DF 98-196
Montaup Electric Company, Inc.
Petition to Transfer Interest in the Seabrook Nuclear Generating
Station
Order Granting Confidential Treatment and Protective Order
O R D E R N O. 23,113
January 25, 1999
On November 5, 1998, Montaup Electric Company, Inc.
(Montaup) filed with the New Hampshire Public Utilities
Commission (Commission) a Petition for Approval of the Transfer
of its Interest in Seabrook Station under RSA 374:30. See, RSA
374-A. Montaup is a Massachusetts corporation wholly owned by
Eastern Edison Company, which in turn is wholly owned by Eastern
Utilities Associates (EUA), a Massachusetts business trust and a
registered public utility holding company under the Public
Utility Holding Company Act of 1935. Montaup is EUA's power
supply subsidiary, and it generates or purchases virtually all of
the electric power needed to serve the customers of EUA's retail
distribution subsidiaries in Massachusetts and Rhode Island.
Montaup owns an undivided 2.89989% interest in Seabrook
and a corresponding entitlement to 2.89989% of the power produced
at the facility. Other than its ownership interest in Seabrook,
Montaup owns no other utility property in New Hampshire, nor does
it conduct any operations in this state as an electric utility or
otherwise. Under a June 24, 1998 Asset Purchase Agreement,
Montaup agreed to sell its Seabrook interest to Great Bay Power
Corporation (Great Bay). Great Bay assigned its rights under the
Asset Purchase Agreement to its affiliate Little Bay Power
Corporation (Little Bay) on August 28, 1998.
On December 28, 1998, following the duly noticed
prehearing conference the parties and Staff engaged in a
technical session. At the technical session, Staff requested
certain information regarding Little Bay's financial forecasts.
This information had been requested because if Little Bay was
unable to meet its financial obligations in the future, it could
implicate the potential exposure of other New Hampshire companies
and their ratepayers for Seabrook decommissioning and operating
expenses. The information requested by Staff is contained in
confidential costs and projections prepared by Little Bay as part
of its application for approval of the proposed transfer
currently pending before the United States Nuclear Regulatory
Commission (NRC). The NRC protected this information from
disclosure on October 26, 1998. See, NRC Letter of October 26,
1999, Attachment to Motion.
On January 6, 1999, Little Bay filed a Motion for
Protective Order and Confidential Treatment. In the Motion
Little Bay avers that the information requested is sensitive
confidential commercial and financial information that would
cause great harm if it were released to the public or to persons
who might use such information to compete with Little Bay or its
affiliate Great Bay. Little Bay also avers that the information
is not readily available to competitors, and would be of value to
competitors in developing competitive marketing strategies.
Thus, Little Bay asserted the information is exempt from
disclosure under RSA 91-A:5,IV and N. H. Admin. R., Puc 204.06,
because it includes competitively sensitive data.
Little Bay provided the requested information in its
entirety to Commission Staff and the Office of the Consumer
Advocate (OCA) pursuant to Puc 204.06, but provided a redacted
version of the information to the other parties to the proceeding
that are, or could be, potential competitors. The OCA, Montaup
and Public Service Company of New Hampshire and its affiliates
did not object to the Motion. New England Power Company (NEP)
agreed to review the redacted documents but indicated it
anticipated the need to review the documents in their entirety.
In the event NEP requires access to the documents in their
entirety, Little Bay and NEP have agreed to work out a procedure
whereby the confidential material will not be reviewed by any
person who could utilize it to Little Bay's or its affiliate's
disadvantage.
Pursuant to RSA 91-A, the so-called Right-to-Know Law,
all government meetings and records shall be open and available
to the public unless they fall within a narrow set of exemptions
set forth at RSA 91-A:5. See generally, Union Leader Corporation
v. New Hampshire Housing Authority, 142 N.H. 540 (1997). RSA
91-A:5,IV provides that records pertaining to "confidential,
commercial, or financial information" are exempt from the general
provisions of the Right-to-Know Law that would otherwise subject
such information to disclosure. We believe the subject cost
information falls within the definition of commercial or
financial information addressed by RSA 91-A:5, IV.
The New Hampshire Supreme Court has held, however, that
information that falls into one of these categories is not, per
se, exempt from disclosure. Union Leader Corp., 142 N.H. 540,
553. Rather, the Court has held that the negative impact of
disclosure of the "commercial or financial interest must be
balanced against the public's interest in disclosure." Id.;
Accord, Re Public Service Company of New Hampshire, Order No.
23,090 (December 21, 1998); Re New England Telephone Company
(Auditel), 80 NHPUC 437 (1995); Re Bell Atlantic, Order No.
22,851 (February 17, 1998); Re EnergyNorth Natural Gas, Inc.,
Order No. 22,859 (February 24, 1998).
Applying this balancing test to the case at hand, we
conclude, as did the NRC, Little Bay has made a prima facie
showing that the public's interest in disclosure is outweighed by
the potential competitive harm to Little Bay. Thus, the motion
will be granted subject to further review upon a request by the
public to review the material pursuant to RSA 91-A.
Based upon the foregoing, it is hereby
ORDERED, that Little Bay Power Corporation's Motion for
Confidential treatment and a protective order is GRANTED; and it
is
FURTHER ORDERED, that this Order is subject to the
ongoing rights of the Commission, on its own motion or on the
motion of Staff, any party or any other member of the public, to
reconsider this Order in light of RSA 91-A, should circumstances
so warrant.
By order of the Public Utilities Commission of New
Hampshire this twenty-fifth day of January, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Claire D. DiCicco
Assistant Secretary