ML20097C108

Petitioners Consented Motion to Dismiss Appeal.* Petitioners Hereby Move to Dismiss 910628 Notice of Appeal in Matter W/Prejudice & W/Each Party to Bear Own Costs & Atty Fees.W/ Certificate of Svc

ML20097C108
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/03/1992
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY
To:	NRC COMMISSION (OCM)
References
CON-#292-12966 OLA-2, NUDOCS 9206080113
Download: ML20097C108 (17)

Text

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/2i?44 BEFORE THE UNITED STATES NUCLEAR REGULATORY CCMMISSION  !:atg a t, LGNRC i

J COMMISSIONERS: '

72 JtW -3 P 5 d o Ivan Selin, Chairman Kenneth C. Rogers _ _

James R. Curtiss arr<d;$Ti'[jh~'

00t8?

"t4Rii Forrest J. Remick E. Gail de Planque

) Docket No. 50-322-OLA-2 In the Matter-of )

)

Long Island Lighting Company )

)

(Shoreham Nuclear Power Plant, )

-Unit 1) )

)

PETITIONER'S CONSENTED MOTION TO DISMISS APPEAL The Shoreham-Wading River Central School District

(" School District"), Petitioner-Appellant in the above-captioned matter, hereby moves to dismiss its notice of appeal (filed June 28, 1991) in that matter-with prejudice and with each party to bear its own costs and attorney fees.

I Counsel for the Nuclear Regulatory Commission Staff, l

l Long Island Lighting Company and Long Island Power Authority have authorized undersigned counsel to represent that their clients consent to this motion.

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'This motion _is being submitted pursuant to the School

-District's obligations pursuant to certain Agreements, copies of which are attached. An original of each of these Agreements will l

I be furnished'on request.

l 9206080113 920603 PDR ADUCK 05000322 G PDR b56 3

WHEREFORE, the School District urges the Commission to dismiss its appeal in the above-captioned matter with prejudice 1

and with each party to bear its own costs and attorney fees.

Respectfully submitted, June 3, 1992 P m A r/ e- ,? _

l l

Qphes P. McGranery,N f.

Dow, Lohnes & Alberpton Suite 500 1255 Twenty-Third Street, N.W.

Washington, D.C. 20037 Counsel for Petitioner Shoreham-Wading River Central School District and Scientists and Engineers-for Secure Energy, Inc.

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.Tt*J-02 '92 02:45 1Dtl 1 POWER NT@lTY TEL to:1-316-742-2004

_l SETTLEMENT L REEMF,El WHEREAS, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT and

("SWRCSD") , SCIENTISTS AND ENGINEERS FOR SECURE ENERGY (" set")

THE LONG ISLAND POWER AUTHORITY ("LIPA"), being the " parties,"

Public acknowledge that under the Long Island Power Authority Act, Authorities Law $ 1020 at agg. (the "Act"), LIPA as owner of the Shoreham Nuclear Power Station ("Shoreham") is obligated to make with respect to certain payments in lieu of taxes (" PILOT")

Shoreham to municipalities and school districts, including SWRCSD, in which Shoreham is located; and WHEREAS, LIPA is in possession of a tax bill indicating been received by the taxing the amcunts which would have jurisdictions from the Long Island Lighting Company ("LILCO") for Shoreham (and certain property surrounding Shoreham which LILCO continues to own) if Shoreham had not been acquired by LIPA, and LIPA intends to utilize the amounts and the May 31, 1992 payment date indicated in that bill as the basis for payment, without prejudice - to either party and subject to the conditions and reservation of rights stated in paragraphs "3" and "4" below; and WHEREAS, LIPA had been considering and had under advisement whether to withhold the May 31, 1992 payment to SWRCSD in response to certain conduct of SWRCSD including the litigation l

referenced in paragraph "1" below; and

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WHEREAS, all Parties consider it in the best interest of the people of Long Island and each Party to terminate all litigation between and among the Parties both in view of the ,

extraordinary small likelihood that Shoreham can ever operate as a nuclear power plant again without fermidable further investment and in view of the fact that each of the Parties should be allowed to pursue its respective responsibilities on the basis of mutual respect from the other Parties and without interference from the other Parties; NOW, THEREFORE, IN CONSIDERATION OF THE REPRESENTATIONS o

