ORDER RE MOTIONS TO DISMISS ENTERGY MOTION TO ENFORCE by li3490

VIEWS: 7 PAGES: 15

									                                   STATE OF VERMONT
                                  PUBLIC SERVICE BOARD



Docket No. 6545

Investigation into General Order No. 45 Notice    )
filed by Vermont Yankee Nuclear Power             )
Corporation re: proposed sale of Vermont          )
Yankee Nuclear Power Station to Entergy           )
Nuclear Vermont Yankee, LLC, and related          )
transactions                                      )

                                                      Order entered: 10/8/2002

        ORDER RE: MOTIONS TO DISMISS ENTERGY MOTION TO ENFORCE
           PROTECTIVE ORDER AND FOR SANCTIONS AGAINST NECNP
                                AND NOTICE OF HEARING
                                       I. INTRODUCTION
        On June 7, 2002, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear
Operations, Inc. (collectively "Entergy") filed a "Motion to Enforce Protective Order and for
Sanctions" against the New England Coalition on Nuclear Pollution ("NECNP"). Entergy's
request asked that the Public Service Board ("Board") impose sanctions on both NECNP and its
counsel, James Dumont, "for the willful violation of Board Orders prohibiting disclosure of
confidential information." In support of its Motion, Entergy cites to a newspaper article in which
Mr. Dumont states that the nuclear decommissioning fund could have "many, many millions of
dollars" in excess funds after completion of decommissioning. The article also suggests that this
statement was based upon confidential information contained in a document provided by Entergy
(contained in exh. NECNP-35). Entergy argues that since the Board had previously issued an
Order mandating that the information in the exhibit be maintained as confidential, these
statements violate the Board's Order and should be punished through sanctions.
        NECNP filed a Motion for Immediate Dismissal of Contempt Request (as to NECNP) on
June 18, 2002. Mr. Dumont filed a similar request (as to sanctions against himself) on June 28,
2002.
Docket No. 6545                                                                                 Page 2



       In this Order, we grant NECNP's Motion, finding that Entergy has not established a prima
facie case for finding NECNP in contempt. As to Mr. Dumont, we grant his motion in part, and
set a schedule for further proceedings as to remaining claims. Specifically, as to Entergy's
request that we hold Mr. Dumont in contempt, we dismiss Entergy's Motion. This is because the
remedy or penalty that Entergy seeks is punitive, as defined by Vermont law, and would require
procedures needed for criminal contempt matters, a process inconsistent with the civil contempt
procedures relied upon by Entergy. Mr. Dumont also requested that we dismiss Entergy's request
that we impose penalties under 30 V.S.A. § 30 for violating a Board Order. We deny this
element of Mr. Dumont's Motion, finding that Entergy's allegations, if supported by admissible
evidence, could meet Entergy's burden of going forward. Therefore, we will conduct a hearing to
determine whether Mr. Dumont has disclosed any confidential information and, if so, whether
that disclosure violates the Board's Protective Orders in this proceeding.


                                          II. DISCUSSION
       The appropriate treatment of information that utilities assert is confidential has long been
a difficult issue for the Board and parties to Board proceedings. Testimony and exhibits
submitted under seal are not available to the public and, in some cases, other parties. To promote
a full public understanding of the basis for its decisions, this Board has actively taken steps to
limit the amount of information subject to protective orders, and has encouraged parties to
remove material from that protection to the extent possible. In this case, these policies have
resulted in the release of extensive information that was originally held as confidential.
       At the same time, there is no question that some information should not be publicly
disclosed. Utilities sometimes have relevant information the disclosure of which could produce
competitive harm or lead to higher costs for ratepayers. In this proceeding the Board issued two
Protective Orders (dated November 9, 2001, and December 18, 2001) addressing the treatment of
confidential information. Moreover, we have recognized that certain information required
greater levels of protection. For example, much of the information related to the solicitation and
evaluation of bids for Vermont Yankee was not disclosed to Entergy. In addition, the Hearing
Officer appointed by the Board to consider whether Entergy had to provide Entergy's bid analysis
Docket No. 6545                                                                                                     Page 3



