ML20137X072

Motion to Dismiss & for Stay of 850911 Order Awarding Hearing to Determine Whether Aslab Condition Imposed on Facility Restart Affecting C Husted Should Be Vacated.Order Should Be Dismissed.Certificate of Svc Encl

ML20137X072
Person / Time
Site:	Three Mile Island
Issue date:	02/28/1986
From:	Bradford L THREE MILE ISLAND ALERT
To:	NRC COMMISSION (OCM)
References
CON-#186-286 CH, NUDOCS 8603050197
Download: ML20137X072 (13)

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(_)' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE COMMISSION 6 MR -4 A10:47 In the Matter of: ) 0FFict ur .

GENERAL PUBLIC UTILITIES NUCLEAR DOCKET NO. 50-289 kbb$NC$

(Three Mile Island Nuclear Station,)

Unit No. 1) )

TMIA'S MOTION TO DISMISS AND FOR STA_Y TMIA moves the Commission to dismiss the Order of September 11, 1985 for the reasons stated as follows:

1. After completion of all hearings in which all nersons had an opportunity to be heard, the Commission, on February 25, 1985, entered an Order in which it afforded Charles Husted an opnortunity for a hearing. The hearina was to determine x whether the condition the Aopeal Board imoosed on restart which affected Husted should be vacated. The Order directed Husted to respond within 20 davs of the date of the Order.

2. Husted failed to resoond within the 20 days allotted by the Commission.

3. Desoite Husted's failure to resoond timelv, the Commission issued an Order on September 11, 1985 awarding a hearing and grantina Husted's netition to expand the scone of the hearing.

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4.Said Order awarding a hearing must be dismissed

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\-) for the following reasons:

a. The issue to be resolved is leaal, not factual, Ob

4 and therefore. a factual hearina is unnecessary and unjust.

O b. Husted waived his ooportunitv for a discretionary hearina in failina to rescond timely to the Commission's Order.

! c. The award of a special hearing is uniust as Husted had an ooportunity to be heard in the orevious hearings

[ but failed to exercise that opnortunity.

5. The hearina has been tentativelv scheduled for June 1. 1986, and discovery has been scheduled to commence March 1, 1986.

6. Failure to stay the proceedings pending a resolu-1 tion of TMIA's Motion to Dismiss will result in substantial harm in the expenditure of unnecessary " costs in pursuit of discoverv, and the additional burden of proceeding with discov-ery which mav ultimately be invalid if TMIA's Motion is aranted.

TMIA requests the Commission to dismiss the Order of Seotember 11. 1985, and to terminate discovery in this matter.

and further requests that all oroceedinas be stayed pending resolution of its Motion to Dismiss.

Respectfully submitted, s/ s (T

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E aise Bradford for Three Mile Island Alert, Inc.

i O February 28, 1986

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(~N MEMORANDUM IN SUPPORT OF TMIA'S ,

.V MOTION TO DISMISS AND FOR STAY The Commission had exceeded its jurisdiction in granting a special hearing to Charles Husted. Additionally, the hearing

awarded by the Commission to Husted is unnecessary, invalid and.

unjust and must be dismissed. It :is unnecessary -as the issues 1

have been finally determined following the previous hearing before the Commission. It is further unnecessary because Husted has i

i waived any right to be heard in failing to' exercise his right to 7

be heard under Section 189a of the Atomic Energy Act and i

! 10 CFR 2.714; 2.715, though the opportunity was available to him 4 at the time of the previous hearing. The hearing is invalid as Husted failed to timely request the hearing, as directed by

! ( the Commission's Order of February 25, 1985, thus waiving his right to the discretionary grant of hearing.

i The hearing is unjust as the issues have been resolved-following the hearing on restart, and no new evidence has been I offered to justify opening new hearings on dead issues. Addi-tionally, it is unconscionable abuse of taxpayers' funds to accommodate Husted, who has repeatedly failed to timely present I his arguments before the Commission. Expansion on the hearing is likewise unconscionable in light of the limited legal issue upon which the opportunity for hearing was initially offered.

