Brief regarding new hearing before EQB Brief

A Motion for New Trial/Relief from Judgment may be brought when new information is discovered which could not have been discovered in time to move for a new trial. Minn.R.Civ.P. 60.02(b).

The information revealed at the October 18, 2000, Steering Committee meeting was privy only to NSP/Xcel, which did not disclose the system alternatives despite the EQB requests, and Plaintiff could not avail itself of discovery because the matter was not subject to discovery at the district court. Because this new information is directly related to issues raised by Environmental Quality Board members, because this new information demonstrates that NSP/Xcel did not disclose relevant information to the Environmental Quality Board when questioned, and because this new information provides viable system alternatives, at least one of which should prove less costly and have fewer environmental and community impacts, the matter must return to the Environmental Quality Board for consideration in light of this new information. It is reasonable to believe, given the questions of the EQB members, that had they known of these withheld alternatives, their decision on an Environmental Impact Statement, which would carefully weigh alternatives, would have been different.

II. FACTS

On September 18, 2000, the Steering Committee, comprised of the three mayors of affected communities of So. St. Paul, Sunfish Lake, and Mendota Heights, held a meeting where the mayors emphatically demanded that Commonwealth Associates, Inc.,[1] consultants address system alternatives to the proposed Southeast Metro powerline. Ex. C, Steering Committee Minutes, 9/18/00; Aff. of Conant, p. 1-2; Aff. of Overland, p. 2. The consultants were reluctant to do this, claimed there was no budget for this task, and that it was not in their contract, but the mayor of Sunfish Lake pointed out language in the contract that did require they address systems alternatives. Id. At this point, Commonwealth Associates agreed to address systems alternatives.

At the following meeting of the Steering Committee, on October 18, 2000, Commonwealth Associates presented a packet of documents which included a large map with the existing and proposed lines, and three system alternatives, one line diagrams of the same, together with two packets of information including drawings of structures, electric, magnetic, and noise graphs, Projected Peak Load, Transmission Line Data, Normal Line Loading, an Alternative Plan Comparison. Ex. B, New Information; Ex. D, Steering Committee Minutes, 10/18/00.

The three alternate routes all involve construction of a line segment from Red Rock to Stockyards substations.

From there, Alternate 2 would have 4.3 miles of existing line reconductored to a larger diameter wire from High Bridge to Rogers Lake and would construct an additional 8.4 mile 115 kV line west from Rogers Lake to Wilson. Alternate 3 would rebuild an existing line going north 6.5 miles from Inver Grove to Rogers Lake on what is now an open line, and then 8.4 miles from Rogers Lake to Wilson. Alternate 4 would add 2 miles of new powerline in the south from Inver Grove to the Inver Hills generation plant and rebuild 6.5 miles of existing line from Inver Hills to Rogers Lake with the same Rogers Lake to Wilson line.

Aff. of Blecker, p. 3. Of those alternatives:

It is worth noting that the preferred alternative, "New Line," includes 14.2 miles of new powerline, whereas alternative 2 and alternative 3 are only 8.4 miles each of new powerline, and alternative 4 is 10.4 miles of new line. NSP's preferred route requires 5.8 miles of additional new transmission lines over the next highest option. New lines also require new structures, and logically, the less miles of new line there are, the less miles of environmental and community impact. It appears that the High Bridge to Rogers Lake rebuild will be done on the same structures, having little comparable impact. Based upon the available information, which really isn't sufficient upon which to base a definitive opinion, it appears that Alternative 2 would be the best option, because it would have the least impact based upon the lower number of new circuit miles and that much of the upgrade could be accomplished without the construction of new power lines and support structures.

Id. at 7.

Table 3-1, Projected Line Loadings, demonstrates that the line loadings will increase and that the claimed reduction in electric and magnetic fields is illusory:

The primary useful information this chart provides is verification that the projected electrical loadings will be increasing substantially over time. In 1999, starting with 567 amps, we increase to 1512 amps by 2020, and that's normal loading, that is an increase of 167% over 21 years. For peak loading over the same period, the increase will be 182% over peak load of 1999. With this near doubling of current, the magnetic fields will increase in nearly linearally proportion. The utility's claim is that magnetic fields will be cut in half through phase cancellation, but with a doubling of current and increasing magnetic fields, the net result is no substantive change from the current fields.

Ex. B, Projected Line Loadings; Aff. of Blecker, p. 8.

Questions were asked about alternatives to NSP's proposed line at the meetings of the Environmental Quality Board. Ex. E, EQB Meeting Minutes, 9/16/99; Aff. of Conant, p. 2-3.