for its Board of Directors (exh. NECNP-35) during discovery specifically ruled that the
document should be provided, but that it should only be disclosed subject to a Protective Order.
The Hearing Officer also issued a Protective Order on March 29, 2002, applying specifically to
that document. The Board upheld the confidential treatment of the exhibit, did not permit
disclosure to Vermont Yankee and its Vermont Sponsors, and took the unusual step of
prohibiting other parties from viewing copies of the document, except at the Board.1
         By issuing these Protective Orders and limiting dissemination of information, the Board
made clear that parties who received the documents covered by the Orders must keep them
protected and not publicly disclose the information.2 We fully expected that all parties would
abide by those Orders and take steps to prevent any public disclosure. And, Board Member
Burke specifically noted (from the bench) that the Board was prepared to impose sanctions if
anyone disclosed confidential information, with specific reference to Exhibit NECNP-35.3
         Entergy now asserts that Mr. Dumont has released confidential information contained in
Exhibit NECNP-35. According to Entergy, Mr. Dumont made various statements to reporters
that were based upon this information. The most significant of these is one newspaper account
that states that:
               a lawyer for the anti-nuclear group, James Dumont of the New England
               Coalition on Nuclear Pollution, said he has seen the number after
               promising to keep it secret and that it amounts to "many, many millions
               of dollars."4


  1. Tr. 4/2/02 at 61 (Chairman Dwo rkin).

  2. See e.g., Order of 12/18/01 at 2.

  3. Tr. 4/2/02 at 13-14 (Board Mem ber Burke).

   4. Entergy also submitted two other references in which it alleged that Mr. Dumont's disclosure has led to further
dissemination of confidential information, including a statement by the Vermont Public Interest Research Group on
its website entitled "Entergy to Make M illions Fro m D ecommissioning Fund ." Entergy argued that the we bsite
information was based upon Mr. Dumont's statements and indirectly upon confidential information. It appears from
unrefuted affidavits that this assertion has no factual basis, as the w ebsite w as po sted in M arch 2 002 , prior to the
time that Entergy provided exh. NECNP -35 to other parties. The other reference is an article in the Brattlebo ro
Reform er which says only, in toto, that: "The P ublic Service Board, at Entergy's request, has agreed to keep the
fund's predicted value 10 years from now under seal, but opponents of the sale have said it is a multi-million dollar
figure."
Docket No. 6545                                                                                Page 4



As a result, Entergy requests that the Board impose sanctions in the form of contempt, penalties
under 30 V.S.A. § 30, and restrictions on the future participation of NECNP and Mr. Dumont in
proceedings involving Entergy. Specifically, Entergy requests that the Board:
            order NECNP to pay any and all costs and fees incurred by Entergy in
            enforcing the Protective Order, disqualify NECNP's counsel from further
            practice before the Board in this or related matters involving Entergy,
            and impose penalties under 30 V.S.A. § 30.
       The Board considers these allegations to be very serious. Release of confidential
information could cause competitive harm to companies and perhaps ratepayers as well. In
addition, improper disclosure harms the credibility of the process and calls into question whether
dissemination of material under a protective order creates sufficient protection for highly
sensitive material.


A. Sanctions Against NECNP
       We turn first to NECNP's request that we dismiss the request for sanctions against it.
According to NECNP, there is no possible claim of contempt against NECNP even if the facts
alleged in Entergy's Motion are true. NECNP notes that Entergy has not alleged that NECNP had
access to the sealed information, authorized the disclosure of the sealed information, or had any
reason to believe the sealed information would be disclosed. NECNP also argues that the
information disclosed was not confidential.
       Entergy replies that NECNP should be held in civil contempt based upon Mr. Dumont's
actions as an agent of NECNP, citing New England Educ. Training Service, Inc. v. Silver Street
Partnership, 148 Vt. 99, 102 (1987). Entergy also asserts that there is no evidence that Mr.
Dumont was acting outside of the scope of his authority. Finally, Entergy argues that Mr.
Dumont has failed to identify any publicly available information that would support the
statements attributed to him by the newspaper articles.
       The Vermont Department of Public Service ("Department") states that Entergy has not set
forth a prima facie case for a contempt proceeding. The Department also supports NECNP's
assertion that no confidential information was disclosed.
Docket No. 6545                                                                                 Page 5



