ML20148M001
| ML20148M001 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/30/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel, NRC COMMISSION (OCM) |
| References | |
| CON-#288-5998 OL, OL-1, NUDOCS 8804050089 | |
| Download: ML20148M001 (6) | |
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WRC 18 Nm 30 A8 :47 Memorandum F)C*Lia uv
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M a1 To: The Commiss'oners, Board Members of the Atomic Safety and Licensing Appeal Board and the' Atomic Fafety and Licensing Boards and the Parties in the matter of Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443-OL, 50-444-OL, 50-443-OL-1 and 50-444-OL-1 From: Thomas G. Dignan, Jr.
In accordance with our duty to advise the Commission and Boards of events that may affect the ongoing licensing proceedings, we enclose the decision of the Supreme Court of New Hampshire in Town of Rye and Town of Hanoton Falls v.
Public Service Comoany of New Hamoshire and the State of New Hamoshire. Department of Transoortation, March 29, 1988, Rockingham No.87-062, in which the Supreme Court upheld the right of Public Service Company of New Hampshire to install and maintain siren polns and sirens in the towns of Rye and Hampton Falls.
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NOTICE: This Opinion is subject to Motions for Rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Repor s. Readers are requested to notify tne Clerk / Reporter, Supreme Court of New Hampshire, supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. THE ON CONTENTS OF THIS OPINION MAY LE DISCLOSED AT OR AFTER 8:00 A.M.
THE DATE THE OPINION BEARS. IF THE OPINION IS RECEIVED BEFORE THAT TIME AND DATE, ITS CONTENTS SHOULD BE KEPT CONFIDENTIAL.
TH'i SUPREME COURT OF NEW HAMPSHIRE Rockingham No.87-062 TOWN OF RYE and TOWN OF HAMPTON FALLS v.
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE and THE STATE OF NEW RAMPSHIRE, DEPARTMENT OF TRANSPORTATION March 29, 1988 Nadeau Professional Offices, of Portsmouth (J.P. Nadeau on the brief and orally), for the plaintiff Town of Rye.
Branch, Jr.
Iackus, Mever & Solomon, of Manchester (Bartram C.
on the brief and orally), fo: the plaintiff Town of Hampton Falls.
Sullowav. Hollis & Soden, of Concord (Marcare H. Nelson on the brief and orally), for the defendant Public Service Company of New Hampshire.
Merrill, attorney general (Michael J. Walls, Stechen E.
assistant at:c ney general, on the brief and orally), fo: the 5: ate Department of Transpo::atica.
4 JOHNSON, J. The defendan Public Service Company of New Hampshire (PSNH), joined by :ne New Hampshire Department of
y-
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1 (Murchv, Transportation (DCT), appeals an order of the Trial Court J.) permitting the Town of siren Rye to revoke poles the licenses which the town on town-maintained had granted PSNH to erectof'an evacua: ion plan for the Seabrook Nuclear rights-of-way as part Power Station. The court directed PSNH to remove those siren poles, in Rye and as well as other siren poles which PSNH had erected We resers?.
Hampton Falls on State-maintained highways.
PSNH is the major owner of the Seabrook Nuclear Power Station.
The plant is required by the federal Nuclear Regulatory Commission to develop a Radiological Emergency Response Plan (RERP),
which includes an_ evacuation plan, in order to be prepared for a (NRC) at Seabrook S:ation. As part of its RERP, PSNH potential accideninstalled a public notification system consisting of sirens placedincluding communities, and on poles located Hampton Falls. in several seacoas:The poles are approximately six;y feet in height have attached to them siren /public address systems each weighing approximately 500 pounds.
On July 9, 1984, PSNH submitted to thetoRye Town Clerk an be erected on application for licenses for three poles, Subsequen:ly, on July 11, 1984, town-maintained highways in Rye.
