ML022280331
| ML022280331 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/14/2002 |
| From: | Roach C Florida Power & Light Co, Florida Power & Light Energy Seabrook, Pierce Atwood |
| To: | Dicicco C Office of Nuclear Reactor Regulation, State of NH, Public Utilities Commission |
| References | |
| NDFC 2002-2 | |
| Download: ML022280331 (10) | |
Text
PIERCE ATW00D CHRISTOPHER T.
ROACH August 14, 2002 DIRECT 207.791.1239 E.MAIL CRoach@ BY HAND DELIVERY PlerceAtwood corn Claire Dicicco Assistant Secretary New Hampshire Public Utilities Commission 8 Old Suncook Road Concord, NH 03301 Re: Proceeding to Approve the Funding Assurance Proposed in Connection with the Sale of Seabrook Station Interests - Docket No. NDFC 2002-2
Dear Ms. Dicicco:
Enclosed please find for filing in the above-captioned proceeding FPL Energy Seabrook, LLC's comments on the preliminary report and order.
Thank you for your attention to this matter.
Sin ly, Christopher T. Roach Attorney for FPL Energy Seabrook, LLC CTR/djs Enclosures cc: Service List One Monument Square Portland, Maine 04101-1110 VOICL 207.791 1100 FAX 791.1350 207 E-MAIL info aPierceAtwood corn
&',EB SITE www PwrceAtwood corn (V,o31454 I)
THE STATE OF NEW HAMPSHIRE NUCLEAR DECOMMISSIONING FINANCING COMMITTEE Docket No. NDFC 2002-2 Proceedingto Approve the FundingAssurance Proposedin Connection with the Sale of Seabrook Station Interests FPL Energy Seabrook, LLC Comments on Preliminary Order In its Preliminary Order, the Nuclear Decommissioning Financing Committee
("NDFC" or the "Committee") proposed to approve the Stipulation of the full parties to the NDFC proceeding, but with the additional requirement that FPL Group, Inc. ("FPL Group") and FPL Group Capital, Inc. ("FPL Group Capital"), the unregulated Florida based indirect corporate parents of FPL Energy Seabrook, LLC ("FPLE Seabrook") must consent to personal jurisdiction in the courts of the State of New Hampshire for any suits arising out of their respective guarantees of FPLE Seabrook's decommissioning obligations. FPLE respectfully suggests that determining whether a hypothetical future lawsuit against FPL Group or FPL Group Capital would be constitutionally permissible in New Hampshire is for a future court to decide. For the reasons more fully explained below, FPLE Seabrook respectfully requests that the Committee remove this proposed modification from the final order and approve the Stipulation as presented to the Committee.
In its Application for Approval of its Proposed Funding Assurance, FPLE Seabrook offered a very strong and multi-leveled collection of funding assurances, which 1WO047275 1)
considering FPL Group's financial strength and wherewithal, was superior to funding assurances provided by purchasers of other nuclear assets (Compare Application at 17 25: the fund balance at closing will already meet NRC decommissioning requirements; the payment schedule agreed to by FPLE Seabrook accelerates contributions into the decommissioning fund by assuming a funding date of 2015 for payments through 2006; FPL Group Capital guarantees 100% of FPLE Seabrook's decommissioning obligations and that guarantee is fully backed by FPL Group, with NDFC 2002-2, July 1, 2002 Transcript at 57: in the acquisition of Millstone, Dominion provided a parental guarantee of only the difference between the fund balance and the NRC minimum.)
As a result of six weeks of negotiation with the full parties, FPLE Seabrook agreed to provide additional assurances to the parties including enhancements to the FPL Group Capital to FPLE Seabrook Support Agreement, additional reporting requirements to provide additional financial and operational information to the Committee on an ongoing basis, commitments that neither parental guarantee will be modified without NDFC consent, and financial triggers based on (1) FPL Group operating income levels, (2) debt to equity ratios, (3) divestiture of a significant percentage of Florida Power &
Light Company's assets, and (4) FPLE Seabrook failing to make a scheduled decommissioning payment.
