ML20097C289
| ML20097C289 | |
| 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-#292-12964 OLA, NUDOCS 9206080179 | |
| Download: ML20097C289 (17) | |
Text
.__- - ______- ________ _ _ _ _ _ _ , _ _ _ _ _ - _ - _ _ _ - - _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _
/i%Y BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION , a nt.11 b
!NM COMMISSIONERS:
'92 JW -3 P 5 :09 Ivan Selin, Chairman Kenneth C.-Rogers ,f g _ r 3 : ,3 w y James R. Curtiss m;cni w ;. '. c'>
-Forrest J. Remick HAld" E. Gail de Planque
') Docket No. 50-322-OLA In the Matter of )
) (Confirmatory Order Long Island Lighting Company ) Modification, Security Plan .
) Amendment and Emergency (Shoreham Nuclear Power Plant, ) planning Amendment)
Unit 1) )
)
PETITIONERS' CONSENTED MOTION TO DISMISS THEIR APPEALS The Shoreham-Wading River Central School District
(" School District") and Scientists and Engineers for Secure Energy, Inc. ("SE2 ") , Petitioner-Appellant in the above-captioned matter, hereby move to dismiss their appeals in that matter with prejudice and with each party to bear its own costs and attorney fees. ;
Counsel for the Nuclear Regulatory Commission Staff, Long Island Lighting Company and Long Island Power Authority have authorized undersigned counsel to represent that their clients consent to this motion.
This motion is being submitted pursuant to the School District's and SE 82 s obligations pursuant to certain Agreements, copies of which are attached. An original of each of these Agreements will be furnished on request.
9206080179 920603 PDR O
ADOCK 05000322 h jn3:3
- _ PDR l
WHEREFORE, the School District and SE, urge the Commission to dismiss their appeals in the above-captioned matter with prejudice and with each party to bear its own costs and attorney fees.
Respectfully submitted, ,
June 3, 1992 . -- ._ ] ? /:.. >l .
Jp' esp.McGranery,J,/[/
Qdw, Lohnes & Albert W.
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. .
i.
flo-02 '91 c; 43 10,t i POUR NT A Ty Ta o m gg M '__
i
)
f SETTLEMENT AGREEMENT WHEREAS, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT
("SWRCSD") , SCIENTISTS AND ENGINEERS FDR SECURE ENEROY (" 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 at agg. (the "Act"), LIPA as owner of the Shoreham Nuclear Power Station ("Shoreham") is obligated to make in lieu of taxes (" PILOT") with respect to certain payments Shoreham.to municipalities and school districts, including SWRCSD, in which Shoreham is located; and WHEREAS,-LIPA is in possession of a tax bill 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 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 responce to certain conduct of SWRCSD including the litigation referenced in paragraph "1" below; and
WHEREAS, all Parties consider it in the best inhrest of the people of Long Island and each Party to terminate all litigation between and among the Parties both in view of the ,
l extraordinary small 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 l l
pursue its respective responsibilities on the basis of mutual j respect from the other Parties and without interference from the l
-other Parties; NOW, THEREFORE, IN CONSIDERATION OF THE REPRESENTATIONS AND MUTUAL AGREEMENTS HEREIN, SWRCSD, 3E2 AND LIPA HEREBY AGREE AND STIPULATE AS FOLLOWSt
- 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 _ f ees. 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 Agreement, 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 Corn, et al . v. Edward V. Resan. 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 . f ees. No party adr. .s or cor. cedes any f acts or legal 2-
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 any affiliated entity or entities have had, presently have, or may have in the future, to bring ar.y 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 nuc1sar 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 ("Brookhavon") and the County of Suffolk, dated June 1, 1992 (" agreement to pay"), that it ' ill pay the amounts indicated in that Agreement under protest and subject to the provisiens 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 F future payments to be made by LIPA. Some of the specific issues which are reserved for future resolution are listed below :in paragraph "4".
+ - _
e .
j.
