ML19224D598
| ML19224D598 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/14/1979 |
| From: | Durand D DOW CHEMICAL CO. |
| To: | |
| References | |
| NUDOCS 7907130093 | |
| Download: ML19224D598 (121) | |
Text
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," NUCLE AR REGULATORY COMMISSION
, IN THE MATTER OF:
- DEPOSITION OF DAVID A. DURAND ,
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Place . Midland, Michigan -
Date . Monday, 14 May 1979 Pages 1-120 i
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UNITED STA'"ES OF AMERICA 2! NUCLEAR REGULATORY COM'1ISSION j
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i 4 j l DEFOSITION OF DAVID A. DURAND 5
Dow Center Patrick Road and Abbot Street 6
l Building 2030 l Executive Wing 7
- Midland, Michigan g
Monday, M May M
, g Deposition of DAVID A. DURAND, called for examination l at 3:50 p.m., pursuant to prehearing conference order of I the Atomic Safety and Licensing Board, before Helen M.
11 1 Rabbage, a notary public in and for the County of Midland, State of Michigan, when were present on behalf of the 1
s~ f i
respect:.ve parties:
14 WILLIAM J. OLMSTEAD, Esq., Office of Executive Legal 15 I Director, U. S. Nuclear Regulatory Cc W ssion,
' Washington, D. C., en behalf of the NRC Regulatory 16 Staff.
17 WILLIAM C. POTTER, Jr., Esq., Fischer, Franklin, Ford, n gg, ua an Midng, Deuch, 18 Michigan; and g
- R. L. DAVIS, Esq., Michigan Division, Legal Department,
- i 47 Building, Midland, Michigan 48640, on behalf of Cow Chemical Cemeany.
~
20 GERALD CHAPSOFF, Esq., ALLETI WEISBARD, Esq., and
,I WILLIA'4 EPX FORD REYNOLDS, Esq., 3 haw, Pittman, l Pctts & Trowbridge, 1300 v c"=et, N.W., Washington, C. C. 20036, on behalf cf Consurers Pcwer Ccapany. .
RONALD G. WIARIN, Esq., Isham, Linccin & 3eale, One First National Plaza, Chicago, 4-cis 60603, cn behalf cf Censumers Pcwer Ccmpany.
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2 WIT!TESS: DIRECT CROSS g DIRECT CROSS 3 David A. Durand 3 4
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- ; MR. OIRSTEAD: On the record.
3 Whereupon, 4 DAVID A. DURAND 5 was called as a witness and, having been first duly sworn, s was examined and testified as follows:
7 ;
DIRECT EXAMINATICN 8 BY MR. OLMSTEAD:
9 Q Would you state ycur full name, address and 10 occupation for the record?
11 A David A. Durand, 141 Spring Street, Route 6, 12 Midland, Michigan.
. 13 i I'm an attorney for the Dow Chenical Company.
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14 Q Do you hold the same position you held from 15 June 30, 1976 to June 1, 1977?
16 A I hold the same title. My duties have changed 17 ,
considerably. I was an attorney then, I'm an attorney now, la but I'm now the laher attorney with the Dcw Chemical 19 Ccapany.
- 0 Q And what positicn and responsibilities did you 21 hold at the time of the June 30, 1976 to June 1, 1977 !
1 ceried?
- A I was an atterney ecunselling the Michi:an a Divisicn at that. time.
- 5 0 Thrcughaut that peried?
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A Throughout that period, yes.
~ 2 Q And what was your relationship to Lee Nute?
3 A Lee Nute was my superior.
4 Q To Lou Pribila?
5 A Lou Pribila and I were co-workers, s Q Milton Wessel?
7 A Milton Wessel I believe at that time he was a retained counsel for Dow Chemical.
9 Q And to Tim Hanes?
10 i A Jim Hanes was vice president and general counsel, 11 , Dow, US~ He would have been T.:e's best and my -- I guess 12 ; my big boss, as such.
- 13 Q How long have you been employed by Dow Chemical?
I r
14 , A A little over 20 years.
15 Q Throughout that period, have you been an attorney 16 with Dow Chemical?
17 A No. I became an attorney for Dow Chemical in 18 September of 1975.
19 Q Taking the Bar examination following that?
I 20 A Yes, I tcok the 3ar exart screetime after that. l t
I assumed the title of attorney -- I took the Bar in ;
2 ,
- February of 1976.
3 C When did you first becere aware cf the decisi:n 24 cf the District of Columbia Ccur cf Appeals involring the
" Midland Nuclear Facility?
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5 1 A Probably soon after it was published. I's. net
- m 2 sure of the date. Probably the latter part of 1976. I don't 3 know whether that's when it was published.
4 0 It came out in July of '976.
5 A Okay. I probably bes aware of it shortly 6 thereafter.
t 7 Q At that time did you have any responsibilities 8' concerning the ongoing negotiations between Cow and Consumers 9 Power Cc g any on the Midland steam contract?
10 A None whatsoever.
11 Q At what time did you. become aware that that 12 court's decision was going to require you to have scme 13 involvement with regard to the Midland-Cow steam contract?
i A Probably the day before the September 29, 1976 14 15 meeting between Mr. Wessel and F.r. Nute.
16 Q So up to that time you had had no involvement 17 with the Ocw steam contract at all?
18 A That's correct.
is Q So that would have been the attending of the 20 meeting of September 29, . believe it was, was the first f
~
l 21 time that you had any involvement?
- A Yes.
- 3 Q Curing the pericd fellcwing the ti.e cha: ycu 4 had involvement en the Ocw steam centract, wha: Ocw
- s emcloyees did you interact with?
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A Lee Nute, Joe Temple, Cennie Miller, who was 2 legal secretary, Jim Burroughs there may have been 3 scme other people. I don't recall right now at the mcment.
4 0 Did you have any centact with Consumers Power 5
personnel?
6 A Yes.
7 Q Other than in the meetings at which you tock-8 notes?
9 A No.
10 0 Did you' have any contact with intervenors other 11 than Dcw, Myron Cherry, Peter Flynn, Mary Sinclair, et al?
12 A I had some discussions during some of the 13 hearings in Chicago with Myron Cherry, chatted briefly from 14 <
time to time, and Mrs. Sinclair.
15 Q During the hearings?
16 A Well, during the breaks and stuff, yes.
17 Q Other than at the hearings, any phone conversations la with them?
19 A I had a phene conversation with Myren Cherry 20 scmetime . . . the date doesn't . . . scmetime after that ,
21 9-29 =eeting. It might have been scmetime in Cctcher of 1975..
- l He called me at hece, er I get a message that he wanted cc
- talk to either myself er M . Nute er Mr. Wessel. And :
- 4 called hi= back frem hcme. He was in Chicace. We had a
^c 1engthy telephene ccnversarien. He gave me scme daca -hat a c- i s ,
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7 I he wanted documents on and stuff, and I prepared just a 2 su= mary of my phone conversation. I think it was en a 3
Saturday or *. Sunday.
- So there is a record of that pho..e conversation?
Q 5
A I think there is. I think it's listed among 6 the documents.
7 Did you have an occasien to talk with personnel
. Q 8 representing the NRC Staff at that time?
9 A I don't believe so. I think other than just i
10 chatting with them during breaks and stuff.
11 Q Did you have occasion, once you were involved, 12 to attend =eetings within Dow Chemical Ccmpany to the 13 ev.clusion of other parties in the proceeding concerning the I
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' 14 nuclear steam contract?
15 A Like the meetings, say, with Consumers Pcwer 16 retained counsel or their counsel?
17 Q Right.
18 A I think as an ongoing thing I met with my boss, 19 Lee Nute, and tal%ed about things.
20 Q We'll go inte the .eeting notes that ycu teck i l
2' in scme detail later, but I just would 1 ke to ask the ,
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- general cuescien abcut the discuscions which went en
- 3 cencerning the testi=cny that Icw persennel might give 22 cencerning centract relations with Censumers Pcwer Icmpany, 25 and ask the cuesticn: Eave you ever expressed any perscnal c4:e '.? d:::I cA :c :::1, Sc= -
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1 views as to the issue of the testimony, as to who should 2 give it, what should be in it?
3 A Myself, no.
4 0 What would you describe as the Teneral attitude 5 mong the Iow legal staff toward the NRC Staff in the 6 forthecming hearings?
7 MR. POTTER: That's an awfully bread question.
8 ,
MR. OLMSTEAD: I know. I just pointed out it's 9 a general question.
10 MR. PO'I""ER: You mean like personal?
MR. OLMSTEAD: I'm trying to get a feeling for 12 the legal staff's' view of the parties in the proceeding as 13 background, more than anything else.
r_
p j 14 MR. POTTER: Are you talking abcut in preparation 15 for the suspension hearings?
16 MR. OLMSTEAD: For the suspension hearings, the 17 general preparatien that was going on.
18 THE WITNESS: I think at the time, I'm not so 19 sure yeu're talking - I'm relating new only abcut
- o discussions er coinicns that Icw emclevees may have had.
I 21 I'm not so sure that, at least before we had any centact
- ! with them, whether they had any opinien at all, because 23 ! I'm net so sure that we - ! can' t recall that we had had t
i 24 an*f Centact with them, which is tO say I'N nCO sC sure *;he'f 25 had any ccinien at all, gccd er bad.
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Q Okay. Well, then, what abcut intervencrs other 2
than Dow? Myron Cherry, Peter Flynn and Mary Sinclair.
3 Wa.3 there any prevailing attitude, view, belief, ccmmonly 4
held assumptions concerning their participation?
5 A As to Myron Cherry, I think the opinien was 6 They held that he was pretty ebrasive, pretty thorough.
7 could expect to have him participate in such a manner that 8
he'd try to bring out a ecmplete record, as such, tipping 9
to his advantage. So that the preparation would have had 10 to have been ecmplete to prepare for cross-examination, and 11 that sort of stuff.
12 Mary Sinclair, I think the opinion was that
'3
,, ; she had been en this thing for quite some time, and they
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14 weren't really sure if she was -- her position was justified, l5 valid or not. I ;emember at times some people expressed
'6 scme frustration with the fact that her participation had l7 caused delay and stuff.
18 Q Either as to the NRC Staff or intervencrs other
'9 than Ccw, do you think there was any personal hostility 20 a=cng any cf the empicyees of Ocv tevard any of these
'l pecple?
', A No, I really don't think sc. In fact, in i
1 23 I : 11atien to Myren Cherrf pecple that I remember talking 2#
aucut hia had maybe sert of a grudging respect at times.
e Sur hcstility, no, either Oc Myren Cherry cr intervencrs.
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10 O With regard tc Consumers Power Company personnel 2
what was the generally held feelings toward them?
3 A The only person I think -- Censumers Power 4
personnel -- th.t I'd heard anything about was tteir counsel, 5
Judd Bacon. The consensus -- not the consensus - at least 8 one person felt that they didn't feel that they could 7
trust him, or they didn't have respect for him, because of a
prior dealing with him during negotiations and stuff.
9 Q And who was that?
10 A Lee Nute.
11 Was it generally believed by the legal staff Q
12 ccming up to the remanded hearings that the Commission 13 wecid cp :.ekly handle the remanded proceedings, take some
' 14 time, suspend the license or not suspend the license? Was i
15 there any general feeling about what might happen as a 16 result of the remacd proceedings?
17 A Well, we depended a lot on our feelings for 18 feedback frem the Censumers Power people, and their retained 19 ccunsel, sperifically Rex Renfrew and Dave Rosso, just to 20 get a feel for, you knew, hcw they might go, how 1cng it i
21 might take, and what direction they mighu neve in.
22 I th nk the general cpinien was they'd prcbai.17 i
23 take scme time -- eally net as much trae as they did --
24 but they'd en.%e scre time. As 20 whether er net they wculd 25 result in suspe.sien being granted, I guess we felt that it
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wouldn't.be granted.
2 Q Did you -- did anyone that you were associated 3 with with regard to these issues en the staff ha're any 4 personal feelings about Mr. Renfrew or Mr. Rosso, particular-o ly follcwing sc=e of the meetings that you held?
6 A I think in regards to Mr. Renfrew scme me.=bers 7 of the legal staff felt that -- well, they knew that he had a worked for the NRC before he came to the firm of Isham, 9 Lincoln & Beale, and I guess particularly after sc=e of to ' the sessions we had with him in preparing testimony and 11 .
stuff, they weren't really sure if, you knew, he had his 12 act together at times.
i 13 I I think a lot of that ste==ed from maybe the
/
14 , way he proceeded to get into issues and stuff, but then at s.
15 other times they expressed maybe surprise that the guy 16 got into, things as deep as he did in sc=e areas.
17 Maybe the consensus was that -- I guess it 18 depended on what kind of subject he was dealing with.
19 Q Did anybcdy express the belief duriig that 20 peried of time leading up to the first of the ? earings in 21 Cece=ber of 1976 that Censurers' license was in sericus
- 2 jeopardy?
I I
. This is at what ti~.e?
I I
24 .a. CLMS E : This is between September 7 ,
_ :s 1975 and Nc're=ber 20, 1976, the firsu day of the bearings.
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12 1 MR. REYNOLDS: And the question was what? Did
- 2 anybody feel - I'm sorry, I didn't --
3 MR. PCTTER: Let's read the question back. The 4 witness isn't going to remember what it is now.
5 (Whereupon, the reporter read frem the record, 6 as requested.)
, THE WITNESS: We're talking Septerier 29 to i
8 November 30, before the first hearing was held. I really 9 don't remember anyone saying that. In fact, I remember the i
10 oppusite, where they felt pretty confident that they could 11 meet any challenges that might ccme out during the hearings.
12 BY MR. OLMSTEAD:
i 13 ,
Q ,
Before we q; into the rest of this depositier.. .
7 14 have you had any conversations with Mr. Nute concerning NJ) 15 this deposition today?
16 ,
A I talked to Lee about 2, 2-1/2, er 3 weeks ago, 17 just about the fact that we were potential witnesses. Well, 18 in fact, at the time I didn't knew I was going to be 19 deposed today. So the answer to that is no.
- o Q Okay. I have requested counsel and the other 21 parties in the preceeding, pursuant to Rule 615 of the
- Federal Rules of Precedure that no discussiens of the i
- 2 centent of the depcsitiens will be had with other pecple
- 4 who are going to be deposed cencernine this matter, which
- s we have all =utually agreed tc, particula-ly as ameng 700, a r C'?:Z* jc-d C*.Gl .: CCT *ET.1, a C.
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1 Mr. Nute and Mr. Wessel.
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A All right.
f 3 Q Ycu took stenographic notes at a number of 4 meetings between Cow and Consumers, is that correct?
5 A Yes, sir, s Q Are you a trained stenegrapher?
7 A What do you mean by trained stenegrapher?
8 0 Have you had sho chand training?
9I A Yes. I took shorthand in high school 20 years 10 ago, and I've used it ever since.. I've used it extensively 11 in law school, and I use it now for meetings.
12 I rely on it quite a bit for note taking and t
13 . stuff. -
c !
l 14 , Q Is that Gregg shorthand?
15 A Yes, Gregg simplified.
16 Q You haven't had any other court reporting 17 experience or special stenegraphic experience beyond -- or ta training beyond your high school?
19 A No. For a perud there about 15 years ago I
- o did take sc=e speciali:ed training for court reporting, 21 but never folicwed through en it, and really haven't I
- l retain.3d nuch cf it.
- Te: ne clarify that. I'm talking aucut de
- 4 j I nachine, net the nanual taking cf netac.
_ :s Q Co you feel you can take a ve_.:atim transcript?
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A I think it depends, like most people, it depends 2 on the speed, who is transcribing, and how many people are 3 talking at the same time. If you keep it down to maybe 4 ,
100 words a minute I cculd take it verbatim, if it's one 5 person. If you put two or three people in there talking a well above 100, I doubt very seriously if I could take it 7 verbatim.
8 Q Do you feel you have aI/ independent memory of
~
9 the meetings between Consumers and Dow Chemical which you 10 ,
attended and took notes at, beyond the notes that you've 11 taken?
12 A Is your question do I remember something that 13 isn't in my notes from the meeting?
- f. ,
s 14 Q Yes. Are you aware of things that you know that 15 are not in -
16 A That went on during the meeting?
17 Q Right.
18 A Generally - no, I'm not aware of anything, I
19 because when I was taking notes it pretty well coeupied my 20 full time.
21 Q Did someone in Cow's legal staff suggest to you
- that you attempt a verbatim transcript of those meetings? '
- 2 A Cn Cow's legal staff?
24 Q Right.
- s A No.
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Q Did Mr. Wessel suggest that you attempt a verbati=
2 transcript?
3 A Yes.
4 Why?
Q 5 A As I testified earlier, the first involvement I 6 had in this situaticn was the morning of the first meeting I 7 on September 29, 1976.
8 Mr. Wessel and Mr. Nute called me into Mr. Nute's
- 9 , office and said we're going into a meeting shortly with tof retained counsel for Consumers Power, and -- this is Mr.
11 Nute talking now -- and he said, since I was involved in 12 '
a meeting like a week and a half age or so, it's possible G that I might be called as a witness in some of the hearings,
\
14 and we'd like to bring secebody in on the board to be aware
( ,
15 of what's going on so that they might be able to step in 16 and cover for me if I'm called as a witness.
17 And that's what my role was, as expidined by 18 Mr. Nute and Mr. Wessel.
19 As to why I should take verbatim notes, I believe i i 20 at the ti=e they both knew that I had the capability to l l
t 21 take rhorthand and sat me dcwn and asked me to keep notes 2 of the preceedings and meetings between ccensel.
23 I think the only reascn that they expressed ::
24 l me for taking verbatim was to make sure that am accurace 25 record Of what went en during the meetings in prepara icn cf
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16 I testimony was kept.
2 Q Did anybody suggest that it wasn't a good idea 3 to take verbatim notes?
4 ' A No.
5 Q Or did you say you didn't think it was a gcod 6 ,
idea?
7 ; A No, 8 Q Was thera anybcdy clse present besides Mr. Wessel
- 9 and Mr. Nute and you'_self at this discussion?
10 A No.
11 Q Were these notes distributed after you finished 12 taking them?
13 A It seems to me the first notes I took I sent a
' i
'Te talked about them. Let's see ...
[ 14 copy of to Mr. Wessel.
15 i I don't think I generally distributed my notes, no.
i 16 Q When the meeting commenced with Censumers Power i
17 the first time that you were there to take notes, was 18 Consumers made aware of your attempt to take a verbatim 19 transcript of the =eeting?
20 A You know, I really don't recall.
21 Q. Had they been made aware, would that have been ,
- 2 in yccr notes?
