ML20097C136
| ML20097C136 | |
| 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: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#292-12967 91-622-10-OLA-3, OLA-3, NUDOCS 9206080127 | |
| Download: ML20097C136 (17) | |
Text
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/2% 7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
. A ;i i:
Uahnc ATOMIC SAFETY AND LICENSING BOARD
'92 JW4 -3 PS :13 Before Administrative Judges:
Thomas S. Moore, Chairman
.n1 c,,,
.i.
Dr. George A.
Ferguson R"ti ! t a A iesif "Wh Dr. Jerry R.
Kline
~~
)
Docket No. 50-3 2 2 -O LA-3 In the Matter of
)
)
ASLBP No. 91-6 2 2 O LA-3 LONG ISLAND LIGHTING COMPANY
)
)
(License Transfer (Shoreham Nuclear Power Station, )
Proceeding)
Unit 1)
)
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PETITIONERS' CONSENTED MOTION TO DISMISS Pursuant to 10 C.F.R.
$ 2.730 (1991), Petitioners Shoreham-Wading River Central School District (" School District")
and Scientists and-Engineers for Secure Energy, Inc. ("SE ") ' DY 2
counsel, move the Atomic Safety and Licensing Board to dismiss the School District and SE as petitioners for leave to intervene 2
and their request for a hearing in this proceeding with prcjudice and with each party to bear its own costs and attorney fees.
Counsel for the Nuclear Regu'.atory Commission Staff, Long Island Lighting Company and Long Island Power Authority have authorized undersigned counsel to represent that their clients consent to the granting of this motion.
9206080127 920603 PDR ADOCK 05000322 fo3 0
This motion is being submitted pursuant to the School District's and SE 's obligations pursuant to certain Agrooments, 2
copies of which are attached.
An original of each of these Agreements will be furnished on request.
WHEREFORE, the School District and SE urge the Atomic 2
Safety and Licensing Board to enter an order dismissing the School District and SE as petitioners in this proceeding and the
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2 School District and SE 's request for a hearing with prejudice 2
and with each party to bear its own costs and attorney fees.
Respectfully submitted, l
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I' se June 3, 1992 garaes P. McGranery, Jr/g'/
Ddw, Lohnes & Albertson Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C.
20037 Counsel for Petitioner
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Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
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'*I E2'43 IDit i POWER CUTHORITY TEL to 1-316-742-20G4 c491 P32 m1 SETTLEMENT 3GREEMEMI WHEREAS, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT and
("$WRCSD"), SCIENTISTS AND ENGINEERS FOR SECURE ENERGY ("SE2")
THE LONG ISLAND POWER AUTHORITY ("LIPA"), being the " parties,"
Public acknowledge that under the Long Island Power Authority Act, Authorities Law 5 1020 at ang. (the "Act"), LIPA as owner of the Shoreham Nuclear Power Station ("Shoreham") is obligated to make certain ptyments
$n lieu of taxes
(" PILOT")
with respect to Shoreham to municipalities and school districts, including SWRCSD, in which Shoreham is located; and WHEREAS, LIPA is in possession of a tax bill-indicating the amounts which would have been received by the taxing-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 1992 payment LIPA intends.to utilize the amounts and the May 31,
- date - indicated in that bill as the basis for payment, without 4;
prejudice' to either party and subject to the conditions and and reservation of rights stated in paragraphs "3" 6nd "4"
calow;
- WHEREAS, LIPA had been considering and had. under advisement whather to withhold the May 31, 1992 payment to SWRCSD in response to certain conduct of SWRCSD including the litigation referenced in paragraph "1" below; and l
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4 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 Shorehan, can ever operate as a nuclear power plant again without formidable 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, THERETORE, IN CONSIDERATION OF THE REPRESENTATIONS AND HUTUAL AGRED'.ENTS HEREIN, SWRCSD, SE2 AND LIpA HEREBY AGREE AND STIPULATE AS FOLLOWSt 1.
SWRCSD and SE2 agree, as soor as possible but in no event later than five (5) days after the execution of this Agreenent, 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 no event later than five (5) days after the Effective Date of this Agrooment, 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 Corp., 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 l. _ -
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I questions at issue in the actions to be discontinued and/or dismissed.
Coumel for all parties shall use their best efforts l
to ensure that these matters are dismissed expeditiously.
