Company Name: Northern States Power Co. (Recon.) -- Nuclear
Public Availability Date: 07-25-1995INQUIRY LETTER
GARDNER, CARTON & DOUGLAS
SUITE 3400-QUAKER TOWER
321 NORTH CLARK STREET
CHICAGO, ILLINOIS 60610-4795
TELEPHONE(312) 644-3000
June 20, 1995 VIA FEDERAL EXPRESS Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549 Re: Rule 14a-8(d) Request for No-Action Letter on behalf of Northern States
Power Company, a Minnesota corporation, in connection with a Shareholder
Proposal of Henry Fieldseth, Yvonne Ford and John Harmon Ladies and Gentlemen: We are writing on behalf of Northern States Power Company, a Minnesota
corporation (the "Company"), regarding the shareholder proposal (the "Proposal")
of Henry Fieldseth, Yvonne Ford and John Harmon (collectively, the "Proponents")
for inclusion in the Company's 1995 proxy solicitation materials ("Proxy
Materials"). Despite the extensive prior correspondence on this matter and
significant consideration previously given the Proposal by the Staff, the
Company's Board of Directors and senior management continue to believe that the
Proposal contains false and misleading statements, particularly in light of a
new report by the Minnesota Department of Health. For this reason, the Company
respectfully requests that the Staff reconsider this matter and confirm that the
Staff will not recommend any enforcement action to the Commission of the Company
excludes certain portions of the Proposal from its Proxy Materials. Prior Correspondence and Background Information The Proposal has been the subject of the following correspondence among the
Company, the Proponents and the Staff: (i) letter, dated December 22, 1994, from
the Company to the Staff setting forth its reasons for excluding the Proposal
from its Proxy Materials and requesting no-action relief; (ii) letter, dated
January 24, 1995, from the Proponents' attorney, John E. Grzybek, responding to
the Company's letter of December 22, 1994, and requesting that the Staff deny
the request for no-action; (iii) letter, dated February 10, 1994, from the
Company to the Staff in response to Mr. Grzybek's letter; (iv) letter, dated fed
16, 1995, from the Staff to the Company denying the Company's no-action request;
and (v) letter, dated April 3, 1995, from James J. Howard, Chairman and Chief
Executive Officer of the Company, to Arthur Levitt, Chairman of the Securities
and Exchange Commission, requesting further consideration of this matter. Copies
of these letters are attached as Exhibits A, B, C, D and E. The Company owns and operates two nuclear power plants - its Prairie Island
plant and its Monticello plant. Both are located in Minnesota. In 1994,
following extensive debate, the Minnesota Legislature authorized the Company's
use of dry cask storage for spent nuclear fuel rods at the Company's Prairie
Island plant. Without this legislation, the Company would have had to reduce and
eventually cease operations at the Prairie Island plant. The Proposal A copy of the Proposal is attached as Exhibit F and, for ease of reference, is
also set forth below: Shareholder Resolution on Public Image WHEREAS: Radiation, a byproduct of nuclear power, is a known carcinogen; WHEREAS: A recent study shows that since NSP's nuclear plants were built women
living near the reactors have experienced large increases in deaths from breast
cancer while deaths among those living elsewhere have decreased. WHEREAS: Radioactive and toxic waste from the production and use of nuclear fuel
is more often than not stored near black, Indian and poor communities. As a
result these communities bear an unfair share of the risks and threats. The
burden on these communities is "environmental racism" which is a vital moral
issue; WHEREAS: These health effects and this environmental racism reflect poorly on
NSP's public image and can cause undesirable effects on shareholder equity; Therefore be it resolved that the shareholders recommend to the Board of
Directors that NSP stop producing radioactive waste. DISCUSSION For the reasons set forth below, the Company believes that the following
statements in the Proposal are false and misleading in violation of Rule 14a-9
and can be omitted pursuant to Rule 14a-8(c)(3). Proponents' Statement: A recent study shows that since NSP's nuclear plants were
built, women living near the reactors have experienced large increases in deaths
from breast cancer while deaths among those living elsewhere have decreased. Of all of the statements in the Proposal, the Company's Board of Directors and
senior management find this statement the most objectionable. The public health
and well-being of the communities surrounding the Company's nuclear power plants
are of utmost concern to the Company's Board of Directors and senior management.
