ML20205A771
| ML20205A771 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 04/22/1985 |
| From: | Bradford L THREE MILE ISLAND ALERT |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#285-704 CH, NUDOCS 8504260078 | |
| Download: ML20205A771 (13) | |
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{* USNRC UNITED STATE OF AMERICA NUCLEAR REEUIAIORY C0tEISSION
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In the Matter of ) #
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IErROPOLITAN EDISON 00tfPANY, ET AL. ) Docket No. 50-289-dd
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Unit No. 1) )
'IMIA'S RESPONSE 'IO LICENSEE'S IUf1CE TRANSMITIING HUSTED'S REQUEST FUR HEARING ;_
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Introduction On 25 May'1986, the Appeal Board issued AIAB-772 in which they imposed I as a condition of restart of IMI-l preclusion of Licensee's use of tir. Husted-
.in a " supervisory position insofar as the training of non-licensed personnel is ~concemed." AIAB-772 at 46. As will be discussed in greater detail below, the need for such a condition arose from evidence developed.during the reopened hearing on cheating and the subsequent reports, decisions and findings related thereto, in which Husted's attitude and integrity were an issue. Since the Comission did not ask for coment on the Appeal Board's finding on this issue, only on the condition imposed in light of that finding, one can assme that they agreed with the Appeal Board on this issue.
Subsequently in CLI-85-2, the Comission questioned the Appeal Board's authority to impose such a " condition on licensee" which effectively "... operates as a sanction against an individual, where that individual is nct a party to the proceeding and has had no notice of a possible sanction or opportunity to request a nearing." CLI-85-2 50. After reviewing cmments on this issue of Husted's rights and discussing the law, (due process and the Comission's jurisdiction in light of its statutory mandate under the Atomic Ehergy Act), the Comission decided "not to resolve the difficult issues presented" but did decide in the interest. of " fairness", to provide Husted an opportunity for a hearing on whether "the Appea1 Board's condition barring him from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be vacted." Id. at 54.
The Comission further stated that should Husted request such a hearing, it would be " separate from" the restart proceeding. Id at 55.
By letter dated 25 March 1985, attached to " Notice to Comission, Appeal Board, Licensing Board and Parties." counsel for Licensee, who now is apparently simultaneously acting as counsel to Husted, informed the Comission Boards and parties that Husted wished to take advantage of the opportunity for hearing afforded him by the Comission.
-Licensee's letter additionally requests that the scope of the hearing be expanded to include the status of Husted's operating license, enumerating several sub-issues which it states are the bases for the condition imposed by the Appeal Board. Counsel argues that the "...same factual issues which resulted in the Appeal. Board's condition on Mr. Husted's employment also pertain to the adequacy of Mr. Husted's integrity and attitude to serve as a'IMI-l licensed operator, and a licensed operator training instructor and supervisor."
'IMIA will coment in detail below on this request of Licensee's to relitigate essentially the same facts and issues which either have already been decided by the Licensing Board _ (Husted gave testimony before the special Master that was not forthright 27 July 1982 PID para. 2166) or the Appeal Board (Husted displayed an unacceptable' attitude towards the hearing and failed to cooperate with tRC investigators. AIAB-772, at 43) or undecided but fully litigated (Husted's unsuccessful attempt to cheat Id. at 42). Pursuant to the Comission's Order, the . proposed hearing would be separate from the restart proceeding. However, it is first necessary to review the events, litigation and findings pertaining thereto, which led to the condition of restart imposed by the Appeal Board. Because it is this condition which subsequently led to the Commissioner's concern for Husted, it is against this backdrop that the request for hearing must be reviewed.
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Background
During the reopened hearing on cheating, Staff witnesses testified that
'Husted had made an unsuccessful attempt to cheat on the April 1981 NRC exam.
Tr. 25,320. Other evidence revealed that Husted had refused to cooperate 1 with the IRC during its investigation of cheating at Dil; SMR at' para.109 and when giving deposition and during the hearing itself, Husted displayed a remarkably poor attitude. Id. para. 110. In fact, as the Appeal Board noted,
" licensee conceded that Husted was flippant and did not appear to take this matter seriously." AIAB-772 at 43.
31IA and the Comonwealth of Pa. submitted findings on these issues. The Special Master in his report to the Licensing Board on the cheating hearing, tound that Husted had made an unsuccessful attspt to cheat, had given incredible testimony and had exhibited a poor attitude. See Special Master's Report (SMR) at' paragraphs 300, 111, 109. The Special Master's finding with regard to Husted's
, attempted cheating was based in part on witness credibility SMR at para,111 an element which the trier of fact is uniquely suited to determine.
