ML20206C869
| ML20206C869 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/06/1987 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20206C684 | List: |
| References | |
| OL, NUDOCS 8704130178 | |
| Download: ML20206C869 (22) | |
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- EXHIBIT 4 4
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Filed: February 6, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY CCE1 MISSION Before the ATOMIC SAFETY AND LICENSING BOARD In-the Matter of PUBLIC SERVICE COMPANY OF Docket Nos. 50-443-OL NEW HAMPSHIRE, ET AL (Seabrook Station,' Units 1 and 2) On-Site Issues SEACOAST ANTI-POLLUTION LEAGUE'S CONTENTION AND MOTION TO ADMIT LATE-FILED CONTENTION, REOPEN THE RECORD ON ON-SITE EMERGENCY PLANNING, AND CONDITION THE ISSUANCE OF' A LICENSE UP TO 5% OF RATED POWER ON APPLICANTS' COMPLIANCE WITH 10 CFR 650.47(b)(5)
The Seacoast Anti-Pollution League submits herewith the following late-filed contention and moves pursuant to 42.734 that the Licensing Board reopen the record in the on-site emergency planning and safety phase of this proceeding to litigate this con t en t ion regar di ng compl iance by Appl i cant s ' wi th the Commi s s ion's regulations at 10 CFR at 650.47(b)(5), specifically, whether Applicants have demonstrated that the means exist to provide adequate early notification and clear instruction to the populace within the plume exposure pathway EPZ. SAPL further moves that no decision that may authorize the. issuance of an operating license up to 5% of !
l rated power be issued until this contention is resolved in such a manner as to provide for adequate notification to the public as 8704130178 870406 ,
4 required.by_the regulations. Alternatively, SAPL moves that any issuance of a low power license condition the issuance of such license upon Applicants' compliance-with 10 CFR 50.47(b)(5).
I. Satisfaction of'the Five-Part Test f or Admi ss ion of Lat e-Fil ed Contentions at 92.714(a)(1)
SAPL's contention No. 38 meets'the five-part-test set forth at
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92.714(a)(1) of the Commission's regulations for the reasons set forth below.
4 A. Good cause, if any, for failure to file on time SAPL did not file this contention earlier because, prior to the test of the East Kingston sirens on January 31,_
1987, SAPL had no site specific empirical basis upon which to found the assertion that the siren system as a whole would not provide reasonable assurance of prompt notification and clear instruction to the populace.1 SAPL was aware of the Superior Court's finding in regard to the legality of the installation of the poles, but SAPL had planned to await the outcome of the def endant's (PSNH's) Supreme Court appeal of the decis ion bef ore acting to file a contention. It has now become clear that, even should the utility succeed in having the Superior Court decision overt >rned on appeal, the mere existence of the siren system in the EPZ does not ensure its adequate operability and compliance wi th the standards set forth in the Commission's
- 1. The Massachuset ts At torney General filed a contention on January 12, 1987 pertaining to a deficiency in the public alerting system for the Town of Merrimac, Massachusetts. SAPL agrees with the Massa'chuset ts At torney General that the absence of sirens is a serious matter.
O regulations. Theref ore, SAPL ' sat is f ies ~ th is s tandard s ince "no adequately based contention could have been filed earlier"'which addressed the adequacy of the public alerting system as a whole.
Philadelphia Electric Comapny, (Limerick Generating _ Station, Units 1 and 2), ALAB-806, 21 NRC-1183, 1190 (1985).
B. Availability of other means- to protect petitioner's interest No other party to this proceedi aas filed such a broad-based contention including the issues 'of the reliability of operation of the siren system and.its legality and there is therefore no other means of assuring that the public alert and notification syst i will be in place and be brought into compliance with the Commission's regulations in timely fashion other than through the filing of this contention.
C. Extent to which petitioner can contribute to oevelopment of a sound record dAPL can bring as a witness Frederick H. Anderson, Jr. to testify to the f acts set forth'in his~ Affidavit attached hereto. SAPL is further looking into the possibility of securing an expert witness who could testify as to the issues pertaining to the audibility and intelligibility of public alerting systems.