- 4. The parties acknowledge and understand that they may disagree as to the particularities of any paynants LIPA makes to municipalities and school districts in which shoreham is located and that nothing contained in this Agreement, particularly LIPA's and Brookhaven's acceptance and agreement to pay Brookhaven, constitutes a waiver of or will treatment of that payment, claim any (or any taxing prejudice any position or party 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, ref erenced in paragraph "3," constitutes a payment of taxes or a pilot pursuant to the Act; and the extent to which that payment is b.
attributable to any portion of the property surrounding shoreham 1992; and which continued to be owned by LILCO after Tebruary 29,
- c. the due date(s), amount (s) and method of payment of the cubject payment or any future 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 I
and/or the property surrounding Shoreham which continued to be E
owned by LILCO af ter February 29, 1992, for any past, present--or l-future years will result in the change of LIPA's obligations under
-4 -
I
yura-tri "fiIPIF.r wrc Tutats MChmfrYY N e -
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 I
criticizes the conduct of SWResD's or SE 3 's activities including their conduct of the various legal proceedings subject to this Agreement, erovidad that LIPA shall not be precluded from
= responding to press or media inquiries which relate to SWRCSD's or
- SE 2
's activities in relation to Shoreham, and that it is expressly f 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),
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 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 f
Kulka construction Manactement coro. , et al. v. Edward v. Regan, et AL,, Index No. 9191/1992), as releases (s), the releasse(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, 5-l
-. . . . - _ . _ . _ _ _ . _ _ _ . . - _ . _ _ _ . _ . . _ . . _ _ , m.. - - . . _ _
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 releanor(s), releasor's and/or releasor's directors, officers, heirs, executors, agents, employees, successors, attorneys, contractors and assigns over 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 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) arisina 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 SE2 separately warrant and represent that the designated signatory to this Agreement on its behalf is
. z , , ,, 4 . . . , gl ,, -; c
. . ... -; .... . . i. . . .. -a ., g 43 duly authorized by the relevant Party t.: exec te this Agreement and bind that Party to this Agreement.
t
( l e1 SHOREHAH-WADING IVER CENTRAL SCHoot DISTRICT e d / !9.2. ._
A ,; Rem m _ _
guEm T. gy
> \ xJ L- AL __
sc THE LONG ISLAllD POWER AUTHORITY
-7 -
, ____ m_ , . - - - - - - - - - - - - - - -
. 4 Jyp t,'OR 1: 40 PROM R R AND K C4 TO PME.eet AWME2 WHERIAS, 14NG !sIAND POWER AUTMORITY (mLIPA") is the owner of the aMouMAM NUCLEAR PoWJR STATION ("sMcRERAM*) which is identified as District c200, section 0400.00 Block 01.00, Iot 001.000, and is located witnin tae taxing jurisdictions of the coVHTY or SUTTOLX ("5DTTOLK"), the TOWN OT BR00EAVEN
(*8Ro0KMAY2:N"), and the 5HORIHAM-WADING RIVER CENTRAL SCM00L DISTRICT ("8WRCSD"), and WHEREAS, LIFA is obligated to rake paycants in lieu of taxes on said properties to BR00 EAVEN, SVTFOLX and EWRCSD pursuant to Public Authorities 1.aw 51020, at sea. (*the Act'),
sno WHERIAS, Section 102C pf2) of the Act provides that "the authority shall be required to pay ne taxes nor aseessmant upon nny of the prnretty acquired or contro11od by it...", ar.d -
WHIREAS, LIPA balisvaa that any payment it may owe to the taxing jurisdictions in which CHOREMAM is located on any data nay only constitute a payment in lieu of taxes (" PILOT") pursuant to the Act. and wHERzAs, surroLx, smooKHAVIN and SWRCSD contend that on Way 31, 1992, real estate taxes totalling $41,033,349.56 are due and owing to 3RooKHAVLt as the second half real estate tax payment on the GHOREHAW real property for the 1991-92 tax year, and
. . .' U N, 2 'et 1its PA0M Q R CND K $8 TO 80$I.00)
WFJtEA8, SUTF0LM, in anticipaties of the rseeipt of its portion of the tax procu's has borrowed in the public market, and WHtaEAs, SUFFOLK to suffering severs cash shortages in '