On 5 May 1982, the ASLB issued Memorandum and Order Regarding Licensee's Motion to Reopen the Record, in which they offered "any Licensee employee referred
~to in the Special Master's Report" an opportunity to comment on that report and directed Licensee to inform those individuals promptly of their right to coment.
Memorands and Order at 4. Subsequently, several individuals took advantage of this opportunity offered by the Board and submitted coments on 23 August 1982, and counsel for individuals 0 & W requested leave to intervene in appellate proceedings should they affect their interest. Husted however, did not submit coments when given this opportunity.
r-ky e On 27 July 1982, the Licensing Board issued its Partial Initial Decision 7
-(PID) on cheating, in which the Board overuled the Special Master's factual finding regarding Husted's attempted cheating. PID at para. . However, the Board upheld the Special Master's findings that Husted failed to cooperate with the NRC during its investigation and gave incredible testimony during the
-hearing. PID at paras. 2157; 2167. In fact the Board concluded that "if Husted is representative of the 'IMI training department, his attitude may be a partial explanation of why there was disrespect for the training program and the exam-inations." Id. para. 2167. In further evaluation of Mr. Husted's actions and attitudes, the Board " questioned whether he is sble, or if able, willing to impart a sense of seriousness and responsibility to the D1I-l operators." Id.
In noting its doubts as to Husted's " competence to instill a sense of seriousness about the important need for integrity, discipline and public confidence in the D!I training program," Id para. 2168 the Board imposed a condition upon restart, whereby all of Licensee's training instructors would be audited for a
, ' period of two years. Id., This was presunably to ascertain the level and pervasiveness of disrespect for the training program and lack of " sense of seriousness and responsibility." 'Ihe Board also required that this audit give particular attention to Husted. Id. Paras. 2168; 2347 and 2421.
'IMIA filed exceptions to the Partial Initial Decision as did the Comonwealth.
The Comonwealtn's exception number two stated:
"Ihe Licensing Board erred as a matter of law and abused its discretion by pemitting the Licensee to utilize senior reactor operator DD (Mr. Husted), who is also a training instructor at H11, as an operator of R!I-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.
- f. '
L
e In a motion filed on 6 July 1983, the Commonwealth requested leave to withdraw its exceptions and appeal, contingent upon a stipulation entered into by L licensee and the Commonwealth. In this stipulation Licensee agreed, among other things, not to utilize Mr. Husted to either operate TMI-1 or to train operating license holders or trainees.
By Memorandum and Order dated 22 December 1983, the Appeal Board granted the Commonwealth's motion to withdraw, noting that the stipulation binds only the two parties and was not to be read as " reflecting" the Appeal Beard's " view on the merits of the substantive arguments" made by the parties to the reopened hearing. ASLAB Memorandum and Order at 3.
In ALAB-772, the Appeal Board discussed the disagreement between the Special Master and the Board, and concluded that there was no need for them to settle the outstanding issue of attempted cheating by Husted, which the Appeal Board viewed as mooted by stipulated agreement between Licensee and the Commonwealth of Pennsylvania.
Discussion The hearing which counsel for Licensee now seeks, would raise again the as yet undecided but previously litigated issue of Husted's attempted cheating, as well as the other three issues which were the subject of earlier hearings and decisions, and all four of which are an integral part of the restart issue os management integrity.
Furthermore, it is not at all clear that Mr. Husted himself desires a hearing. As demonstrated in the procedural history above, individuals affected by the reopened hearing on cheating, were given repeated opportunities to comment upon the various reports and decisions resulting from that proceeding. Two of those individuals (0 and VV) requested that they be allowed to participate in
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the appellate proceeding in order to protect their interest. In contrast, in the three years since the issuance of the Special Masters Report, Mr. Husted has not once taken advantage of the opportunities affordcd him for comment, let alone requested a hearing.
The Commission must recognize the 25 March 1985, request for what it is, an ill-disguised attempt by licensee torelitigate issues already decided in the restart hearing, which reflected poorly on Licensee managements integrity.
In addition, counsel who now purports to represent Husted's interest, re-presented Licensee in the matter of the stipulated agreement with the Commonwealth and it was clear that Licensee's interests were adverse to those of Mr. Husted.