At the EQB meeting, Commissioner Steve Minn asked Jim Alders whether there were alternatives, and Jim Alders said that there were no economically feasible alternatives. He said that alternative would be economically unfeasible.

Aff. of Conant, p. 2. The meeting minutes go on to say:

Commissioner Minn asked about the MAPP alternative route. It has engineering feasibility but NSP's preferred route differs from MAPP alternative recommendation. Why? Why would MAPP put a route other than the existing line on their map? Mr. Alders responded that MAPP did identify NSP's proposal as the one to pursue along with additional alternatives. MAPP identified other alternatives as part of their analysis. Mr. Alders went on to explain that the alternative consists of upgrading not just one line, but upgrading a series of transmission lines in St. Paul to Woodbury and South St. Paul/Sunfish Lake/Mendota Heights area. The proposal would require the rebuilding of just one of those lines. The alternatives would not require the replacement of a single circuit line with a double circuit line, they would require replacement of a single circuit lie with a larger single circuit line. Thus the physical impacts of that construction would be over a much larger area.

Ex. E, EQB Minutes, 9/16/99, p. 9; but c.f. Blecker, p. 3, para. 7; p. 4, para. 10; p. 7, para. 14 (it appears that Alternative 2 would be the best option, because it would have the least impact based upon the lower number of new circuit miles and that much of the upgrade could be accomplished without the construction of new power lines and support structures).

Claiming that the line will serve the local communities, the EAW for the Southeast Metro line begins:

The southeast metro area transmission system supplies electricity to the southeast metropolitan area...Electricity is distributed to each community from these substations which serve as power sources.

Ex. F, EAW (selected). However:

As part of its presentation, Commonwealth noted that the proposed new line is intended to meet new demand created by industrial development in the Lone Oaks area and potential new industrial development adjacent to the Mall of America in Bloomington. In its presentation, Commonwealth did not suggest that the new line would serve the residents of homes adjacent to the line nor the communities in which they reside.

Aff. of Conant, p. 3. The area to benefit from this system

upgrade is larger than that of the Southeast Metro:

It appears that MAPP participated in a study of this area, as evidenced in MAPP's 1999 Update to the 1998 Regional Plan (See Ex. A, Form 1 of 5 for Reporting Plans, MAPP #123, 124, reporting 3 alternatives, and 0.5 miles of reconductor or thermal increase and 5.8 miles of rebuild or conversion, with summer rating (MVA) of 318), indicates that the system deficiencies and potential system improvements have an impact on the greater NSP or MAPP region. If the situation were simply a local problem, it is unlikely that MAPP would be involved. Since MAPP is involved, it is reasonable to assume the system deficiencies and planned improvements have system impacts beyond the local area.

Aff. of Blecker, p. 4; Ex. A, Form 1 of 5 for Reporting Plans, MAPP #123, 124.

The Southeast Metro line is owned and operated by NSP and NSP is the project proposer for the upgrade. Ex. E, p. 5. NSP is also a participant in MAPP, and its Senior Transmission Engineer, Walt Grivna, actively participated in development of the MAPP Plans. Aff. of Conant, p. 3; Ex. E, EQB Minutes, 9/16/99, p. 9. NSP knew or should have known of the MAPP and other system alternatives, knowledge of which was withheld from the public and the Environmental Quality Board despite their specific questions.

III. THE SIGNIFICANCE OF THE NEWLY DISCLOSED INFORMATION IS SUFFICIENT TO REQUIRE RELIEF FROM JUDGMENT AND THAT THE MATTER BE REHEARD AND REMANDED TO THE ENVIRONMENTAL QUALITY BOARD BASED UPON THIS NEW INFORMATION.

NSP's misrepresentation of the feasibility of system alternatives was a determinate factor in the hearing before the Environmental Quality Board. Based upon NSP's negative characterization about the feasibility of alternatives to NSP's preferred route, the EQB made a negative need declaration. The matter was then brought to the District Court, where the EQB decision was affirmed.

Rule 60.02 authorizes a court to grant relief from a final judgment based on:

...(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial pursuant to Rule 59.03;...

Minn. R. Civ. P. 60.02(b). The new information must meet certain requirements, including that it be relevant and admissible at trial, and that it is not merely collateral, impeaching or cumulative. Gruenhagen v. Larson, 246 N.W.2d 565 (Minn. 1976).