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e, D. Extent"to which'other'partles will-represent petitioner's interest-
.As s tated. above: at :B, no other' party'has raised as.
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'- broad-based a~contentlon dealing with both the.reliabilitylof opera t lon.o f the s i ren sys t em or. i t s ' legal i ty. NECNP had ~cer tain-:
issues -related :to the power supply ' for, the sys tems :and :l ts-audibili ty, but. all .of NECNP's content ions rela ted to the s t ren
- . system'have s i nce been 'd i smi s s ed. INow that there 'is ; actual ,
j test evidence of the -system's lack of rel-lability, audibility.
and intelligibility,. it is of: vital interest to SAPL.to-have' l
SAPL's these- issues adjudicated.' interests _will not be
- z. represented save through this contention.
E. Broadening and delay of proceedings i
The admisston of this con t en t i on ' a t ' t h'i s time will l necessarily result in broadening and delay of the proceedings 4 since the record will have to be reop'ened. However, this ef f ect l Is more- than ' offset by the -extraordinary public safety significance of the issues raised by this. contention and the clear requirement that eertain off-site: elements of' the Applicant's emergency _ plans, including- compliance with 950.47(b)(5), be reviewed " prior to issuing an operating license
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authorizing low-power testing and fuel loading."- 47 Fed. Reg.-
30232, at 30234, Col. 1 (July 13, 1982).'
i Indeed, Applicant's Director .of Emergency-Preparedness has conceded that "Before low power testing' can
, be done at a nuclear power plant, the f ederal government requires F
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that.the plant have in' place a prompt.notificatlon system for- .
nearby areas."' (S e'e 'A t tachmen t A, let ter of Terry Harps ter' of June 27, 1987.)-
- 11.
Satisfaction of Criteria for Reopening'^ Records
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in Formal.
Licensing Proceedings at 92.734.
A. LPursuant to 42.7.34-the following eriterla are. satisfied:
- 1) Timeliness
..The f iI ing o f ~ th i s-.' con t en t ion i s t imely f or t he reasons set forth above in
. the - diseussion . o f' .the sat is f act ion of-the '02.714(a)(1) requiremen t -for a ~ showing I
of good cause, if any,.for.f' allure'to-fil'e on time. In the discussion of the final rule on the criteria: for.
reopening' records in licensing proceedings, the Commission noted .iiat this timeliness requirement overlaps the first. ~
of the 62.714(a)(1) criteria. 51 Fed. Reg. 195 35, a t -195 38, Col. 1 (May 30, 1986).
- 2) Significant Safety or Environmental Issue -
The issue of publle notification and' alerting is significant to public safety. Without appropriate i warning to the public, there is no reasonable assurance that adequate protective measures can and will be taken pursuant to 650.47(a)(1). Applicants may'try -to. argue that publie- aler t ing and notification is not a safety concern at power levels less than 5% of rated capacity.
Such an argument is. lacking merit because the Commission
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s has expl ici t ly s ta t ed tha t'
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this is a requirement lfor fuel loading. and low power tes t ing. - 47 Fed.Re' . -30232,g ' supra.
- 3) Materially different result.
Had the empirical evidence- of the lack of reliability-and the issue of the legality of -the siren-system been brought earlier before this Board, : SAPL believes that. this Board -would have' been obligated to inqu' ire f urther into these matters and~ could not have made its initial licensing determination'- 'in favor of the Applicants.
B) Affidavit This motion is accompanied b'y the Affidavit of Frederick H. Anderson, Jr. Mr. Anderson is a competent individual with knowledge of the facts set forth in .his affidavit.
SAPL Contention No. 38 Applicants have not complied with the provisions of 10.CFR 550.47(b)(5) and Appendix E, 91V, D.1 and 3 and Part 50 of the Commission's regulations and NUREG-0654 ll.E.6 and Appendix 3 because the siren system for public alerting and ins truction is uneeltable, not properly audible, and does not. convey properly intelligible messages and does not, therefore, ensure pecmpt alerting and notification of the public. Furthermore, the installation of the siren system has been found illegal by a New Hampshire Super f or Court.