PSNH submit;ed to the DOT a separate application in order to obtain licenses for siren poles to beOn placed on State-maintained September 10, 1984, the Ryehighways Boa:d of in Rye and Hampton Falls.
Selectmen, pu:suant to RSA 231:161. I(a), granted the licenses On September 20, 1984, the DOT gave PSNH sought by the company. On abou permission to begin installing One siren poles.PSNH commenced poles in Ryeinstalling fou November 7, 1985, on State rights-of-way and two poles on town-maintained highways.
On or abou: the same date, the Rye. Board of Selectmen issued a order agains; PSNH and revoked the pole licenses cease and desist which it had issued on September 10, 1984. Af;e: PSNH refused to l order, Rye instituted a "Petition For l obey the cease Declaratory and desistWith Prayers For Specific Performance" against Judgment i
PSNH, seeking (1) a ruling that the previously granted pole licenses on State and town highways were not p:operly at horized and (2) orders fo: thei: removal.
19 Hampton Falls was permitted to intervene in Rye's action, order to seek the removal of siren poles town which hadtobeen pursuant Stateerected on State-maintained highways in tha:Hampton Falls claimed the poles had been placed authorization.
con::ary to two consecutive town mee:ing votes which had expressly prohibited the installation of the siren poles unless andplan evacuation untilforthe citizens of Hampton Falls approved an overall j
Seabrook Station. PSNH had not erected any siren p0les on town-maintained highways in Hamp;on Falls because One Hampton Falls l
na: the :
Board of Selectmen had denied licenses on inadequate to the warnground and protec: :ne proposed emergency plan was town's residents in the even: of a nuclear accident.
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i on November 26, 1986, a hearing was held on the petition of Rye and Hampton Falls, after which the : ial cour; actionde:andermined ordered that the the DOT was a necessary party to the towns' agency to file responsive pleadings.
On January 20, 1987, the trial court ordered :he removal of all poles and siren /public address systems within tne two towns at PSNH's expense within thirty days, whether located on State or municipal highways. This decision was based on the conclusion that the poles and sirens were not utility 231:160.
facilities, installations or The court determined s::uctures within the meaning of RSA that the licenses whichbeen Rye and the DOT had granted for the erection granted withou; statutory authority and were of siren poles had
- herefere null and void. PSNH appeals the trial court's order.
PSNH argues tha: the ::ial court erred in ruling thatofRSA a 231:160 does not apply to siren poles installed asSeabrook par: Station.
federally-manda:ed public no:ification system fo:
We agree with PSNH that the trial court's construe: ion of RSA 231:160 is unduly restrictive.
l RSA 231:160 states: .
l "Telegraph, television, telephone, electric light and electric power poles and s::uctures and underground
' conduits and cables, with thei: respective attachments and appur:enances may be erected, installed and maintained in any p?tlic highways and the necessary and l
' proper wires and cables may be supper:ed on such poles and s::uctures or carried across or placed under any l such hignway by any person, copartnership or i
I corpo:ation as provided in this subdivision and not otherwise."
[
The ::ial cour; determined tha: the legislature did not in:end to t
poles allow utility companies to erect but only for the purpose of warning fo: the ::ansmission of citizens of a nuclear emergency, television and telephone signals and electric ligh; and telegraph, power. Hence, the trial court found that the licenses which had been granted to PSNH by Rye and the DOT statutory for the erection authority and wereof void.
siren poles had been g: anted without We begin our analysis with an interpretation of the applicable the s a utes. In any case involving the construe:icn of a statute, starting poin mus: be the language itself, and plain and Theresa's v. Sue': c' unambiguous language will be given ef"ec:. Dover Professional YDC, 126 N.H. 53, 55, 489 A.2d 592, 593 (1985): 165, 169, 470 A.2d Fire Officers Assoc. v. City of Dover, 124 N.H.
Sta: Const. S 46.01 (4th ed. 19 &4 ) .