        We find that the allegations presented by Entergy do not establish a prima facie case
either for a contempt proceeding or for a possible determination that NECNP (as opposed to
NECNP's counsel) has violated an Order of this Board. Entergy has not suggested that NECNP
itself has released any confidential information. In fact, NECNP has not even had access to the
confidential information; instead, disclosure of the contents of Exh. NECNP-35 was limited to
NECNP's counsel, who was not permitted to retain the document.
        Without any suggestion that NECNP itself has improperly disclosed confidential
information, Entergy's entire argument for sanctions against NECNP rests upon the view that
because Mr. Dumont was NECNP's counsel, NECNP is responsible for his actions. We find this
argument overly broad and unpersuasive. NECNP has employed Mr. Dumont as its
representative in this proceeding. As such, Mr. Dumont does act as NECNP's agent, binding
NECNP through his representations. However, we find no basis for concluding that the agency
relationship also encompasses responsibility for acts that may be outside the scope of action
authorized by NECNP. Significantly, Entergy has not even alleged that Mr. Dumont was
authorized by NECNP to disclose confidential information. Moreover, we note that NECNP
itself has received much confidential information during the course of this proceeding; there is no
suggestion that NECNP has not treated that information appropriately and restricted its
disclosure. Thus, even if we were to find that Mr. Dumont had violated the Protective Orders,
we see no basis to make NECNP responsible for those violations, absent a demonstration that
NECNP somehow authorized them.
        This conclusion is consistent with the Supreme Court's ruling in New England Educ.
Training Service, Inc., supra. In that case, the Court specifically concluded that the attorney-
client relationship is governed by the law of agency and that "in the absence of fraud, a client is
bound by the appearance, admissions, and actions of counsel acting on behalf of his client."5
However, the Court also recognized limitations on that authority. Thus, the Court found that a
client was not bound by a settlement agreement entered into by his counsel, absent a




  5. New Englan d Educ . Train ing S ervice, Inc., supra, 148 Vt. at 102.
Docket No. 6545                                                                                                  Page 6



demonstration that the client had authorized the actions. Similarly, the Supreme Court has found
that:
              It is a well-established rule that an attorney has no authority, without the
              permission of his client, to dismiss a case with prejudice or do any act
              that will have the effect of irrevocably renouncing or barring his client's
              right of action.6
The acts alleged by Entergy are more akin to the substantive decisions discussed in these cases
that may have an irrevocable effect upon NECNP's claim, which are outside an attorney's scope
of authority, than to the procedural commitments that would bind NECNP.7
         Entergy also suggests that, even in the absence of evidence of authorization, the Board
should assume that Mr. Dumont was acting for NECNP because NECNP has not repudiated his
actions. We reject this assertion. Entergy has presented no cases demonstrating that NECNP's
failure to make a statement should lead to the conclusion that they had authorized Mr. Dumont's
actions. Moreover, based upon the information available to NECNP, there is no reason for the
organization to take the action Entergy suggests. NECNP does not have access to the
confidential information in Exhibit NECNP-35. The only information available to NECNP are
the newspaper articles and the subsequent filings. Although the articles suggest that it is possible
that Mr. Dumont revealed confidential information, they in no way demonstrate that fact (as we
discuss in more detail below). In fact, Mr. Dumont denies having released confidential
information.8 Entergy would essentially have NECNP repudiate Mr. Dumont's actions solely
based upon Entergy's assertion that he has revealed confidential information and other material
suggesting the possibility that such a revelation occurred. Such an action would clearly be
unreasonable at the present time and we assign no weight to NECNP's failure to make such a
statement.


  6. In re J.H., 144 Vt. 1, 4 (1983 ).

  7. For exam ple, if we granted the relief requested by Entergy, it would bar NE CN P's future p articipa tion in
proceedings related to Verm ont Yankee. Co nsidering that NE CN P's principal interests relate to nuclear facilities,
such a bar would effectively renounce future rights of action.