3 A Quite pcssibly. It shculd have been.
- 4 Q Were ycu aware cf anybcdy frem Ccnst=ers attemptine
- s to take notes?
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17 1 i A No, not really. I don't believe that Mr. Renfrow 2 and Mr. Bacon took nany notes.
3 0 In the course of the period when you were taking 4 these notes did you ever hear it stated, suggested or 5 otherwise considered that Cow would be better off if 6 Consumers lost its contruction. permit?
7 '
A Would you state that again?
a Q Did you ever hear it stated by other Cow personnel 9 that you interacted with during this period of time leading to up to the hearings, suggested or in any other way considered 11 that Dew would be better off if Consumers lost its 12 ! construction permit?
13 :
A I really don't recall.
) 14 Q Co you recall whether the legal staff, to your v
15 knowledge, was asked i; determine whether Dow could take is a position adverse to Consumers in NRC proceedings?
17 , A Would you rephrase the first part of that? I' t 18 confused as to who you're --
19 Q Well, are you aware --
l
- o A Rephrase the whole thing, if you would. Resta e l 21 it-2 i Q All right. Are you aware of anyone employed b, I
- l :
Cow being asked -- or Mr. Wessel --
i A Can we assume ". . Wessel is in here?
l
- 5 Q Yes.
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' 18 1 A Okay.
2 Q -- to determine whether Dow could take a position 3 adverse to Consumers in the NRC proceeding?
4 A I really don't recall.
5 Q To your knowledge did the legal staff, including s Mr. Wessel, whether recuested or not, review the contract 7 to determine whether a position adverse to Consumers in NRC a proceedings was feasible?
9 MR. POTTER: Just a second. I'm a litcle i
to concerned by your use of the phrase legal staff. Are you 11 meaning those over with the Michigan Division? Because I'm 12 not certain - if you're trying to include all the Dow 13 . Chemical Comnany --
/ MR. OLMSfEAD: I'm just asking whether, to his
, 14 1s knowledge, anyone on the Dow legal staff --
16 THE WITNESS: Again, I don't recall.
17 MR. POTTER: Wait, please --
18 THE WIWESS: That doesn't trigger anything.
i9 MR. POTTER: Before we proceed any further with 20 questiens along that line, may I ask ycu to please define 21 for the record what do ycu deem to be included in the legal i
~~
u staff? ,
l
- 1 MR. OLMSTEA2: I primarily deem it to include 1
- the pecple we've identified in this preceeding. Su because
- s of the ccnfusien frc= time to time between Icw Midland, and s e- r - -
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Dow USA, and as to who represented whcm, I'm really talking 2 ! about the legal staff that had scmething to do with the 3 Dow-Consumers contract, whether or not they worked for Cow 4 Midland or Dow USA during this pericd of time. And I'm 5 really asking only to have Mr. Durand tell me if he knowr 6 th n. answer to the question.to his knowledge, not saying tnat
/ it is true or it's not true that nobody did.
8 MR. POTTER: Well, as I say, for purposes of the 9, record all I'm trying to make clear is that there were two, la three or four lawyers at any one time working over in the 11 Michigan -- Buidling 47. When you use the word legal staff, 12 I'm just concerned, and I want this record to indicate that 13 , Mr. Durand is speaking for the lawyers that work over in-f 14 the main building. Lord knows, he has no idea what's 15 going on -
16 MR. OLMSTEAD: Ee's only speaking for the lavfers 17 with whom he had contact and would have reason to knew 18 whether they undertook such an analysis or not.
19 THE WITNESS: Okay. Would you restate that
- o questien?
- Q 3ased en cur discussion as to what the legal
- 3 staff was, did any lavfer involved with the Ocw-Censumers 24 steam centract, to ycur kncwledce, analyce the Ccw-Ccasurers
- s centract with a view to determine whether a positicn adverse r e-- r - n
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20 4 }
I to Consumers in NRC proceedings was feasible?
2 A I believe that one of the legal staff did review 3 the centract with thz.t purpose in mind.
4 And who?
Q 5 A It might have been - I think Lee Nute undertook 6 an effort to review that. I guess to testify to my know-7 ledge the only thing I remember is scmeone mentioned the 8 fact that a review had been conducted and the opinion was 9 that we shouldn't take a centrary position during the 10 hearings.
11 Q Okay.
12 A As to the extent of it and everything else, I 13 really have no knowledge of that.
, _ l 14 Q To your knowledge, what objective did the lawyers l
15 with whem you worked, employed by Cow, feel that they had 16 to acccmplish in order to preserve Dcw's options while 17 fulfilling the centract's technical terms?
18 '
Now, that phrase is one that Mr. Wessel used many 19 times throughcut the hearing, that Dcw had reserved its 20 cptions under the centract.
21 A This thing gets a little involved. The prcblea i
22 was, in this entire precess, ! think because cf the review 23 that came cut as to what cur culigatiens were under che 24 cent act to Censumers ?cwer, we had the ecliganicn cc supper 25 them in the hearings,.but we also had an cbligation te Ocw c5:1- Jede :I cRercitz.1 Sc d44 NCMTM CA PfTC L. SN EET .. L.
)
W A S HI N GTO N. 0.0. 20009
!202) 347 4700 ,g) Vf
}
l
D i
t 21 1
-- we at Dow had an obligaticn to Dow to make sure that we 2 '
had energy when we needed it, whether it came frem the 3 nuclear power plant or frem our own power plants as such.
4 So the problem we ran into was supporting 5 Consumers Power as, I guess, the contract was interpreted.
6 We had that obligation tco. But at the same time, protecting 7 our future needs as such.
8 Q So would it be fair to say that there were those 9 ,
among the lawyers working on this issue with whom you were 10 familiar who felt they had a conflicting duty?
11 A Definitely.
i 12 ;
The other side of it was that we at that time 13 didn't feel that we were parties. The record will reflect i
, i 14 ' that we r.ried to withdraw from the proceedings, and that is was denied. We then just assumed that we were supplying 16 i
information to Consumers to suppo2/t their effort.
17 Q Do you knov why Cow decided to attempt to 18 withdraw frem the proceeding?
19 MR. PO"":'ER : I'm going to have to interpose an
- o objection. It would have to be based on hearsay at that l
}
21 point, because I think he said his first involvement was I t
22 l September 23, 1976, and I'm net really certain frem this i
- 3 record, but I think they had withdrawn as a party befcre 24 l chat. I don't thin.k be's a witness who can answer thac.
25 MR. OI.MS"'IAD : Well, that's crue, they bad c~i: 9:de :[ rA:: cite: 1, Scc w
....._.m_
scas sa-noo - c3 p:
22 l
1 withdrawn frem the Court of Appeals preceeding, but they 2 had not appeared before the Nuclear Regulatory Ccmmission 3 Licensing Board and made any statement of position to that 4 Board at that time.
5 That didn't come until later.
6 THE WITNESS: The motion to withdraw frem the 7
Court of Appeals was felt to be a withdrawal from the whole i
a thing, and if you go back and review the transcript that 9 was created in Chicagc during another motion to withdraw, to we just felt that we had been withdrawn as a party.
11 , BY MR. OIE. STEAD :
12 ,
Q But you felt that you were going to have to i
13 I
supply wi tnesses -fer the NRC Licensing proceeding?
14 A Yes, because of our contractual duty to support 15 Consumers in the hearings.
1s Q And that there was a certain conflict in doing 17 even that much?
18 A A conflict only in that th9 cther side of the 19 sticky part of the problem was that engoing negotistions --
a negotiations were continuing between Cons =ers and Ocw, 21 and there was informatien we had which was part of cur t
~. nec.cciatinc strategy as such thac we felt was very sensitive r 23 and we really didn't want that cc be disccvered, and we a didn't feel we had an cbligatien to give that cc Cens=cr2
- S because it wculd eicher prejudice c ccmprecise cur
. nn
. V' c5: - ? c'e::( .cRepciten. Or:
and NCR?N OA p tTC I. ST1t EIT W A S HIN GTO M. O.C. 20001 f 02J 347-3700
23 4
1 negotiating position in the future.
2 0 And the cerollary of that, of course, would be 3 if you didn't give it to Censumers, you wouldn't give it 4 to the Board either.
l 5 A Without a subpcena as such.
6 And I remerter very vividly Mr. Wessel being 7 very concerned about having to share information that would a ccmprcmise the negotiating strategy in the future, but at 9 the same time not wanting to fail, to support Consumers in to the hearings because of cur centractual commitment.
11 Q Cne last question of a general type:
12 Was it (ver suggested by anycne employed by 13 , Dew, either centract relationship or employee relationship, 14 to your knowledge, that Dcw might, by doing the minimum 15 possible under the contract achieve the suspension of the 16 contract and thus relieve itself of liabilicy under the 17 . contract?
18 A I don't remerter anybody saying that.
19 C Do you still have your stenegraphic notes er 20 shcrthand notes of the Septerier 29, 1976 meeting?
I
.. A The actual nctes' 4,
. ,. O Yes.
I
~
I A Yes, I de, i
I 3 2 Ecw many ;: ages are there of thes . .ctes?
- 5 A : teck the= cn a legal pad. I think :he thing C Z
- 2Cl*al trM.*C1, AC. .
Q'
- e=m c.mrei. sn er-W AS MIN GTC N. 3.C. 20001 [b.
acm s c-27oo
i 24 1
probably runs -- we're talking actually notes, new, we're 2 not talking about the typed finished copy as such --
3 Q Right.
4 A I think it was a full legal pad, probably on ene B side and started down several pages of the reverse side, 6 which condenses dcwn -- it condensed down to 19 or 20 7 typewritten pages. ,
ai Q Did you have the typewritten stenegraphic notes 9 of the 9-29 neeting typed up verbatim?
10 '
A Verbatim of what I had, or verbatim of --
11 O Right, as you took them.
12 >
A No, as I stated, in the final copy what I did, I 13 looked through -- for the most part it was verbatim, but
, t 14 generally it tends to take on a su:= nary of what went on.
w 15 Q The notes that were put in in the record of the 10 September 29 meeting as Attachment G to Censumers motion for 17 , summary disposition in this latest round of proceedings, is 18 19 pages icng. Is that the only copy of those notes that 19 you had typed up?
a A It seems to me I typed -- and this was in !
23 reference to ne trying to see if I captured everything verbatim -- I went through my notes and ty; , . . let's 3 see, I typed up a ccpy that ran maybe scre pages -- nc, I 4
24 i, tyred up these notes and gave them to :"r. Wessel for him f
i
- s to get an idea as to whether er net, since, (1) I was new
,, e , , ,
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i2C2) 347 3700
25 1 to it, and I didn't really understand what was going on. I 2 did have stenographic ability, but I wasn't -- in fact, I 3 knew at the time I couldn't take notes verbatim from the way 4 the thing turned into. We had like four or five people in 5 the room, everybofy talking back and forth, s Q Do you still have a copy of the notes that you 7 furnished to Mr. Wessel?
8 A Do I? Yes. Or do I? I'll have to check.
9 Q I'd like a copy.
10 A As I said before, I don't know if that's the 11 first -- if that's the same as my finished. I'd have to 12 check.
13 0 I can refresh your memory here in just a moment.
14 Mr. Wessel wrote you a letter --
15 A Yes".
1e Q I don't know right offhand where it is.
17 A It seems to me that letter, tagether with the is attachment, was macie a part of the docume "s.
19 Q What I have is a letter to you dated Cctober 5, 20 1976.
21 (Occtment handed to tne witness.) l
- i A Richt.
i I
MR. CHA?l*CFF: Cctober what was that?
- 4 MR. CI.MS"'IA2 : Cc cher 5, 1975.
- S MR. CHA?l:CF7 : Okay.
c~'::- Jc--d:~:L :S:rc~ ten, .p/n:.
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4.44 *e C 81 TW C A PfTO L S f14 t t' Q j W A S >8iN GTO M, 3.- 2000t 12C2J 347-3700
26 i l
1 SY MR. OLMSTEAO:
2 Q And it refers in there to 26 pages of typed notes.
3 Now, as near as I can determine -- I may be 4 ' wrong -- but I don't think we've been furnished a copy of 5 the 26-page version.
s A I thought you had.
7 Q As you know, I haven't been in this case all 8 along, and that ,what I can't find. I have the 19 page 9 version.
10 Do you have a copy of the 26-page version?
11 MR. CHARNOFF: No.
12 ;
THE WITNESS: Is there one there?
13 . !
MR. POTTER: Let's go off the record.
14 (Discussion eff the record.)
~
15 MR. OLMSTEAD: Back on the record.
16 BY MR. OLMSTEAD:
17 ' Q I think we've ascertained that there's anothLr la versien of the Septenber 29, 1976 r.otes, which is in more 19 of a */crbatin form, or an attempt to be verbatin form.
a A Yes. But your question was do I still have that, ;
- 3 and I said no, I'd have to go back and check. And I was !
- cnder the ass ==ction that it was cart of the record.
l
.-., As far as I knew, it's still in my file, because I
a everything I created in this effer: I've never destrcyed.
g So it shculd be there.
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27 1
Q But if it's not there, your scenegraphic notes 2 are there?
s 3 A Yes.
4 0 And they could be --
3 A Yes.
6 Q Now, in this 10-5-76 letter he references a 7 '
meeting of September 30. I assume that he was referring to a the Septerter 29 meeting?
9 A Yes. We had no meeting en Septerier 30.
10 Q Okay.
11 Ncw, this may be an unfair question, and I'll
$2 hold it if it is. But since there was a more elaborate 13 versien which Mr. Wessel found to be unsatisfactory for 14 the purposes that he had in mind - and - m: '. ask you what 15 those are at the =cment -- do you recall en :.ntial3 y what 16 you took out of the =emorandum to files that you ultimately 17 wrote that was in the longer Versien?
18 A What I did, as I stated earlier, was su=mariced 19 the conversations so that the final copy in a sense would
- o make sense.
23 You knew, if yoO go back te my stenegraphic nctes '
- and take dcwn every-hing I teck and just put it in there,
- 3 a persen would have trcuble I think making sense cut cf
- 4 scce Of it, because of the way it jumped back and fcrth,
- s tcgether with my inenperience in that firs: meeting as such.
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_ _ _ _ . __ i
' 28 1 Q Ncw, in that letter Mr. Wessel says to you 2 there's really no way in which they can be modified to do 3 what we had hoped to.
4 Do you know what he meant by ecdified?
5 A I really don't. I may have at the time. I don't e recall new. Mr. Wessel may remember.
7 Q Do you knew what it was that he had hoped?
8 A fihat he had hoped to acccmplish was a verbatim 9 , record of the meetings, and verbatim to me, and possibly to 10 most people if they look 'd.e definition up, is you capture 11 ,
everything that is said in that room, much like our court 12 reporter is doing today.
13 And I think in going through there, he understood r
14 that I wasn't really capable of doing that, for several 15 reascns. And he didn't want to mislead people into thinking 16 that I had done that.
17 Q Okay.
18 In the September 29 memorandum to files, attach-19 ment 3 to Consumers summary dispositicn letters, discussing ,
l 20 that meeting new for a. minute did ycu attend the entire
- e. j ueetine en that date?
A Co vcu mean was I
- there eve.m. seccnd that the
- . - Ii
.. meeting was goiL- On?
3 Q Well, were you there fcr 99 :ercent of it?
g A Probabl,*. When ! tcok -- I think a times, e r CCZ* SCrCrA W Z:M.*CJ, jfp :.
4u e m :2mri sT=ux n
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)'
29 1
because of the nature of the meeting, and pecple could get I 2 up and leave, get up maybe for a break, phone call or 3 whatever.
4 0 .W ould it be possible for you to, after reviewing 5
your shorthand notes, look at your memo to files and be 6 able to detemine which portiens of the meeting you were 7 not present at?
8 A No, it wouldn't be. I think probably 95, 96 --
9 a high percentage of the time I was there. But I did at '
10 times leave the rcom, you know, for whatever reason.
11 Q Okay.
12 ' If you'll look at those now, en page 3, the last 13 ! paragraph --
,r' l 14 ,
A You're talking of the --
15 0 The September 29 memorandum to files.
16 A Page 37 17 Q Right.
18 A What paragraph?
19 Q Last paragraph en that page.
i 20 A All right. Would you like me to read at to l t
21 myself?
- Q If you wish.
- 3 A (Witness reading dccument. )
- 4 Q The first sentence there says:
- s " Milt stated at this pein: Ocw is nct prepared a=. c=a.J aw=. Da p( (.
444 4CRTH OA PTTC L STMEET W A S HI N GTO N. 0.0 20001 6202) 347-2700
,m
30 1 to give anyone information on vilat went on during the 2 proceedings."
1 3 What proceedings is he referring to? I 4 A I think I'd be gcessing. I really don't 5 remember.
6 I think if you read the rest of the paragraph ...
7 no, I'd hate to assume that's what it meant. The rest of 8 the paragraph deals with, as I stated earlier, the delicacy 9 of the ongoing negotiations and stuff.
It Whether or not he meant by proceedings the 3; previous negotiations or whatever, I really couldn't tell 12 you.
13 Q Okay:
e !
14 i Going to page 6 of that memorandum, here we have
(
15 a discussion by Rex Renfrow. Second paragraph.
16 A " Rex stated..."?
17 Q Right.
18 If you read hat on through the end of the page is and over to the first tto lines of page 7 --
20 A Ckay.
i 41 Q Now, if I understand your answers to scme of ny {
more c.eneral c.uestiens and vcu:- last rescense, essentiallv_
3 l chere was cencern abcut pre:udicing the .egotiacing pcsitien i
3 l of Censumers and Icw in the revised negenia:1cns en che
.c _
nuclear steam contract, while at the same time fulfilling ci:: 3ede .:! dere:: 1, Sr:c.
44.4 4CRW OA P'TC L ST8t E E"
- A S MIN GTO N. 3.0. 20001 .
(202J 347-3700 g . g
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31 I centractual obligations that then existed in the NRC proceed-2 ings.
3 A To support Censumers.
4 Q To support Consumers.
5 A Yes.
s Q So this discussion here deals with that issue in 7 varying degrees, as I understand it. Is that correct?
8 A That's my understanding cf it, yes.
9 Q Okay.
10 Then the next to the last sentence on that page, 11 it says:
12 , " Milt pointed cut that if Dew was requested to 13 go further they could run into problem.m."
~
14 Go further than what?
s.-
15 ,
A That, there again, is a reference to going is further into information, even with engoing negotiations.
17 To get a better handle on this Milt .as agreeable to give 18 them information that stayed awav frem that kind of informa-19 tien.