Although the rule does not provide for introduction of evidence known to exist before the judgment was entered, the evidence at hand was only generally known, and the Power Line Task Force, Inc., and the Environmental Quality Board knew only of the existence of the alternatives through the MAPP plan, and knew nothing of other plans, and could get no further information. Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn. Ct. App. 1997). Despite the EQB's repeated questions about alternatives, the EQB did not get the information either, the specific systems alternatives were unknown until they were disclosed by Commonwealth Associates on October 18, 2000. Aff. of Conant, p. 2. The information was also undiscoverable because discovery is not available in district court review of an EIS need determination. See Brown v. Bertrand, 94 N.W.2d 543 (Minn. 1959)(parties must use available discovery tools). The information was produced by Commonwealth Associates, Inc., the Steering Committee consultant and NSP contractor on the Southeast Metro line.

This new information about alternatives goes beyond mere supplement of the materials previously submitted -- it directly answers the questions of the Environmental Quality Board by providing three systems alternatives, one of which appears to be a better option to the NSP proposed line and the other alternatives because "much of the upgrade could be accomplished without the construction of new power lines and support structures." Aff. of Blecker, p. 7. It also proves that NSP answered the queries of the EQB by providing false information, stating on the record that there were no economically feasible alternatives, upon which the EQB relied in making its negative declaration of the necessity of an Environmental Impact Statement (hereinafter "EIS"). Aff. of Conant, p. 2.

In addition to the disclosure of systems alternatives to the proposed line, the new information also demonstrates that the claim of NSP/Xcel that the upgrade will decrease electric and magnetic fields surrounding the line is illusory, and is dependent on the rate at which NSP increases line loading. Aff. of Blecker, p. 8. Because the upgraded line will have increased capacity and the line loads will double over time, the electric and magnetic fields will essentially double as well, and there will be no resulting decrease in these fields. Id.

This new information is relevant, it could not have been obtained by Plaintiff prior to disclosure, and it is not collateral, impeaching, or cumulative. Therefore, the reopening of the judgment is justified under 60.02(b).

The overall purpose of an EAW is to determine whether an EIS is required. Minn.R. 4410.0200; National Audubon Soc. v. Minnesota Pollution Control Agency, 569 N.W.2d 211, 217 (Minn. Ct. App. 1997). Another important purpose is:

A. provide usable information to the project proposer, governmental decision makers and the public concerning the primary environmental effects of a proposed project...

Minn. R. 4410.0300, Subp. 4(A).

Typically, and EAW does not address alternatives, leaving alternatives for the closer scrutiny of an EIS. However, in this EIS, alternatives, although not practical ones, were presented in the EAW. Ex. F, EAW, p. 4. In this case, because there were alternatives, but undisclosed alternatives, and because the Board was questioning the utility about them, the agency did not have all of the useful information necessary to make a decision. These newly disclosed system alternatives are critical to the Board's decision.

An agency making an EIS determination must "set out the basic facts necessary to determine whether an EIS is required," and if an agency avoids an "issue it should have addressed or by ignoring evidence on an issue that was addressed," summary judgment is not appropriate. Id.

The court may consider evidence outside the administrative record when (1) the agency's failure to explain its action frustrates judicial review; (2) additional evidence is necessary to explain technical terms or complex subject matter involved in the agency action; (3) the agency failed to consider information relevant to making its decision; or (4) plaintiffs make a showing that the agency acted in bad faith.

White v. Minnesota Dept. of Natural Resources, 567 N.W.2d 724, 735 (Minn. Ct. App. 1997)(quoting Animal Defense Council v.Hodel, 840 F.2d 1432, 1436-37 (9th Cir. 1988).

In this case, there are new facts that have arisen that must be considered, and questions which were indeed raised but answered falsely by the utility, therefore the record must be corrected and the new information must be considered in making the decision. The EQB must consider the existence of the systems alternatives known and readily available to NSP and MAPP and not disclosed, one alternative of which should prove less costly and have less environmental and community impacts. The EQB must also consider the impact of the now revealed line loading which eliminates any decrease in electric and magnetic fields over time -- a timeline determined unilaterally by NSP and governed by NSP's desire to utilize available transmission capacity.

IV. SIGNIFICANT NEWLY RELEASED STUDIES DEMONSTRATE DANGER OF ELECTRIC AND MAGNETIC FIELDS SURROUNDING POWER LINES, AND NSP KNEW OR SHOULD HAVE KNOWN OF THESE STUDIES

Several important peer-reviewed studies have just been released regarding the effects of EMF and deposition of pollutant aerosols, conducted by noted experts in this field and published in sound reputable journals. Although recently released, these studies have been pending for some time. NSP is a member of EPRI, funder of one of the studies. Aff. of Conant, p. 5; Ex. K. An NSP employee heads the EPRI research committee, and an Environmental expert from NSP sits on the EPRI committee that oversees research. Id. Yet NSP claims that there is no cause for concern:

* the scientific literature and the reports of review panels show no consistent, significant link between cancer and the 60-Hz ELF fields

* the current body of scientific evidence does not show that exposure to EMF presents a human health hazard

Ex. J, p. 2. NSP also declares:

The simple fact is after more than 30 years of intensive research on power lines and EMF and recent examination of that body of research by our country's most prestigious government research organizations, there is no evidence of health effects from power lines or exposure to EMF, even at high levels.

