# Devvy Kidd John Kidd M. J. Shadden John Cole R.M.Daiey Tracy Stephens Patricia Stroyick Dorothy Morrow Charles Morrow Amy Williams David Williams Norman Kuehn Elizabeth Theiss Rebecca Gutierrez Marie Nugent Steve G. Crutchfield v. Texas Public Utility Commission AEP Texas Central Company AEP Texas North Company CenterPoint Energy Houston Electric, LLC Texas-New Mexico Power Company And Oncor Electric Delivery Company, LLC > Texas Court of Appeals, 3rd District (Austin) · February 23, 2015 URL: https://www.frixlaw.com/law-library/cases/4050258 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** February 23, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4050258 ## Opinion text ACCEPTED 03-14-00661-CV 4251520 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/23/2015 4:01:27 PM JEFFREY D. KYLE No. 03-14-00661-CV CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTINFILED IN 3rd COURT OF APPEALS DEVVY KIDD ET AL., AUSTIN, TEXAS 2/23/2015 4:01:27 PM Appellants, v. JEFFREY D. KYLE Clerk PUBLIC UTILITY COMMISSION OF TEXAS, Appellee. Appeal from the 419th Judicial District Court, Travis County, Texas The Honorable Darlene Byrne, Judge Presiding BRIEF OF APPELLEES AEP TEXAS CENTRAL COMPANY, AEP TEXAS NORTH COMPANY, CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, TEXAS-NEW MEXICO POWER COMPANY, AND ONCOR ELECTRIC DELIVERY COMPANY LLC Patrick J. Pearsall Dale Wainwright State Bar No. 24047492 State Bar No. 00000049 ppearsall@dwmrlaw.com dale.wainwright@bgllp.com DUGGINS WREN MANN & BRACEWELL & GIULIANI LLP ROMERO, LLP 111 Congress Avenue, Ste. 2300 P. O. Box 1149 Austin, Texas 78701 Austin, Texas 78767-1149 (512) 744-9300 (512) 472-7800 (512) 744-9399 fax (800) 404-3970 fax ATTORNEY FOR AEP TEXAS ATTORNEY FOR CENTERPOINT CENTRAL COMPANY AND AEP ENERGY HOUSTON ELECTRIC, LLC TEXAS NORTH COMPANY Stephanie C. Sparks Jo Ann Biggs State Bar No. 24042900 State Bar No. 02312400 ssparks@jw.com jbiggs@velaw.com JACKSON WALKER L.L.P. VINSON & ELKINS LLP 901 Main St., Ste. 6000 2001 Ross Ave., Ste. 3700 Dallas, Texas 75202 Dallas, Texas 75201-2975 (214) 953-6000 (214) 220-7735 (214) 953-5822 fax (214) 999-7735 fax ATTORNEY FOR TEXAS-NEW ATTORNEY FOR ONCOR ELECTRIC MEXICO POWER COMPANY DELIVERY COMPANY LLC ORAL ARGUMENT PROVISIONALLY REQUESTED TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i INDEX OF AUTHORITIES..................................................................................... ii STATEMENT REGARDING ORAL ARGUMENT ............................................. iii STATEMENT OF FACTS ........................................................................................1 SUMMARY OF THE ARGUMENT ........................................................................2 STANDARD OF REVIEW .......................................................................................3 ARGUMENT AND AUTHORITIES ........................................................................3 I.  Sovereign immunity has not been waived. ......................................................3 II.  The APA’s public hearing requirement applies only when an agency adopts a rule. ....................................................................................................6 III.  The Commission has seriously considered Appellants’ concerns about advanced metering technology and allowed them to participate in proceedings at the Commission. ....................................................................10 CONCLUSION AND PRAYER .............................................................................15 CERTIFICATE OF COMPLIANCE .......................................................................18 APPENDICES .........................................................................................................20 i INDEX OF AUTHORITIES Cases El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709 (Tex. 2008) ..................................................................................4 Texas Comm’n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887 (Tex. App.—Austin 2014, no pet.) .................................... 3, 5, 9 Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) .................................................................................3 Statutes Tex. Gov’t Code Ann. § 311.034 ...........................................................................4, 5 Tex. Gov’t Code Ann. § 2001.021 .................................................................... 