PERSONAL JURISDICTION OVER FPL GROUP AND FPL GROUP CAPITAL IS A DECISION WHICH SHOULD BE LEFT TO A COURT TO DECIDE IF A DISPUTE UNDER THE GUARANTEES EVER ARISES In the Stipulation, FPLE Seabrook submitted FPL Group Capital's guarantee to the NDFC of FPLE Seabrook's decommissioning obligation, as well as FPL Group's guarantee of FPL Group Capital's guarantee. (See Exhibits 9 & 10 to the Stipulation.)
FPLE Seabrook also submitted letter agreements from FPL Group Capital and FPL (W0047275 I) 2
Group affirming their respective obligations reflected in the Stipulation. (See Exhibits 8
& 11 to the Stipulation.) Those letter agreements represent binding obligations of FPL Group and FPL Group Capital, respectively.
If at some point in the future FPLE Seabrook revenues are insufficient to cover its decommissioning obligations and FPL Group Capital fails to live up to its guarantee of those obligations, and FPL Group likewise fails to step in and satisfy FPL Group Capital's obligations, the Committee has authority that can be exercised in several different ways. First, it has the regulatory power to alter FPLE Seabrook's funding assurances (e g., demand accelerated funding, require other forms of guarantee for decommissioning fund payments, etc.) Second, by virtue of the commitments in the Stipulation and letter agreements, the Committee also would have the right to file suit for breach of contract against FPL Group and/or FPL Group Capital. Given the multi-tiered funding assurances provided by FPLE Seabrook, the Company anticipates that such a dispute will never arise. Nevertheless, if this unlikely chain of events were to occur, the Committee has the ability to pursue FPL Group Capital and FPL Group for payment of FPLE Seabrook's decommissioning obligations. The proper court and forum for that dispute - and more particularly whether FPL Group and FPL Group Capital are subject to personal jurisdiction in New Hampshire - is a legal question that should be resolved by a court if/when such a dispute arises.
New Hampshire courts - like courts across the country - are well-equipped to determine the types of disputes, and the parties, that are jurisdictionally proper before the court. There exists a well-established body of law that must be followed and analyzed by the court to determine whether the court may exercise personal jurisdiction over a (V,0o4727S I) 3
defendant. First, the court will examine the state's long-arm statute to determine the state-imposed limitations on the exercise of personal jurisdiction. Presently, New Hampshire's long-arm statute, RSA 510:4, 1,1 provides for the exercise of personal jurisdiction to the full extent permitted by the Federal Constitution and, accordingly, the analysis presently applicable focuses on the Federal Due Process Clause. See, e.g.,
Metcalfv. Lawson, _ A.2d __, 2002 WL 1369639, *1 (N.H.), citing Dagesse v. Plant Hotel N.V., 113 F.Supp.2d 211, 215 (D.N.H.2000). The issue under the present legal and statutory framework is whether the defendant has sufficient minimum contacts with the State of New Hampshire to confer jurisdiction and, more particularly, whether "(1) the contacts relate to the cause of action; (2) the defendant has purposefully availed [it]self of the protections of New Hampshire law; and (3) it would be fair and reasonable to require the defendant to defend the suit in New Hampshire." Metcalf,2002 WL 1369639, *2.
Each of these elements must be satisfied in order for jurisdiction to be constitutionally proper. Id., citing Dagesse, 113 F. Supp. at 216.2 RSA §510.4,1 provides:
I. JURISDICTION. Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.
2 In its Order the Committee based its determination that the parent companies submit to jurisdiction in part on the desire to avoid the "delay resulting from contested jurisdiction." (Order, p.13.) Lack of personal jurisdiction, if raised at all, however, would be raised at the start of any litigation and by motion, the resolution of which does not create the potential for any significant delay.
1W0047275 I) 4
It is unnecessary for the Committee to usurp this traditional and well-established judicial role, particularly here where the potential for dispute is so speculative and could 3
arise 2, 5, or 20 years from now, or indeed, more likely never.
