ML20097C263

Petitioner Consented Motion to Dismiss.* NRC Should Issue Order Dismissing School District & Scientists & Engineers for Secure Energy,Inc as Petitioners in Proceeding.W/ Settlement Agreement & Certificate of Svc

ML20097C263
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-#292-12961 92-660-01-DCOM, 92-660-1-DCOM, DCOM, NUDOCS 9206080168
Download: ML20097C263 (18)

Text

_q *

.. .'.[

-l k;

' UNITED STATES OF AMERICA 'h[kj[d NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 92 dW ~3 PS :06 Before Administrative Judges: ( r t ,g g ,_

r' Gutou ng',;':'jt 4, U f Thomas S. Moore, Chairman  !* t.tiu "

Dr. George A. Ferguson l Dr. Jerry R. Kline

) Docket No. 50-322-DCOM In the Matter of )

) ASLBP No. 92-660-01-DCOM

-14NG ISLAND LIGHTING COMPANY )

) (Decommissioning Order

'(Shoreham Nuclear Power Station, ) Proceeding) i Unit 1) ) l

)

PETITIONERS' CONSENTED MOTION TO DISMISS Pursuant-to 10 C.F.R. $ 2.730 (1991), Petitioners Shoreham-Wading River Central School District (" School District")

andLScientists and Engineers for Secure Energy, Inc. ("SE ") 2

, by

ounsel, move the Atomic Safety and-Licensing'-Board to dismiss-the' School District and SE2 as _ petitioners for leave to intervene and their request for a hearing in-this proceeding with prejudice and-with each party to bear its own costs and attorney fees.

Counsel for the Nuclear Regulatory Commission Staff, Iong Island Lighting Company and Long Island Power ~ Authority have authorized undersigned counsel to represent that their cliants consent to the granting of'this motion.

9206080168 920603 PDR ADOCK 05000322 O PDR ) $6 h

.. _ _ _ _ _ - _ _. __ _ __~ . _ _ _ . ._ . . . . - _ - ~ . - . _ - - . . _ . . . -

This motion is being submitted pursuant to the School District's and SE g 's obligations pursuant to certain Agreements, copies of which are attached. An original of each of those Agreements will be furnished on request.

WHEREFORE, the School District and SE 2 urge the Atomic Safety and Licensing Board to enter an order dismissing the School District and SE2 as petitionera in this proceeding and the School District and SE 2 's request for a hearing with prejudice and with each party to bear its own costs and attorney fees.

Respectfully submitted, June 3, 191.

(#r _, /'/w C

/

_ h, James P. McGranery, Ah.

Dow, Lohnes & Albertt6n 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.

- - - ~ ~ _ . _ . _ _ _ - ,- . . . . -_ .. .__ _

- . . 7teh01 '91 02:45 1Dt t 1,.POWE:t (<JTHORITY TEL to 1-316-742-20B4 c491 PC2 i i

SETTLu rwT AGREEMENT WHEREAS, SHOREHAM-R.4 DING RIVER CENTRAL SCHOOL DISTRICT

("SWRCSD") , SCIENTISTS AND ENGINEERS FOR SECURE ENERGY (" set") and THE LONG ISLAND POWER AUTHORITY ("LIPA"), being the " parties,"

acknowledge that under the Long Island Power Authority Act, Public Authorities Law 5 1020 21 agg. (the "Act"), LIPA as owner of the Shoreham Huclear Power Station ("Shoreham") is obligated to make certain payments in 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 poseression of a tax bili indicating by the taxing the amounts which would have been received jurisdictions from the Long Island Lighting Company ("LILCo") for Shoreham (and certain property surrounding Shoreham which LILeo continues to own) if Shoreham had not been acquired by LIPA, and LIPA intends to utilize the amounts and the Hay 31, 1992 payment date indicated in that bill as the basis for payment, without prejudice to either party and subject to the conditions and b reservation of rights stated in paragraphs "3" and "4" below; and WHEREAS, LIPA had been considering and had under advisement whether to withhold the Hay 31, 1992 payment to SWRCSD in response to certain conduct of fVeCSD including the litigation referenced in paragraph "1" below; end l

l

... _ . m . -n . - -- -

WHEREAS, all Phrt.ies consider it in the best interest of the people of 1,ong Island and each Party to terminate all litigation between and among the Parties both in view of the ,

extraordinary smail likelihood that Shoreham 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; I

NOW, THERE10RE, IN CONSIDERATION OF THE REPRESENTATIONS 1 AND MUTUAL AGREEMENTS HEREIN, SWRCSD, SE2 AND LIPA HEREBY AGREE AND STIPULATE AS FOLLOWS:

1. SWRCSD and SE2 agree, as soon as possible but in no event later than five (5) days after the exacor'>n of this Agreement, to file all necessary papers to s e t,. missal 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 CAtlptruction Manacenent Corn., et al. v. Edward V. Recan, et. al.,

Index No. 9191/1992, pending in New York Supremo 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

...... u ...-s .... . w m.. e . . .... - - , ,

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 mattars are dismissed expeditiously.