That stipulation in part resulted in Mr. Husted losing his operating license.
Licensee voluntarily entered that agreement apparently to remove a possible bar to restart and without regard to Mr. Husted's rights.1 That counsel should now attempt to persuade the Connission that Husted's due process rights will'be protected, given counsels dual role in this matter, is ludicrous at best.
In the 25 March 1985 letter, Licensee's counsel has enumerated the issues which it seeks to relitigate, and which in fact formed the factual basis for the Appeal Board's condition. The following discussion of each of these issues which Licensee now seeks to relitigate outside the restart proceedings, demonstrates their integral relationship to the restart hearing and the secisions therefrom.
The Appeal Board itself clearly found Husted culpable on three of these issues and further observed that management's response to these deficiencies raised
" serious questions" as to management's capabilities and judgement.
- 1. "Whether Mr. Husted colicited an -answer to an exam question from another operator during the April,1981 NRC written examination..."
Letter, footnote 1.
JThe stipulation was in fact the basis for the Appeal Board's subsequent condition has Mr. Husted wanted to object to this action by his employer he could have filed a complaint with the Department of Labo,r.
L.
During the reopened hearing _on cheating a staff witness revealed for the first time that the NRC had learned during its investigation that Husted had solicited an answer to an exam question from anoth'er operation during the April 1981 NRC exam. Ti1IA submitted findings on this issue, and the Special Master in his report to the Licensing Board, found the evidence supported a conclusion that Husted had indeed made an attempt to cheat. The NRC investigators had not included an account of this incident in their investigation report because it was an un-successful attempt at cheating. Tr. 24, 415 (Ward). The Special Master however, noted that the attempt alone brought Husted's integrity into question. SMR at.
The Special Master's conclusion regarding Husted's cheating attempt was based partially on his observations of witness demeanor and credibility. Id at The Licensing Board rejected the conclusion of the Special Master, finding the evidence unpersuasive. The Appeal Board, although it discussed the issue, did not attempt to resolve the dispute between the Board and the Special Master, noting its view that the issue was mooted by the stipulation entered into by Licensee and the Commonwealth, and sponsored by the Appeal Board.
Since the Appeal Board perceived the issue of Husted's culpability as being mooted by the stipulated agreement, and therefore mode no decision on an issue which reflects negatively on Husted's integrity, it remains an issue in controversy.
Recolution 'of this controversy must necessarily affect the larger issue of management integrity which is central to the restart decision. This view was supported by the Appeal Board when they noted that the "... cheating episodes, may be symptomalic of more extensive failures in licensee's overall training program."
ALAB-772 at 63. ,
There is no reason to relitigate this issue, the facts are already fully developed on the record, and await only a conclusive resolution of the dispute between the Special Master and the Licensing Board, which the Appeal Board has declined to provide.
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- 2. "Whether Mr. Husted gave testimony before the Special Master that was not ' forthright' . . . "
-The Licensing Board found, as did the Special Master, that Husted gave
" unbelievable" testimony during the reopened hearing. PID para. 2166; SMR .
The Appeal Board did not comment directly on the issue of Husted's perjury, but instead treated it in the general category of Husted's " poor attitude."
The issue of Husted's lack of " forthrightness" under oath, more than any other issue, reflects directly in his integrity and on the integrity of Licensee's management, who promoted him despite this undisturbed finding of the Licensing Board.
3 and 4. "Whether Mr. Husted displayed an unacceptable attitude towards the hearing; and whether Mr. Husted failed to cooperate with NRC investigators.
Issues 3 and 4 are undisputed by any party or the various decision makers.
The Licensing Board, as discussed above, found that Husted's poor attitude may be an explanation for the lack of respect toward training on the part of operators.
The Appeal Board was in agreement with the Licensing Board that Husted's poor attitude existed and potentially adversly influenced TMI operators on this crucial issue of operator attitude. The Appeal Board further stated that given these facts, GPU management's promotion of Husted to a position wherein he could similarly adversely impact trainees on the career path to licensed operator status, raised serious questions as to Licensee's judgement. ALAB-772 at 46.
The Appeal Board also questioned the reasonableness and logic of Licensee's decision to place Husted in a postion to develop the audit that was to be in l part "a remedy for his own failures to cooperate with the NRC." ALAB-772 at 45.
Given these poor management decisions on the part of GPU, the Appeal Board had no alternative but to compel Licensee management to remove Husted from this key postion.
