Document ykwBxeaJaKgvBgGnDQb90Gea2

BRADLEY & MERRELL c/ 0 JON ES, JONES, C LO SE & BROWN, CHARTERED Si iventh Floor -- Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 i M ESSAGE FROM XERO X 7024: (702) 385-1655 I>ATE: 2 - _____ TO: Carol Van Strum FAX #: (503) 528-7105 PHONE #: (503) 528-7151 FROM: Paul E. Merrell CLIENT/MATTEF [ Nevada Power v. Monsanto CLIENT/MATTEFi NO.: 11927.2 DOCUMENT(S) DESCRIPTION: NUMBER O F PAGES (including cover page): MESSAGE: 3 THIS TELECOPY IS INTENDED ONLY FO R THE ADDRESSEE NAMED ABOVE FT MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND C O N fjlD E N nA lJ IF YOU HAVE RECEIVED THE TELECOPY IN ERROR, PLEASE NOTIFY U S IMMEDIATELY BY TELEPHO NE, DESTROY ALL CO PIES, AND D O NOT DISSEMINATE TH E INFORMATION TO ANYONE. THANK YOU FO R YOUR ASSISTANCE. IF YOU(EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: Robert Osterloh, Ext. 615 II I BRADLEY * MERRELL ID :7023851655 TRANSMIT CON EXEMPTION REPORT RECEIVER TRANSMITTER DATE | DURATION MODE [ PAGES RESULT 008 503 528 7151 BRADLEY * MERRELL FEB *22-93 9:36 02 ' 34 STD 03 OK FEB 2 2 ' 93 9:35 Elusive Threat Electric Utilities Brace For Cancer Lawsuits Though Risk Is Unclear Companies Spend on Cutting Electromagnetic Fields As Lawyers Smell Blood Michael W itheys Data Bank ----- * By Bill Rickaxds \ S ta ff R a p o rx rr o f T a x Wa u St u t t Jo v w u , SEATTLE - If the electric utility Indus try hsd (rone looking for trouble. It couldn'j bare picked i thornier Issue than electro magnetic fields, nor a fiercer opponent than Michael Wlthey.' **; Mr. Wlthey. an Intense, bushy-haired Seattle attorney, has made a career of representing such underdogs as farm and cannery workers, whistle-blowers and an tiwar activists. He caught the utilities' attention nearly three yean ago when be pressured Boeing Oo. into paying more than COO,000 to settle a suit filed by a former employee'who claimed that his leukemia was caused by exposure to elec tromagnetic radiation. The lawsuit was one of the first to attempt to link cancer to magnetic fields produced by electric cut1 rent, known as BMP.'. ;a - -T 'x ' i i f Since then, Mr. Wlthey has become the leader of a nationwide group of law firm* eager to turn EMF Into a legal battle ground. If they are successful, some Indue try experts predict, utilities could end up paying out billions In KMF-based claims. ^ Burden of Proof Publicly, utility officials have brushed off EMF as a threat. Leonard Sagan, senior medical scientist at the Electric Power Research Institute In Palo Alto. Calif., the industry s research a m . calls EMF concerns "premature. " Some utility officials say Mr. Wlthey and his colleagues are engaged In a cancer scare to drum up business. "I think it la still fair and accu rate to say there's no basis for concluding on present science that EMF causes ad verse health effects." says Tom Watson, a Washington, D.C., attorney whose firm has represented about 140 utilities in EMF- , related cases. .. But privately. EMF has sent a jolt through the nation's electric utilities. A survey by the Public Utility Commission of Texas last year found 201 challenges to utility projects around the U.S. In which BMP was ah tone. At least three suits have been filed in federal courts claiming that cancers were caused by exposure to utility lines. Last November, researchers from Sweden's prestigious Karolinska In stitute reported finding nearly fourfold higher leukemia rates among Swedish children living near power lines. In the much larger U.S. population of children, that would translate Into more than 500 cases of child leukemia a year. Mindful of previous mass-tort assaults such as those launched against asbestos- manufacturers nearly two decades ago,- utilities are flocking to lawyers like Mr. Watson for advice about EMF. And they" are quietly pouring billions of dollars into efforts to cut BMP exposure from their power lines. * "We tend to be frightened by cancer and radiation and children." says Carlos Alvarez, a Tallahas see, Fla., attorney who has repre sented Florida utili ties In EMF cases. "You tie those emo tional words to gether and it will, scare the daylights out of you." What is notable about the EMF dls-, pute is that so far no (dentist has conclu sively tied EMF m cancer. Several population studies besides Karollnska's. including one funded by the Industry research a m at the Univer sity of Southern California, have recorded Increased leukemia In children living near power lines. There have been numerous scientific reports of elevated levels of leur kemia In people who are exposed to high EMF levels on the job, such as power lina repairmen and workers In aluminum smelters. Researchers here In Washington state are also looking Into whether EMF exposure may be linked In some way to breast cancer. Most recently, questions have been raised about whether EMF from cellular telephones could be related to brain tumors, fResearcher generally dis count that untested notion, since cellular phones emit very low EMF levels and exposure Is Intermittent.) 