2. Sh'RCSD and SE2 agree to waive any right they or any affiliated entity or entities have hcd, presently have, or may have 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 i. st limited to LIPA's l

disposition of low level radioactive waste and spent nuclear fuel; I

provided that no action by Sh'RCSD or any taxing jurisdiction with respect to taxes or PILOT related to Shoreham shall be considered to have the effect of preventing or delaying LIPA's decommissioning of Shoreham.

3. LIPA agreco, 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'RCSD , the Town of Brookhaven ("Brookhavon") and the County of Suffolk, dated June 1, 1992 (" agreement to pay"), that it will pay the amounts indicated in that AgrLemont under protest and subject to the provitichs 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 er 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".

l

7tri-CO '9102:46 IDiL 1 @@M3S AUTHOR!TY 9@L'NCI1-916-T4MiMi' 'M '

]

4. The parties acknowledge and understand that they may disagree as to the particularities of any payments 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 Brookhaven, and Brookhaven's acceptance and-that payment, constitutes a valver of or will treatment of any position or claim any party (or any taxing prejudice jurisdiction representing a party) may assert or seek to have adjudicated regarding the pc.rties' rights and obligations under the Act, including but not limited to:

a. Whether LIPA's payment, ref erenced in paragraph "3," constitutas 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 the due date(s), amount (s) and method of c.

payment of the r 8ia:t payment or any future payment (s) made by LIPA to SWRCSD p r+ . ant; to the Act; and'

d. whether any change, by any means, in the 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 appl'icable to Shoreham and/or the property surrounding Shorehan. 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

-4 -

^ ^

d'

~

st,n-c2 's2 03:a T !biL bcWEf48HORIT9 TEL NOil-95b ?12 4 06 I ~ " C291 P06 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 benefit, or initiate a ptiblic campaign which criticizes the conduct of SWRCSD's or SE 3's activities including their conduct of the various legal proceedings subject to this Agreement,- erovided that LIPA shall not be precluded from 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) , date(s),

,ethod and/or characterization of payments to the municipalities e.n c SWRCSD-or in the underlying assessment pursuant to paragraph "r of this Agreement and/or other payments of taxes or PILOT shall

• ct 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 Yylka Construction Manacement'Coro. et al. v. Edward V. Regan,'et i, Index No.- 9191/1392), as -releasse(s), the-releasee (s),

I' i'

releasee's and/or releasees' directors, of ficers, heirc, executors, agents, employees, successors, attorneys, and assigns from all actions, causes of-actions, suits, debts, dues, sums of-money, l

accounts, recording, bonds, bills, specialties, covenants, 5-

e . _ . - - -

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 releasor Party and/or Parties, the releasor(s), releasor's and/or releasor's directors, officers, heirs, executors, agents, employees, successors, attorneys, contractors and assigns ever had, now has, or hereaf ter can, shall or may, have for, upon, relating to, arising from or by reason of any matter, cause or things whatsoever from the beginning of the world to the Execution Date of this Agreement relating to or arising from any or all of the 1cgal 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 counterclain relating to or arising from alleged tax obligations of LILCO and/or alleged payment in lieu of taxes obifgations 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 petitionerr. or otherwise voluntarily involved in any inst.t ation of such action concerning the deccmmissioning of Shoreham.

7. LIPA, SWRCSD rnd JE7 separately warrant and represent that the designated signatory to this Agreement on its behalf is

_ __ __ ,.... . . . . : . w w. . m . .

. w ,. - - -~ -

,T. ..=

duly-authorized-by the relevant Party to execute this Agreement and

-bind that Party to this Agreement.

t 1

10 m--

f}

fiff~, /iT) ?) 0!lQ2 SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT LI,f9%

, gR. roa Ecune zurRov zn1Tsgges d .

w 1  ;

THE LONG ISLAND POWER AUTHORITY h%

-7 -

J

urnrt)/uu%unNRwn% c v u-w ,w wwuv.

. s ,

l Juf R /92_~!i40 PRCH R-R GND.K-04 IO PAGE.282 .