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- Basis NRC regulations. require that ' operating license applicants demonstrate that "means to ' provide early notification and clear
- instruction to the populace within the plume exposure pathway Emergency Planning Zone have been established." 10 CFR 950.47(b)(5).
Fur ther, the des ign object ive of th'e not i ficat ion sys tem is "to have the capability to essentially complete the initial notification of.
the public within the plume exposure ' pathway EPZ wi thin about.15 minutes." Appendix E (IV D.3. Addi t ionally, .the not i ficat ion sys t em must assure " direct coverage" of essentially 100% of the populat ion within 5 miles of the site and assure 100% coverage within 45 minutes of the entire plume exposure EPZ. NUREG-0654 II.E.6 and Appendix 3.
A recent test of sirens in the Town of East Kingston, New Hampshire raises serious questions concerning the ability of the presently installed siren system in the Seabrook EPZ to ef fect timely and intelligible alerting and notification of the public. As described in the attached Affidavit of Frederick H. Anderson, Jr.,
an attempt to carry out a voice notification remotely from the Rockingham County Dispatch in Brentwood, N.H. f ailed. Secondly, the attempt to activate the sirens from the same location resulted in only one of the sirens working. The activation of the sirens from the Eas t Kings ton EOC that followed still was. flawed by an inoperable siren. Further, the audibility of the sirens in terms of their ability to alert citizens in their homes was questioned by a local official. Though a New Hampshire Yankee maintenance crew was able to get the inoperable riren to go off, the succeeding voice
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- , w announcemen t f rom the. local ~ EOC iw' a s no t- heard
- at six moni tor ing ,
' locations and._was scratchy:and unintelligible at)the.tworlocations- I where heard ~ 'I
- l The. test raises the' issues of 1) the! reliability of'the siren l sys t em; : ' 2 ) _the audibility' o f. the siren-' system; and.<3)- the- 1 intelligibility of _ messages broadcast over.the system. Itiis entirely. ;
possible that- the exist ing winter weather condi t ions of ' ice and snow' may:havefbeen'a' factor in the system failures. Indeed, two of.the:
judges who. served as-members of' the Board in the Indian Point Special' Proceedings wrote to the Commission and expressed serious concerns-about public alerting on winter nights _with. snow. (See Attachment
.B. let ter of Dr. Oscar H. Paris and Frederick J. Shon, June 9,1986.')
They stated:
At the t ime we wrot e those' recommenda t ions, . we1were unaware of-the alerting rate estimated by ' NUREG/CR-2 6 5 5, PNL-4 2 2 6 for a snowy' winter night at IP. Had.we been made aware of -that repor t
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bef ore we made our findings in the IP proceeding, we would -have recommended that the Commission require that.'a second,' backup system for prompt alerting, such as tone alert ' radios, _ be provided in the Indian Point EPZ. We urge that t he Commi s s i on consider such a requirement now. ,I d,.
Whatever the reason, whether snow and ice were- factors or not, the sirens are not reliable, are .ametimes inaudible, and the messages broadcast over them are not clear enough to ensure that adequate public alerting and notification can be carried out.
Additionally, there is the issue of the legality of the siren system as presently installed in the Seabrook Station EPZ.. A. j udge in Rockingham County Superior Court on January 22, 1987 found against Public Service Company of New Hampshire in a suit brought by the Town of Rye seeking removal of the siren poles. The Town of Hampton Fal.ls was a co-plaintiff in the proceeding. PSNH was ordered to cause the removal of the poles and siren /public address sys tems within 30 days -
of the date'ofLthe decision. Rockingham Superior Court, No. 86-E--
- 34. .(Copy of decision appended as Attachment C.)
