SECURITIES AND EXCHANGE COMMISSION
Washington D.C.
Form U-1/A
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Niagara Mohawk Holdings, Inc.
300 Erie Boulevard
Syracuse, New York 13202
Gary Lavine, Esq.
Terence A. Burke, Esq.
c/o Niagara Mohawk Holdings, Inc.
300 Erie Boulevard West
Syracuse, New York 13202
Telephone: (315) 428-6717
Copies to:
Steven J. Agresta, Esq.
Swidler Berlin Shereff Friedman, LLP
3000 K Street, N.W.
Washington, D.C. 20007
Telephone (202) 424-7757
Janet Geldzahler, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Telephone: (212) 558-4000
<PAGE>
This Amendment No. 2 on Form U-1/A to the Form U-1 of Niagara Mohawk
Holdings, Inc. is being filed for the purpose of amending Item 6 by adding the
exhibits listed below.
Item 6. Exhibits and Financial Statements.
The following exhibits are being filed with this Amendment No. 2:
EXHIBIT # DESCRIPTION FILING METHOD
- --------- ----------- -------------
16 Fees, Commissions, etc. Filed herewith
in Connection with
Reorganization
19 PSC Compliance Order Filed herewith
21 FERC Order of Approval Filed herewith
23 NRC Order Filed herewith
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned company has duly caused this Amendment No. 2 to be signed
on its behalf by the undersigned thereunto duly authorized.
Niagara Mohawk Holdings, Inc.
Date: January 18, 1999 By /s/William F. Edwards
_____________________________
William F. Edwards
Senior Vice President
Chief Financial Officer
EXHIBIT 16
Fees, Commissions and Expenses
------------------------------
Commission filing fee for the
Registration Statement on Form S-4 $ 693,355
New York Stock Exchange Listing Fee $ 5,300
Legal Fees $ 430,000
Printing, Soliciting, Mailing and Broker Reimbursements $ 468,500
Stock Certificates $ 40,000
Miscellaneous $ 200,000
Total $ 1,837,155
EXHIBIT 19
STATE OF NEW YORK
PUBLIC SERVICE COMMISSION
As a session of the Public Service
Commission held in the City of
Albany on September 16, 1998
COMMISSIONERS PRESENT:
Maureen O. Helmer, Chairman
John B. Daly
Thomas J. Dunleavy
James D. Bennett
CASE 94-E-0098 - Proceeding on Motion of the Commission as to the Rates,
Charges, Rules and Regulations of Niagara Mohawk Power
Corporation for Electric Service
CASE 94-E-0099 - Proceeding on Motion of the Commission as to the Rates,
Charges, Rules and Regulations of Niagara Mohawk Power
Corporation for Electric Street Lighting Service
ORDER CONCERNING COMPLIANCE FILING
REGARDING HOLDING COMPANY
(Issued and Effective September 30, 1998)
BY THE COMMISSION:
BACKGROUND
----------
By letter dated July 22, 1998, Niagara Mohawk Power Corporation
(Niagara Mohawk or the Company) notified the Commission of its intention to
form a holding company called Niagara Mohawk Holdings, Inc. (Holdings).
The company believes that its filing is in compliance with Opinion No. 98-8
(Case 94-E-0098, Opinion and Order Adopting Terms of Settlement Agreement
Subject to Modifications and Conditions, Opinion No. 98-8 (issued March 20,
1998) and the PowerChoice Settlement Agreement (Agreement), conditionally
approved therein, which provides it the option to form a holding company within
one year of the Commission approval of the Agreement. Niagara Mohawk requests
that, if we determine additional review is required, we treat the filing as a
petition and approve it on an emergency basis under the State Administrative
Procedure Act (SAPA).
Niagara Mohawk is currently a regulated holding company where the
regulated utility is the parent with unregulated and regulated subsidiaries.
The PowerChoice Agreement, Section 9.1, allows Niagara Mohawk to continue this
basic structure or, at its option, to form an unregulated holding company
parent (Holdings) with regulated and unregulated subsidiaries. The unregulated
subsidiaries would include Plum Street Enterprises, Inc. (Plum Street
Enterprises' primary operating subsidiary is Plum Street Energy Marketing, Inc.