its day-to-day operations and is in dire need of the reesipt et anticipated revenues tres the suoktnAM fool!1ty, and WHEREA4, the 3RoCNNAY3Bf Receiver of Taxas, under the Buffelk County Tax Aet is the legally designated recipient of all tax revenues for all taxing durisdictions entitled to-eelleet revenues on the sucREMAN property, and MIIREAs, LIPA, BRooKMAVEN, SUFFOLX and SWRCED have been unable to agree as to whether the May 31,-1992 payment would be a tax paysent as 3ROCKMAvzN, SUFFOLE and SWWCSD eentend or P! LOT as LIPA contenda, and WHEREA8, LIFA desires to eseperate with SUFFOLR at a time cf difficult financial oireumstanses for attFrola, and to avoid any further downgrading of SUFFOLK's bonde and notes and WNEREAs, the parties to this Agreement will attempt to negotiate a settlement of their legal differences or in the alternative, seek judicial interpretation of the rights and obligations of the parties under the Act, and WHERRAS, to assure that there is no interruption of vital services to the taxpayars of the taxing jurisdictions L wherwin sHORanAM is located during the pandency et the L
negotiations or any legal actions,.and
! WHEREAs, the parties to this Agreement have concurred that a second payment will be made h LIPA en or before January 2-
l j(p, ion sua pen. p M AND M A4 "O PHP.RRa l
to, 1993 in the enn of 540,ses, sos.se end a third payment will be made by LIPA en or before May 31, iss3 in the Sun Of
$36,402,3ss.00, with LIPA reserving the right to Bake Said payments to the tawing jurisdictions entitled to collect revenues on tna -anu property and subject to reservation of rights in paragraph '4" below; WOW, TWEREFORE, tW CONSIDERATION OF TER REPRESENTATIONS AND m.TUAL AGREEMLMS MEREIN, LIPA, rJTroLK, SRooIHAVEN and FWRcs0 AGRat AND arIFVLArE AS FOL14W81
- 1. LIPA will on June 1,1992, issue a check in the sum of $40,esi,ses.se made payable to tha " Town of trookhaven" with tha understanding that the LONG ISIAND LIGMTI.No C0KFANY
("LILco") conterporaneously tent.ar a check for $141,839.57, which LILCC believes to be its tax liability for the portion of SHORFMAM that-it retained;-
2.- BROOKHAVEN intends to deliver eald checke to the Receiver of Texts, Town of Brookhaven, an independsatly alected orricial of said town, for the purpose of depositing said ohr,ck with a bank or trust company or a designated depository of BROCKHAVEN Receiver of Taxes.
- 3. nacoRMAvEN in resetnition of,the countyre current cash crials will distribute the proceeds in accordance with the Provisione and requiremente er the suffolk county Tax Act;
- 4. The parties acknowledge ana understand that they disagree as to the particularition of the paysant betag made by LIPA to BR00KRAVI28 and that nothing contained in this Agreement,
- particularly LIPA's agreement to pay funds to BRooIMAVEN in
. 3 ty. ~ .-,+.s .g, -.., 4y- -,,,..,,,.-.-w.py., m- .. ,.,,,,,,.n._.g.,c,m% , yy-4,%,- -
juu a; ' n n 4e acn = = sse x e4 To I
- a n eas behalf of stTroLE and astooKIATEN's tooeptance of these funds, constitutes a vaivar et or vill prejudice any positten or claim either party may assert or seek to have adjudiented regarding the partime rights and obligations under the Aet, including but not limitad tes
'[.
- a. WhetherLIPA'spaymente,setforthin y pangraph *1*((cN utes a payment cf taxas or a Priot pursuant ktotheAct;and b.
the artent to whteh that 1,:PA's payments are attribatable to any portion of the property surrounding shorehas which continued to be owned by LILCo after February 29, 1993; and
- c. the due date(s), amount (s) and the method of tr.a subject payments and the treatment of the subjoet payments or any future payaant(s) made by LIPA to any taxing jurisdictions
-pursuant to the Act; and
- d. whether any change, by any means, in the assessed value of all er any portion of sneraban and/or the property surroundir.g Shorsham which continued to be owned by '
'LILCO after February 29, 1992, or ar.y tax rate applicable to 8herehan and/or the property surrounding Shoreham which continued to be owned by LILCO after February 29, 1993, for any past, present er Yutura years will result in the abange of LIPA's obligationa unde:/ the Act and/or refunds of payments nada er to be made by LIPA under the Act.