For these reasons, the public alerting and notification requirements 10 CFR 950.47(b)(5) and Appendix E TIV, D1 and 3 are not met in the Seabrook. Station plume exposure pathway EPZ. . .It follows that there is no reasonable assurance that-adequate protect ive measures can and will be taken in the event of a radiological emergency at Seabrook as required by 650.47(a)(1).
Respectfully. submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLOMON
?:.' . , , . :& g.
jRobert A. Backus P. O. Box 516 116 Lowell Street Manchester, N.H.- 03105 Tel: (603) 668-7272 DATE: February 6, 1987 I her eby ce r t i f y tha t a copy of the wi th i n SEACOAST ANTI-POLLUTION LEAGUE'S CONTENTION AND MOTION TO ADMIT LATE-FILED CONTENTION, REOPEN THE RECORD ON ON-SITE EMERGENCY PLANNING, AND CONDITION THE ISSUANCE OF A LICENSE UP TO 5%
OF RATED POWER ON APPLICANTS ' COMPLI ANCE WITH 10 CFR 5 5 0. 4 7 ( b)(5 ) . has been sent this date, firs t class , pos tage prepaid, to all part ies on the at tached '
service list.
l 7: % -p s n-Robert A. Backus i
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WId New Hampshire Yankee t-
' n 'l , June 27. 1986 ll ,
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Deer Eeighbor .
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I 1 would like to share with you some important information on Seabroek Station and I d*i' I O, I .j l,
,t t its alert and notification system.
11 i d f$ , Construction of Seabrook Station will soon be complete. After receivi g a low-I ,, i power operating license. New Hampshire Yankee will load nuclear fuel 1::to the
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g Seabrook reactor. The next step will be a series of low-power tests at up to five percent of its normal capacity.
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g Before low-power testing can be done at a nuclear power plant, the federsi govern-ment requires that the plant have in place a prompt notification system for nearby areas.
a,. ., h, y 2,g An accident at Seabrock is extremely unlikely. The plant has been built and tested to strict qualiti and safety standards, and the reactor containment building is
%* W the strongest in the United States. However, if there were an incident at Seabrook that could affect the psblic, the notification system would be used t.* alert you.
- 7. Please take a eccent n v to read about this system and share this inf:rtati:n with
- 7. ycur fasily:
C l 1. If there should be an emergency at Seabrook Station that could affect the public in any way, warning strens in your area would make a steady g three-to-five minute signal.
[ Fi 8 ,
- 2. If you hear this sissal, you should turn on your radio. E=.rgency
(* * **- broadcasts will tell you what is happening and unat to do. Staying ww . I' tuned to the radio eight be all you would need to do. Or. you micr.t
[. [- ,, 3 be told to take other actions.
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- e" 3. Please do not use your telephone except for a perronal emergency.
gdp l The phone lines say be needed for official musiness. If you can 'o
- a ., so without using your phone, please check to see if your neighbon't have heard and understood the emergency message.
As Seabrook moves closer to running above five percent power. and to full operation, you will receive more saterials on eurgency notification and response y.ans for your area. In the meantime, if you have questions about this letter, please call the following noc-energency number between 8:30 a.a. and 4:00 p.m (603) 476 215e.
Thank you.
Sincerely.
I t 1 / L. 5
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- g Terf7 8tpster E cirector of tuergency Preparedness h l ead a: un ,
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. UNITED STATES OF' AMERICA-
' NUCLEAR REGULATORT COMMISSION i
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)
In the Matter of ) ' Docket Nos.
.) 50-443/444-OL. L
.)
PUBLIC SERVICE COMPANY OF NEW ). (On-Site EP and
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HAMPSHIRE ET. AL. .). Safety Issues)
)
(Seabrook Station, Units 1.and-2' )
)
( )
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AFFIDAVIT OF FREDERICK H. ANDERSON, JR.-
- 1. My name is Frederick H. Anderson, Jr. I have in the past served as Assistant. Civil Defense Director, Public Information-
' Director and Assistant Transportation Coordinator for the Town of South Hampton, New Hampshire with regard to.its Radiological
[
Emergency Respon:.e Plan for Seabrook Station.