Plum Street Energy Marketing, Inc. is being renamed Niagara Mohawk Energy
Marketing, Inc., effective September 1, 1998.), Niagara Mohawk's energy services
company (ESCO). In Opinion No. 98-8 (Opinion No. 98-8 at 10), we recognized
that the PowerChoice Agreement "allows the company to operate as a holding
Company " and approved Section 9.1 without modification. In addition, Section
9.2 of the PowerChoice Agreement provided for rules governing affiliate
transactions and Section 9.3 provided standards of competitive conduct.
Niagara Mohawk has chosen the holding company corporate structure
option. Holdings will file for an exemption from the registration requirements
of the Public Utility Holding Company Act of 1935, under Section 3(a)(1), due to
its "predominantly intrastate" operations.
The holding company will be formed through a share exchange. In its
Compliance Filing (Appendix A, p. 63) pursuant to Opinion No. 98-8, the company
explains the share exchange as follows:
(1) each share of Niagara Mohawk Common Stock outstanding immediately prior to
the effective time of the share exchange will be exchanged for one new
share of Holdings common stock;
(2) Holdings will become the owner of all outstanding Niagara Mohawk Common
Stock; and
(3) the shares of Holdings common stock held by Niagara Mohawk immediately
prior to the share exchange will be canceled.
As a result, upon completion of the share exchange, Holdings will
become a holding company, Niagara Mohawk will become a subsidiary of Holdings,
and all of Holdings common stock outstanding immediately after the share
exchange will be owned by the former holders of Niagara Mohawk Common Stock
immediately prior to the share exchange. Following the share exchange, certain
of Niagara Mohawk's existing non-utility subsidiaries will be transferred to
Holdings and become subsidiaries of Holdings.
The PowerChoice Agreement, subject to limited exceptions, prohibits
Niagara Mohawk, Holdings or any of its subsidiaries from owning generation
within New York State. This aspect of the corporate structure protects against
the exercise of vertical market power. Otherwise, there are no restrictions on
the activities that Holdings may pursue. However, as explained in the filing
(Appendix A, p. 60):
Holdings will continue to seek to invest in the current lines of
business and, through its subsidiaries, will engage in energy
marketing and other energy-related activities. Although Holdings
has not identified other specific business opportunities, it believes
that such activities would likely include areas with which Niagara
Mohawk is already familiar, such as information systems,
environmental services, engineering services, financial services,
meter reading, and billing and collection services.
The filing further recognizes that Holdings must comply with the
PowerChoice Agreement (Appendix A, pp. 75-77), including restrictions on
dividend payments from the regulated utility to Holdings, restrictions on cross
default provisions (no loans, guarantees or pledges for the benefit of Holdings
and other Holdings subsidiaries), restrictions on affiliate transactions, and
restrictions on Board and managerial interlocks between Niagara Mohawk and
Holdings and other Holdings subsidiaries.
Parties' Comments
-----------------
Niagara Mohawk sent copies of the holding company filing to all the
parties on the case service list. By comments dated August 18, 1998, Multiple
Intervenors (MI) argues that Niagara Mohawk's holding company filing remains
subject to approval under Section 70 of the Public Service Law (PSL) and that it
does not meet any of the conditions necessary to be approved on an emergency
basis under SAPA. It requests that the Commission issue an order establishing a
schedule for comments on the filing. MI notes that other New York utility
restructuring agreements more explicitly provided for Section 70 approval and
included discussion of the plan for exchange of shares. Furthermore, MI is
concerned that the holding company filing (Appendix A, pp. 64-65), allows for
the transfer of assets to the holding company or any of its subsidiaries at not
"less than fair consideration" whereas the PowerChoice Agreement, Section 9.2.2,
explicitly indicates that "transfers of non-generation assets (or rights to use
such assets) from RegCo to an affiliate will be priced at the higher of book
value or fair market value." (MI comments, p. 3).
In a reply letter dated August 27, 1998, Niagara Mohawk reiterates its
justification for treating the filing as compliance as opposed to an
unabbreviated Section 70 petition. In addition, Niagara Mohawk explains that MI
took the asset transfer language out of context, noting that the filing
(Appendix A, p. 76) summarizes all of the provisions of the PowerChoice
Agreement regarding affiliate transactions, "including the requirements in
Section 9.2.2 regarding valuation transfers of non-generation assets (or rights
to use such assets) from RegCo to an affiliate." Niagara Mohawk believes it
adequately incorporated the PowerChoice Agreement provisions in its holding
company filing.
