ML20097C324

Petitioners Consented Motion to Dismiss Joint Opposition to Issuance of Decommissioning Order Prior to Hearing.* W/Certificate of Svc

ML20097C324
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/03/1992
From:	Mcgranery J SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY, WINSTON & STRAWN
To:	Selin I NRC COMMISSION (OCM)
References
CON-#292-12962 DCOM, NUDOCS 9206080196
Download: ML20097C324 (17)

Text

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'. BEFORE THE UNITED STATES ;3gg, NUCLEAR REGULATORY COMMISSION up COMMISSIONERS: '92 JJJ i s 07 Ivan Selin. Chairman ,;gi  ; ,,g ,, , ,

Kenneth C. Rogers , 4 m. ,7 ! i ,

James R. Curtiss ma t.' "

Forrest J. Remick E. Gail de Planque

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

) (NRC Staff Pruposal by Long Island Lighting Company ) RECY-92-140 (April 17, 1992)

) in Decommissioning Order (Shoreham Nuclear Power Plant, ) Proceeding)

Unit 1) )

)

PETITIONERS' CONSENTED MOTION TO DISMISS THEIR JOINT OPPOSITION TO ISSUANCE OF DECOMMISSIONING oEDER PRIOR TO HEARJ.llG The Shoreham-Wading River Central School District

(" School District") and Scientists and Engineers for Secure Energy, Inc. ("SE2 ") , Petitioners in the above-captioned matter, hereby move to dismiss their Joint Opposition to the issuance of a Decommissioning order prior to a hearing as proposed by the Nuclear Regulatory Cetmission Staff in SECY-92-140 (April 17, 1992), 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 the-granting of this motion.

9206080196 920603 PDR 0 ADOCK 05000322 )$h953 ppg

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Th: o ention is being submitted pursuant to the School District's - ' F53's obligations pursuant to certain Agreements, copies of which are attached. An original of each of these Agreements will be furnished on request.

WHEREFORE, the School District and SE2 urge the Commission to dismiss their Joint Opposition to the Decommissioning order prior to a hearing with prejudice 'nd with ,

each party to bear its own costs and attorney fees.

Respectfully submitted,

,m /  % "

! .. L-June 3, 1992 .-,

44- -j/ -- sa y, J 99es P. McGranery, 'rp#

Db9, Lohnes & Alber 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.

• 7 H-02 '91 c2:a3 1Dtl 1 POWER CUT IT TEL G - m -IOS4 24M Pc2 IITTLEMENT AGREEMEET WHEREAS, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT

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

Public acknowledge that under the Long Island Power Authority Act, Authorities Law 5 1020 .t1 ac2 (the "Act"), LIPA as owner of the Shoreham Nuclear Power Station ("Shoreham") is obligated to make cortain 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 posacosion of a tax bill indicating the taxing the amounts which would have oeen received by jurisdictions from the Long Island Lighting company ("LILco") for j Shoroham (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 phyment to SWRCSD in response to certain conduct of SWRCSD including the litigation referenced in ;tragraph "1" below; and

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

extraordinary small likelihood that Shoreham can over operato as a nuclear power plant again without formidable further investmont 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 interforence from the other Parties; NOW, THEREFORE, IN CONSIDERATION OF THE REPRESENTATIONS AND MUTUAL AGREEMENTS HEREIN, SWRCSD, SE2 AND LIPA HEREBY AGREE AND LTIPULATE AS FOLLOWS

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 action", in which all Parties are engaged, and with each Party agrening to bear its uwn costs and attorney fees. LIPA reprosents 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 ettorney in Kulha Construction Manacement Coro.. et al. v. Edward V. Recan, et. al.,

Index No. 9191/1992, pending in New Ycrk .Cupremo Court, County of Nassau, and that each party egrees to bear its own costs and attorney f ees. No party admits or concedes any facts or legal

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. ... u - :_ u . : ..:..c. c/ .: .A...  ; c.. .. : . - : . :. - : -i ,.ws. na;-i e ca questions at issue in the actions to be discontinued and/or dismissed. Counsel for all parties shall use their best efforts to enuure that these matters are dismissed expeditiously.