In addition I am a reporter for the Town Crier' newspaper in South ,
Hampton.
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I am also President of Ideas + Information, Inc., a marketing ~research
! firm in Exeter, New Hampshire.
- 2. The Town of South Hampton is located within the ten-mile plume i
exposure EPZ of the Seabrook nuclear plant. So'th u Hampton. abuts East
! Kingston, New Hampshire.
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- 3. East Kingston held its first audible test of its emergency notification sirens January 31, 1987, and, representing the Town Crier I observed this test, primarily from inside the East Kingston EOC.
l When I arrived members of the East Kingston Fire and Police departments were being sent to eight locations within the town to monitor a test of the sirens. Four of the teams were sent to the four siren locations (EK-1 to 4) and the other four were to determine how well the sirens could be heard in other parts of the town.
- 5. As the first phase of the test,a vocal announcement, warning that a test was to be made, was to occur using the voice capability of the sirens. Rockingham County Dispatch attempted to make such an announcement remotely from their EOC in Brentwood, NH using their i
a.
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_.-_____s._ . . . . _ . . ~ , _ -_ - - _ . _ _ , _
PAGE TWO OF TWO radio system, but none of those people in the field reported being able to hear anything from the sirens.
- 6. An attempt was then made to set off the sirens remotely from Rockingham County Dispatch, as would_be the case in the event of an emergency at Seabrook. Only one of the sirens (EK-4) on Exeter Road, was reported to be working.
- 7. Robert Fairbanks, Emergency Management Coordinator in East
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Kingston, tried to reach Rockingham County Dispatch by radio and was unable to.
Mr. Fairbanks then decided to try to operate.the sirens directly from the EOC. Using the Whelan console, he was able to activate three of the four sirens using a " Wail" sound. EK-2 still did not operate.
Next Fairbanks activated the " attack" siren sound. Again only three of the four sirens worked.
- 8. I went outside the EOC while a siren was going off. East Kingston Fire Chief David Conte said that he hadn't yet heard a-noise that would get him out of a house.
- 9. A maintenance crew from New Hampshire Yankee, with a rented cherry picker truck, which was stationed in front of the EOC, was sent to try to repair siren EK-2. EK-2 was activated locally by the NHY technicians at the siren. Mr. Fairbanks cancelled a test from Rockingham Dispatch because they were working on the siren.
- 10. Toward the end of the test, Mr. Fairbanks tried to make an announcement from the EOC over the sirens. The person at siren EK-3 reported the transmission was " scratchy" and the person at siren EK-2 reported it was " unintelligible." None of the' other six monitoring locations reported being able to hear the voice transmission.
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1 Frederick H. Anderson, Jr'. Nd Then personally appeared the above named Frederick H. Anderson, Jr. and made oath that the above statements by him subscribed are true and correct to the best of his knowledge and belief.
Before me h b '?
J' Notary Public Dated: g[37 My commission expires /c g7 2
Abk=.d 8 '
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[% t UNITED STATES 00CK':T MUS2ER M PROD.& UTIL FAC.W. I
, ( ,i ) f j i j NUCLEAR REGULATORY COMMISSION ,
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ab ye ATOMIC SAFETY AND LICENSING BOARD PANEL k, Q4 WASHINGTON. O.C. 20555 .
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..... / ,
June 9, 1986 "'
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Chairman Nunzio J. Palladino r pl@ ~
f Commissioner. Thomas M. Roberts ; ceg'r ' "
Commissioner James K. Asselstine Commissioner Frederick M. Bernthal g..
V sr.sg- }.((. .s
- f Commissioner Lando W. Zech, Jr. k ,'
Dear Mr. Chairman and Commissioners:
SERVED JIJNf spF The May 16, 1986 letter to you from the Shearon Harris (SH) operating license board (SH letter), expressing a generic concern about the adequacy of FEMA-standards for .