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i k.
7 em Conclusion In conclusion, the issues enmerated by counsel for Licensee, have either already been decided, or have been litigated and are ripe for decision.
Neither Licensee nor Husted have offered compelling reasons to reconsider these i
- issues. It must be noted again .that-Husted previously chose not to request a
- hearing on any_ of these issues.
As demonstrated 'in discussion above, even the scope of the proposed hearing, as narrowly stated by the Comission - Husted's bar from his supervisory role with licensed operator trainees - must touch all four issues discussed above, all of which are central to the restart issue of management integrity. In light of the substantive comonality between .the restart proceedings and the proposed hearing for Husted, the countervailing due process rights of intervenors to finality of decision on at least three of the issues must be weighed against Husted's right to reconsideration. We rights of intervenous must prevail. 'Ihis
- is particularly so, given the Comission's mandate to protect the health and safety of the public, notemployee " rights." As to the as yet mdecided issue of Husted's attempted cheating, if the Commission feels it must hear more evidence on this one issue, then it must do so prior to rendering a final decision on restart and it must, for the reae e s stated above, allow all affected parties to participate.
Respectfully submitted osub m-Iouise Bradtord For Bree Mile Island Alert, Inc.
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. e-UNITED STATE OF AMERICA M CC 00;sN NUCLEAR REGUIATORY 00tt11SSION BENRE THE AIDMIC SAFEI'Y AND LICESING APPEAL BOARD
% APR 25 41 :13 In tbe Matter of: E SECR TA f)[CMETf BRANCH G & 5E V MEI'ROPOLITAN EDISON COMPANY, :
-(Three Mile Island Nuclear . Docket No. 50-289 Station, thit No.1) : (Restart)
CERTIFICATE OF SERVICE Copies of the attached "1MIA's Response to Licensee's Notice Transmitting Husted's Request for Hearing" were served on the parties on the attached service list, this 22nd day of April, 1985, by first class mail, postage prepaid.
att IDUISE BRADWRD
)A)'
For Three Mile Island [ Alert, Inc.
4 Dated: April 22, 1985
(
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UNITED STATES'OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP6N
) 6 (Three Mile Island Nuclear )
Station, Unit No.-1) )
SERVICE LIST Nunzio J. Palladino, Chairman Administrative Judge U.S. Nuclear Regulatory Commission John H. Buck Washington, D.C. 20555 Atomic Safety & Licensing Appeal Board Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C.. 20555 Administrative Judge James K. Asselstine, Cammissioner Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Frederick Bernthal, Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Ivan W. Smith, Chairman Lando W. Zeck, Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commission
, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
r;
, 3 t a Administrative Judge Mr. Henry D. Hukill Gustave A. Linenberger, Jr. Vice President '
Atomic Safety & Licensing Board GPU Nuclear Corporation-U.S. Nuclear-Regulatory Commission P.O. Box 480
, Washington, D.C. 20555 Middletown, PA 17057 Docketing and Service Section (3) Mr. and Mrs. Norman Aamodt .
Office of the Secretary . . 200 North Church Street U,. S . Nuclear Regulatory Commission Parkesburg, PA 19365 j
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Washington, D.C. 20555 Lynne Bernabei, Esq.
Atomic Safety & Licensing Board Government Accountability Panel . . Project U.S. Nuclear Regulatory Commission .555 Connecticut Avenue washington, D.C. 20555 Washington, D.C. 20009 Atomic Safety & Licensing Appeal Ellyn R. Weiss, Esq.
Board Panel Harmon, Weiss & Jordan U.S. Nuclear Regulatory Commission 2001 S Street, N.W., Suite 430 Washington, D.C.. 20555 Washington, D.C. 20009 Jack R. Goldberg, Esq. . Michael F. McBride, Esq.
Office of the Executive Legal LeBoeuf, Lamb, Leiby & MacRae Director 1333 New Hampshire Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 1100 Washington, D.C. 20555 Washington, D.C. 20036 Thomas Y. Au, Esq. Michael W. Maupin, Esq.
Office of Chief Counsel Hunton & Williams Department of Environmental 707 East Main Street Resources P.O. Box 1535 505 Executive House Richmond, VA 23212 P.O. Box 2357 Harrisburg, PA 17120 Deborah B. Bauser ~
Shaw, Pittman, Potts & Trowt ridge 1800 M Street N.W.
Washington D.C. 20036 4
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