The Company has spent millions of dollars to educate the public on the safety of
its nuclear plants and to ensure the safety of the surrounding communities. The Company's Board and senior management believe that the foregoing statement
by the Proponents, which implies scientific evidence in support of an increase
in breast cancer near the Company's nuclear power plants, is totally false.
Their belief was recently confirmed by a report from the Minnesota Department of
Health (the "MDH Report") 1, which specifically found that no such increase has
occurred. The Proponents based the foregoing statement on breast cancer on a study by Dr.
Sternglass and Dr. Gould. 2 The MDH Report was designed to duplicate and expand
upon all research done by Dr. Sternglass and his associates (including the study
relied upon by the Proponents), to the extent that such research pertained to
nuclear power plants in Minnesota (collectively, the "Sternglass Studies"). The
Minnesota Department of Health explained the background and scope of their
inquiry as follows: A press conference was held in Minneapolis in June 1994 by Ernest Sternglass,
Ph.D. of New York and the Prairie Island Coalition Against Nuclear Storage. At
this press conference, Dr. Sternglass presented the findings from an analysis of
breast cancer mortality changes in a collection of counties surrounding the
Monticello and Prairie Island nuclear generating plants operated by Northern
States Power (NSP). The Monticello plant went into operation in 1971 and the
Prairie Island plant in 1973. According to the analysis by Sternglass and his
colleagues, there was a 45 percent increase in the breast cancer mortality rates
in the seven "nuclear" counties near Prairie Island between the periods 1980-84
and 1985-89. Between 1950-54 and 1985-89, a 48 percent increase in rates was
reported (the 1950-54 rate was virtually the same as the 1980-84 rate.) For
seven selected counties near the Monticello plant, a 16 percent increase was
reported between the periods 1950-54 to 1985-89, and a 38 percent increase
between 1980-84 and 1985-89. For the state overall, a one percent increase was
reported to have occurred over this same time period. Sternglass and his
colleagues attributed these changes to environmental exposures to radioactive
materials emitted from these plants. These findings were reported shortly after the Minnesota Legislature - following
some of the most extensive debates in its history - approved the dry cask
storage of spent fuel at the NSP Prairie Island plant. Some opponents of the dry
cask storage asserted that the breast cancer data should play a role in the
decision making regarding operation of the Prairie Island plant. At the time of this announcement, the Minnesota Department of Health had no
information concerning the rationale, methods, data sources, findings,
credibility nor any other aspect of this report. Consequently, the MDH was not
able to respond fully to the many inquiries raised by this report by elected
officials, the media, and the public. The MDH was able to state that breast
cancer incidence rates between 1988 and 1991 in Minnesota counties bordering
nuclear power plants did not differ significantly from the statewide average and
also that Sternglass's findings differed from a study conducted by the National
Cancer Institute (NCI) examining longer term cancer mortality rates in counties
throughout the US in which nuclear reactors have operated. The NCI study found
no systematic difference in rates of breast cancer nor any other cancer in these
counties compared to similar counties located farther away from the plants. Because of the many questions and concerns raised as a result of the breast
cancer findings, the Minnesota Department of Health formally requested and
received documentation from Dr. Sternglass and his colleagues describing their
analysis of breast cancer death rates. That documentation, received by the end
of June 1994, is described in Appendix E and consisted of a series of press
releases, unpublished and draft manuscripts, and several published papers. 3
Most of these reports were apparently co-authored by Dr. Sternglass and Dr. J.M.
Gould. The primary purpose of the present analysis, therefore, was to conduct a more
comprehensive evaluation of breast cancer death rates in counties surrounding
NSP's Monticello and Prairie Island nuclear power plants, and specifically those
Minnesota counties identified as "nuclear" counties in the analyses of Dr.