Judging nuclear power plant sirens, came to our attention last week during the Annual Meeting of the ASLBP. We are writing to express our endorsement of the position taken by the SH board and to bring to your attention concerns that we have as a result of matters discussed in the SH letter.
As members of the board that heard the Indian Point Special Proceeding, we are concerned that the authors of NUREG/CR-2655, PNL 4226, which was cited on p. 2 of the Shearon Harris letter, predicted that on a winter night with snow the sirens at Indian Point would alert only 53% of the residents in the EPZ. The SH letter pointed out on p. 3 that the record developed in the SH proceeding showed that the estimates in NUREG/CR-2655, PNL 4226 are probably low by 10-20 percentage points. With the upper value from this range added to the Indian Point statistic, the sirens would be projected to alert only 73% of the residents on a winter night with snow. We agree with the SH board that such a level of alerting "cannot reasonably be viewed as satisfying the ' essentially 100%' regulatory requirement" adopted by the Commission.
We call to your attention that in the Indian Point (IP) proceeding we found that 4,642 persons lived witEin 1.25 miles of the IP site. 18 NRC 811, 873 (1983). This zone is well within the 2-mile distance within which lethal exposures resulting from a severe accident at IP would probably occur, according to NRC testimony. Id., at 868. If we assume only 73% of these close-in EPZ. resTdents were alerted by sirens, and we perform the same adjustment for self-alerting described in the SH letter, we obtain a total alerting projection of only 83%, well below the regulatory requirement of the Commission. Such a low percentage of alerting within 1.25 miles of the IP site could result in more than 700 unalerted persons who could be exposed to a lethal radiation
a 2/ :
f,
- June 9, 1986
/ dose.--Moreover.oas the IP record shows, snow falling'through a radiation plume can result in-hotispots downwind from the point of release, which'could significantly increase'the chance of early health effec ts. <Id., at 981.
Obviously,'a
. delay-in evacuation by persons who wereinot alerted by the early notification:would increase the risk .of- their experiencing s,uch exposure.
In our Recommendations to the Commission,. issued on
-October 24, 1983, we found-that the effect of severe winter storms on evacuation had been given insufficient ~
consideration in the emergency-planning'for IP. Id., at'981.
At the time we wrote those recommendations, we were unaware of the alerting rate estimated by NUREG/CR-2655, PNL-4226 for ,
a snowy winter night at IP. Had we'been made aware of that report before we made our findings in the IP_ proceeding, we-would have recommended that the Commission require that a second, backup system for prompt alerting, such'as tone alert
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radios, be provided in'the Indian Point' EPI. - We urge that.
the Commission consider such a requirement now.
We have another serious concern to~ bring to your attention..namely, the failure of the Staff to bring NUREG/CR-2655, PNL-4226 to our attention during.the IP .
. proceeding. The manuscript for NUREG/CR-2655 was completed in February, 1982, and the document was published in.
September, 1982. The IP board heard testimony'on emergency planning in the spring of 1983, and the record was not closed until April 29, 1983.- 18 NRC 811, 841-42 (1983). Commission Question 4 in the IP proceeding specifically asked:
What improvements in the level of emergency p_lanning can be expected in the near future, and on what; time schedule, and are there other specific offsite~ emergency procedures that are feasible and should be taken to protect the public?
In view of that question and the extensive testimony taken with respect to emergency planning at IP, as well'as the Commission's then existing policy with regard to board~
notifications, we believe that it was. incumbent on the Staff to bring NUREG/CR-2655 to our attention.. Certainly the McGuire doctrine, which has been dealt with in a number of decisions, makes it clear that any matter that is " relevant and material" to an issue being adjudicated by a Licensing or Appeal Board must be provided to that Board. Duke Power Co.