2.
SWRCSD and SE2 agree to valve any right they or any affiliated entity or entities have had, presently have, or may have i
in the future, to bring any judicial or administrative action which seeks to or will have 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 respect to taxes or PILOT related to shoreham shall be considered to have the ef fect of preventing or delaying LIPA's decommissioning 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, SWRCSD, the Town of Brookhaven ("Brookhavm") and the County of Suffolk, dated June 1, 1992 (" agreement to pay"), that it will pr.y 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 paymsnts to be made by LIPA.
Some of the specific issues which are reserved. for future resolution are listed below in paragraph "4".
3
J m-c; '92 c2:46 iDit 1 Po4c NTo1Ti "TEL ic 1-Sis kl2-rew ~~
cast Pos 4.
The parties acknowledge and understand that they may disagree as to the particularities of any paynants LIPA pakes to municipalities and school districts in which Shoreham is located and that nothing contained in this Agreement, particularly LIPA's agreement to pay Brookhaven, and Drookhaven's acceptance and treatment of that payment, constitutes a waiver of or will prejudice any position or claim any party (or any taxing a party) may assert or seek to have jurisdiction representing adjudicated regarding the parties' rights and obligations under the Act, including but not limited tot whether LIPA's payment, referenced in paragraph a.
"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 property surrounding Shoreham which continued to be owned by LILCO after Tebruary 29, 1992; and c.
the due date(s),
amount (s) and method of payment of the subject payment or any future payment (s) mado by LIPA to SWRCSD pursuant to the Act; and d.
Whether any change, by any means, in the assesnad 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 woperty surrounding Shoreham which continued to be owned by LIV.0 af ter February 29, 1992, for any past, present or future years will result in the chsnge of LIPA's obligations under
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N i-05 '92 03:47 IDiL 1 FOLJER (4JTHORITY TEL 10 1-916-743-2064 C W 1 t:N6 the Act and/or refunds 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 their conduct of the various legal proceedings subject to this Agreement, RI.9.yldad that LIPA shall not be precluded from responding to press or media inquiries which relate to SWRCSD's or SE 's activities in relation to Shoreham, and that it is expressly
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2 understood that any claim or defense by LIPA or LILCO in eny legal action (s) related to any change (s) in the amount (s), date(s),
method and/or characterization of payments to the municipalities and SWRCSD or in the underlying assessment pursuant to paragraph "4" of this Agreement and/or other paymonts 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 Mananement Cero.. et al. v. Edward V. Regan, et i,
Index No.
9191/1992),
as releases (s),
the re lea s,se ( z;),
releasee's and/or releasees' directors, of ficers, heirs, executors, agents,' employees, successors, attorneys, and aasigns from all actions, causes.of actions, suits, debts, dues, cums of noney,
- accounts, recording,
- bonds, bills, cpecialties, covenants, 5-
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4 contracts, controversies, agreements,
- promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever in law, admiralty or equity which against the releasee Party and/or Parties the releanor Party and/or Parties, the releanor(s), releasor's and/or releasor's directors, officers,
- heirs, executors,
- agents, employees, sucesssors, attorneys, 4
contractors and assigns ever had, now has, or hereafter can, shall or may, have for, upon, relating to, arising from or by reason of any matter, cause or things whatsoever frcm 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 valver(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; end 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 that the designated signatory to this Agreement on its behalf as
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duly Mthorized by the relevant Party to execute this Agreement and bind t.hmt Party to this Agreement.