AND MUTUAL AGREEMENTS HEREIN, SWRCSD, SE2 AND LIPA HEREBY AGREE AND STIPULATE AS TOLLOWS:

1. SWRCSD and SE2 agree, as soon as possible but in no event later than five (5) days after the execution of this Agreement, to file all necessary papers to seek dismissal with prejudice in all the NRC and Court of Appeals actions in which all Parties are engaged, and with each Party agreeing to bear its own _

costs and attorney fees. LIPA represents and warrants that it will, as soon as possible but in ne event later than five (5) days after the Effective Date of this *.greement, obtain the consent of all defendants and file the stipulation Discontinuing Action with Prejudice previously executed by plaintif f's attorney in Kulka Construction Manacement Coro. et al. v. Edward V. Recan, et. al.,

Index No. 9191/1992, pending in New York Supreme Court, County of Nassau, and that each party agrees to bear its own costs and attorney fees. No party admits or concedes any facts or legal 2

9 questions at issue in the actions to be discontinued and/or dismissed. Counsel for all parties shall use their best efforts to ensure that these matters are dismissed expeditiously.

2. SWRCSD and SE2 agree to waive any right they or anf af filiated entity or entities have had, presently have, or may have in the f uture, t , bring any judicial or administrative action which seeks to'or will nave the effect of preventing or delaying LIPA's decommissioning of Shoreham including but not limited to LIPA's disposition of low level radioactive waste and spent nuclear fuel; provided that no action by SWRCSD or any taxing jurisdiction with rerpect to taxes or PILOT related to Shoreham shall be considered to have the effect of preventing or c .aying LIPA's deconmissioning of Shoreham.

3. LIPA agrees, subject to the conditions and reservation of rights set forth in this paragraph and in paragraph-

"4" below, and subject to the terms of the Agreement between LIPA, Sh'RCS D , the Town of Brookhaven ("Brookhaven") and the County of Suffolk, dated June 1, 1992 (" agreement to pay"), that it will pay the amounts indicated in that Agreement under protest and subject to the provisions of the agreement to pay. The tendering, acceptance and treatment of those payments shall not constitute a waiver of or prejudice any parties' position or right to seek court intervention to resolve any issue related to that payment or any future payments to be made by LIPA. Some of the specific issues which are reserved for future resolution are listed below in paragraph "4".

JUN-03 '9f52U6 ibiC T PouEW AuT e vi T@L tO:1-316-W2- 2 M1 %  %

4. The parties acknowledge and understand that they may disagres as to the particularities of any pay: cents LIPA nakes to municipalities and school districts in which Shoreham is located and that nothing contained in this Agreement, particularly LIPA's agreement to pay Brochaven, and Brookhaven's acceptance and constitutes a waiver of or will treatment of that payment, or claim any party (or any taxing prejudice any position jurisdiction representing a party) may assert or seek to have adjudicated regarding the parties' rights and obligations under the Act, including but not limited to:

a. whether LIPA's payment, referenced in paragraph "3," constitutes a payment of taxes or a PILOT pursuant to the Act; and

b. the extent to which that payment is attributable to any portion of the pr operty surrounding Shoreham which continued to be owned by LILCO after February 29, 1992; and the due date(s), amount (s) and nothod of c.

L payment of the subject payinent or any f uture payment (s) made by LIPA to SWRCSD pursuant to the Act; and whether any change, by any means, in the d.

assessed value of all or any portion of Shoreham and/or the property surrounding Shoreham which continued to be owned by LILCO after February 29, 1992, or any tax rate applicable to Shoreham and/or the property surrounding Shoreham which continued to be owned by LILCO after February 29, 1992, for any past, present or future years will result in the change of LIPA's obligations under

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the Act and/or r3 funds of payments made or to be made by LIPA under the Act.

