6812 Order Re Motion to Compel by po2933


									                                         STATE OF VERMONT
                                        PUBLIC SERVICE BOARD

Docket No. 6812

Petition of Entergy Nuclear Vermont Yankee,                )
LLC and Entergy Nuclear Operations, Inc., for a            )
certificate of public good to modify certain               )
generation facilities at the Vermont Yankee                )
Nuclear Power Station in order to increase the             )
Station's generation output                                )

                                                               Order entered: 9/2/2003

                                 ORDER RE: MOTION TO COMPEL

                                              I. INTRODUCTION
        This Order addresses a Motion to Compel filed by the New England Coalition ("NEC").1
In its Motion, NEC seeks an Order by the Vermont Public Service Board ("Board") directing
Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (collectively,
"Entergy") to answer certain of NEC's first set of discovery requests.2 As explained below, I
grant, in part, some of the requests in NEC's Motion, and order Entergy to file responses to
NEC's questions by Monday, September 8, 2003.

                                               II. BACKGROUND
        On June 3, 2003, NEC sought to compel discovery from Entergy, and by Order of
June 13, 2003, the Board granted NEC's motion in large part, although with some limitations.
On July 10, 2003, the Board directed NEC to file a statement with the Board as to any material
that Entergy failed to provide in compliance with the Board's July 10, 2003, Order. NEC filed its

   1. NEC's filing is entitled "New England Co alition's Statement Regarding the Failure of Entergy Nuclear Vermo nt
Yankee LLC and Entergy Nuclear Operations to Comply with the Vermont Public Service Board Order of June 13,
200 3" ("N EC Motion").
   2. NEC made this filing pursuant to the Board's Order of 7/10/03 which stated that, where NEC concludes that
Entergy has failed to comply with the Board's Order of 7/10/03, NEC should file a "statement" to that effect. Order
of 7/10/03 at 5.
Docket No. 6812                                                                                              Page 2

statement on July 30, 2003, and Entergy responded on August 8, 2003.3 The Board assigned me
as Discovery Officer and I convened a telephonic discovery conference on August 29, 2003.4
This memo briefly sets out the discussion during the conference and conclusions I reach with
regard to the arguments raised by NEC's Motion.
         Below I consider the specific issue raised by NEC and objections that Entergy raises in

                                               III. DISCUSSION
a. NEC Questions 2 and 3
         NEC contends that although, in its First Set of Information Requests, NEC asked for "all
documents" with regard to Questions 2 and 3, more specifically, in Question 2, it asked for "all
meeting minutes, reports, work orders, quality control documents, inspection reports, checklists,
correspondence, notes, and memoranda" and in Question 3, "all meeting minutes, reports, work
orders, quality control documents, inspection reports, checklists, correspondence, notes and
memoranda." NEC contends that Entergy has provided no handwritten materials, no notes, no
memoranda, no comments that are handwritten, and Entergy has provided no meeting minutes of
any kind.
         Entergy responded that to the best of its knowledge, no responsive, non-privileged
documents exist that are handwritten. Energy maintains that the uprate staff consists of
engineers, who do the bulk of their work on computers, and would not likely have handwritten
         However, Entergy acknowledged that there may be documents that were provided to NEC
in electronic version that could exist in hard-copy and have notes written upon them.

  3. Entergy Nuclear Vermont Yankee LL C and Entergy Nuclear O perations , Inc.'s Response to New England
Coaltion's Statement Regarding Alleged Discovery Failures ("Entergy Response"), dated August 8, 2003.

  4. Participating in the discovery conference were Sarah H ofmann, Esq., for the Vermont Departm ent of P ublic
Service, Victoria J. Brown, Esq. and Gary L. Franklin, Esq., for Entergy, Raymond Sha dis for NEC, David L. D een,
Connecticut River Watershed Co uncil, and James Matteau, Executive Director, Windham Regional Planning
Comm ission.
Docket No. 6812                                                                                                       Page 3

         Ruling: Where Entergy finds any of the documents described immediately above, it shall
provide copies of each to NEC. In the case of any of these documents being privileged, Entergy
shall clearly identify each document and explain why each is to be considered privileged.

