mr. Husted's opinion of his conduct to find that he continues to deny responsibility for his actions and thus continues to exhibit a poor attitude.

The next ground cited by Judge Margulies as a reason for his finding that Mr. Husted still has a poor attitude is the fact that Mr. Husted gave incorrect onswers during his testimony. LBP-87-11, l

supra, slip op. at 54, 1 110. During the current hearing Mr. Husted incorrectly testified that he had testified before the Special Master l l

concerning his exclamation during the 1981 examination. See, Tr. 346; ,

495-498 (Husted). At the time of the incorrect testimony Mr. Husted's I

l

- - )

h

~

counsel asked for and was granted time for Mr. Husted to review the 1981 l

transcript, and Mr. Husted then corrected his error. Tr. 495-498

( H usted) . In his clarifying answer Mr. Husted was asked whether he had been asked any questions concerning comments, utterances or discussions between himself and Mr. Janes in 1981. He answered that there had been no direct questions on that subject, but that there had j been questioning about whether there were discussions between him and Mr. Janes concerning who would get the proctor. Tr. 495-496 (Husted) .

Judge Margulies faulted Mr. Husted for not mentioning another instance where he was asked the following question: "One of the NRC investi-gators has testified, as you know--that Mr. Janes said that you asked him a question during the exam. Is that true?" On appeal Mr. Husted argues that Judge Margulies mischaracterized the record to some extent, and that it was perfectly reasonable, given the context of the questions and answers, for Mr. Husted to answer the way he did. Appeal Brief at 32-34. The real question is whether a witness testifying in a hearing should be considered to have a poor attitude because he gives an incorrect answer. While the fact that he does so may make him a poor 1

witness, it does not, without other evidence, provide any indication that he has a poor attitude toward the hearing process or toward the regulatory process in general. Even if Mr. Husted fa'iled to mention all of the questions he was asked concerning discussions he had with Mr. Janes during the 1981 examination, assuming for the moment he understood his counsel question the way Judge Margulies did, there is no evidence that this f' allure was deliberate. Absent such evidence, there ,

j l

is no basis to assume he did so out of a poor attitude rather than out of j i

l

)

- 25 a bad memory. There is no such evidence in this record. The Staff cannot 'say what was going through Mr. Husted's mind when he answered his counsel's questions, but there is no indication on this record that he was in any way deliberately trying to withhold information from Judge

, Margulles. Therefore, his incorrect testimony is not a valid ground for determining that Mr. Husted currently has a poor attitude toward the regulatory process in general, or toward the hearing process in particular.

Judge Margulies next claims that Mr. Husted altered his testimony in ways which lacked credibility. LBP-87-11, supra, slip op. 55, at 1 111.

He points to Mr. Husted's testimony that the report of the interview with Mr. Matakas was inaccurate and to his subsequent statement in his prefiled testimony that Mr. Matakas's report could be correct and to his attempts to give possible explanations of how. the situation could have occurred as an example of such an alteration. Id. On appeal Mr. Husted argues that this is not an alteration, but rather an attempt by him to list l

what might have occurred in 1981, as well as acknowledging that he I simply does not remember. Appeal Brief at 35. The Staff agrees. i in light of the fact that this interview occurred almost six years ago, it is not unusual that someone would have difficulty recalling the details of the interview. As discussed above, even Mr. Matakas could not recall whether Mr. Husted actually called the " passing papers" incident  !

I unconfirmed hearsay or whether that was Mr. Matakas's characterization. l l

See, Tr. 432 (Matakas). Mr. Husted argues that he is being faulted for 1 l

his lack of memory while other witnesses are being found persuasive ,

because of that same lack. Appeal Brief at 34-35. This appears to be

~

the case, in light of the evidence of record in ' this proceeding, the record ~does not support a finding that this " alteration" of Mr. Husted's testimony shows him to have a poor attitude toward this process. In fact, the record on this matter shows his candor, since he admitted that he could not remember the details of the interview and so acknowledged that.the report could be accurate. Husted, ff. Tr. 330, at 15-16.

The final reason given by Judge Margulles for believing Mr. Husted still retains a poor attitude is Mr. Husted's " selective memory."