'Q ectropbobU ' Diagnosed Most researchers say it could be a decade or more before the Idea of a link between EMF and cancer is either proved or discredited. Some doubt that a connec tion will be found. Robert Adair, a Yale physicist and an outspoken critic of EMF research to date, mils the utilities' reac tion electrophobia. ' He says the fields are far too weak to cause damage - that li would take EMF levels 150 times higher than those measured by the Swedish re searchers to pose a hazard. "My strongly held view," Dr. Adair says. "Is that this is an astonishing waste of money." Utilities, however, may not have a choice. In the EMF dispute, the lawyers seem to be outrunning the scientists. All It s going to take is one or two good hits and the sharks will start circling, says Tom V. ird. a Baltimore attorney who is suine I! 1 i i II A6 THE WALL STREET JOURNAL FRIDAY. FEBRUARY 5. 1993 ^Elusive Threat: Though Risk Is Unclear, Utilities Brace for Lawsuits Linking Cancer and row er Lines " Continued From First Page Northeast Utilities Co. and Its Connecticut . Light & Power Co. unit over an alleged EMF cancer. /.- v , r< Mr. Watson, the lawyer who defends power companies, sayi his EMF wort for utilities has tripled In five yean (be says _ he hasn't k*t a case yet). The caseload could grow still more, be says, as the first " round of EMF cases makes Its way through the courts. Should utilities start losing, be notes. "You'll see a very substantial In- crease In litigation - and that could he an % u nderstatem ent" : - . Law Before Science , That possibility makes many utility ^executives nervous. "This Is a double- edged sword." says Michael Main. EMF risk manager for Puget Sound Power A " Light Co. Mr. Main concedes that Puget ~ Power, based In Bellevue. Wash., would be legally and ethically remiss If It Ignored scientific evidence of an EMF hazard. "But If you spend a lot of money and there's no problem." he says, "the shareholders take ' It In the neck and you have the utility commission to answer to." * By some estimates utilities are now spending more than $1 billion a year on EMF. up from practically nothing just five years ago. Hawaiian Electric Industries Inc., for example, laid out nearly C million ' to reroute and reconfigure power lines after the issue arose. "We want to avoid lawsuits." says Francis Hlrakaml. the utility's senior electrical engineer. .. it Puget Power fields as many as 10calls a week from customers anxious about EMF. Voters in Whatcom County, Wash., re jected the company's proposed 230.000-volt transmission line two years ago after EMF became an issue. For good measure, they restricted future power-tine construction to existing industrial corridors, a move that Puget Power says could add S10 million to the cost of building a new line. Other utilities are burying lines, widen ing nghts-of-way and even offering to buy up homes along power-line routes to ease public anxiety. * So far. most EMF spending by utilities has gone toward rerouting or reconfigur ing wiring on new lines. Some are also practicing "prudent avoidance" - a catch all industry term for inexpensive alterna tives that can range from providing home measurements of EMF to counseling on how to arrange appliances to lower expo sures. "There are lots of things you can do before you start moving power lines around." says Gilbert Omenn. who heads the University of Washington s school of public health and serves as chairman of the industry research arm' EMF advisory counsel. Such measures are relatively cheap compared with the expense of curbing EMF exposure for the entire M2.000-mile web of overhead transmission lines criss crossing the country (Transmission lines carry power cross-country at high voltage, generating the most intense sustained EMF levels - and controversy.) c Costlier Than Asbestos? Burying existing power lines, experts say. could cost up to 20 times more than banging them from pylons. The expense of making significant cuts In EMF exposure for the nation's transmission grid could might to win" says Jesae Dillon, a SUIT attorney who alts on Pennsylvania Power It lig h t s EMF itudy group. * Already, utilities are hearing from homeowners who Uve near power tinea and are bristling over plunging property values. Mr. Ward says be was contacted recently by a Philadelphia man whose house registered such high EMF levels from nearby power lines he moved o u t He says be Is considering suing the utility on the ground that Its power tines have made It impossible for his client to enjoy Us property. '*. *: bility Is to put In the overhead tines." says William Finnegan. Puget Power's vice president for engineering. "If people want underground tines to reduce EMF. they ought to pay fo rtt."- * But stale regulators are likely to raise question about a utility's right to limit costly EMF abatement measures just to well-to-do customers. "This is a very con tentious. very difficult area." says Rich ard Casad. one of the Washington regula tory panel's three commissioners. "It would seem grossly unfair to leave those , without resources unprotected." Moreover, utility regulators in Wash end up dwarfing the asbestos payouts. For Pylons in the Yard ington. as tii most states, are used to instance, when officials at Pennsylvania In Bellingham. Wash.. Guillermo Pow focusing on more eut-and-dned issues Power It Light Co. studied the cost at ell sits In hia living room looking out at a like setting rates and aren't anxious to ; curbing EMF from the utility's 3.TOO-miles pair of huge pylons carrying Puget become safety arbiter*. "We go on the -system of overhead lines recently, they Power's transmission tines through his assumption utility managers get paid ,, came up with a 4600 million price tag. backyard. Mr. Powell says he has given