(William B. McGuire Nuclear Station, Units 1 an3 7T, -
ALAB-143, 6 AEC 623, 625-26 (1973); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404,
. _ j.f -
June 9, 1986 408-12 (1975); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 406^n. 26 (1976); Tennessee Valley Authority'(Browns Ferry Nuclear Plant, Units 1, 2, &
3), KLAB-677, 15 NRC 1387, 1394 (1982); Metropolitan Edison Co. ( T h r e e M i l e I s l a n d N u c l e a r S t a t i o n , U n i t I) , XEXE!774 , 19 RRC 1350, 1357-60 (1984); Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-6, 2T NRC 447 (1985). In light of this precedent, of the significance of the results of NUREG/CR-2655 to emergency planning at IP, and of the fact that emergency planning was litigated in the IP proceeding many months after NUREG/CR-2655 was issued, we believe Staff's failure to bring this matter to the Board's attention, when viewed even in the most favorable' light, to be a serious oversight. .
Respectfully submitted, I ) e O CDM L( >GM\S Dr. Oscar H. Paris
([~'/ / /
-//Qi/ A% . -C FredericE y '
hv cc: M. Malsch, Acting General Counsel S. Chilk, Secretary /
Indian Point Service List 9
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PU3LIC SERVICE COMPA:iY OF N.H. *
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10POER-The Plaintiff, Tcwn of Rye, brough:' this action for doclara: cry relief agains: the~Defendan:, Public Service.Cetpany of Nes
~da pshire, seeking an crder allowing it.to revoke certain-pole licenses it granted the Defendant to install poles en -tet n-naintained rights-of-way and, further, seeking the rancval of cer:ain poles ins talled wi:hin the to .1 licits on sta:e-caintained hight:ays under licenses issued by the state. The Toun of Earpton Falls has intervened likewise seeking the removal of peles located in the town.
cn s: ate-=aintained highways. On November 25,-1986,.this Cour:
de: ermined that the State of ' Jew Hampshire Department of Transportatien (DOT) was a necessary party for the resolutien of this dispu:e and crdered the DOT to file responsive cleadiaz.s. .
The Defendant, Public Service, is the controlling partner in the-construe: ion of the Seabroch Euclear Power' S:ation. As such, it is required by the Nuclear Regula: cry Cecnissio . to develop a means of evacuacion and responsa to potential ca:as:rophes a: the plant.
.h TNo. 36-E-34
?.:: Pasa No.r2 As part of its . plan for1 evacuation ~ and response, the Defendant-has installed a system for public notification: consisting of: a series of sirens _placed on poles located-in1several New Hampshire seacoast coc= unities , . including the Plaintif f Touns .
TheLpoles are approximately.60 feet in height (as opposed to'a standard utility pole 33- feet in height) and .attachedL tc ther top' of the poles is a.
500 pound siren /public address? system. .This is the: sole use'of the
-pole; it is used for.no other purpose.
In Novecher of 1985,'the Defendant, through its Manager of duelear Proj ects , notified the Board of Selectmen of 'the' Town- of Rye of its intent to place these poles and sirens in different areas of the town. The selectmen cade it clear by. appropriate response that it was their intention to resist any such attecpt.
Notwithstanding their insistence that they uould not cooperate by permitting the poles for.these purposes, the Selectmen, on September 10, 1934, pursuant to R.S.A. 231:161- I(a), granted applications for pole permits submitted by the Defendant-to the Town Clerk on July 9, 1984 for this purpose. It is the contentier _
of the town selectmen that they were not avare that these pole' to be used for anything other than the transmission of eler power despite the fact that the Defendant's agent had i-the selectmen that they would be seeking pole licent purpose.
n- =- .~
- 3. ~
- Do. 36-E -Pago.No. 3' -
Pursuant to ' these~' licenses '.and. licenses igranted by7 the. DOT'
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purportedly under theLauthority of R.S;A'. 231:160Let sec., thes Defendant; has installed a number of poles .uith sir' ns: e throughout: the -
Town of Rye;on town-maintained highways and state-caintained.
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highways. :The Defendant has-likewise: installed aLseries of. poles:
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Jon scate-maintained-highways located'in the Town of_Eatpton Falls pursuant /tollicenses obtained from the DOT.'