~c l Q But he did not want to crevide to the NRC
~
i a
23 Licensing Scard information cencerning the engeing negotiaticns,
. is that ccrrect?
- , A Nc. Ee didn't want ce give Censumers Pcwer che I
i
- 4 infermation.
- s O And by not giving -- he was afraid if he gave t eda- 3edc=i derenas. .% np6.y
.44 aca . c m rx s m er
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32 1 to the NRC that Consumers Pcwer would get it, or --
2 A Well, he was concerned that if Myren Cherry asked 3 fo:- it and it was a matter of discovery, then it would get 4 cut and Cow would be at a disadvantage because new Consumers 5 Power has their informatien and Dow doesn't have Consumers s Pcwer's information, all of it pertaining to ongoing 7 negotiations.
a Q Okay.
9 ,
I'd like to go to the third paragraph on page 10 9.
11 A If I nay clarify semething in response to your 12 l question, Milt never had a problem with sharing information 13 ; with the NRC or the Licensing Board if it were done properly s
14 in terns of a subpcena, or whatever.
v 15 Q But he wanted the informatien to be suhpcenaed?
16 A Yes. He was not going to give it freely.
17 0 He didn't want it volunteered?
18 A Right. The information that was sensitive in
. 19 his eyes, that might have had an impact on future negotia- l i
20 tiens.
, Page 9? ;
- Q Yes, and the.tnird paragraph.
- A 4. . iht. Diitness reviewing dccument. )
- .t KR. CUiSTIAO: Would you shew ".im a ccpy of :
- s believe it's T.ee Nute's notes of the same date. I wculf
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33 1 show him mine, but --
2 MR. POTTER: I'd rather you'd show him yours, 3 because he's got the copy, and you're asking the cuestions.
4 I don't know what you're referring to. So I think if you 5 could shcw him yours --
6 MR. OLMSTEAD: Okay.
7 (Decument handed to the witness.)
8 BY MR. OLMSTEAD:
9 Q Read paragraph D, page 2, of Mr. Nute's notes.
i 10 A This is notes of the same date, 9-29?
11 Q Yes. 9-29-76. And if you'll look over on page 12 3 -- no, I'm referring to page 2, item D, just before Roman 13 numeral III, Roman numeral II.D.
i 14 A Okay.
15 Q Would that reference in the Nute notes he the 16 same as the reference in your expanded notes that I pointed 17 out to you at page 9?
18 , A It would be difficult for ne to say yes en that.
19 The subject seems to be the seP~ in that, you kncW, it I
2a deals with inic=atien about negotiations.
21 As I said, the other side of the rock that we t
were faced up against was the centractual icgc1 cbligatimn
- to supper: Censumers, you knew, with Our inf0 =ation. Which
- 4 is to say that if they asked us for inf =aticn that we had,
- s that they felt they needed fer .he hearing, and that d:: 'Llm! cR::c::: 1, &c 6 w NC ftTN OA PW t. SM EI*
- W A S HI N GTO N. O.1 20001 f 2C2) 347 37CC
34
- .l I
particular piece of information caused them to lose -- I 2
nean give them difficulty in the hearing, would Censumers 3 ,
come back at a later date and give us problems because we supplied information.
5 So taking the preceding questien, which was, !
6 recogni::e, scme time ago, where you said that Mr. Uessel 7
was concerned about putting the negotiating pcsition before a
the Board without a subpcena --
A. Yes.
10 0 -- and this discussion, as represented in Mr.
11 Nute's and in your notes, would it be -- do you want to look 12 at Mr. Nute's again?
l 13 A Go ahead.
i 14 0 -- would it be fair to conclude that Dcw was s
15 i urging Consumers to put less information with regard to 16 the ongoing contract negotiations in the testimony than Censu=ers, at least at this date, was inclined to put in?
18 A For ene thing, I think Milt felt that a lot of 19 the information concerning engeing negotiations was really 20 irrelevant, in that that had to do with negotiations that !
21 weren't really part of the hearing that we were at.
22 i Frcu that standpcint we felt that pessibly less i
l 22
{informationwouldprotect cur pcsition in engeing 24 nege:iations.
25 0 All right. Cn page 10 cf your netas -- and I'n cA::- Tede:.:I :Re:c:*:::, Sr:c
- ~c u ,. m .1. m
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3 ;
35 l
1 not going to try to pull them all out myself, but I'd also 2 like you to refer to -- page 10, the first paragraph.
3 A The first full paragraph?
4 Q The one that starts, "It is stated that..."
5 A Okay.
6 Q Page 15. Here I believe Mr. Temple was present.
7 A 15?
8 0 Yes. And that's the third paragraph. I'm 9 counting each of those lines on page 15 as a paragraph, so -
10 it's the first big paragraph.
11 A " Milt to.'.d Joe..."
12 Q Right. And then on your 11-1-76 notes, page 3, 13 i last paragraph --
n 14 A Okay.
u 15 Q And in your 11-15-76 notes --
16 MR. POTTER: b' hat was the reference in the ll l?
17 MR. OLMSTEAD: Page 3, last paragraph.
18 BY MR. OLMSTEAD:
19 Q 11-15, last paaagraph --
- o A Wait a minute. 11-15, page what? .
I i
- 1 Q Page 1, last paragraph. ;
- A "C Jenss!.cn to see whether er not Ocw was
- initiating any legal acrien?"
- 4 O Right.
- s New, '- = Of dcse paragraphs :tr. Wessel see=s d: - ? de ( C?e: cit::1 St::. n m neem ames snm Q L.
w .m uore~. :.c. 2oooi I, __ '$ b s ,
36 1 to be indicating that it is feasible for Ccv to sue 2 Consumers.
3 MR. PCTTER: If you're going to incuire about 4 these paragraphs, I want him to take time to read the 6 paragraphs.
6 MR. OLMSTrAD: I thought he had just read them.
7 THE WITNESS: Oh, no. I was just trying to find 8 them.
9 MR. OLMSTEAD: All right. Please read them.
10 (Witness re*/iewing documents.)
11 THE WITNESS: Okay.
12 BY MR. OLMSTEAD:
13 Q All right. As I read those statement all along, 14 although those are three different days at four different 15 places, Mr. Wessel was making it clear that Dow felt they 16 had a cause of action for a breach of contract against 17 Consumers Power.
18 Do you think that's a fair reading of those i
19 references?
i
- o A He felt there was a possibility, is ny interpreta-21 tien. ,
l
- 0 And he, in fact, was saying we nay have to sue 23 yeu?
- 4 A Yes.
75 Q Wculd that be a threat?
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37 1
A A threat?
2 MR. POTTER: I'm going to object. If he cc=muni-3 cated the information, Mr. Durand can certainly answer yes 4 or no, whether such a statement was made. Ncw, whether it 5 was a threat or something is in the eyes of the heholder, 6 and I don't think he's the one that can answer that questien.
7 BY MR. OLMSTEAD:
8 0 Was Dow, to your kncwledge, considering suing 9 Consumers on the contract?
10 A I have no knowledge of that.
11 Q Had anybody that you were aware of prepared any 12 legal papers for filing of breach of contract?
13 A No one trat I was aware of.
I
) 14 0 Okay.
s 15 I want to go back now to the 11-29 notes. I 16 think it's page 10.
17 MR. CHARMOFF: 11-29 or 9-29? I
\
18 MR. OU! STEAD: 9-29. I'm sorry. Page 10, the 19 middle of the large paragraph, the niddle paragraph there, i
- c where it says, " Rex then said he would ID,e to get in the i 21 Michigan and Cow US reviews and why these decisiens were i
- reached."
" "'" 'CUISS
, : Right.
I 4 i 3Y MR. CI.MSTIAC :
- 5 0 ; dcn't really get a fl2ver frem ycur r.otes cha:
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38 I they ever got into that during this discussion.
2 A During that day?
3 0 Yes.
4 A They may not have. They got into it I think 5 later.
6 Q Okay. I just wondered if there was more dis-7 cussion on that day, particularly by Dow personnel, concern-a ing the Michigan Division vs the Dow corporate position.
9 A I'd say if it's not in my notes and my summaries 10 of such, no, they didn't.
11 Q Okay.
12 Page 11.
1 i
13 A Same notes?
14 Q Same notes.
'15 A Okay.
1s ,
Q Second paragraph, second sentence. It says:
17 " Milt pointed out that Jce has a great reluctance is to say anything."
19 A Yes.
Q What reluctance did Jce Temple have?
20 21 MR. FOTTER: Again, I'm going to have to inter-pose an Cbjecti0n. I dink it's hearsay at this point,
- l because as I read that statement l
MR. CD1ST T : All these cte.s are hearsay.
- 4 j I
- S I MR. PCTS R: No they're not. He can state whether c .7:: ' ~er e : cXccc:u, a c.
1 s
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, i 39 1 or not Joe Temple was present. But I don't think Joe Temple 2 was present during this time of the meeting, and you're 3 asking him to tell you what Milt Wessel meant when he said 4 ,
what Joe Temple said, and I don'~t think that's competent.
5 MR. OLMSTEAD: I'm asking him if there was a g further discussion of just what this reluctance was that 7 Milt says Joe Temple has at this meeting.
a THE WI"TESS: I think they got into it later, g within either this -- trithin these notes as such.
i, Q Were you present at any conversations where Joe 12 Temple stated the reluctance to testify on behalf of Dow 33 regarding this matter?
~
34 A I think I reuember Joe Temple saying that, you 15 know, if there's any way he could get out of it, he would.
je But he expressed a reason at that time that -- I think he 17 just didn't want -- you know, if he didn't have to testify, ja it would hatr,e been just fine, because of his -- I think, just ig like a lot of other people - just having to get up and
.o testifv.
- l l
23 0 Would you say that lawyers for Censumers might have gotten the impressien that Jce Temple was not a w:.lling 23 witness?
li 3 MR. PC T_R: Again, I thir.X you've get to ask 5 Censumers' lawyers that questien. I den't see hcw he can
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40 I answer the question.
2 BY .MR. OLMSTEAD:
3 Q Did you get an impressien that Joe Temple was not 4 a willing witness?
5 A I think it goes back to the answer I just gave s you. When we first got into the tescimony, talking to Jce 7 Temple about it, I got the impressien initially that the 8 reluctance was there because it was just -- you knew, 9 testifying was not distaste.ful, but it was Scmething'that to people dcn't normally like to go through.
11 That was the initial impression I got. But as 12 we got more into preparing him and stuff, it became apparent i
13 that he knew what he was talking about. I can recall that
- l 14 his feeling about his reluctance wasn't there anymore as
(
15 such.
16 C But at this particular time, had there been any 17 discussions with Joe Temple, to your knowledge, leading up 18 to this meeting? I mean cbvicusly . Milt Wessel must have 19 talked to Joe Temple, but Were you aware of any conversations 1
20 between lawyers and Jce Temple before this aceting? l 1
i I
- 1 A No. I dcn't recall.
- O Ce you remember whether Mr. Temple had been
- told that if he testified as to his true feelings on the f
24 centract tha ::cw could be sued f er net supper:ing Cens=ers?
- 5 A I don' t recaI' than he was : 1d that.
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i 41 1
l Q He wasn't told that, to your knowledge?
21 A Not that I can recall.
l 3! Q Cn page 13, second paragraph.
t 4 A Same meeting?
S Q Right. The last sentence of the second paragraph, s "Judd pointed out that he wanted to know why Jce 7
had made the statements he made to the Press Club."
l,
- s. And then there are no further notes. Nobody 9 '
responded to that request, or...?
10 A I think if you read the succeeding paragraph --
11 Q In other words, Milt, rather than get into the 12 statements that he made at the Press Club, essentially i
17 raised cbjections to that line of testimony being even
- e. ;
, 14
', included in Temple's presentation?
v 15 ! A Yes, I think it goes to Milt wanting to keep Judd 16 Bacon out of the area of either personal feelings that had 17 : no relevance to what we were doing, or information that was i
18 sensitive to ongoing negotiations.
19 ,
Q Okay, on page 14, in the last paragraph, third 20 sentence, where it states: ;
i
- 1 " Milt said that Judd may be present en the
- general stuff, but en the crcss-exam stuff he shculd i
- not be present."
i 4 ! And then later I guess, when they discussed wit?
- = Jce Temele, en page 15, that Judd 3acen is no longer there?
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, , 42 1
Is that correct?
2 A I believe Judd Eacen was there until we get to a 3 point...let's see ...
4 Q He's there on page 19?
5 A Yes, I think he's there.
6 Q He never left?
7 A Yes, I assume he never left. Lcoking at that a statement that you pointed out, about the cross-exam stuff, 9 I can assume that they never got into the cress-exam stuff.
to The rituatien there was that Milt felt that if 11 ' we got into sensitive stuff with Joe Temple, it was okay if 12 Rex and Dave -- or Rex at this point, I think -- heard it, 13 l but he didn't want Judd hearing any of this stuff. So they 14 carue out with this little agreement amongst them -- Rex and 15 Judd did -- that whenever they got into this sensitive stuff 16 Judd would be asked to leave the room.
17 I think you'll see an example of that at one- of 18 the later meetings.
19 Q Okay.
20 A In fact, it goes even further. I think a :
21 protectite Order was draf ted and siened by Dave Ecsso.
- O So the pun cse of having Judd Bacen leave the f
i 23 i recm was T.cre the fear that inside infc =aticn relating :
l 4 l Ocw Chemical wculd end :p in the hands Of Censumers P0wer,
- s rather than for any cther reasen?
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43 1
A Precisely.
2 Q Did J:dd Bacon leave the room during other i
s 3 meetings that you were at and teck stenegraphic notes?
4 A Was he asked to leave the rcen, or did he leave 5 the reen?
6 Q Either ene.
7 A I know he left the rocm at times, to --
8 Q Did you continue to take notes when he left the 9 reem?
10 '
A Yes, if the meeting went on. In fact, I know he 11 was ad ed to leave the reem at one of the subsequent 12 ,
meetings, because they got into scme personal feelings.
13 MR. POTTER: Excuse me. I think vou
- were e
14 interrupted when you started to answer. Were there times s
15 when Mr. 3 acon left the reem of his evn volition?
16 THE WITNESS: Yes, just like I said earlier,
.i 17 people got up and left, whether they wanted to go to the 18 bathreem er take phene calls, or whatever.
i 19 BY MR. CUiSTEAD:
20 Q To clarify what I a::t concerned abcut, in those i
21 instances where you were cencerned abcut info =ation related
- tc Censumers Pcwer -- se n cf a preprie:ary er insider 3 nature -- and -J.erefore wanced Tudd Sacen cut cf the ::cm, 2.s in these instances did you centir.ue tc take netes?
i 25 A Yes.
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44 1
Q on page 15 --
2 A I think if I may, just to clarify the record, 3 I can show you an instance of that if you're interested, 4 when he left the recm and they continued talking. My notes 5 reflect that, as such. Leck on page 3 of the notes of 6 10-17, page 8, about half way down:
7 " Lee asked Judd Bacon to leave the recm."
8 Mr. Wessel proceeded to relate to Dave how Jce felt about 9 certain things, e.nd we got precisely into all the prs 'lems, 10 and it's outlined for you what the varicus problems wece.
it A lot of it is critical to Consumers Pcwer.
12 Q I think I'll have a questien about that when we 13 get there.
P.
34 .
You have clarified it for me.
L.
15 Page 15 of the 9-29 notes, Joe Temple is new 16 present and down at the bottom of the page, the last para-17 graph, in the middle of that paragraph, Joe asked if the la Hearing Scard would let other parties get into this, Jee's 19 perscnal views, because of its relevance.
~o Because I assume he 'd been advised that it wasn't i\
21 relevant, since that was Mr. Wessel's view at tha: time.
" Milt then read the prefacing statenent that he
.., .l had prepared for Jce's use and recital before the Scard, J l' ccpy attached."
1
-c It nay just be my er:cr, but : dcn't have a ccpy O,c: ' *::,c:], d:rcuns Occ. k
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45 I
I of that.
s 2 Co you all have a copy of that?
3
- , MR. CHARNOFF: I don't.
?
MR. POTTER: I think we'd better mark it and get 5 it in the record st this point if there's any doubt about 6 it.
7 *
. MR. ZAMARIN: I have a copy.
3 MR. O GSTEAD: I'm not saying it's not in tnis
~
9 record, I just can't find it.
10 MR. PO"TER: Bear with me just a minute.
11 (Pause.'
12 BY MR. OLMSTEAD:
I 13 0 Let me give you this document and ask you if i
P 14 this is it?
15 (Document handed to the witness. )
16 Is this the statement?
17 MR. OLMSTEAD: I've handed --
18 THE WITNESS: Yes, that's the statement.
19 MR. OLMSTEAD: Let the record show that the l
20 statement referred to is Exhibit CO cf Midland Intervencrs j I
- 1 Exhibit Number 60. 4 2 3Y MR. CLMSTIAD:
- 3 C Cn page 2.7, the end Of the second pcragr2ph, I
- 4 seccnd sentence frem the end, it says:
l
- 5 " Rex pointed out that he wculd rather have Ocw c-?:1-]::e:af rRercc:u, Or:c ., c.
444 NCMTM CA740 L. STREET ] l W AS HINGTC N. 3.1 200Q1 ,
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46 I err on the side of tco much in their outline rather than not 2 enough."
s 3 Is in your opinien that Cow acccmmedated this 4 request?
5 A To tell you the truth, there were about 14 6 different outlines running through this. I'd have to review 7 this thing to get a full flavor of what outline you're 8 talking about, and then trf to remember how much we gave 9 them.
10 So maybe in answering your question -- I dcn't 11 really recall.
12 ! Q Did you participate or otherwise make any ccmments 13 during the course of this meeting, other than take notes?
n ,
/
14 '
A Generally not.
15 Q Following the September 29, 1976 meeting with 16 Consumers Power legal personnel, did you attend any other 17 meetings with Ccw personnel concerning that meeting?
18 A It seems to =e I did. I'm remembering my meetings 19 now. It seems to me we put tcgether a draf t of sene-20 tastimeny. ! think it had to do with this outline tha Rex l 4
1 21 Renfrew came back with.
- Back en page 6 there's a referer.ce to Rex handing
- 3 Milt a ccpy cf an cutline cf items.
- 4 C Cid you work en the preparation cf testimen2 c
- s j fill in that eucline in preparatien fer the next =eeting?
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- 47 l I think about the only thing I worked on in that A
2 outline was just the front part of the data relating to 3 That's about all I Joe's t,ackground and history and stuff.
4 recall working on.
