ML20212K598
| ML20212K598 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/23/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Hoyt H, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2294 OL, OL-1, NUDOCS 8701290123 | |
| Download: ML20212K598 (9) | |
Text
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x ropes & GRAY 00LKETED 225 FRANKLIN STREET USNRC BOSTON, MASSACHUSETTS O2110 (5' "
'87 JAN 27 A9 59 iN **SNiNOTON IN PROVIDENCC 30 ECNNEDY PLAZA TELEX NUMOCR 940519 ROPGRALOR 85N 1004 TWENTY-SECOND STRCCT, N W PRovlDENCE.R L 02903 TELEX NUMBER 9$1973 ROPES GRAf BSN WAS NINGTO N,0 C.2 C O 37
- 617) h-[848 (202) 429-1600 401) 521-6400 TE LECOPIERS. !6lM 423-2377 TELEcopitR (400 521-09so INTERNATIONAL'6171423-69Cy
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TELECOPIER (202) 429-4629 January 23, 1987 Administrative Judge Helen Hoyt, Chairperson Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Sheldon J.
Wolfe, Esquire Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Emmeth A.
Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Atomic' Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Re:
Public Service Company of New Hampshire, et al.
Docket Nos. 50-443-OL, 50-444-OL, 50-443-OL-1 and 50-444-OL-1 8701290123 870123 PDR ADOCK 05000443 0
PDR f20
4 R pc3 G CRAY Administrative Judge Helen Hoyt, January 23, 1987 Chairperson
Dear Administrative Judges:
Enclosed herewith please find a copy of a decision handed down under date of January 20, 1987, and released on January 22, 1987, of the Superior Court of the State of New Hampshire.
The thrust of this decision is to require the removal of certain of the poles on which sirens are located for Seabrook emergency planning purposes in the Towns of Rye and Hampton Falls.
This decision, if not reversed by a higher court, has the potential for providing precedent for the removal of siren poles in all other towns in New Hampshire located in the emergency planning zone for Seabrook Station.
The order gives the utility involved, Public Service Company of New Hampshire (PSCO), 30 days to remove the poles.
The company is planning to appeal this decision promptly.
I am advised by New Hampshire counsel handling this matter for PSCO that the filing of the appeal will, under New Hampshire law, operate to stay the entry of judgment and, thus, the effectiveness of the decision.
The enclosed is forwarded to the Board for its information with respect to matters pending before it.
Very truly yours,
[7&Y Thomas G. Dignan, Jr.
Counsel for Applicants TGDJr/kdr Enclosure cc:
Service List Appeal Bd. Members NRC Commissioners FEDERAL EXPRESS
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.y TriE STATE OF NEW HAITSHIRE NO' UPE-RMR.401IST 6
ROCRINGHAM, SS b 35 $N '07 ROCKI.ngnin UPERIOR COURT TOW 3 0F RYE, ET AL P L h e.
V.
Uo. 86-E-34 PUBLIC SERVICE C0!TARY OF N.H.
- ORDER The Plaintiff, Town of Rye, brought this action for declaratory relief against the Defendant, Public Service Company of New Hampshire, seeking an order allowing it to revoke certain pole licenses it granted the Defendant to install poles on town-maintained rights-of-way and, further, seeking the removal of certain poles installed within the town limits on state-maintained hi hways under E
licenses issued by the state.
The Town of Hampton Falls has intervened likewise seeking the removal'of poles located in the town on state-maintained highways.
On November 26, 1986, this Court determined that the State of New Hampshire Department of Transportation (DOT) was a necessary party for the resolution of this dispute and ordered the DOT to file responsive pleadings.
The Defendant, Public Service, is the controlling partner in the construction of the Seabrook Huclear Power Station.
As such, it is required by the Nuclear Regulatory Commission to develop a means of evacuation and response to potential catastrophes at the plant.
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-No.-86-E-34 Pago No. 2 As part of its plan for evacuation and response, the Defendant has installed a system for public notification consisting of a series of sirens placed on poles located in several New Hampshire seacoast communities, including the Plaintiff Towns.
The poles are approximately 60 feet in height (as opposed to a standard utility pole 35 feet in height) and attached to the top of the poles is a f
500 pound siren /public address system.
This is the sole use of the polag it is used for no other purpose.
In November of 1985, the Defendant, through its Manager of duelear Projects, notified the Board of Selectman of the Town of Rye of its intent to place these poles and sirens in different areas of the town.
The selectmen made it clear by appropriate response that it was their intention to resist any such attempt.
Notwithstanding their insistence that they would not cooperate l
by permitting the poles for these purposes, the Selectmen, on i
September 10, 1984, pursuant to R.S.A. 231:161 I(a), granted i
applications for pole. permits submitted by the Defendant to the Town Clerk on July 9, 1984 for this purpose.
It is the contention j
of the town selectmen that they were not aware that these poles were to be used for anything other than the transmission of electric power despite the fact that the Defendant's agent had indicated to 1
the selectmen that they would be seeking pole licenses for this 1
purpose.
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lia. 80-E-34 Pcga No. 3 Pursuant to these licenses and licenses granted by the DOT purportedly under.the authority of R.S.A. 231:1G0 et sea., the Defendant has installed a number of poles with sirens throughout the Town of Rye on town-maintained highways and state-maintained highways.