Sternglass and his associates. This analysis was designed to answer the basic
question: Is there any evidence that breast cancer rates over the past 43 years
in counties surrounding the Monticello or Prairie Island nuclear power plants
differ from rates experienced in the rest of Minnesota? The analysis also
examined trends in several other cancers known to be associated at least as
strongly as breast cancer with exposures to ionizing radiation. 4 In structuring its study, the Minnesota Department of Health critically examined
the methods used by Sternglass and his colleagues. The Minnesota Department of
Health excoriated those methods, stating that its review of the documents
submitted by Sternglass disclosed "a variety of methodological limitations and
errors, as well as unsupported assumptions and conclusions." 5 The Minnesota
Department of Health concluded that "the limitations of the analysis by
Sternglass and Gould preclude drawing conclusions about long-term breast cancer
trends in these counties." 6 The Minnesota Department of Health carefully designed its study to repeat the
Sternglass Studies and to conduct a more reliable evaluation. 7 In order to do
so, the Minnesota Department of Health focused on data from the same counties 8
examined by Sternglass (the "Target Counties"). The Minnesota Department of
Health also considered both mortality rates, as in the Sternglass Studies, and
data tracking the rate of newly diagnosed breast cancer, stating that incidence
rates are generally considered a superior measure of the rate at which a disease
occurs. 9 In addition to finding no difference between the state breast cancer mortality
rate and the rate recorded in the Target Counties, the MDH Report found that the
rate of breast cancer mortality in the Target Counties was virtually constant
before and after the nuclear power plants went into service. 10 The MDH Report
further discovered that the rate of breast cancer incidence in the Target
Counties was virtually identical to the state incidence rate. 11 Even when the
three counties closest to the nuclear power plants were compared to the state,
no increase in breast cancer mortality rate was detected. 12 The Minnesota
Department of Health concluded that Sternglass' figures, which indicated a
higher rate of breast cancer mortality in the Target Counties, could only have
resulted in "methodological or mathematical errors" 13 (emphasis added). Finally, the Minnesota Department of Health decided to employ an even more
sensitive indicator to determine whether the nuclear power plants were
increasing cancer rates. In order to do so, the Minnesota Department of Health
considered the rate at which residents of the Target Counties were contracting
cancer of the thyroid, bone or joint or leukemia. All of these diseases are more
closely associated than breast cancer with excess radiation. 14 For all of these
cancers, the Minnesota Department of Health found that the rates and trends in
the Target Counties mirrored those experienced by the state. In fact, the MDH
Report noted that the rates in the Target Counties were lower or showed a
sharper downward trend. Although this reduction was not large enough to be
significant, the MDH Report states that it is "the opposite of what would be
expected if a harmful exposure had occurred in those counties." 15 Based on the foregoing, the Minnesota Department of Health concluded its reports
with the following statements (emphasis in original): This analysis provides a clear and unambiguous conclusion: breast cancer
mortality trends over the period 1950-1992 in the ten counties near nuclear
power plants show no discernible difference from statewide trends. There were
also no differences found in the rate of newly-diagnosed breast cancers during
the period 1988-1992 for which MCSS data are available. Furthermore, no
differences in mortality trends or recent incidence rates could be found for
several other cancers sensitive to exposures to ionizing radiation. 16 The MDH Report is conclusive proof that the substance of the Proponents'
statement on breast cancer is completely misleading. Breast cancer rates in
women living in Target Counties have not increased since the Company's nuclear
power plants commenced operations. The breast cancer mortality rate in the
Target Counties does not show the "large increase" implied by Proponents.
Instead, the breast cancer mortality rate is virtually identical to the state
average. Therefore, the statement is both false and misleading and should not be
included in the Proxy Materials. The Staff has allowed companies to exclude similar misleading statements in the
past. In Control Data Corp. (available March 8, 1991), the Staff agreed that a
company could exclude a proposal from its proxy materials unless its proponents
redrafted it to disclose the scope of a study upon which the proposal relied, if
that scope was limited. In addition, the Massachusetts Financial Services Co.