1, 5, 6 Tex. Gov't Code Ann. § 2001.023 .............................................................................8 Tex. Gov’t Code Ann. § 2001.029 .................................................................... 6, 7, 8 Tex. Gov’t Code Ann. § 2001.035 ................................................................ 2, 4, 5, 8 Tex. Gov’t Code Ann. § 2001.038.............................................................................5 Tex. Gov't Code Ann. § 2001.171 .............................................................................5 Other Authorities S. Rep. No. 752, 79th Cong., 1st Sess., pt. 4, at 201 (1945)......................................7 Rules 16 Tex. Admin. Code § 22.282 ..................................................................................6 16 Tex. Admin. Code § 25.133 ................................................................... 12, 13, 14 Commission Proceedings Pub. Util. Comm’n of Texas, Project No. 40404, Petition for Initiation of Rulemaking Proceedings Regarding Smart Meters ........................................ 1, 10 Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced Metering Alternatives ................................................................... 12, 13 Pub. Util. Comm’n of Texas, Project No. 40190, Project Relating to Advanced Metering Issues ....................................................................... 10, 11, 12 ii STATEMENT REGARDING ORAL ARGUMENT If the Court believes oral argument will aid its decisional process, Appellees AEP Texas Central Company, AEP Texas North Company, CenterPoint Energy Houston Electric, LLC, Texas-New Mexico Power Company, and Oncor Electric Delivery Company LLC (collectively, “Utility Appellees”), will be available to address the Court’s questions or concerns. However, the Utility Appellees do not believe that oral argument is necessary to resolve the issues in this case. This case concerns only the straightforward application of the doctrine of sovereign immunity and the construction of unambiguous statutory provisions. iii STATEMENT OF FACTS The Commission proceeding from which Appellants filed their appeal involved a request to the Commission under Administrative Procedure Act (APA) § 2001.021 in May 2012 “to initiate and conduct rulemaking procedures… relating to the deployment of smart meters by electrical utilities and others as part of their Advanced Metering System (AMS) program.” See Clerk’s Record (CR) at 20 (Pub. Util. Comm’n of Texas, Petition for Initiation of Rulemaking Proceedings Regarding Smart Meters, Project No. 40404, Order Denying Petition for Rulemaking at 1 (July 13, 2012) (“Project No. 40404”)). The Commission docketed Appellants’ rulemaking petition in Project No. 40404. In June 2012, the Appellants requested the Commission to hold a public hearing on the issues raised in their petition for a rulemaking. Rather than initiate a rulemaking proceeding as a result of the Appellants’ petition, in July 2012, the Commission issued an order denying the petition for a rulemaking and explained that it was denying the petition “because the Commission has another project to address Petitioners’ concerns about smart meters, Project No. 40190, PUC Proceeding to Evaluate the Feasibility of Instituting a Smart Meter Opt-out Program.” See id. at 24-25 (Project No. 40404, Order Denying Petition for Rulemaking at 5-6). The Appellants then initiated judicial review of the Commission’s order. 1 The Commission did ultimately adopt a rule addressing advanced metering service in Project No. 41111. As discussed below, several of the Appellants participated in Project No. 41111. None of the Appellants, however, challenged the validity of or otherwise appealed the rule promulgated in Project No. 41111. In addition to the facts stated above, the Utility Appellees adopt and incorporate herein Appellee Texas Public Utility Commission’s Statement of Facts, as set forth in its Appellee’s Brief filed on February 23, 2015. SUMMARY OF THE ARGUMENT In this appeal, Appellants contend they are not seeking judicial review of the Commission’s decision denying their petition for rulemaking in Project No. 40404. See Appellants’ Brief at 10 (“this is