BACKGROUND i

In July of 1981, it was alleged that two individuals

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i had cheated extensively on the April 1981 licensed operator 4

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[) examinations administered ~by the NRC at TMI. Restart proceeding Staff Exh. 24. The Office of Inspection and Enforcement (OIE)

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investigated the allegations and issued a report on August 11, i 1981. Staff Exh. 26. In the course of its investigation, OIE interviewed numerous licensed operators and members of the TMI training department. Charles Husted, who was at that time a licensed operator instructor at TMI, refused to cooperate with the NRC investigators during their investigation of the cheating, according to the OIE report. I_d, , at 39.

Subsequently, the Atoric Safety and Licensing Board-1 (ASLB) reopened the evidentiary record and appointed Administrat-ive Judge Gary Milhollin Special Master to preside over the hearing. Husted appeared as a witness at the hearing, and the

( testimony which he gave concerning his knowledge of cheating at TMI .as found by both the Special Master and the ASLB to be j " incredible" Special Master's Report (SMR) at Para. 316; July 27, 1982 Partial Initial Decision (PID) at' Para. 2165.

Additionally, during the hearing, a Staff witness revealed for the first time allegations of Husted's unsucc ,s-ful attempt to cheat during the April 1981 NRC exam. Tr.

25,462-463 (Ward).

The Special Master, in his report, proposed a sanction

less than loss of license for Husted. SMR at Para. 317.

j The SMR issued April 28, 1982. The report concluded i ,

l that ten individuals in addition to Husted were guilty of some J

form of wrongdoing. SMR at Para. 304. On April 30, 1982,

. Licensee filed a petition to repoen'the record in order that Micnael Ross, Manager of Operations TMI-1, whom the Special  ;

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() Master had concluded was guilty of wrongdoing, could present additional testimony directly to the ASLB. Licensee made no such ,

request with regard to Husted. On May 5, 1982, the ASLB denied l

Licensee's petition, and instead, directed the parties to submit additional comments on the issues surrounding Ross. The ASLB also directed Licensee to inform any of its employees promptly of their right to comment on the SMR. Subsequently, five TMI employees who were referred to in the SMR submitted comments to the Licensee. Husted did not file comments.

The ASLB issued its Partial Initial Decision (PID) on July 27, 1982. The Board disagreed with the Special Master a

recerding Husted's attempted cheating. The Board found the evidence did not support a conclusion that Husted had made sa

) attempt to cheat during the NRC exam. However, the Board was in agreement with the Special Master regarding Husted's refusal to cooperate with an NRC investigation, his incredible testimony during the hearing and his general poor attitude toward the NRC examination process. PID at Para. 2165-2167.

"His testimony on the matter was not only unbe-lievable, but it gave the sense that he didn't 5

care whether he was believed or not."

"if Mr. Husted is representative of the TMI-l ,

training department, his attitude may be a partial '

4 explanation of why there was disrespect for the training program and the examinations." l l

-1 *** l "we question whether he is able, or if able, willing to impart a sense of seriousness and

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responsibility to the TMI-l operators."

Id-i i

() Despite their findings, the Board imposed no sanction against Husted directly, but instead required that Licensee estab-lish an audit of its training program, and that that audit give particular attention to Husted. PID at Para. 2168.

The parties filed exceptions to the July 27 PID. TMIA and the Commonwealth took exception to the Board's lack of sanction against Husted. The Commonwealth's exception number two stated:

"The Licensing Board erred as a matter of law and abused its discretion by permitting the Licensee to utilize senior reactor operator DD (Mr. Husted), who is also a training instructor at TMI, as an operator of TMI-1, pending a hearing pursuant to 10 C.F.R. Part 2, Subpart B, and 10 C.F.R. 55.40."

Commonwealth Exceptions at 1.

{} In its brief in support of its exceptions, and in its Comments on the Immediate Effectiveness of the ASLB Partial Initial Decision (Reopened Proceeding), the Commonwealth con-tinued to maintain its position that Husted should not be per-mitted to operate TMI-l or to teach licensed operators or trainees "pending a hearing" on Husted's ethical and attitudinal qualifications to do so.

In August 1983, counsel for indiviauals O and VV, who were found guilty of wrongdoing by both the Special Master and the ASLB, petitioned the Appeal Board for leave to intervene in the appellate process. Husted made no request to participate.