(available September 13, 1994), the Staff allowed a proposal to be omitted from
proxy materials when the proposal implied casual connections that had not been
demonstrated. In fact, the correlation could not be demonstrated because once
all the facts were considered, the causal connection disappeared. Therefore, the
proposal was false and misleading. The Proponents' breast cancer statement is plagued by similar deficiencies. It
states that there is a correlation between living near one of the Company's
nuclear power plants and contracting breast cancer, implying that radiation
generated by the power plant causes a higher rate of breast cancer. The
Proponents find support for this correlation in the flawed Sternglass Studies.
In light of the conclusions reached in the MDH Report, it is clear that no such
correlation exists, and that the Company's nuclear power plants are not causing
a higher rate of breast cancer. Therefore, since it is highly misleading, the
Proponents' breast cancer statement should be stricken from the Proposal in its
entirety. The difference in the findings reported by these two studies cannot easily be
discounted. Unlike the usual situation in which both the shareholder and the
corporation unearth a study in support of their position, forcing the Staff to
act as statistician and compare two entirely different studies, the creators of
the MDH Study set out to duplicate the research attempted by Sternglass. In
doing so, the MDH compared the studies for the Staff, pinpointed the
methodological errors which distorted the Sternglass Studies, alleviated those
errors, and found that Sternglass' conclusions were directly contrary to the
facts. Therefore, allowing the Proponents to rewrite their statements on breast
cancer to state that the Sternglass Studies have been challenged or refuted
would mean allowing a misleading statement to remain in the Proposal. Unless the
statement is excluded in its entirety, the implication that the Company's
nuclear power plants cause breast cancer will remain. Since Proponents have no
reputable evidence in support of such an implication, we believe the Company is
not required to include this factually incorrect statement in its Proxy
Materials. Proponent's Statement: "Radiation, a byproduct of nuclear power, is a known
carcinogen." As shown by the Staff's no-action position in Unocal Corp. (available March 2,
1995), a company can exclude a clause contained in a proposal from its proxy
materials when the clause omits material facts which undermine its truth. This
statement on radiation by the Proponents is misleading because it fails to
include material information, and instead relies on general misconceptions to
give it a semblance of truth. When all the material facts are disclosed, the
misleading nature of the statement is evident. Background radiation is a low level of radiation always present in the
environment. Only radiation significantly above background levels is known to
cause cancer. Therefore, the blanket assertion that all radiation results in
cancer is misleading, because it fails to specify the type and amount of
radiation considered dangerous. Even if the Proponents mistakenly define the term radiation to include only that
radiation which is created as a byproduct of nuclear power, the statement is
still misleading. The MDH Report, utilizing extensive monitoring data, concluded
that Minnesota residents living near the Company's nuclear power plants are
being exposed to a level of radiation so small that it does not even exceed
background levels. 17 The plants are not exposing nearby residents to any excess
radiation, let alone levels deemed to pose a significant health risk. 18 As a
result, it is misleading to imply that the radiation generated by nuclear power
is a known carcinogen. Proponents' statement constitutes gross
overgeneralization because it fails to include the necessary information on the
level of radiation considered harmful. By omitting facts which would accurately
portray the risk of cancer associated with radiation, the Proponents are
attempting to frighten shareholders into voting for the Proposal, by implying
that no amount of radiation is small enough to be "safe." Proponents' Statements: "Radioactive and toxic waste from the production and use
of nuclear fuel is more often than not stored near black, Indian and poor
communities. As a result these communities bear an unfair share of the risks and
threats. The burden on these communities is "environmental racism" which is a
vital moral issue." Proponents' Statement: " These health effects and this environmental racism
reflect poorly on NSP's public image and can cause undesirable effects on
shareholder equity." When the foregoing statements are read together, they show that the Proponents
are accusing the Company of improper or immoral conduct - namely, environmental
racism "a vital moral issue" which reflects "poorly on NSP's public image and
can cause undesirable effects on shareholder equity." In accordance with note
(b) to Rule 14a-9, the Staff in numerous no-action letters has agreed that a
proposal containing material which directly or indirectly impugns the integrity