2. SWRCSD and SE2 agree to waive any richt they or any af filiated entity or entities havo had, presently have, or may have in the future, to bring any judicial or administrative action which seeks to or will have tho offect of preventing or delaying LIPA's decommissioning of shoreham including but not limited to LIPA's disposition of low lovel 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 agroos, 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 ("Brookhaven") and the County of Suffolk, dated June 1, 1992 (" agreement to pay"), that it will pay the amounto 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 resolvo any issue related to that payment or any future paynents to be made by LIPA. Somo-of the specific issues which are reserved for future resolution are listed below in paragraph "4".

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AR J-02 ' 92 02 :46 !DIL ! POWEP AUT<RITY TEL tot i-516-?d2-2004 a491 Pc5 i

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4. The parties acknowledge and understand that they may disagree as to the particularities of any payments LIPA makes 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 treatment of that payment, constitutes a waiver of or will prejudice any position or claim any party (or any taxing 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 property surrounding shoreham which continued to be owned by LILCO after February 29, 1992; and

c. the due date(s), amount (s) and method of payment of the subject payment or any future payment (s) made by LIPA to SWRCSD pursuant to the Act; and

d. Whether any change, by any means, in the 1

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

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l; .. At4-02 '92 02: 47 ID L 1 FOLJER AUTHORITY TEL toil-516-742-2004 E491 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 benotit, or initiate a public campaign which criticizes the conduct of SWRCSD's or SE 3's activition including their conduct of the various legal proceedings subject to this Agreement, nrovided 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 a::pressly 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),

rathod and/or charactorization 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 "interforence" nor be considered to " initiate" as these terms are used herein.

6. Each Party celeases 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 Coro., et al. v. Edward V. Regan, et AL. , Index No. 9191/1992), as releasee (s), the releasee (s),

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

-S-

• *---- JUN-05 ' 93 02 :47 IDt L 1 POJER AUTHOR!?f TEL NCt i-516-742-20N 88421 PO*/

contracts, controversion, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and domands whatsoever in law, admiralty or equity which against the releasee Party and/or Partion the releasor Party and/or Parties, the releanor(s), releasor's and/or releasor's directors, officers, heirs, executors, agents, employees, successors, attorneyo, contractors and assigns over had, now has, or hereafter can, shall or may, have for, upon, relating to, arising frem or by reason of any matter, cause or things whatsoever from the beginning of the world to the Exocution Date of thjF Agreement relating to or arising from any or all of the legal actior.r 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 te or arising from alleged tax obligations of LILCO 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 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 SE2 separately warrant and repuesent l that the designated signatory to this Agreement on its behalf is 1

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duly authorized by the relevant Party to execute this Agreement and bind that Party to this Agreement.

[ I l-SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT 1 # A _9)--

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sc THE LONG ISLAND POWER AUTHORITY

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. i d u,# 3 ,'52 1809 PROM R R QND K C4 70 PAGE.2B2

&a?.ERWMT WHERRA8, I4NG ISLAND POWER AUTMORITY ("LIPA") is the owner of the snoREMAM NUCLEAR Pcwyn STATION (asHoREHAM'") which is identified as District o200, section 0400.00 Block 01.00, Lot 001.000, and is located within tne taxing jurisdictions of the COUNTY cr SUTTOLK ("NUFFOLK"), the TOWN OF BROOKHAVIN

("5RooKMAvzN"), and the 5HOREHAM-WADING RIVER CEhTRAL SCM00L DISTRICT ("3WRCSD"), and WHEREAS, LIPA is obligated to r.ake payeents in lieu of taxes on said properties to BROOKHAVEN, BUFFOLK and SWRCSD pursuant to Public Authorities Lav 51020, ar, sag. ("tha Act"),

anc h".lERIAS, $sction 1020 p!2) of the Act provides that "the authority shall be required to pay ne taxes nor ase+eemant upon any of the. prnpprty acquired or contro11od by it...*, and -

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

nay only constitute a payment in lieu of taxes (" PILOT") pursuant to the Act, and WHEREAS, SU7TOLX, 1100KHAVIN and SWRCED contend that on Way 31, 1992, real estate taxes totalling $41,o33,349,55 are due and owing to BRooKHAvsn as the second hair rani estate tax Payzant on the GHoREEAM real property for the 1991-92 tax year, and