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TH9REHAM-WADING ER CENTRAL SCHoot DISTRICT h~~PN' h d&
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N annahs, Icus 2szAND POWER AWNORITY ('LIFA) is the owner of the anoRENAM WucLEMt powAR 47ATION ('sWOREMAM'") which is i
identitled as Distries osoo, sootton 0400.00 Block 01 00, 1st 001.000, and is located within tae taxing jurisdictions of the CCt?'tY of EUFFOLK ("sUFFOLK"), the TOWN OF BR00RNAVEN
("8RooKMA7EN"), 9M the 5HORENAM-WADING RIVER CthTRAL SCRo0L DISTRICT ("sWRC8D"), kna WMEREAS, LIFA is obligated to make paysiante in lieu of c
taxes on said properties to RhooKHAVEN, SUFFOLF and sWRCSD pursuant to Puclic Authorities Law 51020, at seg. ("the Aet'),
and WHERIAS, Section 1020 pf2) of the Act provides that "the authority shall be required to pay ne tause nor aseessaant won any of the. prnretty at' quired or centrolled by it...',
and WHERIAS, LIPA believes that any payment it may owe to the taxing jurisdictions in which SNoRTHAM is located un any date nay only constitute a paysant in lieu of taxes (" PILOT") pursuant to the Act, and wMERIAs, sUFFOLK, anooKHAVIN and SWRCSD contend that on May 31, 1992, real estate taxes totalling $41,033,349.56 are due and ewing to bro 0RMAVL4 as the second haar real estate tax payment on the sHoREHAM real property for tbn 1991-92 tax year, and
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BENT SYlW A8HY the S MTOL I l-3-It li!IC'lPW I lig164Sfst-G0thA!CATIONCf.NTERisT
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WFJtEAB, SUTFOLE, in anticipatica of the reseipt of its portion of the tax proceede has horrowed in the publio market, and i
if!(tRFAS, SUFFOLK is suffering severe cash shortages in its day-to-day operations and is in dire need of the receipt of anticipated revenues free the SNCARRAM facility,-and WHEREA4, the SROCMMAYSt Receiver of Taras, undar the suffcl.k County Tax Aet is the legally designated recipient of all tax revenues-for all taxing $urisdictions entitled to selleet ysvanuas on the SECREMAM property, and i
WHEREA8, LIPA, BROOKNAYEN, SUTFOLX and 8WRC8D have been unable to agree as to whether the May 31, 1092 payment vould be a
. tax pay 3ent as SROORMAYEN, 51lFFOLE and SWRCSD sentend or p! LOT se L:PA contenda, and P
WREREA8, LIFA desires to cooperate with SUFFOLK at a time cf dif ficult finanetal aircumstanoen for surrota, eM to avoid any further downgrading of surroLK's beide and notes and wMrREAs, the parties to this Agreement will attenyt to negotints a settlement of their legal differences or in the alternative, seek judicial interpretation of the rights and obligations of the parties under tho'Act, and WHERRA8, to assure that there is no interruption of vital services to the taxysyare of ?.he taxing jurisdictione wherein SHOR5HAN is located during the pandoney of the negotiations or any legal actions, and WHERTAS, the parties to this Agreement have ;;Uncurred that a~second payment till be made by LIPA en or before January
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N F.nno 10, 1993 in tne sum og v40,esi, sos.se and a third paynant will be made by L!PA en er before IIny 31, 1993 in the sua of
$36,402,3ss.00, With LIPA rosarylag the right to take said payments to the tawing jurisdictions entitled to collect revenues on the=== property and subject to reservation of rights la paragraph '4' belev; NOW, Tmptzr0RE, -IW CONSIDERATION OF TRI REPRE8ENTATIONS AND Mt?TUAL AGREEMEN7s MERE 3N, LIPA, rJTroLR, Spo0KHAVEN and SWResb AGREE AND 87IPt* LATE AS FCLLOW81 1.
LIPA will on June 1, 1993, issue a check in the sun of $40,esi,50s.59 nado payable to tha 'Tmen of Brookhaven" with the understanding that the LONG ISLAND LIGMT1DO CONFANY
("LILco"). contorporaneously tender a check for $14.,839.87, which LILCC believes to be its tax liability for the portion of sitoRFMAM that it retained; 3.
BRooKHAVEN intends to deliver said ahecks to the Receiver of Taxes, Tcwn of Brookhaven, an independently elected official of said tevn,-for the purpose of depositing enid check with a bank or trust company or a designated depeettory of BROCKHAVF.N Receiver of Taxes.
3.
RRocKXavtN in recognitie'n et the county's current cash crisis will distribute the proceeds in accordanoe with the provisions and requirements er the suffolk county Tax nett.
4.