or directly or indirectly makes charges concerning improper or immoral conduct
without factual foundation may be omitted from a company's proxy materials. See,
e.g., United States Shoe Corp. (available February 27, 1995); American
Broadcasting Cos. (available March 21, 1984). The requisite factual foundation
does not exist in the present case. The only factual foundation offered by the Proponents for their charge of
environmental racism is the above-quoted statement in the Proposal on the
location of radioactive and toxic wastes and certain statements contained in the
letter from the Proponents' attorney to the Staff. In that letter, the Company
is in essence charged with environmental racism due to: (i) the Company's
project in Homer, Louisiana near a minority community; (ii) the proximity to the
Mdewakanton Sioux of the Company's Prairie Island plant and new dry cast storage
site; (iii) statements by a Company employee regarding the siting of the dry
cask storage facility for the Prairie Island plant, (iv) the mining and milling
of uranium and the conversion, enrichment and fabrication of uranium near
minority communities; and (v) the Company's proposed project with the Mescalero
Tribe regarding the storage of spent nuclear fuel. None of these charges can
withstand even cursory analysis. As will be shown below, each of these charges
is based on the false premise that, if a facility containing radioactive
materials is located near a minority community, then the owner or user of the
facility is engaged in environmental racism. As to the project in Homer, Louisiana, the Company (through a subsidiary) is a
partner along with four other corporations in Louisiana Energy Services ("LES").
LES is developing the $800 million Claiborne Enrichment Center ("CEC"), which
will be the first privately-owned uranium enrichment facility in the United
States. The CEC plant site will, in fact, be near a minority community in Homer,
Louisiana. The plant site also will be in a rural enterprise zone, which zones
were established by the Louisiana Enterprise Zone Act to encourage business and
industrial development in economically disadvantaged areas. As part of its
approval process for the project, the Nuclear Regulatory Commission (the "NRC")
addressed claims that the location of the project near a minority community
represented a form of environmental injustice or racism. The NRC's response was
as follows: On February 11, 1994, President Clinton signed an Executive Order on
environmental justice. The Order directs all Federal agencies to develop a
strategy for assuring environmental justice in their programs, policies, and
activities. An implementation policy has not yet been established. The NRC staff
has considered the environmental justice issue from two perspectives: (1) is
there any indication that LES chose the proposed site based on racial
considerations; and (2) are there any significant offsite impacts, and do they
disproportionately affect minority populations? For the site selection process, LES developed an approach that considered
various ranking criteria. The NRC staff has reviewed the process and determined
that the approach was reasonable. The staff did not see any evidence that LES
based its decision on racial considerations; the decision appears to be based
strictly on business considerations. The second issue that the staff considered was significant impacts that may
disproportionately affect minority populations. The staff has not identified any
significant offsite impacts that would occur as a result of CEC construction and
operation... No significant impacts to the health of local residents or to the
environment are expected as a result of the CEC. Therefore, there would be no
significant impact on minority populations. Overall, the claims of environmental injustice are not supported in this case.
The CEC is expected to bring substantial economic benefits, with minimal local
environmental impacts. It is true that CEC would generate an influx of workers
and dependents, secondary economic migrants, and, perhaps, some less desirable
individuals. This influx could put pressure on certain community services,
notably public safety. By the same token, however, this influx will create jobs,
income growth, and tax revenue in an economically disadvantaged area. 19 Thus, as shown by the above statements by the NRC, the project in Homer,
Louisiana does not evidence any environmental racism on the part of the Company.
The project will provide needed jobs and help to revitalize an
economically-depressed community. As to the Company's Prairie Island plant and related dry cask storage facility,
they are located near an Indian community. However, they were not placed there
in order to discriminate, and the Proponents have produced no evidence to
support such an accusation. In fact, the original siting of the Prairie Island
plant required numerous state and federal approvals. Similarly, the Company's
ability to use a dry cask storage facility for the Prairie Island plant and the
location of the facility were considered and approved by the NRC, by the
Minnesota Public Utility Commission and by an act of the Minnesota Legislature.