<PAGE>
DISCUSSION
----------
The PowerChoice Agreement (Opinion No. 98-8 at 10) allows the company
to operate as a holding company and we approved the corporate structure sections
of the Agreement without modification. Niagara Mohawk's proposed holding
company is consistent with the structure contemplated in the PowerChoice
Agreement. Thus, no additional approval process is required. The holding
company structure provides Niagara Mohawk additional flexibility to deal with
the increasingly competitive market. This flexibility will allow the holding
company to access financial markets more quickly and pursue investment
opportunities without the advance approval under PSL Section 69 and Section 107.
At the same time, the PowerChoice Agreement places restrictions on Niagara
Mohawk and Holdings to insulate the regulated operations from unregulated
operations and protect ratepayers.
MI is correct to note that the transfer of assets between Niagara
Mohawk and Holdings, or its affiliates, should occur at the higher of book value
or fair market value. Niagara Mohawk's response to MI indicates the company's
intent to apply the provisions of the PowerChoice Agreement in forming the
holding company. Where there may be discrepancies between Niagara Mohawk's
filing and the PowerChoice Agreement, as noted by MI, the PowerChoice Agreement
shall govern.
<PAGE>
CONCLUSION
----------
Niagara Mohawk's filing is in compliance with the PowerChoice
Agreement and Opinion No. 98-8 and, therefore, is approved. If there are minor
discrepancies between the filing and the PowerChoice Agreement, the Agreement
governs. As we have determined that this is a compliance filing, Niagara
Mohawk's alternative request for approval under Section 70 of the PSL and an
accompanying request for emergency action under SAPA is unnecessary.
The Commission orders:
- -----------------------
1. Niagara Mohawk Power Corporation's filing concerning the
formation of a holding company is approved as provided herein.
2. These proceedings are continued.
By the Commission,
(SIGNED) By: /s/John C. Crary
_____________________________
John C. Crary
Secretary
EXHIBIT 21
FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, D.C. 20426
September 30, 1998
Docket No. EC98-47-000
Niagara Mohawk Power Corporation
Attention: Paul J. Kaleta, Esq.
Vice President and General Counsel
300 Erie Boulevard West
Syracuse, New York 13202
Dear Mr. Kaleta:
On July 22, 1998, you filed an application under section 203 of the Federal
Power Act seeking Commission authorization for a proposed corporate
restructuring of Niagara Mohawk Power Corporation (Niagara Mohawk). Under the
proposed corporate restructuring, Niagara Mohawk will become a wholly-owned
subsidiary of a new holding company, Niagara Mohawk Holdings, Inc. (Holdings),
through an exchange of the outstanding shares of Niagara Mohawk's common stock
on a share-for-share basis for shares of Holdings' common stock. Through this
exchange, the present equity owners of Niagara Mohawk will become the equity
owners of Holdings.
Notice of the filing was published in the Federal Register, with comments,
protests, or interventions due on or before August 26, 1998. The New York
Public Service Commission (New York Commission) filed a notice of intervention
and comments that raised no substantive issues. Multiple Intervenors filed a
motion to intervene and protest raising two issues. (Multiple Intervenors is an
association of sixty large commercial and industrial energy users in New York).
First, Multiple Intervenors asks that the Commission condition its approval of
the proposed restructuring plan on approval of that plan by the New York
Commission. Second, Multiple Intervenors asserts that the application
improperly fails to incorporate certain conditions into the restructuring plan
that were set forth in the PowerChoice Settlement Agreement that was approved
by the New York Commission, and asks that this Commission predicate its approval
of the plan on the incorporation of those conditions.
Under Rule 214(c)(1) of the Commission's Rules of Practice and Procedure
(18 C.F.R. 385.214 (1998)), the notice of intervention and the timely,
unopposed motion to intervene serve to make the New York Commission and
Multiple Intervenors parties to this proceeding.