5 Q Not the substance of the contract or the Midland 6 Division position, or --
. 7 A go, a Q You've already testified that you were working 9 with Lee Nute, and to a lesser extent with other atter.neys 10 who were involved at this particular time. Did you have 11 any other cecmunications or conversations with other Cow i
12 - persennel in preparatien or anticipatien for the future 13 meetings at which vcu were present?
14 A Legal or otherwise?
15 Q Right.
16 ,A I really don't recall.
17 Q Okay. Going back to the letter that Mr. Wessel 13 sent you of October 5, 1976, he states you --
- 9 I
"...cculdn't catch all the references." .
t 20 N1ut references do you think he was ref erring tc? l 1
1 21 A Well, my inter:retatien of that wculd be that i
- 2 there were references te atters that if ycu were involved 22 I .
in the thing and knew abcut it it wculd have, ycu knew, a I
24 neaning :: a persen. And we "w *c ut this. Whac he 25 was really talking alcut is (1) since ycu were new to it and e-- r , ,
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48
' didn't really understand what was going on, together with 2 '
the fact that so many things were going on, you undoubtedly 3
missed seme stuff.
4 0 okay.
5 You testified earlier that you had taken sherthandi 6 since you were in high schcol, and hadn't kept up.
7 Forgetting this case for the moment, normally 8 when you take notes if you don't really appreciate what's 9 going on but later develop the information to appreciate it, 10 do you usually find that your notes are adequate to satisfy 11 your need to deal in the substance of a matter?
12 A I really don't understand your question.
m 13 i .O Well, I assu=e that if one said you didn't catch
-~
14 '
all the references that one could analogize to other i 15 situatiens where you weren't as faniliar as you might 16 otherwise de at seme later ei=e about the informa-t.on thae 17 you were trying to take notes on -- say a law school class 18 _w here you hadn't read the day's assignments, or something ,
i i
19 of that nature.
20 Have you found in the past that when you use your 4
21 shorthand capability and take notes in these kinds of 20 situaticns, and then later ccme back with other kncwledge,
'2 do you find your notes generally adequate to understand the 26 substance cf wha *'s going en?
- 5 A Yes. ?ut that depends en what was going en vnen c:5::- 3::'e :( = Rercc:n. $cc
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49 1
I was taking the notes. If I'm sitting in a class situatien 2 and there's a professor talking and I maybe missed a 3 reference as such, but, as you say, ccme back later with 4
scme kncwledge it may make sense.
5 But that generally gces to hcw ccmplete the 6 record was when I first put it down.
7 Q Well, having sat through a number of meetings 8 now with Consumers Power, and being involved to the extent 9 that you have, in hindsight do you go back and find your 10 notes fully developed and meaningful?
11 MR. PCT"'ER : Which notes are you talking about, 17 all of them?
13 MR. OLMSTEAD: The notes he toca of this September
(/ 14 29 meeting.
15 THE WITNESS: Yes. I did go back and they 16 started making sense.
17 Fcr instance, a reference to Black & Veatch. I 18 didn't even knew hew to spell it, let alene what it was.
19 But as I got more into the meetings and stuff it became 20 apparent as to what that kind of data was, and if I went i
21 back into my notes -- if we ' re talking about did I under-
- stand better after I went back, pite pcssibly. Once again, i
- 3 depending en what I was able to put dcwn.
- 4 3Y MR. CIS. STEAD :
- s O Co you still feel it's a full and accurate c~r::- 9ede:{ d rcites, Scc
~ em w,m ., m
.t
'{ Q '
n . w.. w .. =.c. 2ooo, ace 2n.3-so 'I)h 3 .
50
. . l I
i sumrtary of that =ceting?
2 A You said full and accurate summary?
3 Q Right. I was trying'to -- let =e use your words. l l
4 A I just used c'he word " accurate."
5 Q It's an accurate su==ary? Do you still feel that 6 is?
7 A I still gelieve it's an accurate summary. I 8 think keeping in mind that -- yes, I still believe it's 9 an accurate su=ary.
10 Q Okay.
11 On page 2 of Milt's letter of Ocv.cber 5 that 12 attaches a memorandum to the files, which was his effort 13 l
to su=ari:e this reeting of which we have your notes, he
( 14 puts devn at the e:. of this second paragraph a statement 15 i to the effect that:
16 " Consumers rejected the suggesticn that Tempic.'s 17 testimony be reduced to. writing as direct."
18 MR. PCTTER: Where are you?
19 MR. CLM.STIAD: I'm en tha seccnd page of Milt's j i
20 su==ary of the meeting of September 29. Attached te his l 27 letter to Cave is a twc-paga me=crandum su==arizing that
- 2 meeting.
23 MR. REY'IC' C S : "et's gc cff the reccrd, 24 (Oiscussion off the reccrd.)
- 5 MR. CLMS".'IAO : Eack cn the reccrd.
4 - i
~
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2 On page 2 of Mr. Wessel's su= nary of the Septem-Q 3 ber 29, 1976 meeting he notes:
4
" Consumers rejected the suggestion .nat Temple's 5
testimony be reduced to writing as direct."
6 Was that your understanding?
7 '
(Pause.)
8 The next question, obviously, is where is that i
9 in your notes? And that is the segment of the . totes we 10 were talking about earlier, the su= mary that Milt prepared?
11 (Pause.)
12 i
That's a ecmpound question; if you want to object 13 i we'll take it one section at a time.
.-- 4 i
.- 14 : MR. POTTER: That's all right, if the questien is is understandable to anyone else.
16 THE WITNESS: All right. Do you want me to 17 answer the first question?
18 BY MR. OLMSTEAD:
19 Q All right. I'm asking if that was your under- l 1
- o standing of the discussiens that took place regarding the 21 Temple testimony en September 29.
- MR. PO"""ER : Eefere he answers that questien, I
- 3 want him te read frem page 1 tc the end Of the page cf his i
- .: nctes e.? the 3-29 meeting. He hasn't dene i: yet.
25 MR. OIE. STEAD: I requested that that 'e : dcne, c~lce- 9ede::l Otrc:!:~1, Sr:c.
au scam wm$i. sner? e aQf L'
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52
'. . i 1 MR. PCT *ER: If your question is, does that 2 appear in his notes, he's going to have to read his notes 3 to see if it's in them.
4 THE WI" NESS : Frankly, I cannot --
5 BY MR. CRISTEAD :
s Q My question at the mcment is whether that' 7 accurately reflects his understanding.
8 MR. PCTTER: Which he can only understand by 9 reading his notes to refresh his recollection. That's the to point I'm trying to make.
11 ,
THE WITNESS: Yes. Frankly, I couldn't tell you 12 as to whether or not Milt's summary of the meeting is an 13 accurate summary of what went on in relation to what I put 14 down. I really couldn't tell you unless I went back through 15 and found the same reference.
16 We're dealing with 19 pages of notes, condensed 17 down to a page and a half.
18 SY MR. ODISTEAD :
19 Q And he condensed that frcIa 26 pages of notes?
20 A NO+ ;
21 Q He had your 26-page -- l
- MR. PCTTEE: Nait a minure. I'. going to object, 23 if yeu're characterizing new that Mr..Wassel's notes are 24 l semehcw prepared based en Mr. Iurand's --
- s MR. C E.'iS ~ E A O : Let me rephrase it.
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53 1 3Y MR. ORISTEAD:
2 O He had your 26-page typewritten notes at the 3 time he prepared that memorandum.
4 MR. POTTER: We don't know that, either.
5 MR. OU! STEAD: He said so in his cover letter, 6 of the same date.
7 MR. POTTER: Ok ay ., I stand corrected.
8 <
THE WI* NESS: He said in the third paragraph:
9 "I suggest we scrap the effort and try to prepare 10 a <alid smarf of the important points which were made. ?
11 My effort is enclosed."
12' Now, whether or not he took -
13 l MR. POTTER: Excuse me. Read those two paragraphs
.+ !
14 together, There's nothing in there that says that Mr.
15 Wessel prepared his notes based on Mr. Durand's notec. Ee 16 said he had them. I don't see anything in the cover letter 17 that stands for the proposition that you're making, Bill.
18 That is, that Mr. Wessel had Mr. Durand's notes at the time 19 he prepared his cwn. Maybe that's the constructicn you 1
20 make of it, but I dcn't think we can ask Mr. Durand to I i
21 assume that.
- 3Y MR. CL'd_ STEAD :
23 C Well, will ycu agree with .e that his s==ary 4 cf that nee:ing is dated en the same date as the ecver
- s letter, rejecting your 26-page attempt at verbati nc:es?
c:h'c:- ? darI s?c citas, Enc n%h w MCRm Opt?Ct. STM EXT - (- b W A $ >lM 4?O N. O.C. 20001 *)
- 202J 347 3700
54 1
A The dates are the same, yes. Whether or not 2 that --
3 Q So that at least at the time that den:ument was 1
4 ' typed he had your 26-page effort to refer to if he wished to?
5 A If he wished to.
6 ! O Nhetner he did or not we can ask Mr. Nessel.
7 ; A Yes. I couldn't answer that question.
a Q Okay.
9 Now, going back to the paragraph on page 2, if 10 I have to wait for you to read all your notes, I will.
11 MR. POTTER: Well, I'm just telling the witness 12 : I'm advising him not to answer that question without reading 13 the notes.
r^
s 14 ,
MR. OLMSTEAD: All right. Then I suggest we take 15 a five-minute break while --
16 MR. REYNOLDS: Well, wait -- what's the question?
17 THE WITNESS: Just let me know what I'm supposed 18 to do, first.
19 BY MR. OLMSTEAD: !
l 20 Q I'm asking, as to the paragraph that I read to 21 you, or asked you to ::ed, where he refers to Censumers n rrjecting the suggesti:n that Temple's testimeny be reduced 22 to writing ac direct testimeny, --
- 4 A I den't see " direct testimeny.'
25 Q Well, reduced to writing.
- , , s* :'?
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44 *e C R Tid CAPCOL STMEE' W AS HIN G?Q N. 0.0 10001 I102J 347 3700
' 55 I
A It says reduced to writine,.
2 Q And offered in evidence at the beginning of the 3
session, subject to cross-examination.
4 I'm asking you, was that your u derstanding of 5
the discussion of the Temple testimony at the meeting of 6 September 29?
7 MR. POTTER: And I'm advising the witness to 8 read his notes of that meeting to find out whether it's 9 in there or not.
10 THE WITNESS: I would have to go through my 11 notes, because I couldn't answar year question the way you 12 ,
phrased it. I really couldn't. I'm wondering even if my i . .
13 i notes will . . .
/s q ,- 14 MR. REYNOLDS: Let'- off the record for a 15 minute.
16 (Discussion off the record.)
17 . MR. OLMSTF.AD: Let's take a five-mia. Ate recess.
18 (Recess.)
19 MR. OLMSTEAD: We're back on the record.
21 you can answer the queaticn as it stands new. If you can't,
- l cr if you need secething else, then let's get it cut.
i
- Maybe we could have the ccurt reper er read back 24 l the questien.
25 MR. OLMSTIAO: I can repeat the question.
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V
- A S M E N G TO N. 10. 200d1 T s we gas.tann
56 i We're back from a recess and Mr. Durand has finished 2 '
reviewing his notes of the September 29, 197' meeting, i:
3 that correct?
4 THE WITNESS: Yes, sir.
5 BY MR. OLMSTEAD:
- 6. Q The question I was asking, which necessitated the 7 review, referred to a paragraph on page 2 of Mr. Wessel's 8 Octccer 5, 1976 attempt at a summary of the September 29 9 meeting, where he notes that Consumers had rejected the i
10 suggestion that Temple's testimony be reduced to writing --
11 and I put in the words, 'as direct." I asked whether that 12 ' was your understanding based on your recollection, whether
.- 13 l through your notes or otherwise of the September 25 m'eeting.
v 14 A My recollection, after reviewing the notes, is 15 that in the first part of the meeting we handed a draft of --
16 I believe it was in affidavit form -- of Joe Temple's --
17 of a draft of his testimeny, and we gave it to Mr. Renfrew, 18 and --
19 Q You used the word " affidavit" and then you used
- c the word " testimony," and t _cughcut these notes the two
- 1 terms are used for two different dccuments. Are we talkinc ,
- l abcut ene document er twc?
- l A need a couple of dccuments to nake a ecmparisen.
- 4 C Okay.
- s A I need a copy of the draft that was given to c-?:: 3ede:c! .rRepcite .t. Occ
- ~ c m c-,m m u-fb was m marcu. s.c ooc, 2)g 3 ,
i
. . . . i
57 1 Rex Renfrew and Judd Bacen on that morning, the 29th, which 2 was a draft in response to a telepaone conversation that i
3 Judd Bacon had had with Milt Wessel before that.
4 Q Okay. I show you Exhibit SA of Midland Interven-5 ors Exhibit 60, and ask you if that's the testimony you're 6 referring to?
7 A . Pause.)
e t
Q The document has at the top of it, incidentally, 9 " Draft MRW." I assume that means Milt Wessel?
10 A I can assume it does, ii Q Do you know --
12 l A Before I answer that, let me look back through it
,# 13 ,
just a second.
_. i
- q. g (Pause . )
15 Do you have a copy of a letter -- let's see . . .
16 before I answer that question, -
17 Q Well, excuse me. I had a questicn asking whether la you knew whether this was draf ted by Mr. We- 1 I believe ig it says MRW.
l l
.c
, A 3efore I can answer that question I need a letter.,
I
,1 Not a letter. It's a nemo to the file that Milt prepared i after we had a ccnversaticn with Judd 3acen, wherein he
.-,. listed the items that Judd had asked him te prepare. And I
i
.4
! want te see if this draft is respcnsive tc that letter.
g MR CI MSTI;C : Off the record.
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58
. i 1l, (Discussion off the record.)
2 Back on the record,
{ MR. OLMSTEAD:
3 I think for purposes of the record I ought to i
identify the fact that I've handed the witness a memorandum 5l to L. F. Nute from M. R. Wessel dated September 28, 1976, 6 re: a telephone conversation with Judd Bacon.
t 7
, l BY FR. OLMSTEAD:
t 8 Is that the document you .cquested?
Q i
9 A No.
i 10 ' MR. POTTER: Off the record again.
11 I ,
(Discussion off the record.)
i, 12 I
MR. OLMSTEAD: Back on the record.
l 13 l Let the record show the witness answered no to
.r..
l
" - 14 the September 28 memorandum, and is now looking at a memor-v ,
15 l andum to L. F. Nute from M. R. Wessel dated September 27, i
16 i i
1976, re: Conversation with Judd Bacon.
17 i BY MR. 01.;F AD:
18 ,
Q Is that the memorandum you requested?
19 A Yes. ,
l 1
20 (Witness reviewing dccument.)
6:00 p.m. a . need one other dccument. I need a document that !
.I, 22 , Rex handed. to Milt on September 29, which is an outline of i
22 l the itcm3 that . . .
24 MR. OLMSTEAD: I am handing the witness a page t
2s entitled, " Exhibit BB" of a J s: of exhibits te M.idland i n - r a n D c~r:
7 :e::1 Ocmte 1. St:c (,
I
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59 4
' 1 l 1 l Intervenors Exhibit Number 60, whicc is a copy of a hand- i 2
written document entitled, " Outline," and asic if that's the 3 l document which you requested?
4 THE WITNESS: Yes. Here's the thing I'm struggling i
5 with. This request for all this information was an attempt 6
ex enhow to get as much Momadon as he dou@ he 7
needed to meet the challenge in the hearings, and he stated l
several times just because he asks for information doesn't 8
i g ! mean he was going to use it, you know, in any prepared jg testimony for Joe Temple, i
- At the first part of the meeting we gave him a i
! draft prepared upon an outline that came frem a telephone 12 l g conversation.
g Let me just ram through this so I can get a w _- t better handle on it.
15 i We gave him -- is this it? Yes. We gave him I'
infornation in a question-and-answer form. . . no, wait a 17 minute. This is the first part of this question-and-answer...
1a
,g This is mere in statement form, the answers to the questions that Judd Bacon had asked him. l 20 i
i That, for seme reasen - I don' t recall now why, !
21 i
. but it was nct accentable.
~
Rex came back with Exhibit 33, 22 l l
- i his curline, which is in mere of a -- it's a different fcrmat.
.2 j
! It's still in a su= mary form, but it 's stf l. in a dif f eren o
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- 60 1 Q What do you mean, in a su=tary form?
2 A Not a su=tary f orm, it's in a format that breaks 3 things dcwn chronologically, okay?
4 Q Okay, but there isn't anything on the face of 5 Exhibit BB which indicates what form the testimony would be 6
wr en h, is dat conecM 7
A There's none.
8 Q Just an outline?
9
, A Just an outline of subjects that they wanted Cow 10 to get information on.
33 Rex goes on further in the meeting to illustrate--
g he said he wanted the information -- he wanted information in 33 a more direct fashion, other than o~ur first attempt that g ,
had been made. He wanted information in a different form.
(
I don't know, I guess I can't really recall what 15 16
, O In other words - now, let me get this straight:
,g You're referring to page 12 of your notes?
,g A Page 12, last paragraph, where it says,
" Rex stated that he didn't want any more frem
_o t
Dew than what they put in Jce's draft. Ee did point i
l out, however, that he wanted it in a more direct fashien!"
Q It also says that :*ilt stated he chought hc finally- saw what Rex meant.
2.s A (N dding af fir .atively,)
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61 1
Q And new if I can refer back to the summary, page 2
2 of Milt's su= mary -- I think it's mccentarily been mis-3 placed --
4 All right. New, you're telling me that that's 5
what he's referring to when he saya:
8 " Consumers specifically rejected the suggestion 7
that Mr. Temple's testimony be reduced to writing and 8
offered in evidence..."
9 A Well, I think - let me give you a couple more 10 examples. That's my impression from read:.ng my notes as 11 to what Milt was saying, an.1 is also a reflection that I 12
! interpret it to agree with what Milt's su==ary was as such.
' 13 In fact, I address it and he addresses it.
" 14 But let me give you a . . .
15 ,
If you go to page 16, the last part of that big 16 paragraph there, the second to the last sentencet 17
" Rex stated that the questioning was going to 18 he by oral means. Rex pointed cut that what beccmes i
19 important is not the idea that ycu may want to ccnvey, i i
- o but the =eans by which you may wish to convey it." ,
21 Q What questioning is he refer-ing to there?
22 A The c':esticning of Jce Temple.
i
- 2 O In other words, it was four impressicn that i
24 I Censu=ers ?cwer was going :o put en the direct examinaticn Of
,t 25 Jce Temple crally?
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- , 62 1
A That's the impression I get from reading that.
2 4
MR. CHARNOFF: From reading "that?"