b. NEC Question 2(b)
         NEC states that under Question 2(b), it requested the documents of "Boards of Directors,
Nuclear Oversight Committees and other such entities responsible for informing, advising, or
governing the activities of Entergy with respect to the uprate." NEC maintains that Entergy has
provided no such documents and that Entergy has not identified "such other entities," nor
objected to producing the requested documents.
         Entergy indicates that it has three documents in this category: an Investment Proposal,
dated June 24, 2002; an undated Improvement Transaction Approval document; and notes of a
meeting of Entergy Nuclear Vermont Yankee Board of Directors (during which they approved
the uprate proposal). Entergy objects to the disclosure of these documents to NEC. Entergy
maintains that they are not relevant, due primarily to the Public Service Board's determination
that cost to Entergy is not of concern to the Board.5 Entergy also indicates that it has
reservations about disclosing commercially sensitive materials to NEC given the fact that,
according to Entergy "NEC's former attorney breached the protective agreement he signed in
Docket No. 6545 and supplied confidential information from an Entergy Board document to the
press."6 Finally, Entergy has indicated that parts of the meeting minutes are privileged due to
their containing analysis by counsel regarding a strategy for obtaining regulatory approvals.
         I indicated to Entergy that, as Discovery Officer, I would be willing to review the
document and any redactions made by Entergy. In the alternative I indicated that Mr. Shadis
could merely sign the protective agreement in force in this Docket, and that he could have access
to these materials. Entergy responded that it would object to any disclosure.
         Ruling: With regard to the notes and minutes of the meeting of Entergy's Board of
Directors, if Entergy believes that any elements are confidential, Entergy shall provide the Board
with a proposed redacted version of this document by end of business Tuesday, September 2,

  5. "W e are b asically no t interested in what it co sts Entergy. W e are interested in what it wo uld co st Vermonters."
Tr. 6/16/03 at 58 (Cha irman Dworkin).
  6. Entergy Response at 12.
Docket No. 6812                                                                                               Page 4

2003. Upon my review and conclusion that Entergy has demonstrated that parts of the document
ought to be considered privileged, Entergy may redact only those portions. The redacted
document will then be made available to Mr. Shadis only if he chooses to sign, and thus abide by,
the protective agreement.
         I reach the same conclusion with regard to the other two documents, the Investment
Proposal, and Improvement Transaction Approval document, which Entergy maintains are
confidential. If Mr. Shadis signs the protective agreement, Entergy shall provide him with a copy
of these documents.
         It should be noted that, in any consideration of who may have access to documents in a
Board proceeding, the starting point is a presumption of public access. Only with a Board-
approved protective agreement and a demonstration by the proponent as to commercial
sensitivity of a document, is this presumption overridden. Thus, in this case, Mr. Shadis should
presume to have access to Entergy documents unless Entergy can demonstrate that they are
sensitive and deserve special protection. And even when Entergy convincingly makes this
demonstration and a document is afforded this protection, a person that signs a protective
agreement still gets access to the document, unless the Board issues an order restricting such
access. By arguing that one prior NEC representative was unable to abide by a protective
agreement, and therefore that the current NEC representative should not be allowed access,
Entergy has incorrectly stood the Board's protective process on its head, turning a shield into a
sword.7 This is not right. Entergy cannot unilaterally withhold documents from a party, but
must instead seek an order under V.R.C.P. 26(c) restricting dissemination.

c. NEC Question 2(c)
         Regarding Question 2(c), NEC indicates that Entergy has been responsive.

d. NEC Question 2(d)
         NEC argues that although under Question 2(d) Entergy is asked to "Please be certain to
include within the considered 'working groups, departments, committees, task forces, and the

  7. I note that neither this Board nor any other Court has made a finding that any representative or member of NEC
has ever violated a protective order.
Docket No. 6812                                                                                   Page 5

like,' all entities responsible for Entergy public and governmental outreach, information,
lobbying, and public relations . . . , Entergy provided no documents from the best known persons
within Entergy's department of governmental and public affairs: Brian Cosgrove, Rob Williams,
and Larry Smith," nor did Entergy provide "documents from anyone with the responsibility for
'Entergy public and governmental outreach, information, lobbying and public relations.'"
         Entergy recognized the possibility that, with regard to one of its outside consultants who
may fall into this category, Entergy may not have responded entirely to NEC's question.
         Ruling: Entergy will review this question with regard to any of its outside consultants,
and provide NEC with all appropriate documents.

e. NEC Question re: Entergy Outreach to Vermont Governmental Entities
         NEC agreed that the ruling on Question 2(d) applies to this question. It is thus resolved.

f. NEC Questions re: Uprate Information in the Possession of Certain Entergy Employees
         NEC has argued that although NEC requested that Entergy provide all uprate related
documents in the possession of Entergy employees, David McElwee, Donald Leach, and Craig
Nichols, including notes and memoranda, Entergy provided no notes or memoranda from these
gentlemen, and following the Board's Order of June 13, 2003, Entergy provided no list of the
documents requested.
         Entergy responded that non-privileged, responsive documents from the files of Don
Leach, Craig Nichols and Dave McElwee were provided along with the other documents and
were included in the index.
         Ruling: Entergy has been responsive.