not an appeal of the denial of a rulemaking”). Instead, Appellants claim they seek judicial review of the Commission’s denial of their request for a public hearing in that project. Appellants argue that APA § 2001.035 waives sovereign immunity with respect to their lawsuit. Id. at 12-19. APA § 2001.035, however, applies only to a rule actually adopted by an agency. Tex. Gov’t Code Ann. § 2001.035(a) (applies to “a rule ... a state agency adopts ....”) (emphasis added). The Commission did not adopt a rule in Project No. 40404. Thus, APA § 2001.035 does not provide jurisdiction for Appellants’ suit. Therefore, the suit is barred by the well-established doctrine of sovereign immunity. 2 In addition to the points discussed below, the Utility Appellees adopt and incorporate herein the arguments of the Commission in its Appellee’s Brief. STANDARD OF REVIEW A trial court’s order granting a plea to the jurisdiction is reviewed de novo. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); see also Texas Comm’n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887, 892-93 (Tex. App.—Austin 2014, no pet.). To determine whether a plaintiff has affirmatively demonstrated the trial court’s subject-matter jurisdiction to hear a case, a reviewing court considers the facts alleged in the petition along with any evidence submitted by the parties, to the extent such evidence is relevant to the jurisdictional issue. Miranda, 133 S.W.3d at 227. The pleadings are construed in the plaintiff’s favor, taking all factual assertions as true and looking to the plaintiff’s intent. Id. at 226-27. If the pleadings affirmatively negate jurisdiction, then the plea to the jurisdiction must be granted. Id. ARGUMENT AND AUTHORITIES I. Sovereign immunity has not been waived. A trial court lacks subject-matter jurisdiction over lawsuits against the State and its agencies absent an express waiver of sovereign immunity. Id. at 224. And this rule applies to judicial review of agency administrative actions. Bonser-Lain, 3 438 S.W.3d at 893. A waiver of immunity must be expressed by clear and unambiguous language. Tex. Gov’t Code Ann. § 311.034. Appellants contend that APA § 2001.035 waives sovereign immunity with respect to their appeal of the Commission’s refusal to hold a public hearing in Project No. 40404. See Appellants’ Brief at 12-19. The plain language of that provision, however, makes clear that it does not apply to this case. APA § 2001.035 states, in relevant part, as follows: (a) A rule is voidable unless a state agency adopts it in substantial compliance with Sections 2001.0225 through 2001.034. (b) A person must initiate a proceeding to contest a rule on the ground of noncompliance with the procedural requirements of Sections 2001.0225 through 2001.034 not later than the second anniversary of the effective date of the rule. Tex. Gov’t Code Ann. § 2001.035(a)-(b) (emphasis added). Nothing in APA § 2001.035 expressly waives sovereign immunity when an agency denies a petition for rulemaking or a request for a hearing to initiate a rulemaking. There is no question that a rule is invalid when an agency promulgates it without complying with the proper rulemaking procedures. See El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 715 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 2001.035(a)). But Appellants do not challenge the validity of a rule. More importantly, the Commission did not adopt a rule in the underlying docket. Consequently, APA § 2001.035 does not apply. 4 The legislature has unambiguously expressed its intent to waive sovereign immunity to allow judicial review of certain types of agency decisions under the APA. See, e.g., Tex. Gov’t Code Ann. § 2001.038 (permitting a suit for declaratory relief to determine the validity or applicability of a rule) and § 2001.171 (providing, under certain circumstances, an independent right to judicial review of a final decision in a contested case). The APA, however, is silent with respect to whether a person may appeal, or otherwise challenge, the denial of a hearing request where the Commission did not adopt a rule. And, APA § 2001.035, the provision Appellants rely upon for jurisdiction, includes compliance with APA §§ 2001.0225 through 2001.034 and tellingly excludes from its purview § 2001.021, the provision under which Appellants filed their petition for a rulemaking in Project No. 40404. In Bonser-Lain, this Court held that the APA’s “deliberate silence” with respect to agency decisions on petitions for rulemaking established that the “APA does not provide a right to judicial review of an agency’s refusal to adopt rules.” 