3 THE WITNESS: Page 16, the second to the last 4
sentence in the big paragraph.
5 MR. REYNOLDS : '.5 of your notes on the. meeting 6 of 9-29?
7 THE WI'" NESS : Yes.
8 BY MR. ODiSTEAD:
9 Q Had you been involved in any administra' 19 proceedings before the Nuclear Regulatory Ccemission before?
11 A No, never had.
12
) Q In any discussions with Milt or Lee Nute, did I
' 13 ' anybcdy ever mention the fact that it was customary NRC 14 practice to present all direct examination in wr- ing?
15 A No, I didn' t knew that.at that point.
16 Q If I tell you that that is the customary practice 17 would your interpretation of those words be the same?
18 A My inte_'pretation would be the same, yes.
I 19 MR. CHA?liOF?: Let me just make a eccment for the ! !
i 20 reccrd: !l 21 -
I think I agree with you that it is custecary !
I i
- ! NP.C practice for testimony -- direct testi=cny -- te be 4
23 I reduced to citing, where there is time fer it Oc be dene.
l I
24 Sc, as I understand it, 'his was a discussicn en 25 September 29 at a meeting where they were talking abcut a n,q c- ::m o.re=e=l c%=em gcc
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- 63 I
hearing I assume the very next week, on 10-6. Therefore, it 2 could well be under those circumstances that what was the 3 '
ordinary case would not have been anticipated.
4 MR. OLMS*EAD: I appreciate your interpretation.
5 My problem with either interpretation is that there are 6 i three drafts - in fact, one of the pa3es you're referring i
7 '
to said draft number 6 on it, and --
8 THE WITNESS: fnere were lots of drafts.
9 '
MR. OLMSTEAD: - of direct testimony in writing.
10 And there's d_2:ussion in this record of not liking the 11 organizational outline, as I get it, because here's a new 12 outline from _e. Renfrow.
, _ . , 13 So I just wanted to make sure I understood . shat x 14 the reference was here to the testimony. But I gather veu 1s ' would not deduce from that that d:ere was any intention on 16 the part of Consumers Power personnel or Dow personnel at 17 that time to put direct testimony in writing in the record 18 in question and-answer for at.
19 MR. CHAPlIOET: Excuse me. Parenthetically, when Ic they were considering *:he hearing to be scheduled the very
- next week.
- MR. CUiSTEAD: Rightc which they were at the n time of the September 29 r.eeting.
- .2 MR. RE'CCLOS : Bill, can I just for the reccrd, 25 indicate ~~
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64 1, MR. PO' ITER: Well, wait, he's got a question 2 pending. Let's either take the question off the record or 3 let the witness answer it. I don't want to leave it hanging 4 with no answer to it.
5 THE WITNESS: I think, going back " rough my notes 6 i and refreshing my memory, there is no mention of format as 7 '
to question-and-answer.
i s MR. OD15TEAD: Okay.
I
' ~
9 MR. REYNOLDS: Bill, if I could just interject to something to help clarify things, I believe in the normal ti course in NRC proceedings, while you submit direct testimony 12 in writing, that when a witness takes the stand all ta ! questioning is by cral means.
,e I k i 14 MR. ODISTEAD: Off the record.
w I
15 ,
(Discussion off the record. )
16 MR. OLMSTEAD: Back on the record.
7 BY MR. ODISTEAD:
la Q Mr. Durand, on the bottom of page 15 of your notes--
19 A Of Septed er 297
- o Q Right. The senter. e appears:
23 " Milt then read the preface in the statement that i
22 he had prepared for Judd's use in recital before the 22 I Scard, ccpy attached."
24 And then on page 16 it says:
- s " Rex stated that ;'e didn't want Jce to sta : Off c5c:-]cde:! :Eacci:ns, Occ 444 MCRTW CAP W L. m tET g f l W A S HINGTQ *t. D.C. 20001 '
(202) 347-37CO l
65 I
making this kind of statement initially, even though 2
he may have to say somsthing like it in the hearing 3
t process."
f Could it be that the statement to which Mr. Wessel 3
refers in page 2 of his memorandum of October 5, 1976, was 8
, to this piece of testimony that he had prepared for Joe's 7
use, rather than the entirety of Mr. Temple's testimony?
8 For the record, I just simply have
9 got to object. I can't see having Mr. Durand answer ahat 10 Mr. Wessel had intended by something in his notes. There's
" just no way in the world it makes any sense. I just object.
12
- MR. CHARNOFF: If I could comment on the form l
13
,e of the question -
l I4
- MR. OLMSTEAD: Let me put it another way.
15 BY MR OLMSTEAD:
18 Q Co you have an;/ independent recollection or 17 anyplace in your notes to point to where you would feel 18 comfattable stating that it was Consumers' position on 19 September 29, 1976 that none of Mr. Temple's testincny 20 should be presentel in writing for the record?
'3 A I couldn't point to any place in my nctes to !
that.
22 C Ckay. I asked you abcut yeu caveat sentence I
~4 at the beginning of ycur nctes ence before, to che effect c
that your notes shmuld net be egarded as verbatim. New I'd
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66 1
like to knew whether you have prepared your notes and 2 transcriptions and memoranda to the files with the idea in 3 mind that they might at some time beccme public, either 4 among the parties to the proceeding or outside of Dow?
5 A No, I guess at the time I transcribed these notes 6 and prepared them, I felt that they were probably privileged 7 in scme sense. I hadn't asked anybody that, but in my own 8 mind I felt they were probably privileged and wouldn't be 9 produced.
10 Q Okay. In spite of Mr. Wessel's letter of October 11 5, 1976 which indicates that he had ceased thinking that 12 it's possible to get a verbatim transcript of these meetings, 13 you continued to attempt c,cmplete. notes,or at least as r
14 complete as possible nctes of meetings with Consumers Power
~.
15 and Dev, is that correct?
16 A Yes.
17 Q Why?
18 A I saw my respcnsibility in those meetings to take 19 notes in such a fashicn that it would produce an accurate
- o su= mary. l i
21 Q Was Censumers aware of this effort, er atterneys
- 2 fer Isham, Lincoln and Eeale?
- 2 A What, that I was gci.:g to --
24 Q That you were taki- antensive .cces and c 2ns-25 cribing te=?
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' 67 1 A In the first meeting Mr. Renfrow -- I was intre -
2 duced to Rex and Judd, and I don't recall as to whether or 3 not Lee told them why I wa:: there specifically, but as the 4 meeting centinued it became apparent to at least 21r. Renf rew 5 that I was taking a lot of notes.
6 So during one stage of the meeting he got up and 7 just kind of walked around the reca and walked up behind me a and said, "That's interesting, where did you learn to take 9 shorthand?"
la Q That doesn't appear in your notes, is that 11 correct?
12 A Pardon me?
i I
13.' Q That statement doesn't appear in your notes?
l 14 A I don't know if it does or not. I guess I'd 15 have to look back through the notes again, okay, and --
16 Q What did you respond to that?
17 A I didn't say anything.. I just sat there taking 18 notes.
19 MR. RI'RICLDS : Off the record.
20 (Discussion off the record.) i I
- 1 MR. CLMSTIAD1 Back on the recc d.
- "'HI WI"iISS : I dcn't rec' - -' a t M . Nute sr 23 Mr. 'Jessel ever sat dcwn with Judd Bacen and Rex Renfrav
- s at :he begt~.ning ci the nee: Lng and said, Mr. Iu and :.3
- s here te take nctes, he's geing Oc make an accurate su==a y 1 (."7"f
- A
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68 1 of them and publish them, or whatever, en down the line.
2 I don't recall that ever being said.
3 BY MR. OLMSTEAD:
4 Q Was Isham, Lincoln & Beale, for Consumers, ever 5 ,
asked to confirm the accuracy of your notes concerning this e meeting, or these meetings?
7 A I never asked them. I don't know if anyone else a did. In fact, if I may go back to my original response to your question, Mr. Renfrew mentioned my shorthand ability 9
to at a break, because we got to talking about my high schcol 11 and my taking shorthand in law schcol, and the whole bit.
12 So it wasn't during the meeting as such.
13 i Q Now, are you aware of how the notes of meetings 14 between Consumers and Dow during the contract negotiations 15 were handled?
16 A No.
l 17 Q Did Consumers Power personnel or Isham, Lincoln 18 and Seale personnel take notes of their cwn on Octcber 5, 19 1976 at the meeting that you were at?
20 A Cctche 5?
21 Q Right. I believe that's the next meeting.
i
- A Cctcher 12, maybe.
- 3 C Cctcher 12?
24 I A You said CctOber 5. I believe it's Cctcher 12.
25 Q All right.
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69 1
A I can't recall if they took notes at all. I 2 really can't.
3 0 I don't have the reference in front of me, but 4 I. suspect you'll recall that Mr. Wessel sent a letter to 5 Mr. Cher::"f setting forth Dow's non-party position on 6 discovery. Do you recall a communication like that?
7 A Yes, it was something to the effect that we're 8 not a party and if you want to effect discovery, why don't 9 you go through Consumers Power.
10 0 Right. Did you have any role in the drafting of 11 that letter?
12 A I really don't think so.
^
13 Q Was your meno to the files dated October 12, .
I v 14 ,
1976 the first transcription of your notes for that meeting, 15 or was it edited by anyone else in the same manner as the 16 Septechcr 29 meeting?
17 A That was my first draft.
18 Q So on that one, you just went directly to the i
19 memo to the files?
20 A You're asking is there a copy that exists that 1 l
21 might be -- if this is 15 pages, there was one that was ,
- around 20 pages?
23 Q Cr is there ene around 12 pages?
22 A This is the original droit.
25 0 :s there another draft cf _he notes yce tcok fer cAce 9e:e::I c.Aepce:eu. Sr::.
444 N C it?H ~ A P tTC L. STMEET ,
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. 1 70 1 October 12?
2 A Yes. And if I may clarify the second part of 3 your question, the notes of the September 29 meeting really 4 weren't edited by anyone, otb r than me going back and 5 summarizing.
6 0 Oh, okay, I --
7 A Secause I got the impression that -- you know, a nobodv other than myself edited these notes?
9 Q Okay. You didn't make nore than one draft of to ' what occurred at the 10-12 meeting at any time?
11 A No. One draft.
12 And, in fact, all the succeeding drafts were la , prepared in that manner.
nr
-' 14 i O On page 2 of the Octcber 12 notes, if you'll v '
15 look at the second paragraph there it says:
16 "Mr. Wessel asked Consumers Power what was wrong 17 with the 10-6-76 draft of Mr. Temple's testimony that 18 Dew gave.. Mr. Bacon responded he felt the 10-6
_ 19 document was just an outline of testimony rather than
- a an actual Jraft."
I 21 Now, in light of the preceding questiens we had l
- ahcut the September 29 meeting, is it reasenable to assume 23 that there had been scme miscemmunicaticn between Ocw and
- 4 Censumers a.2 to what fcm Mr. Temple's testimony shculd have
- = taken?
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I W A S MP 2TO N. 3.0 20001 l 4202J 347-J790
71
. i 1
l A Yes, I think mu can assume that there was some 2 misunderstanding.
3 So I guess we can a.ssume at this point everybcdy Q
4 is clear that there's going to be written direct testimony, 5 and new Mr. Nute is wanting to know whether the written 6 direct testimony is going to be in question-and-answer 7 form.
8 A (Nodding affirmatively.)
9 Q Is that correct?
10 A Yes.
11 Q And F.r. Renfrow said he didn't want it done in 12 that form?
,+
13 A Yes.
14 Q Then later on there en the same page Mr. Wessel 15 then talks about the form of the testimony and states that 16 he doesn't believe that the form is really important.
17 That's the next paragraph dcwn, page 2, about 18 the fourth sentence.
19 A That's what my notes reflect, yes, j
- o Q All right. Do you have .r.y further recall cf 21 this discussion? l l
- A Cther than what's dcwn fc11cwing that sentence, 23 no, I dcn't have any cther recall.
- 4 Q Ckay.
- 5 A The fellcwing sentence references to the fact d:: 3er'a={ :.Sepc::eu, Occ _
au wearw :.ames sTurr y
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- i 72 1
that Milt felt that all the infor=ation that we have in 2 terms of what Mr. Temple has to say we've given to Tonsumers 3
- Pcwer.
4 Q So Mr. Wessel feels that everything there is 5 that Dew wishes to contribute to the Temple testimony is 6 , now in the Temple testimony, is that a fair reading?
i
- 7 A That's a fair reading.
8 Q Okay.
9 I Ncw, the last paragraph, then:
10 " Rex Renfrow says he would like to see seme 11 t more information end up in Mr.. Temple's . ttimony 12 , than what he has asked for to date."
~
- 13 So un to this point is it a fair characterization t
14 , of the positions of Dow and Censumers that Dow was 15 , concerned about getting tco much information in Temple's 16 testimony. When Rex Renfrow insisted on pursuing this issue 17 they excluded Judd Bacon frcm the meetings, where they got 18 into the negotiations, just so that Rex and Dave Rosso 19 would have access to the information in preparation of the 20 testimony. ;
I 21 Am I correct up to that point? i i
- A Yes.
22 C And that in spite of that agreement they ge:
- 2 back with the next round of drafts, and Rex Renfrew and 25 Dave Resso are still pushing fer even =cre infer =ation.
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. 73 1
Whe, type of information, if you recall?
2 ,
A I think the last part of that meeting, I think 3 Lee -- 1cok on page 13 of that same meeting. Lee then went 4 ,
over the list of documents which Rex was going to want to 5 review. They had already agreed that Rex was going to be 6 able to come up and review this additional information he 7 wanted, and this list included the following: And then it a goes on.
9 A lot of that has to do with . . .
10 Q And the fourth one en that list is all dccuments 11 relating to what Dow and Consumers Power have discussed 12 , regarding Joe -- mean Joe Temple's testimony?
, 13 A Joe's testimony, yet. Those are backup documents.
14 Q Right. Did you assu=e at that time that that 15 meant that they thought those documents would be presented 16 to the parties and the Scard in sc=e manner?
17 A Well, they're talking about backup documents 18 here, and I think in mayce this meeting or the first meeting 19 Judd went through an elabcrate suggestion on Ccw's 20 responsibilities to keep backup dccuments of any testi=cny
- 1 cr i.formatien that they gave *.c Censumers in the event I
- that, you knew, if Myren er anybcdy 01se wanted to ge: :
23 it was ceuld back up that kind Of infermatier.
- 4 Q So they were prepared := provide all tnat infe ra--
25 '
tien to the Board and the parties with the excepticn of
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l
74 1 house counsel for Consumers Power?
2 A Yes.
3 MR. CHARNOFF: When you say "they" were prepared, 4 who?
5 MR. OLMSTEAD: Rex Renfrow and Dave Rosso.
6 THE WITNESS: Yes. Like I say, you go back 7 through these minutes as to when they arrived at an s agreement as to hcw to share this information, Rex wanted 9 to look at the information so that he would either have io as much information on the subject as pessiba.e so that, yes, ij he could present it all.
12 ,
BY MR. OLMSTEAD:
i 13 l Q All right. I'd like a little clarification now 14 of these notes:
15 On page 5 - -
l
- 6 A Sane meeting?
17 ; Q Right. The last paragraph, last sentence, says:
is "A ccmplete review of each item on Mr. Temple's 19 draft testimony followed with all parties present
- o participating."
2: New, I'm assuming th?t that's what the rest of u
1 this dccument, throuc.h c.ac.e 12 and en to cac.e 13, is.. Is that correct?
3 A Yes. If you will reccgni:e that it's broken 5 ccwn into the cutline -- this cutline under Exhibit 33. !
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75 1
Q Okay. So following receipt of Exhibit 33 of l
2 Intervenors Exhibit Number 60 a new draft was prepared by 3 Dow Chemical, is that correct?
4 A Yes.
5 Q And that was discussed at this meeting of Cctober 6 12,1976?
7 A Right. ,
8 Q And the outline represented by 33 amcunts to the 9 headings that you used in your notes on pages 6 thrcugh 12?
10 A Yes.
11 Q Okay.
12 l At this point, in preparation for the forthccming
_-, 12 hearings, it was generally felt that they were going to start 14 earlier than they ulH ately did, I believe, is that correct?
15 A Yes. In fact, the first date was October 6, and 16 they were preparing Joe for Cctober 6.
17 Q So they'd really anticipated by this time being 18 in those hearings? !
l 19 A Right.
20 C Would ycu describe the relations between Censumers $
21 Pcwer Ccmpany's lawyers and Ccw's lawyers in these meetings ,
- which are essentially lawyers meetings, as cerdial, er
- hesrile, er seme ether?
- t A At ti=es they were cerdial. I think mere they 25 were const active. They weren't hcstile, as such. There 1b r
w CZ* C$ Ak & OGM W J cC.
w tecstW OJ PtTC L STMEET W A S MINGTO N. O.4" 200C1 12 cal 347-3700
76 1 wasn't -- oh, possibly there may have been a feeling between 2
Lee Nute and Ji d d Sacon occasionally that surfaced. But 3 for the mos part I think that the two groups of lawyers 4 sau down and exhibited the attitude that they had a jcb to 5 do, and they wer going to get it done. They worked together I
e on it. I think the e cunt of work put out by the two 7 reflects that, essentially.
8 And to answer your question, there was no 9 host. .ity as such. There was more of a constructive effort.
to Q Okay. Now, on page 8, second paragraph, there 11 appears to be one sentence:
i 12 l " Lee Nute discussed how the decision was made 13 by-the Dow.U. 5. Area board."
14 And then as I read it, there's nothing on how n
15 that decision was reached in your notes here. Am I missing 16 something, or is this . . .
17 A No. I think all Lee did was go back through the ts s - ef of what had happened. And all I've got down in my l
19 notes, or ull I decided to take down in my notes, because I 20 there were other documents that reflected the prccess, and
- 3 I chose not to record exactly what Lee Nute said.
i
- As I recall, he 's the cnly one who c.alked.
- 3 Well, they're discussing the Ienple testineny
- 4 on page 7, and leading into page S, and --
25 A And they're talking about it in -- g(
\.
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77 1 .
Q And again Consumers is pushing ft.' more information
- 2 in Mr. Temple's testimony. And then there's this discussion 3 about how the Dcw US Area board reached their decision, and they dropp;d further discussion of that item.
5 Am I reading too much into that?
6 A I think you are, and maybe you can correct me 7 They're into the section about -- let's see .
as such. . .
8 " Continuing Michigan Division review," Section 0
t 9 3.
10 A The paragraph )efore that gets into -- let's see...
11 '
Rex was asking, or stated, that one of the reasons he asked I
12 for the economic study was because of the possibility that p
13 '
the Dow board relied on it to make their decision.
