STATE OF MINNESOTA                              DISTRICT COURT

 

COUNTY OF RAMSEY                      SECOND JUDICIAL DISTRICT

                                           Case Type: Civil-Other

                                   Court File: 62-C3-99-010952

Power Line Task Force, Inc.

 

              Plaintiff,                 REPLY TO XCEL AND EQB

                                                             

v.                                                           

 

Minnesota Environmental Quality Board,                       

                                                             

              Defendant.

_________________________________________________________________

 

 

I.   INTRODUCTION

 

     As noted by both Xcel and EQB, 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 is new information directly related to issues raised by Environmental Quality Board members, because this new information demonstrates that there are feasible 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 conclude that with knowledge of these system alternatives, their decision on an Environmental Impact Statement would have been different.

II.  FACTS

     On October 18, 2000, the Steering Committee, comprised of the three mayors of affected communities of So. St. Paul, Sunfish Lake, and Mendota Heights, met to review the work of their consultants, Commonwealth Associates, Inc.  The consultants 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.

     Either Xcel possessed information on these system alternatives which was not disclosed to the EQB, or they are "new" routes disclosed by Xcel to Commonwealth or developed by Commonwealth using NSP proprietary data -- and that Xcel told the truth as it saw it at the time of the EQB meeting.  Either way, this is new information, derived from the proprietary systems information solely in the possession of Xcel, in existence at the time of the Board's decision, and unknown to Plaintiff. 

     The revelation of this new information on October 18, 2000, rendered a November 6, 2000, appeal pointless because this information was not on the record.  The decision of the EQB turned on the profession of Xcel that there were no feasible alternatives.  This new information is critical to the record in this matter, and had the EQB known of these routes prior to their decision, and not relied on the word of Xcel that there were no feasible routes, it is reasonable to believe the decision would have been different. 

II.  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.

 

     Xcel and NSP jointly argue that there are three categories of new information, but this is incorrect.  There are two.  The first is that systems alternatives were disclosed, and the second is that significant health studies have been released.  The EQB and Xcel also jointly argue simultaneously that the system alternatives are new and "not new" information.

     A.   Discovery

     Prior to the disclosure of these system alternatives, Plaintiff had no reason to believe other than the claim of Xcel before the EQB --  that there were no feasible alternatives.  Typically, in an agency review before the District Court, there is no discovery, as claimed by MEQB and NSP in their joint informational statement.  Plaintiff stated that Discovery may be appropriate, and Discovery was ordered in the Scheduling Order.  At that time, however, Plaintiff had no reason to believe there were systems alternatives as Xcel had testified that there were no feasible alternatives, and due diligence would not require a futile effort.

     Xcel claims that the information was developed after the Board's decision, yet it is based on Xcel's proprietary data, and it is unreasonable to assume that Xcel would embark on a project such as the Southeast Metro line without thorough investigation of all options.  Only one of the three MAPP alternative routes was discussed at the EQB meeting.  See EQB Memo., p. 13; Plain. Ex. A, Form 1 of 5 for Reporting Plans, MAPP #123, 124 (showing 3 MAPP alternatives). 

     It is certain that this systems information existed in some form within Xcel at the time of the Board's decision, as Xcel would have numerous records pertaining to its entire system, sufficient to satisfy the requirements of Brown v. Bertrand, but it is uncertain what form this information took.  Brown v. Bertrand, 94 N.W.2d at 543, 548 (Minn. 1959).  The EQB admits it does not know what information is new and what is not!  EQB Br. at 12.  Xcel also admits it does not know what information is new and what is not!  Xcel, Br. at 9.  

     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).  The new information about systems alternatives meets these requirements because it derives from internal proprietary information possessed only by Xcel, which was then presented to Commonwealth, in systems alternatives form or in raw data to Commonwealth from which to derive systems alternatives.  Either way, the information existed at the time of the Board meeting.

     B.   Review and Interpretation of New Information for the           Record is not claimed to be "New Information."

 

     Xcel and the EQB jointly characterize the Affidavit of David A. Blecker as "new information" provided by Plaintiff and choose only to address the increase in line loading.  The Affidavit is not a third category of "new information."  The Affidavit is a description of the "new information" -- the packet of documents disclosed on October 18, 2000, by Commonwealth.  It translates the one line diagrams of the systems alternatives and the associated charts and tables provided by Commonwealth into something that attorneys and judges can understand.[1]  The Affidavit addresses the options, and an impression of their viability, interpretation of the tables, and a brief estimation of the relative impacts of the alternatives.  Neither the EQB nor Xcel address the fact that the information presented by Commonwealth included the line loading information, but most importantly, neither address the balance of the Affidavit and evaluation of alternatives.  Xcel at 7; EQB at 15.  