up big buck* to make those judgment calls __ "With all this scientific uncertainty about trying to sell his cedar-shaded, four-bed- and operate In a prudent manner." says T.KMF. who's going to pay for that?" won room bouse, even though be Is asking Kenneth Elgin, assistant director for en ders Bernard Bujnowskl. EMF Issue man SIS,000 less than the appraised value. ergy for Washington's regulatory agency. ager for the Allentown. Pa., utility. Keith FVsrtg. a researcher at Resources About SOpotential buyers turned away Karl Rahago. one of Texas's three because of the power lines, be say*. "Peo utility commissioners, calls the EMF Issue for the Future, a think tank in Washington. ' D.C.. predicts that the cost of curbing EMP ple would come up the drive, see the tinea "a major dilemma" for regulators. "It's a In the backyard and tell the realtor to put question of what do you do in the face of -exposure from both new and existing It Into reverse." says Mr. Powell, himself a scientific uncertainty." says Mr. Rabago, transmission lines could eventually run as 'r high as no billion annually. Such spend- - Ing. Mr. Florig estimated in a study pub real-estate agent. "I had no Idea people were so scared of this stuff/S. Mr. PowelTs solution: "Puget Power a former law profea ter at the University of Houston. Mr. Rabago favors spending to reduce lished last July in the journal Science, would boast the cost of electricity by should bury those tines." be says. And if EMF exposure even though the cancer link that doesn't happen, "then the house Isn't Is unproved. The EMF Issue, he says, has several percentage pointa. c. Critics like Mr Wltbey say the pend - ing is overdue. "The utilities took the worth anything and Puget Power should buy It so we can go somewhere etse.T.:'* Puget Power Isn't buying that idea, but brought out "the dark side" of the utility Industry-* conservative approach to plan ning. "We don't deal with risk until it's ' wrong turn on tills Issue 10 years ago when they decided to hunker down and say u the evidence doesn t warrant serious miti.'gattoo," he says Now. "they have to bite the bullet and pay what's necessary." ~ The power-tine issue has become some thing of a crusade for the 46-year-old attorney. Mr. Withey even called in ex perts to sweep his Seattle home two years ago to see If dangerous electromagnetic fields were lurking within (they weren't). - Last year, when the Edison Electric Insti- . rote, a utility trade group. Invited him to ' address its annual convention In Washing ton. D.C.. Mr. Wtlhey's message to some 200 nervous utility executives was blunt: . "Do the right thing and clean up EMF - levels now or you'll end up paying a lot In negligence lawsuits later." Mr. Withey and his colleagues In the It has come up with a novel sotutioo of Its own. The utility is preparing to ask Wash ington's Utilities Transportation Commis sion. which regulates the state power lines, to let It bill customers for EMF abatement Under the proposal, an area like Whatcom County that wants to cut EMF exposure by burying or reconfiguring wires would be given a rate "menu" containing extra charges lor the work. A Right or a Luxury? Puget Power's plan would be the first attempt to tie the cost of EMF abatement directly to the customers raising health concerns. Utility officials say the rate add-ons would he warranted because EMF is an unproven hazard and because abate ment measures are a luxury, like burying tines for aesthetic reasons. "Our responsi absolutely certain." be says. Catch-22 But attorneys like Mr. Watson say such mitigation spending Itself carries a potential liability risk for utilities. He often counsels his utility clients to move cau tiously on EMF abatement to avoid admit ting there is a risk from magnetic fields. "1 tell them to be careful about making an unwarranted admission and to make a good record on what they are doing and why." the lawyer says. In light of scientific uncertainty over EMF. utilities must be able to answer questions from potential litigators tike Mr. Withey. he says. "You have to be able to explain why you put the power line here rather than there. We tell them to think through these decisions very carefully." nascent EMF bar insist they aren't out to _ redo the asbestos onslaught, which flooded courts with more than 200.000 lawsuits. "We want to change corporate conduct" he says, "not litigate lawsuits." ; But some lawyers dearly smell blood In the EMF issue. Two years ago. Mr. Withey helped organize mne law firms around the U.S. into a group calling Itself the Electro magnetic Radiation Case Evaluation Team. The lawyers have built a computer ued data bank on EMF and screen poten ual cases. T e s t Case In San Diego ", While the group Itself doesn't file law suits. members have already sued utilities In Connecticut. Georgia and California, charging that their power lines caused cancer. Mr. Withey sued San Diego Gas & ' Electric Co. last year, alleging that its power tines are responsible for kidney " cancer in a four-year-old girl. The case. _ whlcb is expected to come to trial later this year in federal court in San Diego, is seen by many as the first major court test of utilities' EMF liability, c- Mr. Withey calls the San Diego case "a slam dunk" and predicts It will trigger an avalanche of daims. Some of his potential opponents agree. "You don t need scien- - tiflc -ytroof to go to court, although you