866, 668 (1983): S3:herland be given :neir usual and common meaning Wo:ds and phrases will 3.
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t-Appeal of Public.
unless the statute itself sugges:s otherwise.
Serv. Co. of N.H._, 125 N.H. 46, 52, 480 A.2d 20, 24 (1984).
A subdivision of RSA chapter 231 provides for "Lines 231:159ofmakes Teleg:aph and Other Companies in Highways," and RSA the provisions of that subdivision applicable to all cities and towns. RSA 231:161, VI states that "[t]he holder of such .a. license poles be entitled . . , to erect ' .
(to erect poles), shall . . .
(and) structures . .
and to place upon such poles and structurec attachments and appurtenances which are required the necessary . . .
in the reasonable and proper operation of the business car:ied on by such licensee . . . .
" We conclude that sirens are "attachments" within the meaning of RSA 231:160 and RSA 231:161, VI.
licenses they The selectmen of Rye lack au:hority to revoke the three granted to PSNH, or to deny applications for licenses to erect siren poles on town-maintained highways for any reason other than a reason relating to "the safe, free and convenient use for public travel of the highway . . . ,
which is the criterion for and theno exercise of the selectmen's authority under the statute; safety-based justification fo: :he revocation was articulated by the town. RSA 231:168.
In Vernet v. Town of Exeter, 129 N.H. 34, 523 A.2d 48 (1986),
we concluded na: RSA chap;e 107-B requires tha; the State civil defense agency "must enlis: the aid of the towns when preparing a (RJERP for each of the affected towns, so This that input will be does not, however, received from eachVeto of the power over affected areas.
(R]ERPs developed by the'S' tate give a town . . . (Emphasis in civil defense acency." Id. at 39, 523 A.2d 3: 51.
original.) Similarly, RSA 231:159 et seq. do not. give a town veto
' pursuant to a RERP. Hampton power over the erection of siren poles,either cooperation by selectmen Falls lacked authority to prohibit with radiological emergency respcase planning for Seabrook Station, or construction by PSNH on State highways in Hampton Falls of any installations necessary for the implementation of a RERP.
- v. Town of In a closely related case, Pu)]ic Serv. Co. cf N.H.
W. Newbury, 835 F.2d 380 (1st. C::. 1987), PSNH's request for a preliminary injunction to allow its siren poles to remain in place was denied because PSNH failed to prove a likelihood of success in its argument tha Massachuset:s statutes permit thekey The erection of Massachusetts siren poles fo: the Seabrook evacuation refers plan. to the "::ansmission of 166, 5 21, statute in question, elect:icity" fo: ch.various purposes and permits a co=pany incorpora:ef for such ::ansmission to cons :ue: "lines for such ::ansmission "
Mass. Gen.
upon, along, under and across the public ways . . . .
L. ch. 166, S 21.
The New Hampshire statutes vary in two refer to poles used,to significant ways: (1) RSA 231:160no does no counterpart to
" :ansmit" power; and (2) there isthe Massachusetts erection of poles "which are RSA 231:161, VI which allows fo:
l required in the reasonable and proper operation of the business 4.
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carried on by such licensee . . . ." The New Hampshire statute, like the Massachusetts statute, has been amended from time o time as new technology has developed. However, we conclude that RSA 231:161, VI made it unnecessary for our legislature to amend the statute to specifically permit siren poles, since such poles are necessary for PSNH to carry out its business in supplying the electrical needs of its customers.
We hold that the trial court erred in ruling that the pole statutory authority and hence were licenses had been g: anted without null and void, and in ordering PSNH to remove the poles and sirens We which PSNH had erected and placed in Rye and Hampton Falls.
reverse the decision of the ::ial court.
Reversed.
BATCHELDER, J., dissented; the others concurred.
Recause I do no read RSA 221:160 SATCHELDER, J., dissenting:
and :161, VI as broadly as the majority, I would uphold the ::ial court and therefore respectfully dissent.
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