   8. We note that Entergy claims that Mr. Dumo nt has admitted revealing confidential material. Nothing in the
record or in materials submitted by Entergy suppo rts that conclusion.
Docket No. 6545                                                                               Page 7



       Accordingly, we grant NECNP's Motion.


B. Sanctions Against Mr. Dumont
       NECNP's counsel, Mr. Dumont, filed a separate request seeking dismissal of Entergy's
Motion for Sanctions against himself. In his Motion, Mr. Dumont states that Entergy has not
established a prima facie case for criminal contempt proceedings. Mr. Dumont also asks that the
Board exercise its discretion and dismiss Entergy's Motion because such a proceeding would not
serve the Board's interest or compensate Entergy for the alleged injury. Finally, Mr. Dumont
argues that Section 30 of Title 30, which authorizes the Board to impose civil penalties in certain
circumstances, does not apply.
       Entergy argues that the Board has sufficient inherent powers to impose sanctions against
Mr. Dumont that are punitive in nature. According to Entergy, so long as the respondent has "a
meaningful opportunity to argue, either in open court or on paper, against imposition of such
sanctions against him," due process concerns are satisfied (citing Van Eps v. Johnston, 150 Vt.
324, 328 (1988)). Nonetheless, although acknowledging that it seeks punitive sanctions, Entergy
strongly suggests that it seeks civil, not criminal contempt.
       The Department takes the same position as it did for sanctions against NECNP, stating
that Entergy has not set forth a prima facie case. Mr. Dumont and the Department also both state
that no confidential information was disclosed, as the claims Mr. Dumont made in his statements
to the press could have been derived from publicly-available information.
       The filings thus raise three issues. The first issue is whether the Board has the authority
to grant the requested relief and the process that would apply. The second question concerns
whether Entergy has presented a prima case showing that a violation of our Orders may have
occurred. The third question is whether we should conduct further proceedings to consider
Entergy's request for sanctions against Mr. Dumont.
Docket No. 6545                                                                                                    Page 8



         1. Board Authority to Impose Sanctions
         a. Contempt
         The Vermont Supreme Court has observed that "Courts have inherent power to discipline
attorneys who practice before them."9 The power exists not only in the Supreme Court, but also
in the trial courts.10 The Board possesses the same powers by virtue of 30 V.S.A. § 9, which
provides:
               The Board shall have the powers of a court of record in the determination
               and adjudication of all matters over which it is given jurisdiction. It may
               render judgments, make orders and decrees, and enforce the same by any
               suitable process issuable by courts in this state.11
Included in these disciplinary powers is the power to impose sanctions for contempt. This power
is one "which a judge must have and exercise in protecting the due and orderly administration of
justice and in maintaining the authority and dignity of the court . . ."12
         The Vermont Supreme Court has recognized that these contempt powers are "shielded
from direct democratic controls."13 Thus, a court must use sound discretion and restraint when
exercising these inherent powers and assure due process before imposing a sanction based on
those powers. The Supreme Court also has made clear that before imposing contempt for
violating an order, the "order should inform him in definite terms as to the duties imposed upon
him."14 The Order must leave no reasonable basis for doubt as to its meaning. 15




  9. Van Eps v. Jo hnston, 150 Vt. 324, 3 26 (198 8).

  10. Id.

  11. 30 V.S.A. § 9 (emp hasis added).

   12. Roadway E xpress, Inc. v. Piper, 447 U.S. 752 764 (198 0)(quoting Cooke v. U.S., 267 U.S. 517 , 539 (1925)).
See also , State v. Allen, 145 Vt. 593, 60 0 (1985 )(describing the contempt power as "indispensable to secure . . . 'the
respect and obedience due to the court and necessary to the administration of justice.'").