g. Alleged Failure of Entergy to Update Discovery
         NEC argues that Entergy has failed to supply the letter to legislators and all updated
information regarding the Quad Cities nuclear power station investigation.
         Entergy indicated that it had provided certain material. However, it recognized that not
all of its discovery regarding Quad Cities may have been updated.
         Ruling: Entergy will review its files for any Entergy memoranda or other materials that
discuss any NRC review at Quad Cities more recent than Entergy's initial responses to NEC.
Docket No. 6812                                                                                                      Page 6

h. NEC Request for Information Used in Support of Inspections
         NEC has argued that although Entergy was clearly informed as to the meaning of
"documents" in NEC's First Set of Information Requests,8 Entergy has provided no photographs,
sonic images, radiographs, or other images typically produced in support of inspections,
evaluations, analysis, etc. of various plant components per Questions 2 and 11 – 22.9
         In its response, Entergy writes that this is the first time NEC stated its interest in such
"documents." However, during the discovery conference, Entergy acknowledged that NEC's
discovery requests clearly defined the term "document," and encompassed this information.
Entergy also argues that having to respond to this would be extremely burdensome, and has
reserved the right to ask for reconsideration of my ruling on this question.
         Ruling: Entergy must provide the underlying materials. The scope of NEC's request was
clear and these materials fall within it. Moreover, NEC has the expertise and the right to have
access to these materials. Entergy may, of course, seek reconsideration of this ruling. However,
I note that objection to the scope of NEC's request is well out of time.

I. Discovery Questions in Gunderson Prefiled Testimony
         NEC witness Gunderson prefiled surrebuttal testimony on August 19, 2003. In three
places in this testimony, he reports incomplete responses by Entergy to discovery requests, and
states that he is thus unable to provide complete citations to certain materials in his testimony. I
instructed Entergy to provide the below-described materials or provide an explanation as to why
they are unavailable.
         First, at page 10 he refers to a document provided by Entergy whose only reference is the
number "128/t0305." Entergy is to define the source, date and title of the document.

   8. In its First Set of Information Requests, New England Coalition April 25, 2003, instruction 9 states that
"Document," as used herein, shall be construed as broadly as possible to include any and all means and media by
which information can be recorded, transmitted, stored, retrieved or memorialized in any form, and shall also include
all drafts, ve rsions o r cop ies which differ in any respect from the original. All spreadsheets p rovid ed m ust have all
formulae intact and accessible.
   9. Furthermore, Entergy has provided no sound o r video recordings such as those produced by Entergy at various
public meetings on uprate and such as that produced by Entergy employee G eorge Tho mas in recording a phone
conversation between New England Coalition and Entergy counsel on July 29, 2003. As to video recordings, NEC
agreed not to pursue this any further.
Docket No. 6812                                                                                Page 7

         Second, at page 12, Gunderson refers to a report titled "Vermont Yankee RFO21" which
is missing section 2.4. Entergy is to provide section 2.4 to this report.
         Thirdly, NEC was provided a document, "VYC-378," which is supposed to be 155 pages
long. However, Entergy only provided NEC with 131 pages of this document. Entergy is to
provide the complete document, i.e., those missing pages.

j. Requested Remedies
         NEC requests relief in the form of reimbursement for time and expense wasted in the first
round of document review at Entergy's Offices on July 7, 8, and 9, 2003. I indicated that they
should account for their time, including NEC staff time and that of contracted and volunteer
participants. Once they have made the accounting, NEC should submit their assessment to the
Board and other parties in this Docket. Entergy should respond to NEC's filing within two
         NEC has also requested an amendment of the schedule to allow it to more meaningfully
participate in the rebuttal phase of theses proceedings. NEC also asked how it could bring into
the record any of the information associated with the discovery material currently being ordered.
The Department indicated that much could be brought in by NEC on cross examination. While I
did not have an answer for NEC, I did indicate that I currently see no reason to recommend a
change to the existing schedule in this Docket. However, I recognize that it is unclear as to how
much the disclosure that may result will change NEC's position and posture in this investigation.
Therefore, I indicated that the Board would consider a motion from NEC if NEC concludes that
it needs some accommodation.

         SO ORDERED.
Docket No. 6812                                                                                                               Page 8

         Dated at Montpelier, Vermont, this                 2nd       day of September              , 2003.

                                                                  s/David Farnsworth
                                                               David Farnsworth, Staff Attorney
                                                               Discovery Officer

FILED: September 2, 2003
ATTEST :      s/Susan M. Hudson
                  Clerk of the Board
          N O T IC E TO R EADERS : This d ecision is subject to revision o f techn ical erro rs. Rea ders a re requested to
notify the Clerk of the Board (by e-mail, telephone, or in writing) of any apparent errors, in order that any
necessa ry correction s may be m ade. (E-m ail addre ss: Clerk@ psb.state.vt.us)

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