Your application is approved as consistent with the public interest, with
one condition. Costs incurred by public utilities in connection with the
formation of a holding company should be classified as non-operating expenses,
and recorded in Account 426.5 (Other Deductions), because they do not relate to
the utility operations of the public utilities. (See Wisconsin Electric Power
Company, et al., 74 FERC 61,069 at 61,192 (1996), order on reh'g, 79 FERC
61,158 (1997)). Therefore, the transaction will be accounted for as follows:
Niagara Mohawk must charge transaction costs associated with the formation of
the holding company to Account 426.5 (Other Deductions), if the costs are not
passed on to the holding company.
Multiple Intervenors' protest is denied. The proposed restructuring will
not go forward without the approval of the New York Commission; therefore,
there is no need for this Commission expressly to condition its approval on
Niagara Mohawk's obtaining the New York Commission's approval. Additionally,
the application indicated that Niagara Mohawk is well aware of its commitments
under the PowerChoice Settlement Agreement, and, in any event, these conditions
are properly within the purview of the New York Commission, which approved the
settlement and the conditions. This Commission anticipates that Niagara Mohawk
will abide by those commitments, and so no additional, express condition is
necessary.
By direction of the Commission.
Linwood A. Watson, Jr.
Acting Secretary
EXHIBIT 23
UNITED STATES OF AMERICA
------------------------
NUCLEAR REGULATORY COMMISSION
-----------------------------
In the Matter of )
)
NIAGARA MOHAWK POWER ) Docket Nos. 50-220
CORPORATION ) and 50-410
)
(Nine Mile Point Nuclear Station )
Unit Nos. 1 and 2) )
ORDER APPROVING APPLICATION REGARDING RESTRUCTURING OF
NIAGARA MOHAWK POWER CORPORATION BY ESTABLISHMENT OF A
HOLDING COMPANY AFFECTING LICENSES NOS. DPR-63 AND NPF-69,
NINE MILE POINT NUCLEAR STATION, UNIT NOS. 1 AND 2
1.
Niagara Mohawk Power Corporation (NMPC or the licensee) is licensed by the
U.S. Nuclear Regulatory Commission (NRC or Commission) to possess, maintain,
and operate the Nine Mile Point Nuclear Station, Units 1 and 2 (NMP1 and NMP2,
or collectively, the facility), under Facility Operating License No. DPR-63,
issued by the Commission on December 26, 1974, and Facility Operating License
No. NPF-69, issued by the Commission on July 2, 1987. NMPC fully owns NMP1, is
a 41-percent co-owner of NMP2, and acts as agent for the other co-owners of
NMP2. The other co-owners of NMP2, who may possess but not operate NMP2, are
New York State Electric & Gas Corporation with an 18-percent interest, Long
Island Lighting Company with an 18-percent interest, Rochester Gas and Electric
Corporation with a 14-percent interest, and Central Hudson Gas & Electric
Corporation with a 9-percent interest. The facility is located in the town of
Scriba, Oswego, New York.
II.
Under cover of a letter dated July 21, 1998, NMPC submitted an application
for consent by the Commission, pursuant to 10 CFR 50.80, regarding a proposed
corporate restructuring action that would result in the indirect transfer of
the operating licenses for the facility to the extent held by NMPC. The
application was supplemented October 23, 1998. Under the proposed
restructuring, NMPC would become a subsidiary of a new holding company, Niagara
Mohawk Holdings, Inc., created by NMPC in accordance with a Settlement
Agreement reached with the New York Public Service Commission (PSC Case Nos.
94-E-0098 and 94-E-0099), dated October 10, 1997, and revised March 19, 1998.
In addition, certain of NMPC's non-utility subsidiaries would be transferred
to the holding company.
According to the application, each share of NMPC's common stock would be
exchanged for one share of common stock of the holding company. NMPC's
outstanding preferred stock would not be exchanged. Under this restructuring,
NMPC would divest all of its hydro and fossil generation assets by auction, but
would retain its nuclear assets, and would continue to be an "electric utility"
as defined in 10 CFR 50.2 engaged in the transmission, distribution and ,
through NMP1 and NMP2, the generation of electricity. NMPC would continue to
be the owner of NMP1 and co-owner of NMP2 and would continue to operate both
NMP1 and NMP2. No direct transfer of the operating licenses or ownership
interests in the facility would result from the proposed restructuring. The
transaction would not involve any change in the responsibility for nuclear
operations within NMPC. Officer responsibilities at the holding company level
would be primarily administrative and financial in nature and would not involve
operational matters related to NMP1 or NMP2. No NMPC nuclear management
positions would be changed as a result of the corporate restructuring.