On July 6, 1983, the Commonwealth of Pennsylvania and GPUN entered into a stipulated agreement whereby GPU agreed f~/)

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not to use Husted to operate TMI-l or to train Ifuensed operators or trainees. Husted understood and agreed to the need for the stipulation at the time it was made. May 14, 1985, Husted Reply to NRC Staff Response Concerning Charles Husted's Request for Hearing, at 4. The Commonwealth withdrew its appeal on the same day.

Shortly prior to the signing of the agreement, GPU promoted Husted to the position of Supervisor Non-Licensed Operator Training.

The Appeal Board reviewed the record and the events which had occurred following the close of the evidentiary hear-ing, including the stipulated agreement and the promotion of Husted.

In ALAB-772 which issued in May of 1984, the Appeal

() Board imposed as a condition of the restart of TMI-l that Husted "have no supervisory responsibilities insof ar as the training of non-licensed personnel is concerned." ALAB-772 at 46.

The Commission took review of ALBL-772 and questioned the Appeal Board's authority to impose the condition without providing Husted notice and an opportunity to request a hearing.

CLI-84-18 at 1-2. The Commission requested comments from the.

the parties on the legal question it had posed, specifically stating that it was concerned with the factual issues which underlay the Appeal Board's decision to impose the condition.

Id. at 4. The Commission further stated that should it deter-mine "that the Appeal Board erred will then decide whether to take euforcement action against Mr. Husted separate from the

() restart proceeding. Id. at 5. In CLI-85-2, the Commission,

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without having resolved the question of the Appeal Board's authority, posed a different question: should the Appeal Board's condition be vacated. CLI-85-2 at 54. The Commission gave considerable attention to Husted's right to a hearing on the issue of whether the condition imposed by the Appeal Board should be vacated. The Commission reviewed Section 189a of the Atomic Energy Act and relavant sections of federal due process for affirmative authority to grant Husted a hearing.

The Commission was unable to cite affirmative authority, but nevertheless granted a hearing in " fairness" to Husted. The Commission granted the hearing, in part, because in the Commis-sion's view, Husted had not been asked for his views nor had an opportunity to comment. The Commission gave Husted twenty 1

() days from the date of the Order to request a hearing. Id. at 54-55.

On March 25, 1985, twenty-nine days after the Com-mission's Order, Husted filed a request for hearing, and, in addition, requested that the scope of the hearing be expanded I

to consider the factual issues which underlay the Appeal Board's condition. See Letter from Deborah B. Bauser. Counsel for Husted, dated March 25, 1985. Husted argued that expansion of the scope of the hearing would require no additional Agency resources. On September 11, 1985,'the coneission granted l

Husted's request for an expanded hearing. l l

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DISCUSSION O In CLI-84-18, the Commission questioned the Appeal Board's authority to impose as a condition of restart that Charles Husted not be allowed supervisory responsibilities insofar as the training of non-licensed personnel is concerned. Although the Commission did not answer that question explicitly, it implicitly affirmed the Appeal Board's authority to impose such a condition when in CLI-85-2 it posed another question: should the Appeal Board's condition be vacated? A determination that the Appeal Board lacked the legal authority to impose the con-dition would have nullified the question.

Resolution of the issue of whether or not to vacate the Appeal Board's condition does not require a hearing. The

- facts which underlay the condition are fully developed in the record. The commission has not questioned the validity of those facts. Husted has presented no new evidence which would contra-dict those facts. The parties can adequately brief the issue based on the facts in the record. Granting a hearing on the legal question of the appropriateness of the Appeal Board's condition, where the facts underlying that condition are not in controversy, is an abuse of Agency-resources and an abuse of the Commission's discretion.

The hearing process to examine the facts surrounding the cheating incident commenced on October 2, 1981, it concluded in May of 1984, when the Appeal Board issued its decision. The hearing consumed 18 hearing days. All of this at the expense of the taxpayer. Furthermore, although participation in-the

_ hearing on cheating was a severe drain on its meager resources,

\'J TMIA participated actively. It did so in good faith and in accordance with the Commission's regulations. TMIA has every right to expect that the final decisions which favored its posi-tion will remain undisturbed and that it will not have to repeatedly defend those decisions.