If the mere location of the Prairie Island plant and related dry cask storage
facility shows environmental racism by the Company, then presumably the
Minnesota Legislature and these various regulatory agencies are also engaged in
environmental racism. As to the statements of the Company employee regarding the dry cask storage
facility, they merely reflect the employee's views on potential sites that the
Minnesota Legislature might approve. The statements do not reflect or suggest
improper conduct by the Company in the form of "environmental racism" as alleged
by the Proponents. With respect to the alleged environmental racism by the Company in the mining,
milling, conversion, enrichment and fabrication of uranium, the Company did not
purchase any uranium mined or milled in the United States during 1994. It
purchased conversion, enrichment and fabrication services from various
privately-owned and government-owned facilities in numerous foreign countries
and the United States. The Company cannot state with certainity that the
privately-owned and government-owned facilities in the United States from which
it purchased such services are not located "near" any Indian, African-American
or "poor" communities. Yet, even if the facilities were located near minority
communities, this fact would not evidence "environmental racism" on the part of
the Company. The Company did not participate in any way in the siting of the
facilities and the owners of the facilities (which include the United States
government) bear the legal responsibility for the storage and disposal of the
radioactive and toxic wastes produced at the facilities. A contrary conclusion
would mean that a consumer who purchases a car manufactured near a minority
community engages in environmental racism if the manufacturing facility produces
or stores wastes at the facility. With respect to the Company's potential project with the Mescalero Tribe,
following an initial adverse vote, the Mescalero Tribe recently approved the
project by a vote of 61% to 39%. It is simply illogical to assert that a
minority group which has the right to approve or disapprove of a project and
then approves the project by a 61% vote is being discriminated against by the
other parties to the project. Moreover, besides having been approved by the
Mescalero Tribe, the project will provide revenues to the Mescalero Tribe and
will require the Company and other participating utilities to provide education,
job skills and employment opportunities to the members of the Mescalero Tribe. As to the above-quoted statement in the Proposal on the location of radioactive
and toxic wastes from the production and use of nuclear fuel, this statement
(even if true) does not justify a charge of environmental racism. The statement,
like the various statements in the letter from the Proponents' attorney to the
Staff, is also based on the premise that, if radioactive wastes are stored in a
facility near a minority community, then the owner of the facility is engaged in
environmental racism. As shown by the above discussion, this premise is simply
not true. In summary, the Proponents have made allegations on the location of various
facilities containing radioactive materials. They have not provided any factual
foundation for their charges of environmental racism. Accordingly, the
above-quoted statements in the Proposal can properly be omitted under Rule
14a-9. We believe that this conclusion is supported by numerous no-action
letters from the Staff. See Philip Morris Companies Incorporated (available
February 7, 1991) (corporation's contributions to politician with certain views
does not support implication that corporation supports such views); American
Telegraph and Telephone Company (available December 21, 1988) (statements and
actions by corporation did not support inference that corporation's affirmative
action program discriminates against white employees and white job applicants);
MCA Inc. (available February 9, 1990) (movie depicting Jesus Christ in certain
ways did not permit claim of individious discrimination); and Cracker Barrel Old
Country Store, Inc. (available October 19, 1994) (failure of corporation to
support gay or lesbian persons did not permit claim of blatant discrimination). Finally, with respect to the sentence in the Proposal that "these health effects
and this environmental racism reflect poorly on NSP's public image and can cause
undesirable effects on shareholder equity," we have addressed above the reason
for excluding from the Proxy Materials the sentence to the extent it relates to
environmental racism. The sentence also must be excluded under Rule 14a-9 to the
extent it relates to health effects. The only health effect alleged by the
Proponents is breast cancer. As shown by the prior discussion regarding the MDH
Report, the statements of the Proponents on breast cancer are false and
misleading. Conclusion For the reasons set forth above, the Company believes that all supporting
statements in the Proposal are false and misleading in violation of Rule 14a-9
and can properly be omitted from its Proxy Materials pursuant to Rule
14a-8(c)(3). We request that the Staff confirm that it will not recommend
enforcement action to the Commission if the Company omits such statements from
its Proxy Materials. The Company recently filed its preliminary proxy materials with the Commission
for its 1995 Annual Meeting. At the Annual Meeting, shareholders will be asked
to vote, among other things, on the Company's proposed combination with
Wisconsin Energy Corporation. Accordingly, a prompt response to this letter
would be greatly appreciated. To the extent this letter is subject to the 80-day
requirement of Rule 14a-8(d), we respectfully request on behalf of the Company
that the Staff waive such requirement. Please direct any questions or comments to the undersigned (312-245-8685) or
Susan M. Wagner of this office (312-245-8774). Sincerely, Peter D. Clarke cc: Yvonne Ford
John Harmon
John E. Grzybek
[STAFF REPLY LETTER]
July 25, 1995 Peter D. Clark, Esq.