A Notice of Consideration of Approval of Application Regarding Proposed
Corporate Restructuring was published in the Federal Register on September 9,
------- --------
1998 (63 FR 48254), and an Environmental Assessment and Finding of No
Significant Impact was published in the Federal Register on September 23, 1998
------- --------
(63 FR 50931).
Under 10 CFR 50.80, no license shall be transferred, directly or
indirectly, through transfer of control of the license, unless the Commission
shall give its consent in writing. Upon review of the information submitted in
the application of July 21, 1998, as supplemented by letter dated October 23,
1998, the NRC staff has determined that the restructuring of NMPC by
establishment of a holding company structure will not affect the qualifications
of NMPC as the holder of the license for NMP1, and as a holder of the license
for NMP2, and that the transfer of control of the licenses, to the extent
effected by the proposed restructuring, is otherwise consistent with applicable
provisions of law, regulations, and orders issued by the Commission, subject to
the conditions set forth herein. These findings are supported by a safety
evaluation dated December 11, 1998.
III.
Accordingly, pursuant to Sections 161b, 161i, 161o, and 184 of the Atomic
Energy Act of 1954, as amended, 42 USC 2201(b), 2201(i), 2201(o), and 2234,
and 10 CFR 50.80, IT IS HEREBY ORDERED that the Commission approves the
application regarding the proposed restructuring of NMPC by the establishment
of a holding company structure, subject to the following: (1) NMPC shall
provide the Director, Office of Nuclear Reactor Regulation, a copy of any
application, at the time it is filed, to transfer (excluding grants of security
interests or liens) from NMPC to its proposed parent, or to any other
affiliated company, facilities for the production, transmission, or
distribution of electric energy having a depreciated book value exceeding 10
percent (10%) of NMPC's consolidated net utility plant as recorded on NMPC's
books of account; and (2) should the restructuring of NMPC as described
herein, not be completed by December 10, 1999, this Order shall become null
and void, provided, however, on application and for good cause shown, such
date may be extended.
This Order is effective upon issuance.
IV.
By January 11, 1999, any person whose interest may be affected by this
Order may file in accordance with the Commission's rules of practice set forth
in Subpart M of 10 CFR Part 2 a request for a hearing and petition for leave to
intervene with respect to issuance of the Order. Such requests and petitions
must comply with the requirements set forth in 10 CFR 2.1306, and should
address the considerations contained in 10 CFR 2.1308(a). Untimely requests
and petitions may be denied, as provided in 10 CFR 2.1308(b), unless good cause
for failure to file on time is established. In addition, an untimely request
or petition should address the factors that the Commission will also consider,
in reviewing untimely requests or petitions, set forth in
10 CFR 2.1308(b)(1)-(2).
Requests for a hearing and petitions for leave to intervene should be
served upon Mr. John H. Mueller, Chief Nuclear Officer, Niagara Mohawk Power
Corporation, Nine Mile Point Nuclear Station, Operations Building, Second
Floor, P.O. Box 63, Lycoming, New York 13093; the General Counsel, U.S. Nuclear
Regulatory Commission, Washington, D.C. 20555; and the Secretary of the
Commission, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001,
Attention: Rulemakings and Adjudications Staff, in accordance with
10 CFR 2.1313.
The Commission will issue a notice or order granting or denying a hearing
request or intervention petition, designating the issues for any hearing that
will be held and designating the Presiding Officer. A notice granting a
hearing will be published in the Federal Register and served on the parties to
------- --------
the hearing.
For further details with respect to this Order, see the application for
approval filed by NMPC under cover of a letter dated July 21, 1998, from
John H. Mueller of NMPC, as supplemented by letter dated October 23, 1998, and
the safety evaluation dated December 11, 1998, which are available for public
inspection at the Commission's Public Document Room, the Gelman Building,
2120 L Street, NW., Washington, DC, and at the local public document room
located at the Reference and Documents Department, Penfield Library, State
University of New York, Oswego, New York 13126.