~
v.
14 Q Okay.
i 15 If we go to the paragraph just after the Nute 16 reference I gave you on page 8, it says:
17 " Dave Rosso wanted to know if there was anything 18 further to discuss on item 3C."
~
19 All right, 3C, as I understand it, is "Conti.uing 20 Michigan Division *;eview of contract decision and reasons 21 therefer." Is that correct?
- A Yes.
U C And evidently Consu=ers was examining this 24 t".roughout this discussion, up until Mr. Nute describes hcw 25 the decisien was made by the Dcw beard. And then further
- Q3, '
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', 78 1 discussion of 3 is dropped, including what would have been m 2 3D, "Acticn taken."
x 3 And then we ask Judd Bacon to leave the room and 4 we go through a let of things en the history of Censumers 5 Pcwer and ahy Mr. Temple has a credibility proble:a.
6 So, I was just curious, if I asked you to go
. 7 . back and look at your stenographic notes of this meeting 8
would you have down what Mr. Aute said?
9 ' A No.
10 MR. POTTER: Could I ask a cuestion that will 11 maybe clarify that? At least I hope it will:
12 , You characterized the statement as being dropped i
13 l after Lee Nute discussed hcw the decision was first made 14 , by the Ocw U.S. Area board. The ne:ct paragraph begins:
15 " Dave Rosso wanted to know if there was anything further 16 to discuss en item 3C."
17 I'd prefer to have Mr. Durand, if he hasn't 18 already done so, complete reading page 8, to see whether 19 the rest of it dcesn't explain and answer that, er else 20 whether the ratter really is d::pped at that peint.
21 THE WICIESS: Actually, the matter is not drcpped, 2: as such. The reascn --
- 3 3Y MR. CIliS*EAO
- 4 C ,e t me rephrase it. Is the matter changed in
- s tene and direction, if you would read ycur neten?
~
l 1, J
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4 79 1
A I'd have to read 7, because . . . in fact, let 2 =e start from 6 and read that whole section.
3 (Witness reviewing document. )
4 Q All right. Having refreshed your recollection 5 on the material on pages 7, 3 and 9 of your notes of 6 October 12, 1976, would you agree that there's a change in 7 tone about the discussion of what should be in Temple's a testimony relating the outline item 3C, which is the 9 continaing Michigan Division review, or centract decisien 10 and reasons ther9for?
11 A I don't ac* t there's a change in tone, because 12 if you go out to tne r.arly parts of the meeting, together
- ^
13 .
with the many parts in the 9-I; meecirg. Mr. Wessel is
/
14 consistently taking the position that the decision reached is by the M.4.niec. Division in th'e review of the thing is 16 , irrelevant, and --
17 Q So you don't think there's a disagreement between 18 Mr. Wessel and Mr. Rosso and Mr. Renfrew on what should be 19 put in itert 3?
20 MR. PCTTER: I wish you hadn't cut him off. Were ,
1 21 you finished with your answer?
22 ""22 W 3 ES5 : No, what I was geing to elaterate cn was the fact that there's disagreement all the 4r, 23 l 24 thrcugh '::.is thing -- well, I dcn't knew if there's 25 disagreement. Mr. Wessel has .said that -- if you icck back d,
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i202J 347-J74- !
I
80
' on page 6 at the bottcm:
2 "In the area of a centinuing Michiga.a Division 3 review Mr. Rosso stated that it was impcrtant to 4
emphasi::e that the Ocw board's decision is the thing 5 Mr. Wessel stated the parties should be lecking at.
6 that that was his point exactly, and also why he felt 7 se reluctant to answer questions from Consumers Pcwer 8 pertaining to the Michigan Division revicw."
9 BY MR. OLMSTEAD:
10 All right, stop right there.
0 11 Coesn't that sentence imply that Consumers Power 12 was wanting to put in infor:aation concerning the Michigan 13 l pivision review in the testimony, that Mr. Wessel did not
'4 want to put in the testimony?
s 15 ,
A No. In fact, just the opposite. Mr. Rosso is 16 saying that the only important thing to emphasi::e is the 17 Board's decision, and Milt is saying I agree with you, so la why get into this thing about the Michigan Division at all.
19 Okay. Let's leck dcwn at the first sentence in Q
20 the rext paragraph, page 7:
l 21 "Mr. Rosso stated that when Consumers Power
}
22 censiders what tc put in to Mr. Co.cle's direct i
23 testimeny, they will have to try and anticipate what 24 Mr. Cher y is going to ask in the cross-examinati s.'
25 Isn't it t ne that pecple generally agreed enat s ~- i y a ir CM = .?CnC*.21 CR.lfM*s*1, 2f:C.
4u ucam cmTn sntxT ,
wasNINGTCN. 3.C. 20004 -
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.)
81 1 if Mr. Cherry was to show up at the preceeding, he would 2 inquire into the Michigan Division review?
3 A Yes.
4 Q And isn't it a fair implication of that sentence 5 that what Mr. Rosso is saying, by trying to anticipate e cross-examination, is that they need to put information in 7 cencerning the Michigan Division review?
9 A If you go down about half way through that same 9 paragraph, Dave Rosso centinues:
to "He further pointed out that his eriginal stand 11 was not to get into the Michigan Division review and 12 the reasons for that review being reversed by the ::cw 13 board. He then made the observatica that he is now
,r '
14 becoming concerned because he has heard that Mr. Cherry 1s may already have this information."
to - interpretation of that is that he's torn 17 between putting it in and not putting it in, but he also, 18 as I understand it, agrees with Milt that it's not really 19 important. And Milt is saying, wait a minute, since it's !
l I
20 not impcrtant and since it's sensitive to cur ongoing negotiations, why get into the whole d'- ~ess?
23 Sc vi'- is saying let'e net get inte it?
- C
- 3 ! A Yes. Iecause he didn't feel it was imper: ant er I
- .t relevant.
- s O And Rosse is leaning te getting int it nc~ --'-
., s \.
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- 82 1 Milt wants to get into it?
2 A Yes, because, as stated here, he's new beccming 3 concerned because he has heard that Mr. Cherry may already 4 have this information.
5 Q But as of this date, no testi=Cny for Mr. Temple i e has been filed, is that correct?
7 A True. And, in fact, asking for the information a and putting it in the testimony are two different things at 9 this point.
10 I think both meetings reflect that.
11 Q Right. I don't want to get dcwnstream of myself 12 before we get there,
, 13 ,
Okay. I want to go back to page 8 now, and the
~
14 i discussion by Lee Nute of hcw the decision was made by the 15 Dow Area board, which does not appear here, and ask you if 16 you have any recollection of your cwn as to hew the decision 17 was made, or if you have cny kncwledge of your cwn as ta la hcw the decision was made?
19 A My knowledge only goes to review Cf scmeone's 20 statement as to hew it was made. I didn't pa_~.icipate in ;
21 it. That was done before got involved in the matter. !
- ; C Ckay. New, at page 3, the fourth paragraph,
- which ycu referred me te scmetire agc, Judd Bacen was asked
- 4 to leave the recm, and the reasen you gave before was -hey 25 didn't want to get into sensitive negetiating pcsiciens that cvce c-a -
.: re :1 =Rerc::::
1
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33 1
would prejudice Ccw in the ongoing discussions with Censumers 2 Power.
3 A Right. In fact, if I may refer you back te, I 4 think, the previous meeting on September 29, . . .
5 (Pause.)
6 Q Well, I accept that. I --
7 A Okay. I'm looking for a statement where Rex a came back and said, Lcok, Milt and I agree that some of 9 this stuff we're going to be asking you is sensitive to 10 ongoing negotiations, and we agree that when we get into j 11 that stuff that we'll ask Judd t.o leave.
12 Q Oh, I have no problem with that. As a matter
,, 13 of fact, there is a letter signed by Rex Renfrow someplace y e' 14 to that effect.
15 Now, after Judd Bacon leaves the room on page 8, 16 Milt outlines several items that he says -- or you attribute 17 to him as saying - result in Joe -- I assume tnat's Joe la Temple -
19 A Yes.
- o 0 -- having a credibility problem with Consumers I
- 1 Pcwer, I
- New, is it ycur understnnding that dese i
- s l, represent M' . :'s understanding of Jce Temple's prchlems, c:
- 4 are these general prcblems that Mil: perceives?
- s A I really -- all I'd have to be loing is ass =ing.
c~t:
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84 1
Q And the last item there is:
"A lot of what Myron Cherry states about 3
Consumers Power is raally true."
4 Now, were any specific examples given?
5 A I really don't believe so.
6 Was it your impression that at this point the Q
7 tension between Consumers' lawyers and Dew's lawyers had 8
increased?
9 MR. POTTER: I'm sorry, do you mean in .neetings 10 after this because of this event, or right at that point?
Il '
BY MR. OI2GTEAD:
1 O In this meeting, from this time on, to the end n 13 of the meeting were there greater tensions between Rosso, 14 x Renfrow and Nute and yourself? You weren't participating 15 much, but . . .
16 A No, and I think the reason there wasn't is 17 because Judd Bacon was asked to leave the rocm.
ts In other words, there were tensions develeping Q
18 before he left the roca? ,
i 20 A Every time Judd Bacon asked a question abcut i
21 that kind of inf:rmation -- and you'll see it en the i
20 record - he gets a response frcm Milt or Lee saying, hey, 23 what do you want to get into that stuff fer.
24 I And that's aheu: the cnly time during all these 25 meetings -- at least these twc early meetings -- where N I\
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~ - ,
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85 I
things got a little tight between Judd Bacon and either 2 311e er tee, 3
There's one reference in the notes to M2.lt saying, why do you want to get into this stnff? It i.sn't 5
important.
6 Q In other words, they suspected his =ouives?
7 A The inference was that Judd wanted it because 8 the information he was asking for might help him in future 9 negotiations with Dow, and Milt and Lee were aware of that.
10 And they said, hey, we're not going to give it to you, so 11 stop asking fc.- it. And that went back and forth several u times.
I 13 '
But I think in response to your question, I 14 don't think things changed much from what they were from s ,
15 ,
the beginning, in terms of feelings between Rex ar.d Dave 1;
and Milt and me.
17 Q I'd like to go to page 10 now, the last para-18 graph, and you may want to read some of this to refresh 19 your recollection. I'm interested in the lace paragraph l
20 en that page.
21 (Witness reviewing document.)
- I'm also going to ask you a cuestion on ene
- 2 l four-h paragraph on that page.
24 (Witness reviewing fccu=ent. )
25 A nkav.
~
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96 1 1
Q Let's take the fourth paragraph on page 10, where
/
2 it says what Rex Renfrew stated, and there's a dashad line, 3 " Consumers Power has a winner on the suspension 4 he:12ing - Cc.,asumers Power has a problem because the 5 Appeal Board may not realice that Dew does not have e until 1985 before they are forced to act on the 7
decision of whether to start on new plants or not."
a Did anyone at that meeting suggest that a 1985 9 date or a 1984 date, or some date short of 1985, be included to ' in the Temple testimony or otherwise supplied to the 11 proceeding?
12 ,
A I really don't recall.
n 13
.Q Now, in that last paragraph, on the question of 14 whether the ongoing negotiations on the Dow steam contract 15 were irrelevant, was that view generally held, in your 16 opinion, by everybody at that meeting'i 17 (pause.)
is Do you recall any argument as to the relevance 19 of the ongoing negotiatiens? Other than what we've discussed I,
20 previously, about how you went about crecarine for cross- !
- . examinaticn? l
- A I think everyone ac eed that it was irrelevant.
- 3 i That, together with the :4ichigan Divisicn review, i
- 4 0 I'n sure that everybcdy is going to be e.appy :
- s hear this, but :m ready to go to the '.1-1 totes,
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44.4 NCMTN CA P'TC t. SM EE? j '
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- l 87 1
MR. WEISBARD: I thought you were going to say, 2 to dinner.
3 (Laughter.) l 4 MR. PGTTER: You =can there's still an Optimist 5 in the recm?
6 (Laughter.)
7 BY MR. OLMSTEAD:
a Q Co you recall when you transcribed these notes, 9 the November 1, 1976 memo to files?
10 , A Do I recall when I actually sat dcwn and ti transcribed them?
12 Q Right. Was this normally - well, let's just is take all the notes that you prepared. Did you.normally do ex !
14 ,
that the next day, or was it a week later, or at your
~.
15 leisure, or was there any time press?
16 A There was a time press to transcribe tha first 17 notes, which I did, I think, immediately, is After we agreed as to what kind of notes I ahould 19 he - you kncv .. as to what role they would play in terms 20 of whether it was going to be an accurate summary rather i
21 than verbatim, I didn't feel any pressure to i==ediately
- sit devn and transcribe them.
- So I think I veuld sit dcwn anywhere frca a week I
- 4 tc three er fou cr five weeks after I teck these .:ctes.
- s Q New, was the meeting of Neveter 1, 1976 as
^
- 4. w a ,.m.
em ,
u
- ~ e m mm s u-m . , ~ m ~. 2. = - , b9 (2C2J 347-3700 S
88 1 long as the previous two meetings?
2 A I really don't recall. I really don't.
I 3 Let me :ake another statement, too. My sitting :
1 4 down -- I could sit dcwn today, three years after taki-(
5 these notes, and probably give you 99 percent of what I e put dcwn. That's the way I work with my notes. I don't 7 lose anything in terms of what they say.
a Q Was this your first transcription of those notes?
9 A Yes.
10 Q And you made no other transcriptions of those 11 note.s?
12 A No other.
13 0 Okay. -
14 Except for the fact th.t the meeting may not have x
15 lasted as long, I got the impression that your notes, as 16 the meetings were longer, got shorter. Like this is 8 17 pages long. Is there scme --
18 A They got shorter in terms of acY2al volume. Let 19 me see . . .
20 Q Co you feel t"at they're less accurate because 21 of that, or is it because the meetings are shcrter, or there
- was less pressure to have as detailed a record, er . ..
- A Nc, I think scoe of these meetings caly lasted
- . 19.e in the =crning. I'm :: ying :: remem er new. Scae et
- s the meetings went all day, and scme cf then didn't go all ND
&=. w t Apa:m.Da 2
- ,en umeu mm wasmuoreu. m.c me e bq -
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69 1 L day, okay? And the 11-1-76, that's where we kind of cut-2 and-pasted this testimony and stuff tcgether.
3 I think up to the point where we sat down and !
4 started putting this testimony together in question-and-5 answer form, it probably only lasted a cot.ple of hours at 6 the most.
7 So I think in relation to what yo' had in the 8 9-29 meeting, which lasted the better part of a day, and v-9' let's see . . . well, like on the meeting of 10-12, we met to frem 10:25 to 4:25, 11 That first meeting, it seems to me I recall that 12 thing lasted the better part of the day.
i f- . 13 So I think, to answer your question, the shorter 14 length doesn't really mean that I got less and less ccmplete.
15 Q Okay.
16 MR. dLMSTEAD: Off the record.
17 (Discussien off the record.)
18 MR. CLMSTEAD: Let's take a short break.
19 (Recess.) f i
7:10 p.m.:o MR. ODiS"'IAD : On the reccrd. !
21 3Y MR. O' J .S E : >
- Q I believe we were talking abcut ycur Nove:.ter 1,
- 1975 r.ene fer the files. '"here's a discussicn in here in
- 4 the first big paragraph, it's the fcurth paragraph in that
- s meco --
'N N 7 F / /
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- . . r mee. eam om
90 1
A on page l?
2 Q Yes. Where Rex asked Milt about the doc =ents 3 he. wanted to take back to Cnicago. Milt asked Rex if he 4 was talking about the sealed package of documents, and 5 Rex discussed the doc =ents he was going to let Cherry see, 6 Mr. Cherry.
7 Then in the next paragraph, Milt says he doesn't 8 ' care whether Mr. Cherry sees those doc =ents. He just 9 didn't want Consuners Power to see them.
to so I gather that we're talking aboat the same 11 dccuments that we were talking about when Judd Bacon left 12 the room in your October 15 memorandum; namely, those types I
13 of docunents that reflected the ongoing negotiation
.r 14 positions of the parties, is that correct?
~
15 A Wait a minute, we've got two sets of dccuments 16 here.
17 Q That's what I'm really trfing to ascertain, just 18 exactly what we're talking about, in terms of dec=ents.
- 19 ('ditness reviewing documents.)
I 20 A We're talking ahcut the dec=ents that were ;
I t
21 protected under that protective order that was sicned -- i i
- O Which, as : understand it, are essentially the 23 intervencrs exhibi: nunher 60. Are we talking about these 4 dec=ents ? These are the enes that were released..
- s A Ycu knew, I really cculdn't tell ycu. I didn't
, \ -
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add *e C R*H CAP 9?CL. STMEXT (
- A S HI N GTC N. 3.0 20001 IM2) 347 3700
}/
')
j
. I 91 1
hcve any hand in makirig up the dccuments. I didn't dra n 2 the protective order, and I would just be, I think, 3 guessing as to what documents you're talking about.
4 My next question was: Dic you know what was in Q
5 that package of dccuments, and I gcther your answer is a no?
7 A My answer is no.
8 Q Okay, Was *.here any concern that you perceived
~
9 on the part of Mr. Wessel about what Rex Renfrew was going 10 to do with the sealed package of documents?
11 A I couldn't answer that.
12 l Q Okay. In the last paragraph on he first page, 13 there's some discussion of the meeting notes, and Rex notes 14 that Consumers Pcwer doesn't have any meeting notes 15 sinilar to Dow. Then he talks about Mr. Youngdahl's actes.
16 Now, are the notes that we 're tal'<ing about 17 there not the notes that you had been keeping of the 18 meetings between the attorneys for Consumers and the 19 attorneys for Ocw?
t' A They're net.
I 21 Q What nctes a e they?
2 A I tM "ey'::' notes abcut engeing negotiations 23 and studf.
i
- 4 Q Okay.
- 5 A They quite pcssibly could include notes which cA::- 9 'n:( :Re:c:::: 1, Occ , :
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i 92 1 were of the meetings of September 21. That would be 2i speculating on that. I think they're probably notes of i
3 l ongoing negotiations, because . . .
4 Q At this time to the best of your knowledge 5 Consumers still didn't know of your memos to the f#1es, is a that correct?
7 , MR. PO*"ER: W.ich memos?
i I
8 r
MR. OL:S G D: The ones that we've been discuss-i 9 , ing here.
i
- 10 j
MR. POTTER: Durand's notes?