- a. That said first payment to BROOKMAVEN is without pre $udios to LIPA's right to make futura payments
-4 r -., . -.
--r- i,-, - - - . . - . , , , - . . . ,. ,--,---.---,,.-,-,..e-e--x+, -. ,,- ,-m. > .,-'
5Er .f WJU MY thC 2 arf 06 1 0* l-E! 11180tFW 4 Sie 164 blat-40hrAICAllD5 ktM LO 8 5 l
. 1 h asz iso recM R R AC < 04 90 past.tts i
directly to any of the taxing jurisdictions in which the ENORIEAX property is located.
- 5. That situultaneously with tas execution of this agreement, SW7tesD and LIPA, along with 8CIENTISTS AND ENGINIIRS FOR sect?RE ENERGY, INC. ("Sy') will antar into an agraennt, in which all of the parties agree to prc:gtly disiziss all judicial and administrative action and vaiva any future actions which saak to or will have the effect of preventing er delaying LIPA's decetsissioning of SHCRIRAM, including but not limited to LIPA's disposition of low level radioactive waste and spant nuciatr fuel. The instant agressant shall not become effective, despite the signature of the parties, unless and until the rafara.v.ed agreement betvaan LIFA, SWR 08D and SE, is aracuted by all the parties thareto.
- 6. Subject to LIPA's reservation of rights in paragraph "4" ab::ve. LIPA will on or before January 10, 1992 issue checks totalling $40,331,509.59 made payable to tha taxing jurisdictions wherein the EXCRIHAM property is lo3ated and LIPA vill on or hofore May 31, 1993 issue checks totalling 536,80* PS.00 made payable to the taxing jurisdictions wherein the SHoREHAM property is located.
- 7. The parties agree and understand that the making of these payments, the acceptance and treatment of same, atta11 not be used by any party in any future action or prooteding as presumptive, circunstantial or probative evidence of whether the payments constituta a PILc7 payasnt or tax pay =ent or on any of 1
i -8=
1
N iv6 ueu 3 1
Ju9,*2 '92 1147 FRCn R R AND K e4 To 900E.087 i th ei me .dentified ir paragraph * '.
L . N w 5e a huu
-- an IANG I5 LAND NWER AVIRORITY CT ses
' A ja { /b
. / r AW '
tY CI 5wrsviiK WNUE.IJLAM1ADING@vs.= wEnmAL SCM00L DISTRICT r2wacaucua.meutv7
= 6-
--n_s - ew--- -~ e --, --+- , , - .-, -
..,y n , nw-. _c_-,.--,y -
g wwr., - ,-, -
BEFORE THE UNITED STATES t g g g, NUCLEAR REGULATORY COMMISSION 'unc COMMISSIONERS - 92 JiiN -> PS :09 Ivan Selin, Chairman . _.
Kenneth C. Rogers }[Sj ;;-('{ b'f,jf l James R. Curtiss RAhte Forrest J. Remick E. Gail de Planque
) Docket No. 50-322-OLA In the Matter of )
) (Confirmatory Order Long Island Lighting Company ) Modification, Security Plan
) Amendment and Emergency (Shoreham Nuclear Power Plant, ) Planning Amendment)
Unit 1) )
__)
CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioners' Consented Motion to Dismiss Their Appeals in the above-captioned proceeding have been served on each of the following by first-class mail, postage prepaid on this 3rd day of Jene, 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. Euclear Regulatory 5307 Al Jones Drive Commission Shady Side, Maryland 20764 Washington, D.C. 20555
W. Taylor Reveley, III, Esq. Carl R. Schenker, Jr., Esq.
Donald P. Irwin, Psq. O'Melveny & Myers Hunton & Williams 555 13th Street, N.W.
Riverfront Plaza, East Tower Washington, D.C. 20004 951 East Dyrd Street Richmond, Virginia 23219-4074
<-. m x Ja 's P. McGranery,Jr.,/Esq. !
D , Lohnes & Alberts !
1255 Twenty-Third Street, N.W.
Washington, D.C. 20037 I counsel for Petitionors Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
- - - . _ , _ ..