Dated at Rockville, Maryland this 11th day of December 1998.
FOR THE NUCLEAR REGULATORY COMMISSION
Samuel J. Collins, Director
Office of Nuclear Reactor Regulation
<PAGE>
SAFETY EVALUATION BY THE OFFICE OF NUCLEAR REACTOR REGULATION PROPOSED CORPORATE
- --------------------------------------------------------------------------------
RESTUCTURING
------------
OF NIAGARA MOHAWK POWER CORPORATION
-----------------------------------
DOCKET NOS. 50-220 AND 50-410
-----------------------------
NINE MILE POINT NUCLEAR STATION, UNIT NOS. 1 & 2
------------------------------------------------
1.0 INTRODUCTION
------------
Under cover of a letter dated July 21, 1998, Niagara Mohawk Power Corporation
(NMPC) submitted an application, which was supplemented by letter dated October
23, 1998, for consent by the U.S. Nuclear Regulatory Commission (NRC or the
Commission), pursuant to 10 CFR 50.80, regarding a proposed restructuring
action that would result in the indirect transfer of the operating licenses for
Nine Mile Point Nuclear Station, Units Nos. 1 and 2 (NMP1 and NMP2, or
collectively, the facility), to the extent held by NMPC. The restructuring
action would result in NMPC becoming a wholly owned subsidiary of Niagara
Mohawk Holdings, Inc., a New York State corporation. In addition, certain
of NMPC's non-utility subsidiaries would be transferred to the holding company.
NMPC fully owns NMP1, is a 41-percent owner of NMP2, and acts as agent for the
other NMP2 co-owners. NMPC maintains and operates both units. The other
co-owners of NMP2-Central Hudson Gas & Electric Corporation, Rochester Gas
& Electric Corporation, New York State Electric & Gas Corporation, and Long
Island Lighting Company-are not involved in the proposed restructuring of NMPC.
The proposed restructuring is consistent with a Settlement Agreement with the
New York State Public Service Commission (PSC Case Nos. 94-E-0098 and
94-E-0099) dated October 10, 1997, and revised March 19, 1998, regarding
implementation of the state's restructuring goals. Under the proposed
restructuring plan, the outstanding shares of NMPC common stock will be
exchanged on a share-for-share basis for holding company common stock,
such that all the outstanding common stock of NMPC will be owned by the
holding company. No exchange of NMPC's outstanding preferred stock is planned.
After the restructuring, NMPC will continue to be an electric utility as
defined in 10 CFR 50.2, according to the application, providing the same
utility services as it did prior to the restructuring. The Settlement
Agreement calls for NMPC to divest itself of its fossil and hydro generation
assets. NMP1 and NMP2 will remain part of NMPC's regulated business.
Pursuant to 10 CFR 50.80, the Commission may approve the transfer of the
control of a license, after notice to interested persons. Such action is
contingent upon the Commission's determination that the holder of the license
following the transfer of control is qualified to hold the license, and that
the transfer is otherwise consistent with applicable provisions of law,
regulations, and orders of the Commission.
2.0 FINANCIAL QUALIFICATIONS ANALYSIS
---------------------------------
NMPC states in its application that following the proposed restructuring NMPC
will continue to be an electric utility engaged in transmission, distribution,
and through NMP1 and NMP2, the generation of electricity. NMPC will continue
to be the owner of NMP1, a co-owner of NMP2, and the operator of both NMP1 and
NMP2. NMPC will continue to recover the costs of owning and operating the
facility through competitive transition charges. Wholesale and retail rates
will continue to be regulated by the New York State Public Service Commission
and the Federal Energy Regulatory Commission.