The parties aeknowledge and undsratand that they disagree as to the pardaularities or the paysant betag made by LIPA to BROOK.JVEN and that nothing contained in this Areemen(
particularly LIPA's agreement to pay funds to BRooEx**n:N in 3-yy r
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l JUN 4;'32 1#49 #005 R A AhD K Id TO
- 4lt.EEC behair er. stFroIJt and anoosaATEN's noceptance of these thsnde, oonatitutes a valvor et or will prejudice any position er sista either party may assert oir seek to have adjudiented regarding the partime' rights una obligations under t.ha Aet, ineluding but met limit.ed tot
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vbetl)er LIPA's paysante, set forth in paragraph '1"[ [0N tutes a payment et taxes or e Friar puravant
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to the Act; and b.
the artent to whteh that MPA's paysante are attritratable to any portion of the property outrounaing shorskas which continued to be owned by u Leo after February 29, 1994; and the due date(s), aneunt(s) ans the method of c.
the sub;ect payments and the treatment of sne subjoet paymente or any future payment (s) made by MPA to any taxing jurisdietions pursuant to the Act; and i
d.
whether any change, by any meane, in the assessed value of all er any portion or anerahan and/or the property outrounding Shorshna which continued to be evnad by LILCO after February 29, 1992, or any tax rate. applicable te 8horeham and/or the property surrounding Sheraham vnich sentinued to be owned by LILeo after February 29, 1993, ror any past, present or futura years will result in the change et U PA's obligations under the Act and/or refundo of paymente nada er t4, be made by LIPA under the Act.
That said first paysant to mR00KMAVEN is s.
1 without Frejudios to UPA's right to make futura paymente _
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JUN 2 '92 1847 FR*,n R R N < 80 90 P43 Eat #8 directly to any of the taming jurisdictions in which the 550REIAN property is leested.
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8.
That simultaneously with the awacution of this agreement, SWRCSD and L!PA, along with SCIENTIETS AND ENGINEERS i
FOR SECtfRE ENERGY, INC, ("s5() will entar into an agressant, in i
which all of the parties agree to promptly dismiss all judicial and etninistrative action and vaive any future actions which seek to or will have the effect of preventing or delaying LIPA's decommissioning of SNCRIMAN, including but not limited to LIPA's disposition of low level radioactive weste and'spant nuclear fuel.
The instant agreemaat shall not become effective, despite the signature of the parties, unless and until the referenced agreement between LIPA, SWRC80 and 8% is executed tr/ all the parties thereto.
6.
Subject to LIPA's raservation of rights in paragraph "4" above, LIPA will on or before January 10, 1993 issue checks totalling $40,891,509.59 made payable to the taxing jurisdictions wherein the sucRanax property is located and L!PA will on er before May 31, 1993 issue shooks totalling
$36,803,354.00 made payable to the taxing durisdictions wherein the SHOREEAN property is leested.
l 7.
The parties agree and understand that the making of these payments, the acceptance and treatment of same, shall not be used by any party in any future motion or proceeding as presumptive, sirouestantial or probative evidence of whether the payments constitute a PILOT paynant or tax payment or on any of l
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c-BEFORE THE UNITED STATES
, ut ;[ ts NUCLEAR REGULATORY COMMISSION LBNhC ATOMIC SAFETY AND LICENSING Bo 7
Before Administrative Judges:
QI F 'n 9 ~l ' n w,
i Thomas S. Moore, Chairman oOCKl! E t 14vir Dr. George A. Ferguson H W 'i i
Dr. Jerry R. Kline i
I
)
In the Matter of-
)
Docket No. 50-322-OLA-3
)
Long Island Lighting Company
)
ASLBP No. 91-622-10-OLA-3
-)
(Shoreham Nuclear Power Plant,
)
(License Transfer Unit 1)
)
Proceeding)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioners' Consented Motion to Dismiss in the above-captioned,rroceeding have 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 Panel Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission
-U.S.-Nuclear Regulatory Washington,-D.C._20555 Commission Washington,cD.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
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Commission
- ShadyLSide, Maryland 20764-Washington, D.C.
20555 g
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. W. Taylor Reveley, III, Esq.
el R. Schenker, Jr., Esq.
Donald P.
Irwin, Esq.
O Melveny & Myers Hunton & Williams 555 13th Street, N.W.
Riveifront Plaza, East Tower Washington, D.C.
20004 951 East Dyrd Street Richmond, Virginia 23219-4074
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g$mes P. McGranery,
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Mw, Lohnes & Alber'
'n 1255 Twenty-Third Street, N.W.
D.C.
20037 Counsel for Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secute Energy, Itac.
_