5. LIPA agrees that it will not interfere with the conduct of SWRCSD's activities, including any claim to financial entitlement or other benofit, or initiate a public campaign which criticizes the conduct of SWRCSD's or SE 's activities including 2

their conduct of the various legal proceedings subject to this Agreement, orevided that LIPA shall not be precluded from 1

responding to press or media inquiries which relate to SWRCSD's or SE2 's activities in relation to Shoreham, and that it is expressly understood that any claim or defense by LIPA or LILCO in any legal action (s) related to any change (s) in the amount (s), dats's),

method and/or characterization of payments to the municipalitics and SWRCSD or in the underlying assessment pursuant to paragraph "4" of tl.is Agreement and/or other payments of taxes or PILOT shall not be deemed to be " interference" nor be considered to " initiate" as these terms are used herein. -

6. Each Party releases and discharges jointly and severally all other Parties and third party beneficiaries (such third-party beneficiaries defined as all parties in the case of Kulka Construction Manacrement Coro. et al. V. Edward V. Regan et i, Index No. 9191/1992), as releasee (s), the r e le a t,ee ( s ) ,

releasee's and/or releasees' directors, of ficers, heirs, executors, agents, employees, successors, attorneys, and assigns from all actions, causes of actions, suits, debts, dues, sums of money, accounts, recording, bonds, bills, specialties, covenants,

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3 contrac_ts, controversies, agreements, promises, variances,

-trespasses, damages, judgments, extents, executions, claims, and demands whatsoever in law, admiralty or equity which against the ,

1 releasse Party and/or Parties the releasor Party and/or Parties, )

the releanor(s), releasor's and/or releasor's directors, officers, heirs, executors, agents, e=ployees, successors, attorneys, contractotv and assigns ever had, now has, or hereafter can, shall or may, have for, upon, relating to, arising from or by reason of l any matter, cause or things whatscover from the beginning of the world to the Execution Date of this Agreement relating to or arising from any or all of the legal actions before the NRC, the Court of Appeals, or State Supreme Court identified in this Agreement; provided that, nothing herein constitutes waiver (s) or prejudice to any Party's right to assert a claim or defense or counterclaim relating _to or arising from alleged tax obligations of LILCO and/or allegod payment in lieu of taxes obligations of LIPA; and provided further that, this release does not allow any releasor(s) to make any claim (s), assert any counterclaims (s), or bring any other action (s) arising from or relating to the institution of any action before the NRC, the Court of Appeals, or State supreme court against any releasee (s) who are not named plaintiff (s) and/or petitioners or otherwise voluntarily involved in any institution of such action concerning the decommissioning of Shoreham.

7. LIPA, SWRCSD and SQ separately warrant and represent j that the designated signatory to this Agreenent on its behalf is t

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duly authorizad by_.the relevant Party to execute this Agreement and bind =that-Party _to this' Agreement.

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jQ2 SHOREHAM-WADING IVER CENTRAL SCHoot DISTRICT

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7Eas roa sEc m z m or tu1IsT, go g t

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Aatammut WIGREA8, LONG' 2SIAND PCWER AUTMORITY ("LIFA") 'is the

- owner of the snoRENAM NUCLEAR POWAR STATION ' ("SEDREHAN'#) Wich la identitled as Distriot__0300, Section 0400.00 Block 01.00,1st 001.000, and is located witnin the taxing jurisdictions of the COUNTY OF SUTFOLK ("5DFFDLK"}, the 70WN OF RROORLVIN

("sRooxxAvsn"), and the SHORENAM-WADING RIVER CIDiTRAL SCHOOL DISTRICT-("3WRCSD"), and WHEREAS, LIFA-is obligated to make paymants in lieu of taxes -on stic properties to SROOKNAVEN, SUTFOLE and SW4SD pursuant to Public Authoritise Law 51020, at sag. ("the Aet'),

and

.WHERIAS , Section 1020-pf2) cf the Act provides that "the authority shall be to:Iuired to pay ne taxes nor aseessaant upon any of the prnparty e p ired or centvolled by it...", and -

WHEREAS, LIPA believes that any payment it may owe to the taxing jurisdictions in which EMoREMAM is located on any date