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_ _ . . _ _ _ _ . _ . _ _ _ _ . _- - - - - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - " " " - ' ' - - - - " ' - - - - - ^ " - - - - ' - - - - ' - - - - - - ~ - - - - - - - - - ' ^ - - ' - - -- - '

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WKfJtEAB, SUTF0LX, in anticipation of the reselpt of its portion of the tax proceeds has borrowed in the public market, at.d WHtREAB, SUFFoLK is suffering severs cash short47es in its day-to-day operations and is in dire need of the tweeipt of anticipated revenues from the SHoR.EHAM facility, and 1 WHEREAS, the 3RooKHAVD( Receiver of Taxes, undar the Suffolk County Tax Act is the legally designated recipient of all tax revanues for all taxing durisdictions entitled to collect revenues on the SHoREHAM property, and WHEREAS, LIPA, SF,ooKMAVEN, SUFFOLK and SWRCSD htye been unable to agree as to whether the May 31, 1992 payment vould be a tax payment as 3Ro0KMAvzN, surroLI and SWRCSD contend or fit,0? as L PA contanda, and WitEREAS, LIPA desires to cooperate with st7FFCLK at a time cf difficult financial circumstances for surro1J:, and to avoid any further downgrading of SUFFOLK's bonds and notes and WHEREAS, the parties to this Agreetant 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 undar the Act, and WHEREAS, to assure that there is no interruption of vital services to the taxpayers of the taxing jurisdictions wherein 8HORRt!AM is located during the pandency C,f the negotiations o" ar,y legal actions, and WHERIAS, the parties to this Agreement havo copourred that a second paysant wi'.1 be made by LIPA on or before January 2-I

lu 2H ing.comicule clutm 4

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st%T SYtM'HY ent BMTOL  : e- t-st 111:0 m I i

J g A f u -Ita Fen *, R R nHn 8 n4 to 'MF.M4 10, 1993 in the sum of 940,est, sos.se end a third payaant will be made by LIPA en or before May 31, 1993 in the y a of

$36,402,3ss.co, with LIPA reserving the right to make said paymente to the tawine ;iurisdictions entitled to collect ravenues on the shonERAM property and subject to reservation of rights in paragraph #4' belowl I NOW, THER3roRE, IN CONSIDDATION OF THE REPRB8ENTATIONS AND MUTUAL AoREDtENTS HEREIN, LIPA, SUTTOLR, BR00KHAVEX and SWRcan AGR3L AND arIFVIATE As FOLLOW 81

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

aun of $40,e>1,ses.se made payable to the ' Town of Brookhaven" with- the understanding that the LONG IIIAND LIGMTING CONFANY

("LILCC") conterporaneously tender a check for $141,839. M , which

-LILc0 believes to be its tax liability for the portion of 8HCRfMAM that it retained;._ '

3.

BROOKHAVEN inttads to deliver eeld checks to the Receiver of Texts, Town of_Brookhaven, an independently slested official of said town, for the purpose of' depositing said check with a bank or trust ocupany or a-designated depenitory of -

BROCKHAVEN Receiver of Taxes.

3. BR00KMhVEN in res_ognitie~n of the county

• aurrent cash crisis-will_ distribute the proceeds in accordanee with the -

provisions'and requiremente of the Suffolk county Tax Aet;

-4. The parties acknowledge and understand _that they

_ disagree _as to the partlaularitise of-the paymant being made by LIPA to BROOKHAVEN and' that at% %g conta'ined in this Agreement,

.particu'trly . LIPA's agreement to pay funds to BR00KMAVEN in L

L .: . - . - . _ , . . - - - . _ _ . _ . . _ . - _ . . _ . _ . . - - _ . - . , . . . . -, , , . - . , ~ . - - , .