     This new information about alternatives, as explained in the Affidavit, 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.

     C.   The EQB May Look at Alternatives

     The law is clear.  The EQB is not required to look at alternatives.  Minn. R. 4410.2300(G); see also Iron Rangers for Responsible Ridge Action v. Iron Range Resources, 531 N.W.2d 874 (Minn. Ct. App. 1995).  Yet nowhere do either the Minnesota Rules or the state's case law state that the EQB is forbidden to look at alternatives.  The EQB opened the door to examination of alternatives when it agreed to let NSP submit its alternative route.  Aff. of Cupit, p. 4, #16.  On the record, the Board itself further opened the door to alternatives by repeatedly discussing them and moving for votes on the matter.  EQB Br. at 9-12.  Nothing forbids review of alternatives, and the word "alternatives" is not found within EAW rules.  Minn. Stat. 4410.2300G.  Based on the Board's questioning, this new information provides exactly the alternatives that the board wanted.

     As EQB notes, the EIS "discusses appropriate alternatives to the proposed action and their impacts..."  Minn. Stat. §116D.04, Subd. 2(a).  Logically, the existence of ready alternatives has an impact on any EIS decision.  A decision in this case was hampered by the statement that there were no alternatives, when in fact there were viable alternatives, and had it been known that there were viable alternatives, the argument for an EIS would have been much stronger and likelier to succeed.

     As Xcel notes, the issue is whether the new information would have produced a different or more favorable result.  Xcel Br. at 9.  Based on the minutes of the EQB, and refuting the Xcel claim that there were no alternatives when in fact there are, having the information on alternatives would lead to such a result.

III. THE NEW INFORMATION REGARDING EMF, PARTICULARLY THE BRITISH JOURNAL ARTICLE, IS BEYOND "CUMULATIVE" IN ITS IMPORTANCE

 

     The most important study to be released is that found in the British Journal of Cancer.  This 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.  Although it was released this September, the study's existence and findings would have been known long before hand to a utility with an EMF department such as Xcel enjoys, and long before it is available openly to members of the public.  Because Xcel is a member of EPRI, and because of its involvement in research, it knew or should have known of this ongoing research which was pending at the time of the EQB decision.

IV.  THE EQB WOULD HAVE MADE A DIFFERENT DECISION IF IT KNEW THERE WERE FEASIBLE ALTERNATIVES AVAILABLE

 

New information about systems alternatives was disclosed by Commonwealth Associates on October 18, 2000, which had been specifically requested by members of the EQB, and about which Xcel had said there were no feasible alternatives.  This new information includes three system alternatives to the powerline proposed by NSP/Xcel, at least one of which appears to present an alternative which is less costly and less damaging to the community and environment.

     New definitive information has also been discovered  associating EMF with cardiac conditions and childhood leukemia about which Xcel knew or should have known through its EMF department.  These new studies, particularly that published in the British Journal of Cancer, should be considered by the EQB.

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

 

     As Xcel notes, the issue is whether the new information would have produced a different or more favorable result.  Xcel Br. at 9.  Based on the minutes of the EQB, having the information on alternatives would lead to such a result.

     A Judgment may be reopened when new information is discovered which could not have been discovered in time to move for a new trial.  This matter must return to the Environmental Quality Board for consideration in light of new information.

     If the court needs to know more about the new information, to establish what is "new information" and explain its importance, the Plaintiff requests that an evidentiary hearing be scheduled to present expert witnesses for testimony.

                                  OVERLAND LAW OFFICE

 

Dated ________________________    ______________________________

                                  Carol A. Overland      #254617

                                  Attorney for Plaintiff

                                  402 Washington St. So.

                                  Northfield, MN  55057

                                  (507) 664-0252


    [1] This attorney, daughter of a Mechanical Engineer who designed power plants, has spent tremendous effort and experienced extreme difficulty in learning about electrical engineering, a body of knowledge that does not come naturally, and believes that translation is necessary to understand the information revealed by Commonwealth Associates.