The application states that the proposed restructuring will not adversely affect
the ability of NMPC to meet (1) its financial obligations with respect to future
operating and capital requirements, or (2) its funding obligations with respect
to decommissioning funding. As an electric utility, NMPC is exempt from further
financial qualifications review, pursuant to 10 CFR 50.33(f). However, in view
of the NRC's concern that restructuring can lead to a diminution of assets
necessary for the safe operation and decommissioning of a licensee's nuclear
facilities, it is the NRC's practice to condition license transfer approvals
upon a requirement that a licensee not transfer significant assets from itself
to an affiliate without first notifying the NRC. This requirement assists the
NRC in assuring that the licensee will continue to maintain adequate resources
to contribute to the safe operation and decommissioning of its facilities. To
this end, NMPC has submitted the following statement by letter dated October 23,
1998:
NMPC will provide the Director of the Office of Nuclear Reactor Regulation a
copy of any application, at the time it is filed, to transfer (excluding grants
of security interests or liens) from NMPC to its proposed parent, or to any
other affiliated company, facilities for the production, transmission, or
distribution of electric energy having a depreciated book value exceeding ten
percent (10%) of NMPC's consolidated net utility plant as recorded on NMPC's
book of accounts.
With the foregoing a condition of approval, the NRC staff finds that NMPC will
remain financially qualified to hold the facility licenses following the
proposed restructuring.
3.0 TECHNICAL QUALIFICATIONS
------------------------
NMPC stated in its application that the new holding company structure will not
affect the management of nuclear operations or NMPC's technical qualifications.
NMPC will remain as a discreet and separate entity under the new holding company
structure and will continue to be responsible for facility operations and
meeting the technical qualifications requirements of the operating licenses. No
NMPC nuclear management positions will be changed as a prerequisite or direct
result of the corporate restructuring. Accordingly, the NRC staff concludes
that the proposed restructuring will not impact the technical qualifications of
NMPC.
4.0 ANTITRUST
---------
Section 105c of the Atomic Energy Act of 1954, as amended (the Act), requires
the Commission to conduct an antitrust review in connection with an application
for a license to construct or operate a facility under Section 103. NMP1 was
licensed under Section 104b and, as a result, is not subject to an antitrust
review by the NRC staff in connection with the application regarding the
proposed restructuring.
NMP2 was licensed under Section 103 of the Act. However, although the proposed
new holding company may indirectly acquire control of the facility licenses, it
will not be performing activities for which a license is needed. Since approval
of the application would not involve the issuance of a license, the procedures
under Section 105c do not apply, including the making of any "significant
changes" determination. Therefore, there is no need to conduct any antitrust
review at this time.
5.0 FOREIGN OWNERSHIP, CONTROL, OR DOMINATION
-----------------------------------------
NMPC states in its application for consent that the current holders of NMPC
common stock will become holders of the common stock of its proposed parent,
Niagara Mohawk Holdings, Inc., on a share-for-share basis. Therefore, by reason
of the restructuring, there will be no change in the owners or percentage of
shares owned. NMPC states that shares of common stock currently held in foreign
accounts represent less than 0.1 percent of the total outstanding shares. Also,
all members of the Boards of Directors of NMPC and Niagara Mohawk Holdings, Inc.
are U.S. citizens. According to the application, NMPC is not now, and following
the proposed restructuring, will not be owned, controlled, or dominated by an
alien, foreign corporation, or foreign government.
The NRC staff does not know or have reason to believe that the proposed
restructuring will result in NMPC being owned, controlled, or dominated by
foreign interests.
6.0 ENVIRONMENTAL CONSIDERATION
---------------------------
Pursuant to 10 CFR 51.21 and 51.35, an environmental assessment and finding of
no significant impact was published in the Federal Register on September 23,
------- --------
1998 (63 FR 50931).
7.0 CONCLUSIONS
-----------
In view of the foregoing, the NRC staff concludes that the proposed
restructuring of NMPC by creation of a holding company will not adversely affect
the financial or technical qualifications of NMPC with respect to the operation
and decommissioning of NMP1 or NMP2. Also, there do not appear to be any
problematic antitrust or foreign ownership considerations that would arise from
the proposed restructuring. Thus, the proposed restructuring will not affect
the qualifications of NMPC as the holder of the license for NMP1 and co-holder
of the license for NMP2 and the transfer of control of the licenses, to the
extent effected by the proposed restructuring, is otherwise consistent with
applicable provisions of law, regulations, and orders issued by the Commission.
Accordingly, with the condition discussed above relating to significant asset
transfers, the proposed action should be approved.
Principal Contributors: M. Davis
D. Hood
Date: December 11, 1998