LDP-87-11, supra , slip op. at 55, T 112. Judge Margulies faulted Mr. Husted for now remembering the exclamation he claims he made during the April examination when he did not mention it before, and for the discussion he testified he recalled during the first interview with the l

Investigators concerning clarification of a question and whether he was permitted not to answer a question, a discussion which a witness to the interview does not recali. M. Mr. Husted now argues that Judge Margulies, in holding this testimony against Mr. Husted, _ ignores the fact that this was the first time Mr. Husted actually got to tell his story with preparation and representation by counsel. Appeal Brief at 35-36.

There is merit to this argument. )

It is apparently Judge Margulies' opinion that Mr. Husted could have mentioned the exclamation before the Special Master had he chosen to do so. LB P-87-11, supra , slip op. at 21, n.5. The questions cited by Judge Margulies might have elicited a response concerning the exclamation had the witness been prepared, and had he been a witness who gave answers which went beyond what the questions asked. A reading of the ,

'{

l questions does not demonstrate that they should in fact have lead to the J I

- 27 disclosure by Mr. Husted of his having made an exclamation during the April . examination. In addition, Judge Margulies' opinion on this matter does not appear to take any account at all of Mr. Husted's state of mind l during that first hearing. Mr. Husted has testified that at the time he was frightened, and that he had become confused while on the witness i

stand. Husted, ff. Tr. 330, at 25. While his state of mind does not necessarily excuse all of his conduct, it should be considered when determining whether he could or should have raised the subject of his exclamation at the first hearing. The Staff submits that it is reasonable to assume that his fear and confusion was not conducive to his raising that point.

As far as the discussion of what happened during the first interview is concerned, while it may be that Mr. Husted's recollection is . incorrect, it does not per se mean that he still possesses a poor attitude toward the hearing or toward the regulatory process. This interview occurred almost six years ago, and there are bound to be differences in recollection which cannot be resolved since there was no contemporaneous recording of that interview. However, regardless of whose recollection is correct, the mere fact that a witness believes he hcd a discussion which another witness )

does not recali does not mean that he is showing disrespect for the regulatory process. The record taken as a whole does not show that i

Mr Husted actually exhibited through his statements disrespect or l

l contempt for this hearing, for safety, or for the regulatory process as a j whole.

It is the record alone which governed Judge Margulies' findings. He ,

specifically stated in his decision that he was not relying on Mr. Husted's i

_. ]

- 28 '

demeanor as the basis for his findings. Judge Margulies' finding on this matter ignores Mr. Husted's testimony that he in fact meant no disrespect for the hearing process during the first hearing, and that he regrets anything he might have done which has given rise to concerns about his attitude toward safety, examinations or the regulatory process. Husted, ff. Tr. 330, at 26. The record does not provide grounds for discounting this testimony.

In addition, in determining that Mr. Husted still possesses a poor attitude, Judge Margulies did not give any weight to the uncontradicted evidence of Mr. Husted'$ attitude in performing his daily. responsibilities.

See, LB P-87-11, supra, at 70, W 150. The evidence of record demon-strates that Mr. Husted generally has a positive ~and appropriate attitude toward his responsibilities. This general finding must outweigh isolated instances of hearing room performance in determining whether Mr. Husted still possesses a poor attitude toward the regulatory process and even if he does, whether there are safety implications flowing from them that warrant disciplinary action.

Based on the above, the Staff submits that the record in this proceeding compels a different result from that reached by Judge 1 Margulies. The record does not demonstrate by a preponderance of the l evidence, as it must since Mr. Husted did not have the burden of I persuasion in this proceeding, b that he has a poor attitude at this time toward the hearing or toward the regulatory process. In light of the 14/ Judge Margulies ruled that Mr. Husted had no initial burden to go

~~

forward and no burden of persuasion on the matters at issue in this

• enforcement type of proceeding. LBP-87-11, supra, at 8.

- 29 '

cvidence discussed above, Judge Margulies' finding that Mr. Husted still exhibits' a poor attitude should be reversed. The evidence indicates that he has not communicated this attitude to his students , coworkers or supervisors. Even if he had a poor attitude in the past, the testimony I concerning his current attitude and the evidence concerning his continued satisfactory job performance, the Staff submits that the record in this proceeding compels a finding that the Administrative' Law Judge's decision is erroneous and should be reversed. The Appeal Board's condition l

should be vacated.