438 S.W.3d at 894. Statutory “silence” is not a “clear and unambiguous” waiver of immunity to enable a suit against a state. Tex. Gov’t Code Ann. § 311.034. The same rule applies here. 5 II. The APA’s public hearing requirement applies only when an agency adopts a rule. The crux of Appellants’ complaint is that the Commission erred in denying their request for a rulemaking without first holding the public hearing they requested under APA § 2001.029 and 16 Tex. Admin. Code § 22.282(d). Appellants’ reliance on these provisions is misplaced. Section 2001.029 provides that “[a] state agency shall grant an opportunity for a public hearing before it adopts a substantive rule if a public hearing is requested by: (1) at least 25 persons ....” Tex. Gov’t Code Ann. § 2001.029(b)(1). Similarly, 16 Tex. Admin. Code § 22.282(d) provides that the Commission may initiate a rulemaking project by publishing notice in accordance with the rules, and that a public hearing on a proposed rule “shall be granted if requested by at least 25 persons.” 16 Tex. Admin. Code § 22.282(d). Both provisions deal with rulemakings that have already been initiated, not a petition for initiation of a rulemaking.1 Moreover, neither provision provides a petitioner the right to a public hearing on a petition for rulemaking. 1 A petition for the initiation of rulemaking is governed by APA § 2001.021, which provides a state agency with only two options for addressing the petition: (1) deny the petition in writing, stating its reasons for the denial or (2) initiate a rulemaking proceeding. Tex. Gov’t Code Ann. § 2001.021(c). The rulemaking provisions (such as a public hearing under APA § 2001.029) only apply after the Commission has decided to initiate a rulemaking proceeding. Id. § 2001.029(b). 6 Even if an actual rulemaking proceeding is initiated (which did not happen in the instant case), APA § 2001.029 requires a hearing only if a rule is actually adopted – “[a] state agency shall grant an opportunity for a public hearing before it adopts a substantive rule ....” Tex. Gov’t Code Ann. § 2001.029(b) (emphasis added). If the agency ultimately takes no action, there is no requirement to hold a hearing. The legislative history of analogous provisions of the federal APA further rebuts Appellants’ alleged right to a public hearing in this case. Specifically, the Senate Judiciary Committee Report on the federal APA states the following with respect to petitions for rulemaking: The mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal. S. Rep. No. 752, 79th Cong., 1st Sess., pt. 4, at 201 (1945) (emphasis added). Appellants argue this cannot be correct because it would allow the Commission to play a “shell game” to eliminate a party’s right to a hearing “by simply failing to complete the adoption of the specific rule for which the hearing was requested” and then proposing its own rule on the same subject in a separate proceeding. See Appellants’ Brief at 19 & 21. Appellants insist this could mean 7 “that no public hearing on a rulemaking would ever have to be held at all.” Id. at 21. Appellants are wrong. It is true that the Commission is not required to hold a hearing if it does not adopt a rule. But the Commission cannot adopt a rule without holding a hearing when properly requested. Any rule adopted in violation of the public hearing requirement in APA § 2001.029 is voidable. See Tex. Gov’t Code Ann. § 2001.035(a). If the Commission proposes a similar rule in a separate proceeding, as Appellants suggest, it must also provide notice of its intent to adopt the proposed rule. See id. § 2001.023. A party can then participate in the new rule rulemaking proceeding and request a hearing, which, as discussed below, is exactly what Appellants did. Appellants’ characterization of the Commission's discretion to manage its rulemaking docket as a “shell game” is a fiction. Appellants not only had an opportunity to participate in a public hearing in another project (Project No. 41111) on the same matters at issue, but Appellants failed to