At the hearing, Committee Member Bryer asked where a lawsuit against the guarantors could be brought. (NDFC 2002-2, July 1, 2002 Transcript, p. 105.) And the real answer is: in whatever forum a court rules is constitutionally proper under the analysis summarized above.
In short, if the Committee files suit against either guarantor in New Hampshire and that suit is constitutionally properly brought in New Hampshire, a New Hampshire court would so rule. If on the other hand the hypothetical future suit does not belong in the courts of New Hampshire, a New Hampshire court would so rule. In either event, the Committee should not attempt to force FPL Group and FPL Group Capital to agree to an issue that is properly resolved at the time a hypothetical lawsuit is filed, and by the court before which the Committee files the hypothetical lawsuit.
FPLE Seabrook wishes to move forward with the proposed acquisition and looks forward to working with the Committee for many years into the future. For their part, FPL Group and FPL Group Capital stand ready to meet FPLE Seabrook's decommissioning obligations if it becomes necessary in the future. In order to stand behind the significant investment ($837 million) that FPL is making in acquiring a 3 We do not suggest that a New Hampshire court applying the minimum contacts analysis would dismiss a suit brought by the Committee against FPL Group or FPL Group Capital for breach of the guarantees and letter agreements. No one - not FPL Group, FPL Group Capital, nor the Committee - however can know what circumstances may arise 20 years from now that may impact on the analysis Something as unlikely as a change in the law or an effort by future Committee members to bring an action not contemplated by the present members of the Committee, or any of the parties, could affect whether that future suit would be IWDD47275 1) 5
controlling interest in Seabrook Station, FPLE Seabrook and its parents provided significant funding assurances and agreed to significant enhancements in response to concerns raised by the parties to the Stipulation. With these commitments, the Committee has the contractual right to pursue FPL Group and/or FPL Group Capital in court should the companies fail to live up to those obligations. FPLE Seabrook respectfully suggests, however, that the legal question of whether a future hypothetical suit against FPL Group and/or FPL Group Capital is constitutionally permissible should be left for consideration by the appropriate court and at the appropriate time.
Respectfully submitted this 14th day of August, 2002.
Mitchell S. Ross, Esq Raym nd W. Hepper, sq.
Senior Attorney Pierce Atwood Florida Power & Light Co. One Monument Square 700 Universe Boulevard Portland, Maine 04101 P. O. Box 14000 Tel: 207-701-1239 Juno Beach, FL 33408-0420 Fax: 207-791-1350 Tel: 561-691-7126 E-Mail: rhepper(@pierceatwood.com Fax: 561-691-7135 E-Mail: mitch rossafpl.com Attorneysfor Applicant FPL Energy Seabrook,LLC constitutional if brought in New Hampshire. The court is the proper body to decide this issue if and when an actual lawsuit arises.