I C. Judge Margulies' Findings on Questions of Fact On appeal Mr. Husted also challenges Judge Margulies' findings with regard to some of the four questions of fact litigated in this proceeding ee and the significance attached to certain of . these findings. First, Mr. Husted argues that Judge Margulies' finding that Mr. Husted failed to cooperate with NRC investigators is not supported by the record. Appea!  ;

Brief at 38-47. As discussed in section B above, the Staff agrees with Mr. Husted that Judge Margulies' findings on this matter are not supported by the record. It is the Staff's position that the evidence of record does not establish by a preponderance of the evidence that Mr. Husted was uncooperative. Therefore, this finding of Judge Margulies should not be accepted.

Mr. Husted next argues that Judge Margulies' findings with respect to his forthrightness and his attitude toward the hearing on the cheating incident do not justify the continued imposition of the Appeal Board's ,

condition. The Staff agrees. Mr. Husted argues that in a case like this l

N

1 l

30 '

. l one where a condition has the effect of depriving a person of his i livelihood, the standard for Judoing whether he is forthright should be stricter than whether he gave inconsistent or incorrect answers to ,

questions. Appeal Drief at 48-49. In effect, Mr. Husted is arguing that Judge Margulies used too broad a definition of forthrightness. Id. The  ;

factor that is missing with respect to Mr. Husted is whether in giving his incorrect answers, he meant purposely. to mislead the trier of fact. Id.

Judge Margulies found that Mr. Husted did not withhold information from-NRC investigators, and that he did not set out to mislead the Special Master, but that the manner in which he testified had the effect of obfuscating what actually happened. LB P-87-11, supra, slip op, at 50-51, 1 100. EI While the Staff agrees that, in the broadest sense of the word i Mr. Husted might not have been completely forthright in his testimony before the Special Master, this does not justify the continued imposition of the Appeal Board's condition. As Judge Margulies noted, there was no deliberate attempt on Mr. Husted's part to mislead the trier of fact. It should not be this past conduct that controls the outcome of this ]

proceeding.

At this point the critical question should be whether his attitude adversely affects his abliity to do his job. According to the record of )

l this proceeding it has not done so in %e past. The evidence does not i l

~

15/ in reference to his past condut t, the judge found that Mr. Husted should be held accountable for i is actions. LBP-87-11, supra, slip i op, at 52, f 105. In fact , W. Husted has already 'been held ,

accountable for those actions by the imposition 'of the severest of i sanctions, i.e., the removal from his position.

I 4

t

- 31 i

i indicate that it would be !!kely to do so in the future. Therefore, while Judge Margulies' findings with respect to Mr. Husted's forthrightness and his poor attitude toward the hearing process in 1981 have record support, these findings do not in and of themselves justify the continued imposition of the Appeal Board's condition. Since the Staff submits that Judge Margulies' findings which are critical to such a determination are erroneous, the Staff submits that the decision should be reversed and the condition vacated. There is no evidence in this record that would indicate the necessity to reach a different conclusion with respect to Mr. Husted's suitability for positions with regard to the operation of TMI-1 or to the training of licensed personnel.

V. CONCLUSION For the reasons set forth above, the condition imposed by ALAB-772 with respect to the prohibition of Mr. Husted from exercising supervisory responsibilities over the training of nonlicensed personnel should be vacated. In addition , Mr. Husted should be deemed suitable for positions relating to licensed personnel.

Respectfully submitted,

. MENO Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of June,1987 I

l I

, Dat KE Ti r U N!

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 JUN 30 P3 :28 Orn g BEFORE THE ATOMIC SAFETY AND LICENSING A'PPEAL',00ARD',

in the Matter of )

)

CENERAL PUBLIC UTILITIES ) Docket No. 50-289 (CH)

NUCLEAR )

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPONSE TO THE- APPEAL OF CHARLES HUSTED" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 30th day of June,1987:

Morton B. Margulies* Atomic Safety and Licensing Board

• Administrative Law Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Appeal

' Board Panel

• U.S. Nuclear Regulatory Commission Louise Bradford Washington, DC 20555 Three Mlle island Alert 1011 Green Street Docketing and Service Section*

, Harrisburg, PA 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq. Washington, DC 20555 Maria C. Hensley, Esq.

Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Deborah B. Bauser, Esq.

Shaw, 'Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036 Janice. E. Moore Counsel for NRC Staff

.