appeal the rule the Commission actually adopted in that proceeding. Appellants point to no legislative requirement that the Commission must hold a separate hearing on any petition for rulemaking so long as twenty-five people request the hearing. Appellants’ unbridled interpretation of the statute would mandate hearings regardless of 8 whether a petition is duplicative of a pending rulemaking (as was the case with Project Nos. 40404 and 40190) or is simply a verbatim recitation of a previously rejected petition. This would create a limitless waste of agency resources, and Appellants have provided no valid reason to justify such an interpretation. Appellants’ claim of “a right without a remedy” is inapposite. For one, Appellants did not have a right to a public hearing. Appellants, therefore, do not have a remedy to appeal the denial of their hearing. Appellants tellingly confuse the right to a hearing after a rulemaking proceeding has been opened with the Commission’s discretionary function to grant or deny a petition for a rulemaking. Appellants did have a “remedy” to address issues with the advanced metering service rule adopted in Project No. 41111. Appellants could have appealed the adopted rule and challenged the rulemaking process. They chose not to avail themselves of the available remedy. In sum, Appellants have not cited any clear waiver of sovereign immunity that applies to their lawsuit. This Court has already ruled that the APA does not provide a right to judicial review of an agency’s refusal to adopt rules. See Bonser- Lain, 438 S.W.3d at 894. Similarly, the APA does not permit an appeal of an agency’s refusal to hold a hearing in a proceeding in which the agency did not adopt a rule. It is only when the Commission initiates a rulemaking and actually adopts a rule that a hearing must be held when properly requested, as the 9 Commission did in Project No. 41111. Therefore, the trial court correctly granted the Commission’s plea to the jurisdiction. III. The Commission has seriously considered Appellants’ concerns about advanced metering technology and allowed them to participate in proceedings at the Commission. While not pertinent to the legal question of sovereign immunity, the impression Appellants attempt to create is that the Commission ignored their asserted concerns regarding advanced metering technology. That is not accurate. Instead of ignoring Appellants’ concerns, the Commission gave appropriate consideration to the matters raised by Appellants and accorded them two opportunities to participate in a public hearing and present oral testimony and supporting information on these matters. Prior to Appellants’ petition for a rulemaking in Project No. 40404, the Commission initiated an investigative proceeding in Project No. 40190 to look into issues related to advanced meters, including health and safety matters.2 In its order denying Appellants’ petition for a rulemaking, the Commission notified Appellants that it intended to consider the issues raised by them in Project No. 40190. See CR at 24-25 (Project No. 40404, Order Denying Petition for Rulemaking at 5-6). The 2 See Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues, Project No. 40190, Final Details for August 21st Public Forum on Advanced Metering & Related Issues (Aug. 20, 2012) (“Project No. 40190”). A copy of this document is included in Appendix A. The document can be found at: (last visited on February 23, 2015). 10 Commission also transferred Appellants’ comments from Project No. 40404 to Project No. 40190.3 Appellants were given the opportunity to participate in the public forum held in Project No. 40190 on August 21, 2012, and several individual Appellants presented testimony and submitted information at this public forum.4 On December 17, 2012, after considering and evaluating the academic literature on radio frequency (“RF”) and electromagnetic frequency (“EMF”) emissions from advanced meters, the PUC Staff filed a report in Project No. 40190.5 The PUC Staff concluded that “the large body of scientific research reveals no definite or proven biological effects from exposure to low-level RF signals” and further stated that it “had found no credible evidence to suggest that advanced meters emit harmful amounts of EMF.”6 3 See generally Project No. 40190, Item Nos. 399-517 (July 24, 2012) (transferred comments from Project No. 40404). The list of filings in Project No. 40190 can be found at http://interchange.puc.texas.gov/WebApp/Interchange/application/dbapps/filings/pgControl.asp? TXT_UTILITY_TYPE=A&TXT_CNTRL_NO=40190&TXT_ITEM_MATCH=1&TXT_ITEM _NO=&TXT_N_UTILITY=&TXT- n_FILE_PARTY=&TXT_DOC_TYPE=ALL&TXT_D_FROM&TXT_D_TO=&TXT_NEW=tr ue (last visited on February 23, 2015). 