SENT BY8FJV E 868 E "

• 6- S-H igig g T 096 166 0300-@ p N N U V I

0N 2f'92 )

40 PDCM R R CAD K ed TO 1 Pose.225 behair or stirrotz sne BRooKMAVEN's noceptance of these funds, constitutes a wsiver or or will prejudice any position or claim either party may assert or soak to have adjudicated regarding tha partime8 rights anQ obligations under the Act, including but not limited tal

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vbetherLIPA'spayments,setforthin

\, paragraph"l"[Ic tutes a payment of taxes or a PItat pursuant to the Act; and b.

the artent to which that MPA8 e paysante are attribatable to any portion of the preparty surrounatra shoraham which continued to be owned by MLCo after February 29, 1994; and c.

the due date(s), arsount(s) and the method of the subject payments and the treatment of the subject paysante or any future payrtant(s) made by LIFA to any taxing P.risdictions pursuant to the Act; and

d. whether any change, by any means, an the asrassed value of all or any portion of Sheroban and/or the property surrounding shoreham which continued to be ovned by LILCO after February 29, 1991, or any tax rate applicable to Shoraham and/or the property surrounding Sheraham which continued to be owned by LILeo a*ter February 29, 1993, for any past, present er futura years will result in the change of M PA's obligations under the Act and/or rotunda of payzante nada or to be made by LIPA under the Act.

s. That L.1d first paysant to BROOJQihVEN is without prejudios to MPA's right to make futura payments uI-- - _____.-_. _m. _-- m_ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ m_ _ _ -

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SENT- 6 INRHE anc tARTOL I T M it lit 0tPWI $10 164 538t-00WMUN'1 CAT 10N'CENTERis'O ^

.l l JUN L 2 '92 1847 FROM A R AND K 04 TO PA0E*000 directly to any of the taxing jurisdictions in Which the SMORIBAN property is leested.

8. That minultaneously with the avecution of this agreement, swReso and LIFA, along With 3CIENTISTS AND ENGINEERS Fox szceRE ExtacY, INC. ("S&() will antar into an agreement, in which all of the parties agree to promptly dismiss all judicial

.and administrative action and waive any future actions which seek to or will have the effect of preventing or delaying LIPA's deconmissioning of SMCRENAM, including but not limited to L1PA's disposition of low level radioactive waste and spent nuclear fuel. The instant agreemant shall not beccme effective, despite the signature of the parties, unless and until the referenced agreement between lit'A, SWRC8D and SF, is executed by all the parties thereto.

6. Subject to LIPA's raservation of rights in paragraph "4" above, LIPA will on er bcfore January lo, 1993 isdue checks totalling $40,891,509.59 made payable to the taxing jurisdictions wherein the SHCRERAM property is located and LIPA vill on or before May 31, 1993 issue checks totalling

$36,802,338.00 made payable to the saxing jurisdictions wherein the SHCRERAM property is leseted.

7. The parties agree and understand that the making of these payr.onte, the acceptance and treatment of same, shall not be used by any party in any_ future action or proceeding as presumptive, aircumstantial or probative evidence of whether the-payments constitute a. PILOT paynant or tax payment or on any of l ._ _

• 5= . , _ _ ,_. _

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SENT BY:M;HY anc BMTOL i 6- 3-52 112:DiFW ; til til 5355-00W M M N @ W D T JUN'. 2 '92 1: 47 FROM R R AND X 24 T'O PA0f.BB7 e

s' ) ,es dantified in paragraph " ".

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h BEFORE THE UNITED STATES L P! il D NUCLEAR REGULATORY COMMISSION UMC COMMISSIONERS:

'92 JW -3 PS :08 Ivan Selin, Chairman 3 + -! j . no u. , <

Kenneth C. Rog'ers M ei % ' ti4 19 James R. Curtiss Forrest J. Remick E. Gail de Planque

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

) (NRC Staff Proposal by Long Island Lighting Company ) SECY~92-140 (April 17, 1992)

) in Decommissioning order (Shoreham Nuclear Power Plant, ) Proceeding)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioners' Consented Motion to Dismiss Their Joint Opposition to Issuance of_the Decommissioning order Prior to a Hearing'in the above-captioned proceeding have been cerved 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 L

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Y P W.. Taylor Reveley, III, Esq. Carl R. Schenker, Jr. , Esq. l Donald P. Irwin, Esq. O'Melveny & Myers ,

Hunton & Williams 555 13th Street, N.W. i Riverfront Plaza,. East Tower Washington, D.C. 20004  !

951 East Byrd-street i Richmond, Virginia 23219-4074  !

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Ja PJ McGranary, fr/f, Esq.

P , Lohnes-& Albert Wn l

, , 5 Twenty-Third Street, N.W. ,

kashington,- D.C. 20037 i t

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

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