IVM0647275 1) 6
CERTIFICATE OF SERVICE I, Christopher T. Roach, hereby certify that on August 14, 2002, I have served the FPL Energy Seabrook, LLC's comments on the preliminary report and order to the following individuals identified below by overnight mail:
HAROLD T JUDD SEABROOK STATION NDFC LEGAL COUNSEL PO BOX 300 JUDD ASSOCIATES INC ROUTE 1 - LAFAYETTE RD 244 NO MAIN ST SEABROOK NrH 03874 CONCORD NH 03301-5041 JOHN HART 01-48 SEABROOK STATION EDWARD A HAFFER ESQ PO BOX 300 SHEEHAN LAW FIRM ROUTE 1 - LAFAYETTE RD 1000 ELM ST SEABROOK NH 03874 PO BOX 3701 MANCHESTER NH BRAD A JACOBSON 03105-3701 SEABROOK STATION PO BOX 300 ROUTE 1 - LAFAYETTE RD MARY K METCALF SEABROOK NH 03874 ONE GLASSFORD LANE DURHAM NH 03824-2403 BRUCE J MUSICO 323 ELM ST CONCORD NH 03303 ROBERT A BACKUS ESQ 116 LOWELL ST NICHOLAS J SCOBBO PO BOX 516 FERRITER SCOBBO & RODOPHELE MANCHESTER NH 03105 75 STATE ST - 7TH FLOOR BOSTON MA 02109 CHESTER KOKOSZKA NHPUC MICHAEL HOLMES 8 OLD SUNCOOK RD OFF OF CONSUMER ADVOCATE CONCORD NH 03301 117 MANCHESTER ST CONCORD NrH 03301-5141 GARY EPLER GENERAL COUNSEL NHPUC 8 OLD SUNCOOK RD CONCORD NH 03301 DAVID MERCER IWOOI 160D4 2)
SETH SHORTLIDGE JOSEPH M BLAIN MGR GALLAGHER,CALLAHAN& TAUNTON MUNICIPAL LIGHTING GARTRELL PLANT PO BOX 1415 55 WEIR ST CONCORD NH 03302-1415 PO BOX 870 TAUNTON MA 02780 TIMOTHY CRONIN NSTAR SERVICES CO CYNTHIA BRODHEAD 800 BOYLSTON ST - P170 WIGGIN & DANA BOSTON MA 02199 ONE CENTURY TOWER PO BOX 1832 NEW HAVEN CT 06508-1832 WILLIAM J QUINLAN NORTHEAST UTILITIES GERALD M EATON 107 SELDEN ST PUBLIC SERVICE COMPANY OF NH BERLIN CT 06037 780 NORTH COMMERCIAL STREET PO BOX 330 RICHARD SAMUELS MANCHESTER NH 03105-0330 RICHARD A. SAMUELS MCLANE LAW FIRM THOMAS B GETZ CHAIR 15 NO MAIN ST N H PUBLIC UTILITIES COMM CONCORD NH 03301 8 OLD SUNCOOK RD CONCORD NH 03301 JIM CROWE WILLARD F BOYLE UNITED ILLUMINATING 463 NEW ZEALAND RD 157 CHURCH ST SEABROOK NH 03874 NEW HAVEN CT 06506 JOHN STEPHEN ANTHONY M CALLENDRELLO ASSISTANT COMMISSIONER BAYCORP DEPT OF SAFETY 51 DOW HIGHWAY - STE 7 JAMES H HAYES BLDG ELIOT, ME 03903 10 HAZEN DR CONCORD NH 03305 ANTHONY J MONTEIRO MGR HUDSON LIGHT & POWER DEPT MICHAEL A. ABLOWICH 40 FOREST AVE COMMISIONER OF THE TREASURY HUDSON MA 01749 STATE HOUSE ANNEX - RM 121 CONCORD NH 03301 (WOO11604 21
KIRK STONE GOV'S OFF OF ENERGY DEBRA A HOWLAND
& COMMUNITY SERVICES EXECUTIVE DIRECTOR 57 REGIONAL DR NTHPUC CONCORD NH 03301-4497 8 OLD SUNCOOK RD CONCORD NH 03301 SENATOR THOMAS R. EATON 27 PHEASANT HILL ROAD ROBERT A OLSON ESQ KEENE, NH 03431-4339 BROWN OLSON & WILSON 501 SOUTH ST BROOK DUPEE CONCORD NH 03304 HEALTH & HUMAN SERVICES HAZEN DRIVE CONCORD NH 03301 ROBERT L. DEWEES, JR.
NIXON PEABODY 101 FEDERAL STREET REP STEPHEN SLOAN BOSTON, MA 02110 7 MOOERS ROAD RAYMOND, NH 03077-1530 SEABROOK SELECTMEN'S OFFICE WYNN E ARNOLD ESQ SEABROOK TOWN OFFICE ASSIS ATT GENERAL 99 LAFAYETTE ROAD ATT GENERAL'S OFF SEABROOK NH 03874 33 CAPITOL ST CONCORD NH 03301 DIRECTOR OF NUCLEAR REACTOR REGULATION NUCLEAR REG COMM WASHINGTON DC 20555 Dated: August 14, 2002 Chritpher T. Roach, Esquire Attorney for FPL Energy Seabrook, LLC I%V001160421