In CLI-85-2, the Commission stated that Husted had had no notice of the Appeal Board's condition and no opportunity to comment. This was the basis of the Commission's decision to offer Husted a special hearing. The Commission's statement is inaccurate and is not supportcd by the facts. The procedural protection afforded by Section 189a of the Atomic Energy Act was available to Husted. Additionally, 10 CFR 2.714 gives per-sons affected by a proceeding the opportunity to request a g-)g hearing or to intervene; 10 CFR 2.715a allows for a person who is not a party to make a statement of his position on the issues at any session of the hearing. Furthermore, 10 CLR 2.715d allows for persons who are not parties to the hearing to file briefs,

" amicus curiae." Husted did not take advantage of these oppor-tunities timely, and has waived his rights to comment or to request a hearing.

Even assuming for the sake of argument that a hearing were necessary to resolve the issue of whether or not the Appeal Board's condition should be vacated; and further, assuming that )

the Commission's view that Husted's due process rights were harmed is accurate, Husted is not entitled to a hearing. He j

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(_) was in default when he filed his petition for hearing nine days beyond the time allotted by the Commission.

The Commission exceeded its authority when it granted Husted's request to broaden the scope of the hearing to encompass issues which were the subject of previous final decisions. The Commission is barred from broadening the scope of the hearing as a result of the final decisions previously reached on these same issued. Those issues are res judicata. The Supreme Court ruled in United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed2d 642 (1966), that: "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts

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(_ have not hesitated to apply res judicata to enforce repose."

(emphasis added).

As demonstrated in the background above, Husted had adequate opportunity to confront the issues. He failed to use those opportunities.

Husted was found culpable prior to the stipulation by the Special Master and the ASLB. The ASLB had not recom-mended sanction against Husted. Nevertheless, GPU, with Husted's knowledge and assent, entered into the stipulated agreement with the Commonwealth. It was this action which resulted in the removal of Husted's license.

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Husted-had the opportunity to use the appellate process.

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He chose not to use that process and agreed with the stipulation.

The Commission can grant no relief with regard to j Husted's license. He voluntarily relinquished it when he agreed to the need for the stipulation. He has waived.his right to appeal that action.

.i In the September 6, 1985 Notice of Hearing, the Com-i mission did not consider the fact that the issues were res .

judicata, nor that they did not have the authority to grant relief in the matter of the stipulated agreement. The Commis-sion considered only the fact that an expanded hearing would not require additional Agency resources.

It was not necessary to convene a hearing in order to

() determine whether the Appeal Board's condition should be vacated Since no hearing is necessary, it cannot be necessary to expand the hearing.

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The Commission has an obligation to the public to administer its resources in a responsible manner. This obliga-

tion outweighs any obligation the Commission might feel it has '

to Husted, who has forfeited any rights he might have had to hearing.

In conclusion, the hearing awarded by the Commission to Husted is unnecessary, invalid and unjust-and must be I dismissed.

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"* 00CKETED USNRC UNITED STATES OF AMERICA 16 MM1 -4 #0 :47

/ NUCLEAR REGULATORY COMMISSION

(

BEFORE THE COMMISSION OFFICE F .- . Y 00CHETihti a 5tkVH .r.

3 In the Matter of: )

)

GENERAL PUBLIC UTILITIES NUCLEAR ) DOCKET NO. 50-289 (CH)

)

(Three Mile Island Nuclear Station, )

Unit No. 1) )

TMIA'S MOTION TO DISMISS AND FORSTAY,

- I hereby certify that copies of "TMIA'S MOTION TO DISMISS AND FORSTAY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 28th day of February, 1986:

Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Washington, D.C. 20555

, Morton B. Margulies Atomic Safety and Licensing Appeal Bd.

Administrative Iaw Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555

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7 U.S. Nuclear Regulatory Commission Nwashington, D.C. 20555 George E. Johnson Office of the Executive Legal Dir.

Michael W. Maupin, Esq. U.S. Nuclear Regulatory Commission Maria C. Hensley, Esq. Washington, D.C. 20555 Hunton & Williams P. O. Box 1535 Docketing and Service Section (3)

Richmond, VA 23212 Office of the Secretary U.S. Nuclear Regulatory Commission Deborah B. Bauser, Esq. Washington, D.C. 20555 Shaw, Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036 4

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Louise Bradford for Three Mile Island Alert, Inc.

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