4 See Appendix A at 2-3 (listing Appellants Devvy Kidd, Thelma Taormina, and Beth Biesel as “Invited” or “Public & Stakeholder Comment” participants). 5 See Project No. 40190, Staff Report on Health and Radiofrequency Electromagnetic Fields from Advanced Meters, Introductory Memorandum (Dec. 17, 2012). This document is included in Appendix B. The full report can be found at: (last visited on February 23, 2015). 6 Id. at 1. 11 On January 7, 2013, the Commission initiated project No. 41111, a proposed rulemaking proceeding, to consider adoption of a rule relating to advanced metering alternatives. On February 21, 2013, the Commission issued its proposed rule, 16 Tex. Admin. Code § 25.133, for a smart meter opt-out in Project No. 41111.7 On the same day, the Commission provided the petitioners in Project No. 40190 with notice of the proposed rule.8 The Commission accepted written public comment on its proposed rule in April 2013. As part of the public comment process in Project No. 41111, Appellants submitted extensive written materials on their health and safety concerns regarding advanced meters.9 7 See Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced Metering Alternatives, Proposal for Publication on New 25.133 and Amendment to 25.214 as Approved at the February 14, 2013 Open Meeting (Feb. 21, 2013) (“Project No. 41111”), published in 38 Tex. Reg. 1328 (Mar. 1, 2013). This document can be found at: http://interchange.puc.state.tx.us/WebApp/Interchange/Documents/41111_6_750581.PDF> (last visited on February 23, 2015). 8 See Project No. 40190, Information on Proposed Rule (Feb. 21, 2013). This document is included in Appendix C. This document can also be found at: (last visited on February 23, 2015). 9 See Project No. 41111, Hearing Submissions & Proposals (April 19, 2013). Appellants’ submission can be found at: (last visited on February 23, 2015). 12 On March 29, 2013, the Texas Eagle Forum, whose members include certain of the Appellants, requested that a public hearing be held in Project No. 41111.10 On April 10, 2013, the Commission issued a notice that a public hearing would be held on April 19, 2013 in Project No. 41111.11 At this public hearing, Appellants’ attorney (David Tuckfield at the time) and several of the individual Appellants testified about the meters.12 On August 15, 2013, the Commission issued its order adopting 16 Tex. Admin. Code § 25.133, which provides a mechanism for a customer who does not want an advanced meter to opt out.13 In its order adopting this rule, the Commission addressed Appellants’ health and safety concerns. The Commission stated that: 10 See Project No. 41111, Request for Hearing (Mar. 29, 2013). The Texas Eagle Forum’s hearing request is included in Appendix D. The pleading can also be found at: (last visited on February 23, 2015). 11 See Project No. 41111, Notice of Public Hearing (April 10, 2013). A copy of the Commission’s notice is included in Appendix E. The notice can also be found at: (last visited on February 23, 2015). 12 See Project No. 41111, Order Adopting New 25.133 and Amendments to 25.214 as Approved at the August 9, 2013 Open Meeting at 1-2 (Aug. 15, 2013), published in 38 Tex. Reg. 5452 (Aug. 23, 2013) (listing Appellants Devvy Kidd, Nick and Thelma Taormina, and Beth Biesel and Appellants’ attorney at that time, David Tuckfield, as participating in and testifying at the hearing held in Project No. 41111, in addition to submitting written comments). A copy of the Commission’s order in Project No. 41111, excluding attachments, is included in Appendix F. The order can also be found at: (last visited on February 23, 2015). 13 Id. at 55. 