-nay only constitute a payment in lieu of taxes-(" PILOT") pursuant to-the Act, and WMER3As, SUFFOLK, nacoRMAVIN and'SWRCSD contend that on May 31, 1992, real estate taxes totalling tal,033,343.55 are due and eving to BRooKMAVEN as the second half real estate tax payment en the SWORERAM real property for the 1991-92 tax yety, and I

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.UN 2 '92 iedg FROM Q R AND g 34 yg 33gg,gg) i WIJtEAS, SUTF0LX, in anticipation of the reseipt of its I portion of the tax proceeds has borrowed in the public market, and WHEREAS, SUF70LK is suffaring severa cash shortages in its day-to-day operations and is in dits need of the roosipt of anticipated revenues from the 850RENAM facility, and WHEREAS, the ibROCl31AVEN Receiver of Taxes, undar the suffelk Co.tnty Tax Act is the legally designated roeipiant of all tax revenues for all taxing $urisdictions entitled to collect revanuas on the SECREMAM property, and WIRIAC , LIPA, 3ROCKKAV!N, SUFFOLX and EWRCSD have been unable to agres as to whether the May 31, 1992 yayzstt vould be a tax paynant as 3R00KMAYZ:N, SUFFOLE and SWRCSD contend c; P2 LOT as 1.:PA contanda, and WEREAS , LIPA desires to cooperate with #UTTOLK at a time cf difficult financial otrouastances for SUT70LK, and to avoid any further downgrading of SUFFOLK's bonds and notes and WMFREAS, the parties to this Agreement Will attempt to negotiate a cattlement of their legal diffarancsa or in the alter ative, sank judicial interpretation of the rights and obligations of the parties undar the Act, and WHIREA8, to assure that there is no interruption of vital services to the taxpayars or the taxing jurisdictions wherein 8HORRHA)f is located during the pandency of the negotiations or any legal actions, and WHERIAS, the partiss to this Agramment have concurrac that a second payment vi;I be m.mde by LIPA on or before January

jh ? ,i e s 1244 FROM R A QHD ct go To N F.RRO _

10, 1993 in the sum of $40,891,509.89 and a third ptYaant will be

&ade by LIPA en er before May 31,-1993 in the 943 of

$3s, sot,3ss.oo, with LIPA reserving the right to make said paysants to the tawing jurisdictions entitled to collect ravenues on us womw property and subject to reservation of rights la paragraph '4" below; i

NOW, THarr0RE, IN CONSIDERATION OF THE REPRESENTATIONS AND MUTUAL AGRIDGNTS MEAZIN, LIPA, FJTFOLK, BROOKHAV1F and SWRoa0 AGR31 AND STIPULATE AS FCLLO'AS i

1. LIPA will on June 1, 1992, issue a check in the i

an of $40,551,5c9.S9 made payable to tha " Town of Brookhavan" with she understancing that the LONG ISIAND LIGHTING COMPANY

("LILco") conterporaneously tender a check for $141,839.s?, which LILCo believes to be itS tax liability for the portion of ShoREMAX that it retained;

2. BROOKHAVEN intends to deliver said checks to the Asceivar of TaXts, Tcvn of Brockhaven, an independently slasted official of said tevn, for the purpose of depositing said check with a bank or trust company or a designated depository of BROCKHAVIN Rar:sivar of Taxes.

3. R300kkAVEN in recognition of the county's current cash crisis vill distribute the proceeds in accordance with the provisions and requirements of the Suffolk county Tax Act;

4. The parties acknowledge and understand that they disagree as to the partlaularities of the ycymant being made by LI?b to BR00KNAVEN and thr.t nothing containsa in this Agreement, partievl,arlf LIPA's-agreement to pay funds to BRooEXaVEN in

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.UN 2 ; S2 1a48 PQCM R R ChD K 04 TO -SQ6t.225 behair or st*rroLE and ERooKLWINs tooeptance of these tur.as, constitutes a vaivar of or will prejudica any position or claim aither party may assert or seek to have adjudicated regarding the partime' rights and obligations undar the Act, including eut act limited tos

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s. vbether LIPA's paywante, set forth in g ( paragraph '1*[ $N utes a paynant cf taxes or a Pn DF p*trsuant to the Act; and I

b.