  13. Van Eps v. Johnston, 150 Vt. 324, 32 8 (1988 ) (quoting Roa dwa y Exp ress, supra, at 764).

  14. State v. Pownal Tanning Co., 142 Vt. 601, 60 5 (1983 ).

  15. Stalb v. Stalb , 171 Vt. 630, 63 1 (2000 ).
Docket No. 6545                                                                                              Page 9



        Vermont law distinguishes civil from criminal contempt based upon the nature of the
relief sought and the purpose of the order.16 If the purpose is punitive, then Vermont law
characterizes the sanction proceedings as criminal contempt.17 Penalties for criminal contempt
are imposed to "punish the defendant and to vindicate the authority and dignity of the trial
court."18 Moreover, the Board would need to find "bad faith" in order to impose such
sanctions.19
        By contrast, if the purpose of the sanction is coercive, then the action is characterized as
civil contempt.20 Civil contempt is limited to compensatory fines or coercive sanctions.21 In
addition, civil contempt sanctions must be "purgeable," i.e., they must be capable of being
avoided by defendants through adherence to the court's order.22
        In the instant proceeding, Entergy asks us to use this contempt power, to impose
sanctions that are punitive. Entergy's filing also suggests that it is seeking civil contempt
sanctions. As we explain above, however, under Vermont law these two requests conflict with
one another. Punitive sanctions must be approached as criminal contempt, not civil. Because
Entergy sought a criminal contempt remedy, but cited civil contempt processes and standards, we
will dismiss Entergy's request for contempt against Mr. Dumont. Our decision is formed not
solely because of the inconsistencies in Entergy's own requests, which makes it unclear what
relief Entergy seeks, but also because (as we explain below) we find adequate authority to
proceed under 30 V.S.A. § 30.23


  16. In re C.W., 169 Vt. 512, 5 16 (199 9).

  17. Russell v. Armitage, 166 Vt. 392, 40 7 (1997 )(Morse concurring).

  18. Town of Hinesburg v. Dunkling, 167 Vt. 514, 52 6 (1998 ).

  19. Lawton v. Brown's Day Care Center, Inc., ___ Vt. ___, 77 6 A.2d 39 0, 393 (200 1).

  20. Mayo v. Mayo , 786 A.2d 401 , 407 (2001); Sheehan v. Ryea, 171 Vt. 511 (20 00).

  21. State v. Pownal Tanning Co., 142 Vt. 601, 60 3 (1983 ).

  22. Russell v. Armitage, 166 Vt. 392, 40 7 (1997 )(Morse concurring).

   23. See State v. Pownal Tanning Co., 142 Vt. at 604–6 05. For the same reason, we will not exercise our
discretion to hold criminal contempt proceedings on our own initiative.
Docket No. 6545                                                                                           Page 10



        Our dismissal of Entergy's Motion for contempt against Mr. Dumont is without prejudice.
Entergy is free to clarify its request and renew its motion. If Entergy chooses to so proceed,
Entergy should be clear as to the procedures it proposes for the Board to follow. The Vermont
Supreme Court has stated that enhanced due process protections are necessary in a criminal
contempt action.24 The Court has also observed that criminal contempt must be prosecuted as a
crime.25 If Entergy chooses to refile, Entergy will need to address how these procedural
requirements would apply in this Board proceeding.


        b. Section 30
        Section 30 of Title 30 authorizes the Board to impose civil penalties in certain
circumstances. In particular, paragraph (a)(1) of that section states that:
              A person, company or corporation subject to the supervision of the board
              or the department of public service, . . . who fails within a reasonable
              time to obey a final order or decree of the board, or who violates a
              provision of chapters 7 or 75 of this title, or a provision of sections 231
              or 248 of this title, or a rule of the board, shall be required to pay a civil
              penalty as provided in subsection (b) of this section, after notice and
              opportunity for hearing.
This section clearly authorizes the Board to enforce its orders and cause companies that violate
them to pay civil penalties. The question raised by Mr. Dumont's Motion is whether Section 30
extends to non-utility parties and individuals that appear before the Board. We conclude that it
does.
        The operative language appears in the first clause. By its own terms, Section 30 applies
not only to companies and corporations, but also to persons subject to the supervision of the


  24. Bigelow v. Bigelow, 171 Vt. ___ (2000) (citations omitted). The Court stated:
             At the same time, however, a number of courts have held that the imposition of such
             non-compensatory fines for abuse of the discovery process are punitive in nature and
             therefore require enhanced due process protections, including specific notice of the
             possibility of non-remedial sanctions, the opportunity to respond to such fines, and
             other procedural safeguards. As this Court has also observed "an attorney is entitled at
             least to a meaningful opportunity to argue, either in open court or on pape r, against the
             impo sition of any such sanctions against him."