The ulti ate issue to be determined is?./ nether R.S. AM 231:160 '
et sec. , - authorizes the ' towns and/or ' the State 1to . issue Tpole' licenses for' the -erection of poles' for purposes related solely .co this siren warning systen. 'The Defendant -and the DOT taintain 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 highuays of the' State is found in R.S.A. 231:160 which reads as follous:
" Authority to Erect. Telegraph, television,l telephone,;
electric light and electric pcuer poles and structure,'
and underground conduits and cables,- with their. respective attachments and appurtenances may be erected, installed and taintained in any'public. highways and the_necessary-and proper wires and cable' cay be supported'on such' poles and structuresoor 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 cust be used a
within the parameters of this statute. Therefore, iny license granted for 'the erection of a pole for the purpose outside:of these paraceters.is null and void.
P .m
.s PcgT No. 4
(.-
x The-legislature, through this ' statute, has-listed those uses or purposes'for which poles may be erected (thc' statute-does not list the types of companies which may erect poles as the State
. contends).
The. list' includes." telegraph,' television, telephone, electric lignt and electric power poles . "
a very specific and limited.
enumeration.
It is a well-established principle of statutory construction that "the expression of one thing in a ~ statute implies the
. exclusion of another" In Re Gauble, 113 U.H. 771, 777 (1978);- See also Vaillancourt v.
Concord General Mutual Insurance Cocoanv, 117 N.H.
43 (1977); 2A J.
Sutherland, Statutes and Statutory construction, Section 47.23-24 (4th ed. C. Sands 1973).
In this case, the legislature has provided a very' specific and licited enumeration of uses for which poles may be erected c on pub highways.
The statute contains no terms indicating the non-exclusivity of this list; such as "such as ...," "like ..." or -
" including but not limited to ..."
. Therefore, applying the above-stated principle of statutory construction, this Court must conclude that the legislature did not intend to allow the erection of poles I
by utility co=panies for any purpose the company may see,fitbut only for those purposes listed.
Thus, the licenses granted the Defendant by the Town of Rye and the State Department of Transporta on for the erection of poles for a system of public notification were granted without statutory authority and are, therefore, null and void.
- _ , - , .. w ., .
( - _,
- P:ga so. 5 Accordingly, the poles erected pursuant to these licenses were erected without authority.
This position is further supported by the legislative history of R.S.A. 231:160.
The statute has been acended a number of times since its passage in 1881 to acco=todate technological innovations and the needs of society. These innovations include telephones, television, electric lights and electric pouer. Each time the legisla:ure 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 could have used broad languaga 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 accoccoda:e these neu uses and not the role of this Court.
Even assuming arcuendo, the list was not intended by the legisla:ure to be enclusive, these poles and the use to which they have been put are not within the general nature of the types of uses designated in the statute.
Zxcluding electric light poles, the poles designa:ed in the statu:e are all utility poles; that is, they are all e= ployed to provide some direct service to the public. They all transmit sote service to the hcceowner. The Defendant argues that these poles do relate to the trans=ission of electricity. This relationship, however, is far too attenuated. In fact, the purpose to which these poles are put is far too novel to have been contemplated by the legislature in this stature.
r- w No. 86-E *-
.Page'No.~6 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 DictionaryL(1974). :It's obvious that.the sole purpose of these. poles
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is the siren / public address system. They are,-therefore, not-subordinate or adjunct : parts, but the'only feature of:these poles.
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Defendant has cited in its Supplemental-Memorandum of-Law the case of Vernet, et al v. Exeter..123 N.li. ,(decided December
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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 sec. , 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 RSA 107-A, et ~sen and RSA 107-3 et sec. 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.
In short, the State is not, in authorizing the erection of the-poles by,the Defendant, exercising a function statutorily mandated. It is, rather, relying on the legislative authority of RSA 231:160'et sec, 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
e Nc. 86-E-34
. " Pags ' No . 7
. removal of these poles and the siren /public address systems at its
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sole expense within 30 days of the date hereof.-
So-Ordered.
January 20, 1967 ___j ,-
WalterWLMetriding Justice 7f 4