Ammarauf WHERRAa, LONG 38LhMD POWER AUTMORITY ("LIFA") is the h

owner of the suonznAx NocLEAR POWJR STAT!0N (#8MORENAM ) which is -

- identified as Distriot oaoo, section 0400.00 Block 01.00, Lot 001.00o,.and is-located within tae taxing jurisdictions of the COUNTY cr EUFFOLK ("sUFFOLK"), the 'f0WN OF S200XHAVEN

(*3RooxxAYINa} , anc- the SHORENAM-WADING RIVER CENTML SCHOOL

. DISTRICT ("SWRCSD"), and WMEREAs, LIFA-is obligated to make payments in lieu of ,

~ taxes on'said properties to Bat 00KHAVEN, SUFFOLE and SWRCSD

. pursuant to-Public Authorities Law $1020, at seg. ("the Aet"),

ana WHERZAS, Section 1020-pf2) of the Act provides that "the: authority shall be required to pay ne.taxas nor- eseessaant un any of the trnrprty equired or controlled by it. . .*, and -

WHERFAS, LIPA balieves~that any payment it may owe to the taxing jurisdictions'in which SNoRENAM is . located on any date nay.caly constitute a payment in lieu of taxes (" PILOT") pursuant to the'Act, and WNEREAs, srfFoLK, anooRMAVIN and.SWRCED eentand'that on May 31,f1992, real estate: taxes totalling $41,033,349.55 are due and owing to 3Ro0RMAv3N as the second hair real estate tax payment en the EHOREHAM real property for the 1991-92 tax year, and e-w e ww -, , '-, p, y+99-<,+y,.r ---- -+wgwggsy- wg er,- -e gmyyp--rw---% -.a.g,emg-w-. , -pqge*g*-.i-

'SENT'a W RSHY the EART0C T8- bit 192iNWI UN

[uh-2 ist -

inds FAem R R QND 4 ed To ' AGE.823 8,

WHZREAB, SUTFOLX, in antlespation of the r weipt of its portion of the tax procweds has borreved in'the public markat, and WMtREAS, SUFfcLK is suffering severe cash abertages in its day-to-day operations and is in dire need of the receips of anticipated revenues from the smoRENAM facility, and WNYREA4, the BRoCXMAVRK Receiver of Taxes, undar @e Suffclk County Tax Act is the legally designated recipient of all tu revanues for all taxing jurisdictions entitled to collect revenues or. the BHCREMAM property, and WHEREAS, LIPA, BRc0KMAVIN, SUFFOLX and SWRC8D have been unable to agree as to whether the May 31, 1992 payaant would be a tax payaent as BR00lOLAVIX, SUFFOLE and SWRCSD contend or PZLoT as LIPA ocntande, and WHEREAS, LIPA desires to scoperate with SUFFOLK at a time cf dif ficult financial circumstances for stTroLK, and to-avoid any further downgrading of SUFFOLK's bonds and notes and WHI.RIAs, the parties to this Agreemant will attempt to negotiate a_ settlement of their legal differences or in the alternative, seek judicial interpretatien of the rights and obligations of the parties undar the Act, and WHERBA8, to assure that there is no interruption of vital services to the taxpayers of the taxing jurisdictions wherein 8 HOR 3 HAM is located during the pandency of the negotiations or any legal actions, and WHEREAS, the parties to this Agreement have concurtsC that a second payment will be made by LIPA on or before. January n a,.e - ~ ,,,-.mw.,,-..: 7 ., y- m

ists in:wr;f and emoL GN Wtrwnw.reApaundnwemru )

.+ .

.l;

.o plv na pane a m e n x n. 0 PAMF.MR4 1o,-1933 in the sum of 540,est, sos,ss and a third payment will be '

made by LIFA en or before )tay 31, 1993 in the SGB Of

$36,802,35s.00, with LIPA resexving the right to maks said payments to the tawing jurisdictions entitled to sollect revenues on the sno35AN property and subject to reservation of rights in paragraph '4' below; NOW, TNatrFORE, IW CONSIDERATION OF THE REPRE8ENTATIONS AND M:77UAL AGRE N S MERZIN, LIPA, SUTTOLK, SROOKkRVIN and SWRCSD AGREE AND STIPULATE AS FOLLOWS

-1. LTPA will on June 1, 1992, issue a check in the sum of $40,431,5o3.39 made payable to the ' Town of Brookhavan" with the understanding that the LONG ISLAND LIGKfINC COMPANY

("LILC0") conte 7porantously tender a check for $14:,839.s?, which LILOC believes to be its tax liability for_the portion of ShoAFMAX that it retained;

2. BROOKEAVEN intends to deliver said checks to the Receiver of Texts, Tcwn of Brookhavan, en independently alected official of said tevn, for the purpose of depositing said check with a bank or trust company or a designated depository'of BROCKEAVEN Receiver of Taxes.