  25. In re C.W., 169 Vt. 1512 , 518–51 9 (1999 ). See V.R.Cr.P. 42(b).
Docket No. 6545                                                                                                 Page 11



Board. Individuals, including attorneys, that appear before the Board have made themselves
subject to our supervision, at least during the pendency of that appearance.26 In fact, any other
reading of Section 30 would mean that the Board could assess a penalty on any utility that
violated an order, but could not penalize any other person subject to that same order that took the
same action. It would also mean that even though the Board could issue orders that applied to
non-utilities, it could not enforce them through penalties outside of contempt proceedings. We
do not accept this narrow reading of the statute. We conclude that we could impose a penalty
upon Mr. Dumont if we found he violated the Protective Orders issued in this case.


         2. Prima Facie Case
         After considering the filings, we find that Entergy has presented sufficient evidence to
suggest that a violation of our Protective Orders may have occurred. Therefore, we will not
dismiss Entergy's Motion as to its request that we sanction Mr. Dumont pursuant to 30 V.S.A.
§ 30. We will thus allow Entergy to present further evidence at a hearing in support of its
Motion for Sanctions.
         There is no doubt that the Board had ruled that the information contained in Exhibit
NECNP-35 was confidential and that parties were fairly (and frequently) apprised of their
obligation not to disclose it publicly. Entergy's filings also establish that Mr. Dumont made
statements related to the expected future value of the decommissioning fund relative to
decommissioning costs. The same newspaper article asserts that he made statements that he had
seen the confidential information provided by Entergy. The newspaper articles suggested a
connection between the two statements, although it is not clear whether Mr. Dumont made this
connection or the reporter did.
         These facts raise the possibility that Mr. Dumont disclosed confidential information. As
a result, the allegations are sufficient to survive a motion to dismiss. The allegations presented to
date by Entergy, however, are not sufficient to support a finding that a violation has occurred. In



  26. See Van Eps v. Jo hnston, 150 V t. 324, 327 (1988 ) (agreeing with the trial court's observation at "[c]ourts are
charged with the supervision of memb ers of the bar as officers o f the cou rt."); see also Section II.B.1.a., above.
Docket No. 6545                                                                                                  Page 12



the first instance, Entergy's filings do not establish that Mr. Dumont's statements about the size of
the excess decommissioning funds were based upon the confidential information. As the
Department has pointed out, the same information could also be derived from other, public,
information in the evidentiary record. Mr. Dumont makes a similar point, stating that he was
relying upon public information from Mr. Schlissel. Entergy refutes Mr. Dumont's assertions,
stating that they would not support the conclusion that the decommissioning fund would have
many millions of excess funds.
         We find the newspaper articles alone to be insufficient for us to reach any conclusion on
whether Mr. Dumont's statements were based upon confidential information. We agree that
information existed in the public record that would allow one to reach the conclusion that the
decommissioning fund could contain excess funds if Entergy purchased Vermont Yankee and
then extended its operating license. In fact, in NECNP's initial brief in this proceeding, Mr.
Dumont used publicly available information to make the same claim that the newspaper articles
attributed to him; specifically, he argued that allowing Entergy to share half of the excess
decommissioning funds could lead to the confiscation of "tens of millions of dollars, potentially
$100 million," citing Mr. Schlissel's testimony and Entergy's proposal to save $100 million in
decommissioning costs.27 To the extent that Mr. Dumont's statements of the size of potential
excess decommissioning funds were based upon this public information, there would be no
violation. On the other hand, it is also possible that Mr. Dumont was referring to the confidential
information.
         The question of whether publicly-available information exists that would support Mr.
Dumont's assertions that the decommissioning fund could have many millions of excess dollars