Gardner, Carton, & Douglas
Suite 3400- Quaker Tower
321 North Clark Street
Chicago, Illinois 60610 Re: Northern States Power Company
Incoming letter dated June 20, 1995 Dear Mr. Clark: This is in response to your letter of June 20, 1995 concerning a shareholder
proposal submitted by Yvonne Ford and John W. Harmon requesting reconsideration
of the staff's position in Northern State Power Company, (February 16, 1995). After reconsidering this matter, in the light of your letter and the Minnesota
Department of Health Report, this Division concurs with your view that portions
of the Supporting Statement are potentially false and misleading in
contravention of Rule 14a-9. The staff's views on this matter are as follows: (1) In the first sentence of the second paragraph identify the author of the
"recent study" and the scope and methodology of the study, if limited, should be
disclosed; (2) The first and third sentence of the third paragraph should be
rephrased to clarify that the statements are the proponents' opinion; (3) The
first sentence of the fourth paragraph should be rephrased to clarify that the
statements are the proponents' opinion. Accordingly, if the Proponent does not provide the Company with a Supporting
Statement revised in the manner indicated within seven calendar days of the
receipt of this letter, the staff believes that the Company may rely on Rule
14a-8(c)(3) as a basis for altering only the above referenced sections of the
proxy materials. The staff does not believe that the remainder of the proposal
and supporting statement may be omitted from the Company's proxy materials in
reliance on Rule 14a-8(c)(3). In this regard, the staff assumes that the author
of each study or statement has seen the use of the statements attributable to
them and raised no objection. Sincerely, Vincent W. Mathis
Special Counsel cc: Ms. Yvonne Ford
Mr. John W. Harmon
1 Minnesota Department of Health, Report to the Minnesota Legislature, Breast
Cancer Rates and Trends Around Nuclear Power Plants in Minnesota (March 1995). A
copy of this report is attached as Exhibit G. 2 Page 4 of letter, dated January 24, 1995, from the Proponents' attorney to the
Staff (a copy of which is attached as Exhibit B). 3 These papers included the study and other authority referenced by the
Proponents' attorney in his letter of January 24, 1994, to the Staff. 4 Minnesota Department of Health, supra note 1, at 5-2, 5-3. 5 Id. at 5-3. 6 Id. at 5-3. 7 Id. at 5-3. 8 With the exception of four Wisconsin counties that were not considered
significant by the Sternglass Studies. As stated on page 5-5 of the MDH Report,
"The large increases reported by Sternglass and associates were not due to the
four Wisconsin counties. These counties composed a small proportion of the
population under study and two of the counties showed declines in breast cancer
mortality rates." 9 Minnesota Department of Health, supra note 1, at 5-3. 10 Id. at 5-6. 11 Id. at 5-7. 12 Id. at 5-6. 13 Id. at 5-7. 14 Id. at 5-7. 15 Id. at 5-8. 16 Id. at 5-8. 17 Id. at 5-4. 18 Id. at 5-5. 19 Final Environmental Impact Statement for the Construction and Operation of
Claiborne Enrichment Center, Homer, Louisiana, NUREG-1484, Docket No. 70-3070,
Louisiana Energy Services, L.P., Volume 2 at pages ix and x.
|
