Here
are a few observations on the Xcel Memorandum
Obviously, arguments in court are expected to be one-sided. However, Xcel’s Memorandum in Law on the
The Memorandum is replete with statements that are false, and were known to be false at the time they were made.
Four egregiously incorrect scenarios serve as the basis for the memorandum.
The EIR process was ordered by the mayors, and
cumulated in an “EIR Report” by the “independent” expert consultant CAI that
supported Xcel’s plan in every respect
This is totally wrong.
The EIR process was not initiated by the mayors.
The EIR process arose in discussions between Xcel and
The Mayor’s committee was charged with gathering facts—it was specifically precluded from reaching a decision or making a recommendation.
It did not cumulate in an EIR report. The reference here is to the CAI final document that was called “Independent Review of Double Circuiting.” The review reached no conclusions but merely presented CAI’s interpretation of the data.
CAI is not independent. CAI was recommended by
Xcel. During its review process, it
reported to Xcel. It was paid by
Xcel. Separately, it had the design
contract for this very line.
Subsequently, it participated in the preparation of the application to
The Memorandum mentions no other
output from the EIR process, thus implying the CAI Review (not EIR Report) was
the only output of the Steering Committee process
There was no EIR Report nor
any other report that reached conclusions. However there was extensive other
documentation never mentioned in the Memorandum. In addition to the CAI Report, there was the
transcript of the
These papers and transcripts are as much a part of the EIR record as is the CAI review, and have a standing equal to that of the CAI Review.
CAI is an EMF expert
CAI does not claim to have any expertise on EMF. It retained Peter Valberg to testify on the subject. This was not a neutral choice. Valberg has testified in Brocton, Ma, and other places on behalf of electric utilities.
The MDH found that there is no cause to be
concerned about this line
The MDH in its 1999 letter (which is still valid) expressed concern over the health impacts upon this very line.
No city can use its zoning authority to thwart
Xcel’s proposals (p 2)
Xcel is trying to maneuver so that no authority can rule upon its proposal. Unlike what it claimed, the MEQB or the PUC has ruled on the line, and Xcel asserts that they cannot do so under the new Power Plant Siting Act. If the cities cannot rule upon the line (as contemplated by the MEQB), then nobody can rule upon the line.
Xcel has established its need for a second line.
(p 3)
Xcel has doubly failed to do so.
Under its original plan, as shown in CAI’s
table 3.1, the need for the line was crucially dependent upon loads anticipated
for
The City has an EIR report. (p. 4)
There is no EIR report. Such a
thing does not exist. All that exists is
the CAI review. The Mayor’s committee
was not charged with coming up with a report, but rather with facts. It was explicitly recognized by CAI (in its
The City’s reference to 4 mG
is “on the fly. (p. 4)
That number was hardly arbitrary. There is amble scientific evidence that magnetic field intensity over 4 mG is associated with an increased risk of contracting serious disease.
There is no alternative to the
proposed line (p. 12)
There are many alternatives to the proposed line. As just one example, the line could be run down I-395. Xcel and CAI had maintained that MNDOT would prohibit this, but we have put on the record a letter from MNDOT saying it is not necessarily prohibited. More fundamentally, the electric grid is integrated, and therefore there is close to an infinite number of solutions for shortages at points within the grid.
The record supports the need for the proposed line. (p. 13)
Actually, there is no record for supporting the truncated
proposal. The only supporting evidence
is the CAI letter saying that the Xcel still needs the line in order to
maintain its flexibility. That is not
evidence but rather merely CAI supporting its client. In any event, the issue at hand is not the
need for the line, but rather where it should be located.
City is bound by Collier Towle’s
uncontroverted expert opinion. (p 15)
Collier Towle’s was retained by CAI and also compensated by Xcel. The City did not retain the firm. Its opinion was strongly refuted by the firm upon who it relied for its data. Its conclusions were refuted by real estate agents active in the area.
The City elected not to adopt the other
alternative route through the City (p. 16)
As proposed, the 110 route might not run through the city (if it were
placed on the north side of the road).
It is not the only available route through the city, as the I-494 is also
available. Routes through the city are
not the only available way to supply
The proposed line would dramatically reduce the
EMF levels. (p. 17)
Not true. First, Xcel had
disguised the fact that the proposed second circuit would not serve the same substation
as the existing circuit. This was only
learned at the
The City is bound by the conclusions of the MDH,
MPUC, and MEQB. (p. 18)
The MPUC and MEQB conclusions were based upon studies that are now known to be wrong. The city is under no obligation to ignore the scientific evidence refuting the earlier studies merely because that suits Xcel’s convenience. As for the MDH, the city listened carefully to its representative who testified before the Council. It did not find the representative’s testimony to be convincing. The MDH has no special experience or authority regarding magnetic fields, nor has it conducted any significant review.
Radiation toxicology is specialized according to a
1980 book (p.
20)
Is it really necessary to rely upon 22 year old sources for a field that has evolved rapidly in the past three years?
City is bound by the EAW’s
and EIS’s it conducted (various times)
The city has conducted no EAW or EIS.
Importantly, the MEQB chose not declare itself the Responsible
Government Unit on this proposal (although it could have). Therefore, it could not have ruled upon Xcel’s
proposal one way or the other.
Specifics
|
Page # |
Memorandum
Statement |
Correct |
|
viii |
The parties understood that they would be bound by the determination of the EIR on the issues addressed therein. |
There was no EIR in the sense of a final report. There was, however, the CAI “Independent Review.” Neither CAI nor anybody else suggested that that report was the final conclusion of the effort. Subsequent to that review was the public hearing at which expert testimony was presented. This hearing was always supposed to be a part of the process. Had the review been intended to be a final report, it would have been produced after the public hearings. |
|
ii |
The project was planned as two phases. |
There was never in reference to two phases until December, 2001. Indeed, construction of so-called Phase 2 began before construction of so-called Phase 1. It was only when Xcel decided to not construct the western half of the line that the terms Phase 1 and Phase 2 were first introducted |
|
xi |
The line upgrade will most certainly lessen the non-conformance. |
Not at all.
There is not requirement that the new poles be placed at the location
of the old poles. Indeed, one of the
three foundations already constructed in |
|
|
|
|