   27. NECNP Brief at 15, 52. Both Entergy and the Department suggest that the reliance on Mr. Schlissel for
statements as to the size of the decommissioning fund are inappropriate. The record supp orts this conclusion; Mr.
Schlissel did not attempt to estimate the amount of excess decommissioning funds. And NECNP has not stated that
he did. Nonetheless, NECN P's Brief does assert that the $100 m illion in decommissioning savings constitute one
possible measure of the size of the d ecommissioning fund (essentially using M r. Schlisse l's savings estimates, as well
as Entergy's earlier contract proposal, as a proxy for excess funding). Even if Mr. Schlissel's testimony does not
support the conclusion as to the size of potential excess decommissioning funds, what is relevant to the sanctions
question is NECNP's use of that testimony, particularly since NECN P's characterization of the testimony occurred
more than three weeks prior to the alleged violation of the Protective Order.
Docket No. 6545                                                                                Page 13



is not, however, the sole question. Even if such information existed, Mr. Dumont may still have
disclosed confidential information. The material contained in Exhibit NECNP-35 sets out
Entergy's expectations as to the future size of the decommissioning fund. And the Board made
clear that Entergy's analyses were confidential. If Mr. Dumont disclosed this information directly
or indirectly through his statements, he would still have released confidential information even if
a different person could reach the same conclusion through other sources. The materials cited by
Entergy provide insufficient basis for us to now conclude that Mr. Dumont made this connection.
        One final issue is whether the statements, even if based upon confidential information,
actually revealed anything that was covered by the Protective Orders. In other words, do the
generalized statements to the press concerning potential excess decommissioning funds actually
reveal any information that was proprietary and not readily discernible from the publicly
available information? The newspaper articles and filings do not permit us to reach a conclusion
on this issue.


        3. Exercise of Discretion
        Both Mr. Dumont and the Department argue that given the facts before us, we should
exercise our discretion and dismiss Entergy's Motion. In support of this request, they note that
following the first newspaper article, Mr. Dumont immediately contacted the other parties,
stating that he did not believe he had disclosed confidential information and that if such a
disclosure had occurred, it was inadvertent.
        Because of the seriousness with which we view violations of protective orders requiring
that information be kept confidential, our exercise of discretion weighs towards allowing Entergy
to present more evidence in a hearing. Parties must have confidence that information submitted
pursuant to protective orders will not be publicly disclosed. The potential disclosure of
confidential information thus impinges the credibility of the process. Thus, as to the allegations
related to Section 30 of Title 30, we decline to dismiss Entergy's Motion.
Docket No. 6545                                                                                          Page 14



                                             III. CONCLUSION
        For the foregoing reasons, we find that it is appropriate to convene an evidentiary hearing
to consider Entergy's allegations. Entergy's filing, if supported by admissible evidence, could
meet the burden of going forward, but only an evidentiary hearing can determine whether
Entergy can meet its burden of proof on this matter. In particular, Entergy shall have the
responsibility to show that Mr. Dumont released confidential information. In addition, Entergy
must demonstrate that Mr. Dumont's statements were based upon confidential information rather
than publicly available information or that Mr. Dumont specifically linked the statements to
Entergy's confidential information, thereby disclosing protected material.
        Pursuant to 30 V.S.A. Sections 2(c),10, 30, 203 and 209, an evidentiary hearing to
consider these issues will be held on Wednesday, October 30, 2002, commencing at 11:00 A.M.,
at the Public Service Board Hearing Room, 3rd Floor, Chittenden Bank Building, 112 State
Street, Montpelier, Vermont. Entergy shall prefile testimony of its witnesses by October 18,
2002. Other parties may submit responsive testimony by October 28, 2002.28


        SO ORDERED.




   28. The only two persons identified as participating in the discussion at the time of the alleged release of
confidential information were the reporter (Mr. Gram) and Mr. Dum ont. We expect that these persons would be the
primary, if not only, witnesses.
Docket No. 6545                                                                                                         Page 15




         Dated at Montpelier, Vermont, this 8th day of October , 2002.




                                             s/Michael H. Dworkin                            )
                                                                                             )      PUBLIC SERVICE
                                                                                             )
                                             s/David C. Coen                                 )             BOARD
                                                                                             )
                                                                                             )        OF   VERMONT
                                             s/John D. Burke                                 )

OFFICE OF THE CLERK
FILED: October 8, 2002
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
necessary correction s ma y be m ade . (E-m ail ad dress: clerk@ psb.state.vt.us)

								
To top