11 MR. OLMSTEAD: Yes.
12 THE WITNESS: I didn't tell them about them.
I 13 i BY MR. OLMSTEAD:
..-s l 14 Q Okay. On page 2, the third paragraph, Lee Nute t
i l
15 l asked Rex about the possibility of getting out of the 16 hearing.
t i
17 ! Is that reference to the continuing Dow position 18 ,
that they were not a party to the hearing?
19 A Yes.
20 Q At this time they still hadn't been ordered as I I
i 21 a party in the proceeding, had they? !
- A I think to answer that you'd have to go back and !
- 3 1 review the dccuments cf - the prcblem I have is when we 1
- .t got into --
t l
- 5 'l MR. OLMSTEAD: Cff the reccrd.
l 4
7 cA:: C=:='e=! =%c=:u. De=
d44 MCNN C A PfTC L. Stilt E E'""
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93 -
1 , (Discussion off the record.)
2 MR. OLMSTEAD: Back on the reco!.l.
3 BY MR. ORISTIAD:
4 Q Okay. On page 2, the third paragraph, Lee Nute 5 asks Re:c about the possibility of getting out of the hearing. This statement does not refer to getting out of 6l
~
7! the hearing as a party, is that correct?
a A You know, after our discussion on this thing, I retlly couldn't answer that. There's a possibility it 9
could mean that, and it could mean scmething else. It to ,
11 t could mean either getting out of the hearing as a party, 12 a or everfbody getting out of the hearing.
C' 13 i So my answer to your question is that I can't i
u./ 14 interpret that for you.
15 0 In other words, you don't know whether he's 16 talking about Dow, Dow and Consumers, or --
17 A I don't know.
18 Q Okay.
19 On page 3 -- and I gues ; you're going to have to 20 refer -- no, never ni=d.
- The first full paragraph there, where it sayr:
" Milt stated ..."
23 A Okay.
24 0 Was it your i. tression at this neering -- and.
25 refresh your memorf to the e:< ten: you need to - that Mr.-
N 3
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7 94 I'
~
1: Wessel preferred that Temple not be used to testify, at 2 j this point in the ongoing discussions?
3 I A Are you asking me if at the time, at this time, I
l 4~ in the preparation of Joe's Temple, that Milt was nder 5 the impression that he didn't want Joe to be the witness?
i sj Q Yes, that maybe he was beginning to think that I
7 it would be better to use semeene else? Was there any of I
si i that flavor in the meeting?
I 9l A Not from Milt. In fact . . . no, not frcm Milt.
I 10 Q Okay. Then let's take a sentence or two out 11 .of that paragraph and examine it a minute. .
12 About the middle of that paragraph he -- I i
13 l assume that's Milt - stated that he did want to make it l
c e~ .
14 : very clear that the testimony was Consumers Power's doing,
.- l l
" 1; I and not Dow's.
i Now, what do you think he meant by that?
is(
17 A That goes back to Milt's previous reference 18 about Consumers Power putting this stuff together, and is l Dow is just supplying information. The impression I get 20 . frem reading that sentence is just that, he wanted to 21 l make it very clear that Consuners Pcwer was putting testimeny
- together.
- 1 Q Ckay, but if we go back to the last pa agrap!
l
- 4 en page 2, and leading into that statement on page 3, Dew
- 5 had evidentiv redmaf ted the Temple tes- 2.cny and put i-a n n rlh r -
c r:: e.re
- t c Men e t: .t. Onc
_ ~cm mm mm .c '3 m m ~c x ~. :.c zooo,
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. 95 1
back in an affidavit form. Is that ccrrect:
2 A If you read the first part of that last para-3 graph en page 2, Dave Rosso stated that the nain problem 4
he had with Ccw's draft is that it lecks = ore like an 5
affidavit than testinony.
6 Q Okay. And Milt said this wasn't done inadvertent-
- ly, we did that deliberately, when you go to the next 8
paragraph?
9 A Yes, i
10 0 Then he states that he is concerned with what
" may happen on Joe's cross-examination.
12
, Now, why do you think he was concerned?
e '3 A 'I'd have to speculate.
" Well, isn't the next se '
s Q .ce there that he's 15 concerned that Consumers Power may come back at a later
'8 date and say Dew shot the thing down because it ccmes out
'7 en Temple's cross-examination what the Midland Division 18 position.was?
l9 A That could be part.of it.
20 And then it says, Dave Rosso stated that he Q
21 didn't really follow up with Milt. And then we go en in:c 22 l a f=ther discussicn.
3 A I think the next to the las: centence, "'lile .
2#
stated that Ccw is cencerned wich Censumers Pcwer cceing c
back saying Ccw shes the thing dcw.."
f' d:: S cic=l a pen a Dec >
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(som u7.27ec
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96 1
Q Ncw, let's take that paragraph the next step, 2
then.
3 "Rosso asked if it would ce better if the 4
testimony was put in question-and-answer form."
5 Then:
6 aMilt stated that this would at least shcw 7 that the testi=cny was being brought cut in response 8 to Consumers Power's questions."
9 I
. Now, was that -
to A "...not a product solely of Dew."
11 Q Right. And was that because he was afraid that 12 if it were in dire-t examination and not in question-and-13 answer format, he'd later be accused of breaching the -
14 centract with Consumers Pcwer to support their application?
A.,
15 . A That was c e of the concerns.
16 So that the use of the question-and-answer format Q
17 was to ecmpromise, if you will, the disagreement between 13 Rex Renfrew and Rosso and Milt Wessel en the other hand, 19 over how to go ahcut approaching the Midland Division 20 positien in the Temple testimony. Would that be ccrrect?
21 A No, I think it was nere of a -- well, that .ay !
22 be ene of the feelings ahcut it. 3r: it was =cre cf a 23 ccepremising the dile.. a tha '" ' " # und himself in, (1) l 24 having a legal cbligation centractually 00 supper: Censurers, 25 but not wanting tc cc= premise their pcsition in the engcing d ::. 9 de [ S eycn nt., Sn:. ,oC3 444 NCNTM OA P1TO l., STMEIT ,v-
- A S Mt NGTO N. 3.0. 2000t ,
(101) 147-3704 , j
- 3. v
97 F
- j, t
' negotiations. And that possibly was a cc= premise.
2 Q So that this discussion of misleading testi'ony 3 that we have --
A In the next paragraph?
5 0 - in the next paragraph, would really be a 6 concern with Milt that one could be misled into believing 7
, that row had not fully supported Consumers in their efforts 8 in the licensing proceeding, rather than a concern that the '
9 testimony itself was untru dful?
10 A I couldn't ag ee with that statement.
11 Q So you feel that the belief of the Dow lawyers 12 was that the testimony, in dct = 1, was misleading?
13 A Rather than make that statement and give peop.le
- c. ;
14 the impression that Dow attorneys felt Consumers Power's N
15 ,
draft language was misleading, I think it would probably be 16 better to go to the draft itself together with letters that 17 Mr. Nute had exchanged with Mr. Eacon, to get a better la flavor of what Mr. Nute's and Mr. Wessel's concelas were, 19 rather than =e trying to characterize it.
20 Q Yes, but we ha're gone through a nu=her of those i.
21 drafts up to this peint, ind --
1 I
22 A Well, the ene
- juan mentioned, the reascn :
22 bring that up is . Lit and I.ee were pa-ticularly cencerned i
~4 as to what the impressicn a persen would get reading 25 Consumers Power's draft, that particular draft, of Joe's c:4:1 3.:!c:c[ cRe: cst :.t. Occ 7.; 'j].
_ . _ . 4 ,,...,
- A $ k1 NGTC N. 3..:. 20001 p.
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l 1 testimony. And they wanted to keep away frem it being 2 regarded as misleading.
3 Now, as to why they felt it was misleading or 4 disingenuous, or whatever ter= you want to use, I really 5 don't recall.
e Q But at this point the testimony that we had 7 before us was not the testimony that was to be submitted a for Mr. Temple, is that correct At this point, we had 9 juat a few moments previously, agreed to a new format for to that testimony, so we didn't have the draft?
11 A No. I think in response to your one question 12 we hadr ' t arrived - well, here 's the problem. There were is so many drafts going through as to -- you know, if you got r
14 one draft, let's say it was the sixth draft, at the time Q.'
is that you received it people reviewing it, I don't think, is could make a decision as to whether or not that was going 17 to be the final draft. As it turns cut, they went through la a couple of drafts after this, at least.
. 19 Q Right. So --
- o A So it would be hard to say, well, is this the I
21 draft that's going to get to the Board? And, there:cre, i i
- it could be fcund to be misleading. I wculd think that
- it was pcssible that it would get to the Scard if it was
- 4 geing to be the last draft ths: everybcdy ccuir agree cn.
- s Q Ckay. Ncw, you just r:.;gered in my v.ind anc-her
, ,- r - p C"f = If;tC! O \ crc 7?M'. sh:
- u. Mcam areT 6 svnts?
W A S HINGTC N. 0.0 2000t 3 6(.) ^
99 ,
1 question that I'd like to ask of your own knowledge about:
2 In all this drafting process that's gone en in 3 '
these three meetings we've discussed up to now, Joe Temple 4 was at a couple of those meetings, but the draf ts that are 5 acing exchanged are essentially being changed frem lawyer 6 '
to lawyer, is that correct?
7 A Ycs. Are you asking who prepared them, or --
8 Q I'm asking you to tell me the degree to which 9 Joe Temple was being consulted as each draft was prepared, 10 or were these drafts being exchanged among lawyers with 11 the idea that wht.n you got some sort of agreement you would 12 give it to Mr. Temple and see what his reaction was?
13 i
A I only recall one situation in regards to drafts 14 of Joe Temple's input in it. I got the impression that --
u 15 '
I don't recall now whether it was Milt or Lee, because 16 they both drafted their own, as such -- I got the impression 17 that at least one of them, and possibly both of them, had la put the information together in a format, t: :en it in to
- 19 Joe Temple, and went over it with him. And I don't knew l
20 if Joe agreed with it or not.
21 Q Gnder Cow's policy would there have been any i
- dccumentation of cencurence? I mean ander ycur ncrmal 23 practices in the office, in dealing with clients would l
24 there be any carton copy with initials en it, er an r.hing
- 5 that would indicate that he had read the testimony?
s=. c=aca s,ww. .s ,g ~I a b 4.44 4 C atW OA PYTC L. ST8t E ET W A S etlN GTC N. 3.4 10001 12C2J 347.J700 = * " ^
4 or
100 1 A I don't really know. If there is, I'm not 2 aware of a procedure. I de knew there's some statement in a scme of these in the record here which :"ys that one, 4 either Milt or Lee, said, look, I've been to Joe on these 5 things as many times as I can, because h2's said all he's e going to en the subject, or something in that regard, which 7 leaves 01.a with the impression that he was involved iA the s drafting of the testimony.
s And I think to understand that -- I guess I to can't 4-agine Joe Temple not getting involved.
11 Q Okay. Let's go to page 6, paragraph 3.
12 We've discussed this testimony new for seme time 13 following the discussion of whether the testimony was
- 7. ,
14 misleading or accurate. As I read your notes, a lot of x
15 changes were made in the drafts that they were working en is at that time.
17 The third paragraph says:
is "Re:c then preceeded to suggest several changes is and =cdificatiens or additiens. He said that in the 23 first paragraph he would like to add the follcw 2.g ;
I stateme.:nt - 'This testi.cny was prepared under my !
- supervision and direction and is true and accu are 3 - to tne besu of my .ccwledge.'"
l.
-d
- 4 Ncw, ac thar e did anybcdy from Ocw, namely
- s yourself, Mr. Nure er Mr. Wessel, ebject to the inclusion d::_?c 'e::I
<cm a,,4=Rerc:::::,
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'01 l'
1 of that statemenu in the testimony?
2 A I didn't object, and I don't recall that anyone 3 did. If I may review that. paragraph for a second . . .
4 Sure.
Q 5 (Witness reviewing docu=ent. )
6 A My notes do not reflect that anycne on the Ccw 7 side objected to it. .
8 Q So is it a fair conclusien, then, that once the 9 ccmpromise -- which is what we agreed to call it - was 10 reached, to put the testimony into question-and-answer 11 format, that there was no longer any objections on the 1
12 i part of anyone as to whether the testimony wa.3 a true and 13 accurate disclosure of information relating to the ccw'
,' 14 '
position?
15 . A Let me rephrase that so that I can try to i
16 understand what you asked.
17 Are you Saying that after we agreed on a 18 comprcmise positicn then everycne involva.d in that 19 preceeding was satisfied that what the end prcduct was ,
I i
i 20 going to be was accurate? i 21 Is that what you're saying? ,
- 0 Well, I'll accept that, for pur cses of an l
i 23 l answer.
- 4 A I think the pecple invcived in draftine -hat
- S testimeny at that pein in tire felt ciat the inic_ aticn a
1 F 1 c~:: .rean:I cx^erce:ci Dr:a .
Q\
4 44 MCRTM OA pr?O L STM C ./ w W A S HI N G*O N. O.C 20001 8202J 347 3700 B
3 102 I
that they were going to present in Joe Temple's testimony 2 was true and accurate, and included what they felt was 3
all the relevant informatien.
4 So that when we get down to the bottc=
Q Okay.
5 of that page, page 6, "here Milt states that the Ccw 6 board got the impression that Censumers Power wanted Ccw 7 to produce a witness that didn't know what had gone on, 8 and Dave Rosso ststed a couple of sentences later he i 9i didn't feel he was asking Lcw to make a subctantave change, .
10 it's fair to conclude then that the matter had been 11 resolved?
12 , A The matter being that . . .?
i 13 Q The witness war 'oing to be Jce Tc=ple.
F t
i, i t 14 '
A Yes, a
15 '
Q And everybody agreed that the witness was going 16 to be Joe Temple?
17 A yes,,
la Q And that the testi=cny that had been prepared
- 19 for Jce Temple's signature was true and accurate?
20 A True and accurate, and included, they felt, 21 what was all the relevant information, yes.
i f
- Q All of the relevant information? That went fer
- 3 Ccw's atterneys as well as fc: Censumers at c neys at tha:
24 ti=e?'
- S 1 Yes. And the reasen I keep chrewing . hat last 4 -- t e a C**C2' 2dt*c! .n K C C"!C'.1 sec a 44.4 NCR*H CA P'TO R. STMEI* g W A S HI N G?C N. 3.0 20001 $
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1 103 1 couple of words on there is the fact th..: I think at that 2 poir.t in time both sides agreed tha* the Michigan Divisien 3 review was not relevant nor important.
4 Q Okay.
5 Going back to that sentence en page 6, bottem of a page 6, where Milt said that the Cow board had gotten the 7 i impression that Consumers Power wanted Cow to produce a a witness that didn't knew what had gene on, do you have any 9 independent knowledge of hcw they got that impressien?
10 A I wasn't present at the meeting where they got 11 the impression. I've raad documents. Specifically, I think 12 Lee's notes may have -- I don't have any independent 13 knowledge.
T /
14 i MR. CHARMOFF: You say Lee's notes of that v
15 meeting? What neeting? -
16 THE WITNESS: I think it's . . .what, September 17 21.
18 MR. CHA.*UiOFF : Okay. You're referring to the
. 19 meeting with Consumers ?cwer Ccmpany in September?
a BY MR. CLMSTEAD:
l 21 Q But you weren't at that T.eeting. l
- A No, I wasn't at that neeting. I cculd be
- 2 mistaken en the date.
24 ; G. . CHA35CFF: But that'? not a Ocw hear". =eeti.g.
25 that you were referring tc.
n .:<-~wr .p=c:m.17x a * ~
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W A S MINGTC N. OC 20001 "1
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d202J 347 270o I
104 1 THE WITNESS: No. No. I'm talking about --
2 you'te right, it would be confusing if I left it as such.
3 The impression that Cow got that Consumers Power wanted 4 them to produce a witness who didn't kncv anything allegedly 5 happened at a meeting September 21.
6 BY MR. ODISTEAD:
7 Q That was communicated back to the board?
8 A And the board, I don't know when they got the 9 information. I really don't.
to Q But it's your belief that the board got the 11 infernation by having the information relayed to them fren 12 a participant at the 21st meeting, September 21 meeting?
13 , A It's possible, because there were. notes made of 7 ,
14 that.
s_.
s 15 .
O Okay.
16 In the middle of page 4 it says that:
17 " Lee Nute pointed out that Dcw management saw 18 two general areas of significant misrecresentation l
i 19 from Consumers that Cow was concerned about. " !,
- o One dealt with the prospectus and the second with evidently 21 some statements by Consumers Pcwer since the 1974 amend-
- ments were agreed to. And then tex said that he knew abcut l
- 3 those issues and Lee Nute -- and that he put information in 24 the draft so that Cherry couldn' t say tha Jce Temple hac 25 misled him. And then Nute Observed that this was the way b
1"3 s
e a:.rees .=%-tm. One e
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W A S MIM4 ?C M. UL 1tMC1 (202J SdN 7CC
' 105 1
that Jce Temple wants it stated.
2 Co you knoir what those two misrepresentations 3 are that were being referred to there?
4 A I guess you could read it that the two representa--
5 tions are the two items previously worded.
6 Q Ri ght , but it says Rex knew what these issues 7 were.
8 A Knew about these issues.
9 Q And the issue was that " things", but things are 10 not defined in the note, and the other is a sa.rieus misrep-11 resentation since the 1974 amendments were agreed to, but 12 it doesn't specify what it is.
13 , What I'm asking is: Do you know what those two 14 items are?
v 15 A No, I don't. I can't at this point recall.
is O You don't think they were identified in this 17 meeting, other than Lee Nute making that statement and Rex 18 saying, yes, I know atout that, wharever that was, and
- 19 moving on?
- c A I rather doubt that they were identified. That's ,
- - part of the pr blem of these neetings, that sc=e of the
- way things got stated were inccmplete, and references to I
- thi.gs that everybcdy assumed they knew abcut.
- 4 So it wouldn't be uncc= mon to ha,e that sort of
- s a statement sitting there and not fully defined, because c4:: 9ede :I =R:rcn:u Sc. -
m ,e., wireu mm ,
q) wAswimoren, s.c. toooi ,y acas 2 7 svoo jy-
106 i 1 the people who were talking about it knew what they were 2 talking about, but --
t 3 Q But I assume, subject tr your correction, 2.a t 4 the final sentence of the next paragraph, where Lee Nute 5 ebserved this is the way Jce Temple wants it stated, s indicates that Dew personnel felt Lnat whatever these two 7 things were, they were sufficiently ccvered in the Temple a testimony so as not to raise a misrepresentation before the 9 , board.