Ex. J, final page. But even NSP addresses prudent avoidance on the page entitled "LIVING WITH EMF, A few simple steps you can take to help reduce your exposure to EMF:

Prudent avoidance: the philosophy advocated by some until further EMF research results are known. Under this philosophy, those EMF exposures that can be avoided - with reasonable or without major investments - are avoided.

Id.

Northern States Power has a longstanding pattern of not addressing EMF forthrightly. Because of its involvement in EPRI, and because of it's involvement in research, NSP knew or should have known of this ongoing research which was pending at the same time that NSP was stating before the EQB that there were no important research studies validating concerns about EMF. Id.

The first study is by Bristol University, expanding on the "Henshaw Hypothesis," which addresses the dangers of electric fields, and which found that individuals living within 1,000 feet of a powerline have a heightened risk of cancer. Aff. of Conant; see attached Ex. G, "Increased exposure to pollutant aerosols under high voltage power lines," 75 Int. J. Rad. Biol. 12, pps. 1505-1521 (1999).

Another study, "A pooled analysis of magnetic fields and childhood leukemia" was published by the British Journal of Cancer, and notes that only 0.8% of the population receives exposure higher than 4 mG, and demonstrated a clear and consistent pattern of significant risks of leukemia for average exposures above that level. Id., see attached Ex. H, "A pooled analysis of magnetic fields and childhood leukaemia," Abstract, British Journal of Cancer, Vol. 83, No. 5, September 2000, p. 682-698.

Two additional studies were published in the Journal of Environmental Perspectives, the first noting that cells remain in an undifferentiated, precancerous state when under the influence of EMF of the type and strength experienced by those who live near the Southeast Metro line. The second concludes that EMF of the type and strength experienced by those who live near the Southeast Metro line can cause heart rate variability of the type that ordinarily leads to heart attacks. Id., see attached Ex. I, "Cardiac Autonomic Control Mechanisms in Power-frequency Magnetic Fields: A Multistudy Analysis, 108 Env. Health Perspectives 8, (August 2000); see attached Ex. J, "Effect of Electromagnetic Field Exposure on Chemically Induced Differentiation of Friend Erythroleukemia Cells," 108 Env. Health Perspectives 10 (October 2000).

These studies go beyond the threshold of those studies that are merely cumulative. Gruenhagen v. Larson, 246 N.W.2d 565 (Minn. 1976). These are peer-reviewed studies published in some of the most reputable journals in the world which set out the association between EMF and cardiac conditions and leukemia. As such, they should be taken into account when considering any issue regarding the Southeast Metro line, which has EMF levels many-fold higher than those causing concern in these studies.

V. THE JUDGMENT OF SEPTEMBER 7, 2000 MUST BE REOPENED BASED UPON NEW INFORMATION.

New information was disclosed on October 18, 2000, information which had been requested by members of the EQB, but which Northern States Power Company, now Xcel, did not disclose. This new information includes three system alternatives to the powerline proposed by NSP/Xcel, and verification that line loading will substantially double, and any decrease in electric and magnetic fields as a result of the upgrade would be short-term, if at all.

New definitive information has also been discovered associating EMF with cardiac conditions and childhood leukemia about which NSP knew or should have known. These new studies are part of a growing body of scientific research which should be considered by the EQB.

A Judgment may be reopened when new information is discovered which could not have been discovered in time to move for a new trial. Because this new information is directly related to issues raised by Environmental Quality Board members, because this new information demonstrates that NSP/Xcel did not disclose relevant information to the Environmental Quality Board when questioned, and because this new information provides viable system alternatives, at least one of which should prove less costly and have less environmental and community impacts, the matter must return to the Environmental Quality Board for consideration in light of this new information.

OVERLAND LAW OFFICE

Dated ________________________ ______________________________

Carol A. Overland #254617

Attorney for Plaintiff

402 Washington St. So.

Northfield, MN 55057

(507) 664-0252

[1] Commonwealth Associates, Inc., is a NSP contractor on the Southeast Metro line, and has worked on many NSP projects. Commonwealth has an interest in the Steering Committee process, and it is an interest favoring NSP. Aff. of Conant, p. 1.