the extent to which that LTPA's payssnts are attributable to any portion of the pros. arty surrmaing shorehas which continued to be Cyned by LILeo after February 29, 1993; and t

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c. the duo data (s), anount(s) a.nd the method of the sub ect paymenta and the treatment of tan subjoet payments or any future paymant(s) r.a:ie by LIPA to any taxing jurisdictions pursuant to the Act; and

d. whether any change, by any means, in the assessed value of all or any portion af sheraban and/or the property surrounding fhoreham which continued to be ovnad by LILCC aftar February 29, 1992, or any tax rate applicable to Shorehan and/or the property surrounding Shoraham vnich continued to be owned by LILeo after February 29, 1993, for any past, present er future years will result in the obange of LIPA's obligatione under the Act and/or refunds of payments made or to be made by LIPA under the Act.

e. That said first payment to BPooKEAVIN is without prejudice to LIPA's right to make futura payments 4

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.directly teLany of the taxing jurisdictions in which the SNORIEAM property is leseted..

P. That simultaneously with the anscusion of this agreement,J SWRCsD and LIPA, along with SCIENTISTS AND INCINEERS FOR D CURE IN DGY, INC. ("83') will antar into an agreen" At, in 3

which all of the parties agree to promptly dismiss all judicial and ade.inistrative action and waive any future actions which saak to or will have the effect of preventing or delaying LIPA's decommissioning of SNCRERAN, including but not limited to LIPA's i aisposition of low level radioactive w.ste and spent nuclear fuel. The instant agreement shall not beccae effective, despite the signature of the parties, unless and until the referenced agreement between LIPA, SWR 080 and SE is erneuted by all the parties thereto.

6. Subject to LIPA's raservation of rights in paragraph "4" above. LIPA will on er before .Tanuary 10, 1983 issue checks totalling $40,891,509.59 made-payable to tha taxing jurisdictions vnerein-the ANCRENAM property is located and LTPA.

will on or=before May 31,_1993 issue cheeks totalling

$36,802,358.00 mada payable to the te.xing durisdictions wharain the EHCREIAN property is loested.

7. The partien agree and understand that the making

_of_these-payments,.the-acceptance and treatment-of same, shall

-not be used by--anJ party in any future action or proceeding as presumptive,Loircumstantial ar. probative evidence of whether the payments constitute a PILCT paysant or tax payEtnt or on any Of.

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BEFORE THE UNITED STATES . Ani iiD UshkC NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

'S2 JJi -3 PS :10 Ivan Selin, Chairman O i!n u 5t ye ir,y ,

Kenneth C. Rogers James R. Curtiss UdChi'*I)5*4 " ' ! A'If f Forrest J. Remick E. Gail de Plangue j

) Docket No. 50-322-OLA-2 In the Matter of )

) l Long Island Lighting Company )

)

(Shoreham Nuclear Power Plant, )

Unit 1) ) l

)

CERTIFICATE OF SERVICE

I hereby certify that a copy of P6 itioner's Consented Motion to Dismiss Appeal in the.above-captioned. proceeding has been served on each of the following by first-class mail, postage prepaid on this-3rd day of June, 1992

Thomas S. Moore, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington,.D.C. 20555 Commission Washington,-D.C. 20555 George A.-Ferguson Edwin J. Reis, Esq.

. Administrative Judge Mitzi A. Young, Esq.

Atomic Safety & Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory 5307 Al Jones Drive .

Commission Shady Side, Maryland 20764 Washington, D.C. 20555

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W. Taylor Reveley, III, Esq.- Carl R. Schenker, -Jr. , Esq.

Donald P. Irwin, Esq. O'Melveny & Myers i Hunton-&_ Williams 555 13th Street, N.W. l Riverfront-Plaza, East Tower Washington, D.C. 20004 l 951 East Byrd Street Richmond, Virginia 23219-4074 l

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t-- ~ A,, 7a Jaffds P. McGranery,Jr//ftsq.

Dod, Lohnes & Albertson 1255 Twenty-Third Street, N.W.

Washington, D.C. 20037 Counsel for Petitioners Shoreham-Wading River Central School District i

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