The Defendant has likewise installed a series of poles on state-maintained highways located in the Town of Hampton Falls '
pursuant to licenses obtained from the DOT.
The ultimate issue to *oe determined is whether R.S.A. 231:160 et seq., authorizes the towns and/or the State to issue pole licenses for the erection of poles for purposes related solely to this siren warning systen.
The Defendant and the DOT maintain that said statutes are to be interpreted to include this purpose while the Plaintiff and intervenor maintain that this use is not consistent with the language or intent of the statute.
The authority to erect poles on the highways of the State is found in R.S.A. 231:160 which reads as follows:
" Authority to Erect.
Telegraph, television, telephone, electric light and electric pouer poles and structure, and underground conduits and cables, with their respective attachments and appurtenances may be erected, installed and maintained in any public highways and the necessary and proper wires and cable may be supported on such poles and structures or carried across or placed under any such highway by any person, copartnership or corporation as provided in this subdivision and not otherwise."
Thus, any pole erected on the highways of the State must be used within the parameters of this statute.
Therefore, any license granted for the erection of a pole for the purpose outside of these parameters is null and void.
No. 86-E-34 Pago No. 4 4'
The legislature, through this statute, has listed those uses or purposes for-which poles may be erected (the statute does not list the types of companies which may erect poles as the State contends).
The list includes " telegraph, television, telephone, electric light i
and electric power poles.
a very specific and limited
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enumeration.
It is a well-established principle of statutory construction f
that "the expression of one thing in a statute implies the exclusion of another" In Re Gamble,118 N.H. 771, 777 (1978); See also i
Vaillancourt v. Concord General Mutual Insurance Company, 117 N.H.
48 (1977); 2A J. Sutherland, Statutes and Statutory construction, Section 47.23-24 (4th ed. C. Sands 1973).
j In this case, the legislature has provided a very specific and I
limited enumeration of uses for which poles may be erected on public 4
2 highways.
The statute contains no terms indicating the non-I exclusivity of this list; such as "such as...," "like..." or
" including but not limited to..."
Therefore, applying the above-I stated principle of statutory construction, this Court must conclude j
that the legislature did not intend to allow the erection of poles by utility companies for any purpose the company cay see fit, but
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only for those purposes listed.
Thus, the licenses granted the Defendant by the Town of Rye and the State Department of Transporta' tion for the erection of poles for a system of public notification were J
I granted without statutory authority and are, therefore, null and void.
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Ha. 36-E-34 Pega do. 5 Accordingly, the poles erected pursuant to these licenses were erected without authority.
This position is further supported by the legislative history
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of R.S.A. 231:160.
The statute has been amended a number of times since its passage in 1881 to accommodate technological innovations and the needs of society.
These innovations include telephones, f
television, electric lights and electric power.
Each time the legislature has specifically anended the statute to provide for these innovations and has specifically listed that particular innovation as a permissable use for utility poles.
The legislature 4
could have used broad language in providing for future innovations-or societal needs but has chose, instead to provide specifically for each new use.
Obviously, then, it is the role of the legislature to accommodate these new uses and not the role of this Court.
4 f
Even assuming arguendo, the list was not intended by the legislature to be exclusive, thene poles and the use to which they 4
have been put are not within the general nature of the types of uses i
designated in the statute.
Excluding electric light poles, the poles i
designated in the statute are all utility poles; that is, they are t
all employed to provide some direct service to the public.
They all transmit some service to the homeowner.
The Defendant argues that these poles do relate to the transmission of electricity.
This 4
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relationship, however, is far too attenuated.
In fact, the purpose l
co which these poles are put is far too novel to have been contemplated by the legislature in this statute.
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No. 86-E-34 Page No. 6 i
Finally, these siren /public address systems can hardly be termed appurtenances.
Webster defines an appurtenance as "a subordinate part of adjunct:
accessory object,"
Webster's Collegiate
-Dictionary (1974).
It's. obvious that the sole purpose of these poles is the siren / public address system.
They are, therefore, not subordinate or adjunct parts, but the only feature of these poles.
4 Defendant has cited in its Supplemental Memorandum of Law the case of Vernet, et al v. Exeter, 128 N.H.
,(decided December 30, 1986 for the proposition that municipalities cannot exercise veto power over the State's performance of its statutorily mandated functions.
It contends that, by challenging the applicability of RSA 231:160 et seq., the plaintiff Towns are, in effect, seeking to exercise local authority to prohibit the State from implementing a nuclear emergency response plan as it is obliged to do under l
RSA 107-A, et sen and RSA 107-B et seq.
This argument is without merit, however, as, in any event, it is not the State, but the defendant company which is taking the action the towns seek to enjoin.
1 In short, the State is not, in authorizing the erection of the poles i
by the Defendant, exercising a function statutorily mandated.
It is, rather, relying on the legislative authority of RSA 231:160 et seg, which, for the reasons given herein does not authorize the erection of poles for this purpose.
For the foregoing reason, the Defendant is ordered to cause the i
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No. 86-E-34 Psgo No. 7 removal of these poles and the siren /public address systems at its sole expense within 30 days of the date hereof.
So Ordered.
January 20, 1987
__ _ ~ _ _ y _,z Walter ding Justice
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