3._ BR00KMAVEN in recognition of the county's current cash crisis will distribute the procaeds in accordanee with the provisions and requirements of the suffolk county Tax Aet;

4. The parties asknowledge and understand that they disagree as to the partjoularities of the paysant being made by LIPA to BROOKHAVEN and that nothing contained in this Agreement, particularly LIPA's agreement to pay funds to BR00KMAVEN in

3

._ . . - ~

p .v,pms 'W --

uN 2 ,. ' ' s 2 Isee PRen R R chD K 04 TO 1

1. CSE.225 bahalf or stTFoIJt and BROO7:IAVEN's noceptance of those funds, I

constitutes a waivar of or will prejudice any position or claim alther party may assert or stak to have adjudicated regarding the partime' rights and obligations under the Act, including but not limited to:

' I- .

a. Whether LIPA's paymente, set forth in

\,, paragraph"l*[IcN utes a paynant cf taxes or e PIIDT parsuant to the Act; and

b. the artent to which that L:PA's paysants are attritratable to any portion of the preparty surrounaird Shoraham which continued to be owned by LILCO after rebruary 29, 1993; and

c. the due data (s), amount (s) and the method of the sub;ect payments and the treatment of the subject payments or any future paymsnt(s) made by L PA to any taxing jurisdictions pursuant to the Act; and i

d. whether any change, by any means, in the assessed value of all or any portion or shorahan and/or the property surrounding Scoreham which continued to be owned by _

LILCO after February 29, 1992, or any tax rate applicable to Shoreham and/or the property surrounding shoreham wnich continued to be owned by LILCO after February 29, 1992, for any past, present or futura years will result in the change of LIPA's obligations under the Act and/or refundo of payments mast. or to be cada by LfPA under the Act.

e. That said first paysant to 2LOOWAVZN is without prejudios to LIPA's right to make futura payments 4

_ _ _ _ _ _ _ _ . _ _ _ - _- - - - - ^^ ~~

W7PETYLm1Rn

~

5t@ftR*LW W enc 81Mn .a

.? . , .

e 1

'JUN 2 'st ;i 47 Jacn R R A c < ed to Past,ess

- direotiy' to any of the tasing jurisdictions in which the BM0MEAN property is leested..

8. That minultaneously with the azacution of this

,- agreement,-SvACsD and LIPA, along with SCIENTISTS AND ENG DIERS ,

FoR SECURE INERGY, INC. ("S3() will entar into an agramment, in which all'of the parties agree to pronytly dismiss all judicial and administrative action'and vaive any future actions which soak to or will have the effect of preventing or delaying LIPA's deccemissioning cf SMCRENAN,. including but not limited to LIPA's

-disposition of low level. radioactive waste and spent nuclear fuel. The instant agressant shall not become effective, despite the signature of the parties, unless and until the referenced agreement betvean LIPA, SWR 08D and 8t, is avecuted by all tha

- parties thereto.

6. Subject to LIPA's reservation of rights in l- paragraph "4" above,-LIPA will on er before January 10,-1642 l issue checks totalling 840,891,509.59 sade payable to tha taxing p jurisdictions ~vharein the SNCRERAM property is located and LIPA L

vill on or before May 31, 1992 issue cheeks totalling 436,802,254.00 anda payable to the taxing durisdictions wherein the SHCREIAN property is-lesated. ,

7. The. parties agree and understand that t.he making of these payments,-the moceptance and treatment of same, shall not be used by any party in any future act. ion or proceeding as presumptive, circumstantial or probative evidence ~ of whether the paymente constitute a PTLCT paynant or tax payment or on any of

-S=

2: - -. .- . - - -- - ...

TO PQQE.887 l

'JUN' 2 '52 1447 FRCit R R AND K 04 th sh as dentified in paragraph * ".

I 1 - ) o adA LONG ISLAND MWD 1 AM~ 25 CT van gj _

)

/ CCUNTY 07.5 N .

1AAM4ADINGgva.nc.antaAL SC3t00L DISTRICT r/Sw)cs:.acersme.nvt

BEFORE THE UNITED STATES ' *! Il D NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY 4 ND LICENSING BOARD

'92 JTl ~3 PS :08 Before Administrative Judges:

9"tF: Di =;

Thomas S. Moore, Chairman I Q-4.?y,,

Wr.fy Dr. George A. Ferguson Dr. Jerry R. Kline

)

In the Matter of ) Docket No. 50-322-DCOM

)

Long Island Lighting Company ) ASLBP No. 92-660-01-DCOM

)

(Shoreham Nuclear Power Plant, ) (Decommissioning Order Unit 1) ) Proceeding)

)

CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioners'-Consented Motion to Dismiss in the-above-captioned proceeding 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 Commissien 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 Gide, Maryland 20764 Washington, D.C. 20555

Carl R. Schenxer, Jr., Esq. W. Taylor Reveley, III, Esq.

O'Nelveny & Myers Donald P. Irwin, Esq.

555 13th Street, N.W. Hunton & Williams Washington, D.C. 20004 Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219-4074 (1 .2-0jy Av s Jpja'es P. McGranery, Ag/, Esq.

dow, Lohnes & Albertsdn 1255 Twenty-Third Street, N.W.

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

s i

_ _ _ _ _ _ _ . _ _ _ _ _ . __ _ ___ _ . _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _