ML20097C291
| ML20097C291 | |
| 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-#292-12965 OLA-2, NUDOCS 9206080181 | |
| Download: ML20097C291 (17) | |
Text
'
/%7?5 BEFORE THE UNITED STATES (mLKlit 0 NUCLEAR REGULATORY COMMISSION USNfiC
'92 JW -3 PS :ll COMMISSIONERS:
Ivan Selin, Chairman Kenneth C.
Rogers
'o r
s a
Jrmes R. Curtiss 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 DISjilSS APPEAL Scientists and Engineers for Secure Energy, Inc.
("SE "), Petitioner-Appellant in the above-captioned matter, y
hereby moves to dismiss its notice of appeal (filed December 3, 1991) in that natter with prejudice and with occh 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 havn authorized-undersigned counsel to represent that their clients
,t consent to this mot!
This mot.n is being submitted pursuant to SE '8 2
obligations pursuant to certain Agreements, copies of which are attached.
An original of each of these Agreements will be furnished on request.
9206080181 920603 PDR ADDCK 05000322 Sd3
. WHEREFORE, SE urges the Commission to dismiss its 2
appeal in the above-captioned matter with prejudice and with each party to bear its own costs and attorney fees.
Respectfully submitted, f
, t.
4, _
June 3, 1992
%~~
g.mns P. McGranery, C
Dow, Lehnes & Albe sn Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C.
20037 Counsel-for Petitioner Shoreham-Wading River Central School District and Scientists an:
Engineers for Secure Energy, Inc.
I
M -02 *92 02 4) IDtL 1'POUER AUTHOR 1TY TEL tCt1-316-742-2084 C491 P02 SETTLEMENT AGREEMENT WHEREAS, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT
("SWRCSD"), SCIENTISTS AND ENGINEERS FOR SECURE ENERGY ("SE2") and THE 'LONG ISLAND POWER AUTHORITY ("LIPA"), being the " parties,"
Public acknowledge that under the Long Island Power Autherity Act, Authorities Law 5 1020 El ag,q. (the "Act"), LIPA as owner of the Shorehan Huclear Power Station ("Shoreham") is obligated to make certain payments in lieu of taxes
("PILOTC) with respect to Shoreham to munlaipalities and school districts, including SWRCSD, in which Shcreham 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-Shorehan (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 paynant-Idate indicatad in that bill as the basis f or ' payment, without
-prejudice to cither party and subject to the conditions and and reservation of rights stated in paragraphs _"3" and "4"
below; 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 referenced in paragraph "1" below; and
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 formidable further investment and in view of the fact that each of the Parties should be allowed to pursue its respectiu responsibilities on the basis of mutual respect from the other Parties and without interference from the other Parties; NOW, THEREFORE, IN CONSIDERATIC1 OF THE REPRESENTATIONS 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 (S) days after the execution of this Agreement, to file all necessary papers to seek dismissal with prejudice in all the NRC and Court ^* Appeals actions in which all Parties _are engaged, and with each Party agreeing to hear 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 Agreement, obtain the consent of-all defendants and file the stipulation Discontinuing Action with Prejudice previously executed by plaintiff's attorney in Kulka Construction Manacement Corn, et al. v. Edvard V. Recan, et.
al.,
Index Wo. 9191/1992, pending in New York' Supreme Court, County of-Nassau, and that each party agrees to bear its own costs and atuorney fees.
No party admits or concedes any facts or legal.
4 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 any judicial or administrative action which seeks to-ot will have the effect of preventing or delaying LIPA's decommissioning of shoreham including but not limited to LIPA's disposition af low level radiou tive 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 decommissionir,'
of Shoreham.
3.
LIPA
- agrees, subject to the conditions and reservation of rights set forth in this paragraph and in paragraph "4" belcw, and subjcet to the terms of the Agreement between LIPA, SWRCSD, 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, accaptance and treatment of those payments shall not constitute a waiver of or prejudice any_ parties' position or right to seek court L
intervention to resolve any issue related to that payment or any l
future payments to be made by LIPA.
Some of the specific issues which are reserved for future resolution are listed below in paragraph "4". _
4 The parties acknowledge and understand-that they may 4.
disagree as-to the particularities of any payments LIPA makes to municipalities and. school districts in which Shoreham is located and that nothing contained ir this Agreement, particularly LIPA's agreement to pay Brookhaven, and Brookhaven's acceptance and treatment of that payment, constitutes a vaiver of or will or claim any party (or any taxing prejudice any position a party) may assert or seek to have jurisdiction representing adjudicated regarding the parties' rights and obligations under the Act, including but not limited to:
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 1992; and which continued to be owned by LILCO after February 29, c,
the due date(s),
amount (s) and method of paynent of the subject payment or any future payment (s) madc. by LIPA to SWRCSD pursuant 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 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
-4
504-01 '92 02t h7 ~ ID L l POWED AUTHOR!?V WE tc: 1-n@-1Ff-2E:rd tWTMie
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W the Act and/or ref onds 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 cl in to financial entitlement or other bene. fit, 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, Erevided that LIPA shall not be precluded from responding to press or media inquiries which relate to 3WRCSD's or SE 's activities in relation to Shoreham, and that it is expressly 2
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 SWi4C3h 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 Menacement Coro., et al. v. Edward V. Regan, et
~ i, Index No.
9191/1992),
as releasee (s),
the releasee (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-
we w -- um c._ ~-
contracts, controversies, agreemente,
- promises, variances, tresnasses, 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 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 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 NRO, 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 LILc0 and/or alleged payment in lieu of taxes obligations of LIPA; and provided further
- that, this release does not allow any
~
releasor(s) to make any clain(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 is L
duly authorized'by the relevant' Party to execute this Afteament and bind that Party to this Agreement.
f l(f lQ2 y
SHOREHAM-WADING RIVER CENTRAL SCHo0L DISTRICT A,
d!/,!9a ENTISTS-AND EN EERS FOR SECURE ENERGY p
j t-Au t
vt THE LONG ISLAND POWER AUTHORITY l
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-M" k 'S2 1: 40 PROM R R AND K C4 TO PME.BB2 M
WHEREAS, LONG IsIAND POWER AUTMORITY ('LIFA") is the h
owner of the snoREMAM NUCLEAR PCWJR STATION ('8MOREHAM ) Which is identitled as District 0300, Section 0400.00 Block 01.00, Lot 001.000, and is located witnin tne taxing jurisdictions of the coWTY cr sUrroLK ("gUrroLKH), the TOWN OF BRDOKHAVEN
('8R00KMt.(EN"), and the SHORINAM-WADING RIVER CEhTRAL SCHOOL DISTRICT ("8WRCSD"), and WMEREAS, LIFA is obligated to make payrants in lieu of taxes on said preparties to BROOKHAVEN. BUTFOLK and SWRCSD pursuant to Public Authorition Law 51020, af seg. ("the Aet'),
ana WHERIAS, Section 1020-p(2) cf the Act provides that "the authority shall be required to pay ne taxes 4.or assessment upon any of the prnretty erquired or contro11od by it...*,
and WHEREAS, LIPA believes that any payment it may owe to the taxing jurisdictions in which SHOREHAM is log.cted on any date nay only constitute a paysant in lieu of taxes (" PILOT") pursuant to the Act, and WHERIAs, SLTFOLK, bro 0KMAVIN and SWRCSD contand that on May 31~, 1992,.real estate taxes totalling $41,033,349.55 are due and eving to SR00KNAVEN as the second half real estate tax payment on the SHORT.EAM real property for tbs 1991-92 tax year, and
y o
JuN-2 'et ti4s FROM R R AND K 3d TO 8 AGE.993 5
WFJ2AS, SUTFOLX, in anticipation of the reseipt of its l
portion of-the tax proceeds has borreved in the public market, and W1ttREAS, SUFFOLK is suffering severe cash shortages in its day-to-day operations and is in dire need of the reesipt of anticipated revenues from the EsoRENAM facility, and WHEREAS, the BROCXNAVEN Receiver of Taxes, under the Suffelk County Tax Aot to the legally designated recipient of all tax revanuos for all taxing jurisdictions entitled to oollect revannes on the SECREMAM property, and WIRIAS, LIPA,.4ROOKMAVEN, SUTFOLX and SWRCSD have been unable to agree as to whether the May 31, 1992 payment would be a tax pap ent as 3R00RMAVEN, SUFFOLE and SWRCSD contend or P2 LOT sa L:PA contanda, and WHEREA8 LIPA desires to cooperate with SUFFOLK at a time cf difficult finanetal otroumetances for Surro1Jt, and to avoid any further downgrading of 8UFFOLK's bonds and notes and WHEREAS, th6 parties to this Agreement will attempt to negotiate a settlement of their legal diffarences or in the alternative, seek judicial interpretation of the rights and obligations of the part;,es undar the Act, and I
WHEREAS, to assure that there is no interruption of vital earvices to the taxpayers of the teacing jurisdictions wherein 8HORRHAM is located during the pandency of the negotiations or any legal actions, and WHEREAS, the parties to this Agreement have concurred that a second payment vill be zado by LIPA on or before January,
'A'd5'(lEE' Mmin am imdiiii-i l
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1: 4A F90. R'R AND K A4 0
PAGF SR4 10, 1993 in the sum of 540,ssa, sos.as and a third payment will be r,ade by LIFA en or before May 31, 1993 in the Sua Of
$35,402,35s.00, with LIPA reserving the right to Rake Said payments to the tawing jurisdictions entitled to collect ravenues on tna EHORERAM property and subject to restrVation of rights in paragraph '4' below; NOW, TVE;tEFORE, IN CONSIDERATION OF THE REPRt3ENTATIONS AND ML7 CAL AGREEMENTS HEREIN, LIPA, FJTFOLK, BRooKliAVEN and SWRcSD ACR3L AND STIPk' LATE AS FCLLOW81 1.