10 MR. CHAR:ICFF: Could I have that queestion read 11 back, if it was a question?
12 MR. OLMSTEAD: Let me restate i_
. 1a i MR. CHARiOFF: If it wasn't a question, I don't 14 want it read back, m
15 MR. OLMSTEAD: It was a question, but I put in 16 too nany qualifiers I think.
17 BY MR. OLMSTEAD:
18 Q Cn page 7 there are two references to things 19 that nay have been misrepresented by Ccnstmers Pcwer. Rex
- o Renfrew states he kncws what those are. You have stated
- 3 you don't knew specifically what these are, and you den't
- think they were specifically indicated at the nee:in~.
22 A Right.
p Q Inen, at the end of that sentence is that *ee 25 Nute cbserved ""'* "**4s" -- rederring back to ;erhaps Rex's s .- , -
p 3
-(
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'2C2) 347-J 70c
107 1 , reference to the way the Te=ple testimony was drafted is 2 the way Joe Temple wants it ststed.
3 Now, my question to you is:
4 Am I to take that sentence as indicating general 5 agreement on the part of Dow cou.sel present at that 6 meeting that whatever those two things were, the Temple 7 testi=cny was drafted in such a way that the board would 8 not have the testimony misrepresented to them -
i 9 MR. CHARNOET : The Licensing Board.
10 ,
MR. OLMSTEAD: The Licensing Board -- on those 11 , issues which Dow felt had been misrepresented by Censumers.
12 THE WITNESS: I really couldn't answer that 4
13 ; question, because I don't have the . . . I just don't know.
14 I really don't. I cculdn't get that out of reading this I s- ,
15 and rcfreshing my memory, either. It's just not that 16 ccmplete there.
17 ,
MR. REYNOLDS : Can we go off the record just for 18 a minute?
~
19 (Discussion off the record.)
i 20 MR. OLMS"'EAD: Back on the record. I i
i I
- C Cn pages 7 and 3, the last two '.ines en page 7
- and ever to page 3, the tcp cf page 5, it says that .en
- . would like to have the state =ent in he testi eny that Ocw
- s would centinue to review it and keep a'1 its Options Ope:..
I, i
m a m 9
ctce .7:de".;:1 CKeyc:*t:L h:c f - i q_
444 N C NT54 O m ?O:. ST= cry n
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W AS NI N GTO N. 3.0. 20001
_ f.ast 14 %i*s' irs
108 1 And Stilt cautioned that this statement brought out the 2 tenuocsness between Ccw and Consumers.
3 Subseq': 7tly in the proceeding that became a 4 very stock reply of Milt Wessel, that Ccw was keeping its 5 options open.
6 Why was Milt cbjecting to including it in the 7 testimony here, if you know?
8 A I wouldn't know, other than what I can read:
9 " Milt cautioned that this statement brought 10 out the tenuousness between Cow and Consumers Power."
11 I really couldn't give you an interpretation 12 frca my knowledge of what he meant, other than what it says.
13 0 Okay.
,./
14 Following the meetings of November 1, 1976 15 , and/or the meetings of November 8, 1976, did you participate 16 in any meetings, discussions, conferences or otherwise 17 precare n2terials concerning the Ccnsumers-Cr.w matter, la other than those reetings?
19 A I may have had jusu discussiens with Lee and I
20 Mil en all of these ite=s during that interim peried, but ;
i 21 I don't specifically recall any.
- C Did you have any phene conversations with cther
- parties to the proceedi.g dur:.ng that peri:d?
24 A As : menticc.ed earlier, that phene conversa icn 25 : :ad with My cr. Cherry. I'm net sure what the date was.
j) m e a
(
e
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109 1 Q Okay. Other than that?
2 A I really don't think so.
3 Q Did you have any meetings with Mr. Temple?
4 A Individually?
5 Q Right, or wich Mr. Nute present, or . . .
6 A I really don't recall.
7 Q After you transcribed your notes of these meetings a that we ha're discussed so far, that were typed up, did you s have cecasion to ccmpare your version with Mr. Nute's 10 version or with anybody else's version of the same meeting?
ti A No.
12 j Q During any of these meetings when cross-examina-13 . tien v..eparation was being discussed with Joe Temple and r.
14 during those periods of time I assume that Judd Bacon was 15 not there, did Dave Rosso or Rex Renfrow suggest that Joe te Temple not express his own personal view, to the best of 17 your recollection?
18 MR. POTTER: I'm scrry. What was the full
. ig questicn?
4 0 BY MR. O MSTIAD: ,
,3 O The short full questien is: Did Rex Renfrew cr Dave Rosso ever suggest that Mr. Temple not exrress '.is -
j
~._- cwn eerscnal view?
25 M3. OGSTIAD. At any of these meetines, s - r c~r:: .7erc:( c.8epc :ci, a,7:c r
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110 1
THE WITNESS: You mean from 9-26 on?
2 BY " ~~MSTEAD:
3 Q Right, during the cross-examinatien preparation.
4 MR. CHARNOFF: You said 9-26. Did you mean 9-29?
5 THE WITNESS:- Yes, 9-29. I think I remember at 6 least one instance where Joe Temple was asked not to state 7 his personal viewpoint, because they didn't feel it was 8 important.
9 I guess I could find it. I don't racall right to new who said it or when. In fact, I hink if you go back 11 to that cne meeting we talked about, where . . .
12 BY MR. OIliSTEAC :
l
. 13 0 I think that you may be correct. Maybe we should
- c. ;
1 14 find it. I'm not sure that was during the cross-examinacien
- l 15 preparation, but I think that was talking about the relevance is of hi_ perscnal views, 17 A Let me just quickly look through, then.
18 (Witness ruv. _ .; document.)
1 l
19 MR. PC'"TE R : i Takealcokatpage3ofyourminutesl 20 of 11- e-7G , and see if that's what you ' re talking about.
21 THE WI~TISS : Where it starts out, "Oave Rosso !
- 2 asked Jce..."
n MR. FCTIR: Yes.
24 MR. CDiSTEAO: '!hich d is 22:7
- 5 MR. FC'"5R : 11-3. Jr.d please understand, I'-
e CZ* 5 $ d Ms*G, a CC , , [* $
444 MCR1H CA JB fTC L, STMt1T W A S HIN GTO N. O.C. 20001 I242) 347470C s
111 I not trying to suggest that that is the answer, I'm just 2 trying to -
3 ' n E WIriESS: No, this is something -- if you get 4 back into that paragraph on page 3 of 11-8-76 notes, " Dave 5 Rosso asked Joe how much of a sense did Joe have of a e' decision that Dew may eventually decida not to take nuclear 7 steam power from Consumers Power. Joe reiterated hi.i a personal view on the natter. Milt stated that this was a perfect answer for Jce, because he was lcoking at this from 9
10 ' a personal viewpcint. Rosso stated that frem a Consumers 11 -
Power point of view, it would be better to hrra the Dow i
12 corporate position."
13 i MR. CHARNOFF: You m,ight want to keep reading to e
14 : the bottom of that.
15 THE WIEIESS: "He said that this was because Joe 16 feels so strongly about Consumers Pcwer being here at all.
17 , Dave Rosso pointed out that he thought Jce felt; that Dew 18 did not have proper control ever all of this. Dave Rosso 19 Stated that it was not going to be goed for Consumers Power
- c to have Joe stress the negative en this matter and stated !
i 21 that Jce should stress the Dew corporate review position."
- MR. CHAF2;CFF : Keep going to the next paragraph.
22 '"HE WIC!ESS : I can j =p Over dcwn to the nert 24 to the last sentence in the next paragraph:
- s Dave Rosso stated that Jce may want to state c5::- % :~.:l c5::cce 1, Or:c ;
44.4 N C RN CA P'TO L. ST* EFT W A SHINGM M. 34 20001 ,
"T
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ucas 247-a m ; i..
_I d
! 112 1 what the Dow corporate position is, and then state what his 2 personal concerns are. Joe stated that he didn't have a 3 problem with that approach."
4! I think in answering your question, I don't know 5 if Jon. was ever told by anyone that they only wanted his --
e they didn't want his personal view, but, rather, that they
. 7 wanted the Dow corporate review position. I think that's 8 whr.t I'm saying.
9 '
MR. POTTER: Ta'<e a look at your notes , the 10 , shortest one in the batch, the 11 7 6. Just icok it over 11 and see if you can answer his question based on those two.
12 . (The witness reviewing documents.)
1 13 ;
THE WIT:7ESS: On page 2 of the 11-15-76 notes,
,e -
14 third paragraph, 15 " Rex told Jce that he, Joe, should refrain i
16 from referring to the fact that there were two 17 separate :.eviews , Michigan Division and Dew cc:.porate. "
18 There again, they approach it from this position 19 of we think the proper respense for Joe would be to tell
- o them what the Dew heard's final decision was, whic~ is to i
21 say the Michigan Division's review decisi a wasn't ;
- important.
- 2 3? M2. C:.MSTEAD :
24 Q Was not ir.pertant? Cr was not relevant?
25 A Was not relevant. i c 4rce O.ie:ml'
- .[,t::ct:::1, $cc ede 4 C 8e TM CA P'T L. STitEE*
- i W Af MIP44370 N, C.G. 2000%
113 1
Q The reason I'm asking that is you told ne earlier
^
2 l that that was the position that Milt Wessel --
3 MR. CHARMOFF: I think he used both terms. He 4
said before that a concept cf the Michigan position was 5
neither relevant nor important, were the words I heard him 6 say earlier.
7 In any event, they mean the
- THE WITNESS: Yes.
8 The fact is, they didn't same thing, the way I use them.
9 l
feel that leaving the Michigan Division review position out 10 was prasenting less than -- you know, full information on" the situation.
1 12 ! MR. CHARNOFF: Could I have that answer read back, rm 13! please, that last sentence or two?
s 14
_ l (Whereupon, the Reporter read from the record, 15 as requested.)
13 MR. CHARNOFF: They didn't feel, is that what i
17 you said? They didn't feel?
18 '
THE WITNESS: Yes.
19 BY MR. OLMSTEAD:
1 20 3 Q All right. November 15, 1976, en page 2. This 21 is a menorandum to file, where I assume that the crcss-examin--
- 2 ation preparation was centinuing with Jce Temp.' ;t
- 3 _ a. .., e.
24 A Yes.
i 3 C Cown at the bottcm cf the page there is reference c4: 9: 'c::( cRercite: . Scc q) ['
m ~ cam wra sv=re
)gCu3 caminaron.=.. zoooi i (2o2J 347-470o
114 1
to a disc.1,sion followed concerning coal pricing assumptions, 2 and a discussion of the status of that position.
3 A Yes.
4 .
Q Was this disagreement that occurrec between 5 Consumers and Cow on coal costs at this meeting heated?
6 A No. I think it's a natter, as I pointed out --
7 Q Was it your impression that --
8 MR. CHARNOFF: Excuse me. Were you finished with
- 9. your answer?
10 THE WIINESS: No, I was going to say tha; ure 11 was a difference of opinion as to ahere they got the 12 price information from, and I think it was merely that.
13 At one point . . . I guess I confused the record, because 14 I'm trying to remember that about coal pricing, but there is were also discussions about estimates from -- no, wait a 16 minute. They were talking about high-sulfur and low-sulfur 17 coal. The concern was that pocsibly Consumers' pricing 18 was done on low-sulfur coal and Dow's was done on high-sulfur 19 coal, and the difference of cost assumptions and pricing 20 assumptions might have stenmed from those differences.
21 BY MR. CLMS D.D: !
i
- Q Okay. You started to say that dere was a
- 3 disagreement on sene other type cf cost estimates. Nhac
- 4 was that?
- s A I was : ying to rememb2: if there was a disagreement C"t:
1 cs *-CCC 1 (1 C' CCT.51, s'cC.
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115 1 on cost estimates as they went to -- it had something to 2 do with the Black & Veatch study, but I just don't recall a what it is now. I never fully understood that part of it.
4 I mean I didn't work with it enough to fully understand.
1 5 Q But you do recall a disagreement --
6 A Yes. It's in my notes. That's why I was concerned -- confused, as such.
a, G To your knowledge, was there a belief on the part 9 of either Mr. Temple. M.T . Nute, Mr. Wessel or yourself, i
la that Conaumers Power was deliberately inflating coal costs 11 in their environmental report, or in their analysis of the 12 alternatives to the nuclear steam project?
13 A I remember I don't feel that thev- had the feeling 14 that Consumers was deliberately trying to inflate coal costs.
15 My notes don't reflect that, I don't believe. Let me tu.:e le a look --
i; ,
Q You're not aware of any discussion within Dow ta internally as to coal' costs, and discrepancies between Ccw's
~
is estimates and Consumers' estimates?
l
. 20 A. I'm not aware of any. I wasn't a party on that. j l
21 Q If we go back just for a =ccent to your 11-3 l
- notes --
23 MR. FCTTER: Cff the raccrf.
- 4 (Discussi0n off the record.)
25 MR. FCTTIR: Eack en the reccrd.
~~
c at: - Je:rcm p Re:cc: 1, Occ ,, L.
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J 444 MCRW OA PtTC E. STMCET M A S HINGTO N. O.C. 20001
))3 (202) 34 7-J 700
2 Q This in your 11-8-76 notes, page 4.
3 A If I may go back to the previc.s cuestien, just 4 '
to clarify the record, on page 2 of the 11-8 notes, there's 5 a discussion on that page -- I think '.t's the second and 6 third paragraphs -- about a disagreerenu about coal costs, 7 and it had to do with inf:.'. tion and a few ether things. .
8 But in reading back through these things I don't 9 i get the impression and I don't recall that . . .
to 0 Well, they seemed to scothe over their disagree-11 ment by using the reference that you gave to me in response
- 2 , to my question, that one was using high-sulfur cnd the 13 l other was usi.,g low-sulfur. But I was just trying to get 14 a feel from your own mind for whether the Dew people who
~
15 ,
were involved found that explanatica credible, or if they 16 felt that it was 7. deliberate cscalation of coal cost!..
17 l A Yes. I wasn't a party to that, so . . .
18 Q Okay.
19 A If it in fact happened, I don't really knew.
- c Q If we can go to page 4 of those 11-8 notes,
- 3 at the tcp of that page you report tnat Dave ?.osso thought ,
i
- that Jce was a lcusy witness in terms of Censumers ?cwer's 3 pcsition in the case.
3 Ncw, had this Opinien been enpressed cn :tny
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your knowledge?
2 A I just don't . . . I don't recall anybcdy telling 3i me that, either during a necting or at recess, other than 4
what I reported there.
5 0 All right.
6 If I take the word out, " lousy" and go back to Mr. Wessel's concern that the testimony presented by Ccw 8
Chemical, presented in a direct fashion rather than in a
- 9. question-and-answer fashion, might. tend te look like, in 10 a separate proceeding where there was litigation between ll Consumers and Low over the contract breach, it might tend 12 to look as though Cow didn't support Consumers, do you
'3
, ,n suppose that that same concern that Mr. Wessel had might 14 he the concern that Mr. Ro"to also expressed?
IS MR. POTTER: Again, I have to cbject. You're
'8 asking him now to try to pick the minds of twc people and --
" MR. OLMSTEAD: I am, I'm asking him to give me 18 a feel of the general attitude of the parties at the
~
19 meeting.
20 MR. PCTTER: Well, the cbjection is en the rece:d.I i
I Go ahead, Mr. Our ad.
22 I i
"R. CLMSTIAO:
. Well, I doubt if I'm going := ask 22 it at the hearing, but I wculd like te knew what the 24 gene:21 attitude was of the pa-ties at that neeting.
25 MR. CEA?lICFF : I'm net su e I even c.nderstecd 1 F / /
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- the question. Did you say Rosso was concerned whether --
2
,i MR. OD1 STEAD: I'm asking if the concern that 3 '
Rosso is expressing here in Mr. Durand's opinien is similar 4 that Mr. Wessel had about Temple as a witness, to the con- "
5 because of Mr. Nessel's concern under the Dow-Consumers 6 contract that Dow had to support Consumers, if it's the 7 same type of concern; namely, what Dow found objectionable 8 in Mr. Temple as a witness, Consume s aise was finding 9 objectionable.
10 THE WITNESS: Again, I den't have an opinion ca 11 ' that, because just reading through there wouldn't support i
12 ! it. I'd have to speculate.
^
13 . 3Y MR. OLMSTEAD:
14 Q Okay. Back to the meme of November 15, I notice i
15 that your name was not at the top of this memo as it was in 16 l all the other memos. Is there any reason fe:
- that?
l 17 A I think it was just inadvertently left ;ff. In la fact, I can refer to m'I original . . .
19 Q Excuse me, those documents you're referring to I i
l 20 are the or.iginals of this?
l l
21 A Yes. No . . . wait a ainute. It's off cf that, ;
- tco. It must have been a type. I guess I ceulf ge back 2'i ec my rcugh, my criginal 1cnghand.
- 4 C You don't happen to have che Sepcember I9 :.cnger 25 versicn in there, do you?
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A No. No, I don't. I sure don't.
2 '
,- Q You can't blame a fellow for asking.
3 (Laughter.)
4 A As I said, I'll go back and lock. I didn't 5
throw anything away, so I'm assuming it's there.
6 Okay. Were these notes en November 15 your Q
7 first transcriptien, or are there other versions.
8 First transcription.
7 9 '
Q You haven't made any other?
10 l A No. 3 I
11 Q Okay. When did you transcribe these?
12 A I really don't recall.
^ '3 Q And was Consumers Power ever given the opportun-14 ity to review these notes for accuracy, to your-knowledge?
15 A I didn't give them to them, no.
IS Page 2, last paragraph, of the 11-15, there's Q
17 a re"erence to somebcdy named Echols there. Cces that 18 persen have any relationship to the Midland proceeding, to 19 your kncwledge?
, 20 A No. !
1 1
21 MR. CLMSTEAD: Cff the record. '
22 (Discussien Off the record.)
23 MR. CIliSTIAD : 3ack On the reccrd.
24 I have ac further cuesticns Of this witness.
e MR. 3 FliCF7: I just have abcut three hours
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, 1 I I think we ,ught to go cight ahead.
l' worth.
6 2 (Laughter.)
?
3 MR. POTTER: Why don't we start around 7:00 in the =crning, because I've got about -- I may have about an 5
hour.
6 MR. OIE. STEAD : I intend to just observe.
7 MR. CHAPliOFF: Let's comprcmise and make it 8 7:30.
9 i MR. OLMSTEAD: Fine.
10 That's it, until 7:30 temorrow morning.
11 (Whereupon, at 8:10 p.m., the taking of the 12 deposition was recessed, to be continued at 7:30 a.m.,
c 13 { Tuesday, 15 May 1979.)
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