LIPA will on June 1, 1992, issue a check in the sum of $40,851,5cs.35 made payable to the " Town of Brookhaven" with the understanding that the LONG ISIAND LIGHTT.NG COMPANY
("LILC0") conterporaneously tender a check for $14:,839.97, which LILCC believes to be its tax.'. lability for the portion of shorn AM that it retained; 2.
BROOKRAVEN intends to deliver said checks to the Receiver of Oaxas, Town of Brockhaven, an independently elected official of said tevn, for the purposa of depositing said check with a bank or trust company or a designated depository of BROCKEAVEN Receiver of Taxes.
3.
BR00lOthvEN in recognition of the county's current cash crisis vill distribute the proceeds in accordance with the provisions and requiremente of the suffolk County Tax Act; 4.
The parties-acknowledge and understand that they disagree as to the partleularitise of the paysant being made by LIPA to BROOKHAVEN and that nothing contained in this Agreement, particu'.arly LIPA's agreement to pay funds to BRooKNAVEN in _
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.un 2 ; g 2 1ide PROM R R AND K ed TO ocet.cas behalf or st'rroLE and 3RooKIAVEN's noceptance of theon funds, cons:itutes a waiver of or will prejudice any prsition or clain either party may assert or soak to have adjudicated regarding the partims' rights anQ obligations under the Act, including but not limited tot
- b*
Whet 2}ar LIPA's payments, set forth in a.
paragraph"1*((cN utes a payment cf taxes or a PIIDT pursuant to the Act; and b.
the artent to which that L:PA's paysants are attritratable to any portion of the preparty currouncing shoraham which continued to be owned by LILCo after February 29, 1993; and o.
the due date(s), amount (s) and the method of the subject paynents and the treatment of the subjoot paymente or any future paynant(s) rade 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 or Shoreham and/or the property surrounding Shoreham which continued to be ovnad by
[
LILCC after February 29, 1992, or any tax rate applicable to Shorehan and/or the property surrounding shoreham which continued to be owned by LILCO after February 29, 1993, for any past, present or future years will result in the change of LIPA's obligations under the Act and/or refundo of payzants made or to be made by LIPA under the Act.
4 That said first paysant to BROOKHAVIN is without prs $udios to LIPA's right to make futura payments 4
~
_ _. _ _ _ _ - - - - - - - - - - - - - - ' - - - - - ~ - ' - - ' - - -
.SENT BYtNJRPHY anc 5ARTOL 1 E3-it titiUPN 1
~ ~51'etl4538NOWNUNICATIONCENTERis"Oi"~
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JUN: 2='92-1147 FROM R R AND K 84 TO P4$t.898 directlylte_any of the taxing 4urisdictions in which the BIORIEAN property is leested.
8.
That simultaneously with the execution of this agreement, SWRCSD and LIPA,-along with SCIENTINTS AND DGINEERS FoALSECtfRE D ERGY, INC. ("SE() will entar into an agreemant, in which all of the parties agree to promptly dismiss all fadksial and administrative action and waive any future actions which saak to or will-have the effect of preventing or delaying LIPA's
-decommissioning of SNCRENAN, including but not limited'to LIpA's disposition o*-low level radioactive waste and spent nuclear fuel.
The instant agreement shall not.become effective, despite the signature of the parties, unless and until the referenced agreement between LIPA,- SWR 08D and 8% is executed by 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 $40,891,509.59-sado payable to tha taxing jurisdictions wherein the AMCSEEAN property is located and LIpA vill-on er before May 31, 1993 issue cheeks totalling l-836,802,358.00 ande payable to the taxing jurisdictions whersin the SHCREEaN property is leested.
I 7.
The parties agree and understand-that the making
.-of these payr. ante, the acceptance and trestaant of sane, shall
'not be used by any party:in any future action or-proceeding as presumptive, eircumstantial or probative evidence of whether the paymente cenetitute a PILOT paynant or tax payment or on any of l
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BEFORETHEUNITEDSTATES'yb 3-NUCLEAR kEGULATORY COMMISSION COMMISSIONERS:
d' y [ n[p ;N Yf Ivan Selin, Chairman t"$
Kenneth C.
Rogers g, r.
. James R.
Curtiss 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)
)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioner'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 7L. Young, Esq.
At.omic 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 1
l l
y W. Taylor Reveley, III, Esq.
Carl R. Schenker, Jr.,
Esq.
Donald P.
Irwin, Esq.
O'Melveny & Myers Hunton & Williams 555 13th Stro,et, N.W.
Riverfront Plaza, East Tower Washington, D.C.
20004 951 East Byrd Street Richmond, Virginia 23219-4074
)w m/
- 1,,
Ja'mes P. McGranery, Jg/98Esq.
D44, Lohnes & Albert 46n 1255 Twenty-Third Street, N.W.
Washington, D.C.
20037 i
Counsel for Petitioners Scientists and Engineers for Secure Energy, Inc.
m
_________.______._____.__.._______________.-_______.___m.
- _ _. _ _ _ _ _ _ _ _. _ _ _