13 Public Commenters provided anecdotal information related to negative health effects they attribute to the installation of advanced meters. David Tuckfield, representing the petitioners in Project No. 40404 (Petitioners), commented that the commission should conduct a study of the health effects of advanced metering and provide the public with information regarding health and safety. … The commission acknowledges the comments made by Public Commenters Mr. Biesel, Ms. Biesel, Mr. Tuckfield, Mr. Allen, Mr. Ramsland, Mr. Hemphill, and the Petitioners. The commission evaluated health, privacy, and operational concerns against advanced meters and concluded that the concerns are unwarranted. However, through this rulemaking the commission is giving customers the right to choose metering service that does not require use of advanced meters. As with other non-standard services, customers choosing this non-standard metering service will be required to pay the costs for the service.14 Despite their claims to the contrary, Appellants did provide written materials, testimony and comments in public hearings before the Commission regarding their concerns about advanced metering systems. Moreover, Appellants failed to appeal the rule promulgated in Project No. 41111. Accordingly, while not pertinent to the legal issue of sovereign immunity, the Commission has given serious consideration to the matters Appellants raised and on two occasions accorded Appellants the opportunity for the public hearing they would have this Court believe they were denied. 14 Id. at 22 and 24 (emphasis added). 14 CONCLUSION AND PRAYER For the foregoing reasons, Appellees AEP Texas Central Company, AEP Texas North Company, CenterPoint Energy Houston Electric, LLC, Texas-New Mexico Power Company, and Oncor Electric Delivery Company LLC, respectfully request that this Court affirm the trial court’s Order Granting Defendant’s Plea to the Jurisdiction and dismissing the cause for want of subject-matter jurisdiction, and further request all other relief to which they may show themselves entitled. Respectfully submitted, Rhonda Colbert Ryan State Bar No. 17478800 rcryan@aep.com AMERICAN ELECTRIC POWER SERVICE CORP. 400 W. 15th St., Ste. 1500 Austin, Texas 78701 (512) 481-3321 (512) 481-4587 fax 15 Patrick Pearsall State Bar No. 24047492 ppearsall@dwmrlaw.com DUGGINS WREN MANN & ROMERO, LLP P.O. Box 1149 Austin, Texas 78767 (512) 744-9300 (512) 744-9399 (fax) /s/ Patrick Pearsall Patrick Pearsall ATTORNEYS FOR APPELLEES AEP TEXAS CENTRAL COMPANY AND AEP TEXAS NORTH COMPANY Dale Wainwright State Bar No. 00000049 Dale.Wainwright@bgllp.com Davison Grant State Bar No. 08300010 Davison.Grant@bgllp.com Lindsay Hagans Lindsay.Hagans@bgllp.com State Bar No. 24087651 BRACEWELL & GIULIANI LLP 111 Congress Avenue, Ste. 2300 Austin, Texas 78701 (512) 472-7800 (800) 404-3970 fax Jason M. Ryan State Bar No. 24033150 Jason.ryan@centerpointenergy.com Assistant General Counsel CENTERPOINT ENERGY SERVICE COMPANY, LLC 1111 Louisiana Street, Ste. 4669 Houston, Texas 77002 16 (713) 207-7261 (713) 574-2661 fax /s/ Dale Wainwright Dale Wainwright ATTORNEYS FOR APPELLEE CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC Patrick R. Cowlishaw State Bar No. 04932700 pcowlishaw@jw.com Stephanie C. Sparks State Bar No. 24042900 JACKSON WALKER L.L.P. 901 Main St., Ste. 6000 Dallas, Texas 75202 (214) 953-6000 (214) 953-5822 fax Scott Seamster State Bar No. 00784939 Scott.seamster@pnmresources.com Corporate Counsel TEXAS-NEW MEXICO POWER COMPANY 225 E. John Carpenter Fwy., Ste. 1500 Irving, Texas 75062 (469) 484-8577 (469) 484-8033 fax /s/ Stephanie C. Sparks Stephanie C. Sparks ATTORNEYS FOR APPELLEE TEXAS-NEW MEXICO POWER COMPANY 17 Jo Ann Biggs State Bar No. 02312400 jbiggs@velaw.com Cortney C. Thomas State Bar No. 24075153 cthomas@velaw.com VINSON & ELKINS LLP 2001 Ross Ave., Ste. 3700 Dallas, Texas 75201-2975 (214) 220-7735 (214) 999-7735 fax /s/ Jo Ann Biggs Jo Ann Biggs ATTORNEYS FOR APPELLEE ONCOR ELECTRIC DELIVERY COMPANY LLC CERTIFICATE OF COMPLIANCE I certify that this document contains 3,388 words in the portions of the document that are subject to the word limits of Texas Rule of Appellate Procedure 9.4(i), as measured by the undersigned’s word-processing software. /s/ Patrick J. Pearsall Patrick J. Pearsall 18 CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 9.5, I certify that on the 23rd day of February, 2015, the foregoing document was electronically filed with the Clerk of the Court using the electronic case filing system of the Court, and that a true and correct copy was served on the following lead counsel for all parties listed below via electronic service: Roger B. Borgelt BORGELT LAW 614 S. Capital of Texas Highway Austin, Texas 78746 Counsel for Appellants Devvy Kidd, et al. Kellie E. Billings-Ray OFFICE OF THE ATTORNEY GENERAL Environmental Protection Div. P. O. Box 12548, MC-066 Austin, Texas 78711-2548 Counsel for Appellee Public Utility Commission of Texas /s/ Patrick J. Pearsall Patrick J. Pearsall 19 APPENDICES A. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues, Project No. 40190, Final Details for August 21st Public Forum on Advanced Metering & Related Issues (Aug. 20, 2012) B. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues, Project No. 40190, Staff Report on Health and Radiofrequency Electromagnetic Fields from Advanced Meters, Introductory Memorandum (Dec. 17, 2012) C. Pub. Util. Comm’n of Texas, Project Relating to Advanced Metering Issues, Project No. 40190, Information on Proposed Rule (Feb. 21, 2013) D. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced Metering Alternatives, Request for Hearing (Mar. 29, 2013) E. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced Metering Alternatives, Notice of Public Hearing (April 10, 2013) F. Pub. Util. Comm’n of Texas, Project No. 41111, Rulemaking Related to Advanced Metering Alternatives, Order Adopting New 25.133 and Amendments to 25.214 as Approved at the August 9, 2013 Open Meeting (Aug. 15, 2013) 20 APPENDIX A Final Details for 8-21-12 Public Forum Public Utility Commission of Texas Memorandum To: All Interested Parties From: Christine Wright, Infrastructure & Reliability Division Jacob Lawler & Joseph Younger, Legal Division Date: August 20, 2012 Re: Project No. 40190: Project Relating to Advanced Metering Issues: August 21st Public Forum – Important Information including the Final Agenda, Meeting Procedures and Speakers Roster Attached is important information for interested parties regarding the Public Forum. This Forum will be open to the public and will be held in the Reagan Building located at the corner of 15th Street and Congress. Parking is available on the street, at the Capitol Visitors Parking Lot (at the corner of 13th Street and Trinity) and at the Bob Bullock History Museum Parking Garage (at the corner of 18th Street and Congress). The final agenda is attached. The Speakers Roster contains the names of individuals that have agreed in advance to speak at the Public Forum as of 10:00 a.m., August 20th. If you send a request to speak after this has been filed, your name will added to the list by staff. Same-day sign-up will be allowed, although space will be limited. If you are a speaker, you are not required to file written comments summarizing your position in this project. The meeting will begin at 10:00 a.m. All speakers must sign-in beforehand. Sign In begins promptly at 9:30 a.m. We will be taking a lunch break. This meeting will be broadcast live, and can be accessed on the Commission webpage at: http://www.puc.state.tx.us/agency/topic_files/40190_Forum.aspx. This broadcast will remain online and available for viewing after the meeting. Transcripts will also be available following the meeting. They can be accessed by contacting Kennedy Reporting at http://www.kennedyreporting.com/ 1 PROJECT NO. 40190 PROJECT RELATING TO § PUBLIC UTILITY COMMISSION ADVANCED METERING § ISSUES § OF TEXAS Public Forum Community Input on Advanced Meters and Related Topics August 21, 2012 Location: Reagan Building, 105 West 15th St. Room HGR-140/Overflow in Room 110 Sign In Begins: 9:30 A.M. Start Time: 10:00 A.M. I. Welcome Remarks II. Overview of Meeting Procedures III. Staff Introduction IV. Public Official Comments V. Invited Comments A. ERCOT ISO (Joel Mickey) B. We The People Are The 9-12 Association, Inc. (Thelma Taormina) C. Pecan Street (Brewster McCracken) D. Ban Texas Smart Meters (Cindy Carriger) E. Texas is Hot F. Devvy Kidd G. City of Houston (Tina Paez) H. Citizen Lobbyist Network & Texas 10th Amendment Center (Sharlyn Wall) I. Smolen & Fox, Smolen & Associates (Paul Smolen) J. Texans Against Smart Meters (John Marler) K. Public Citizen (Tom “Smitty” Smith) VI. Utility Response Panel VII. Expert Panel A. Brent Bullock (Technical Consultant) B. Rob Kavet, ScD (Senior Technical Executive, EPRI) C. Curtis Bennett (Chief Science Officer, Building Construction Engineering Technologist Adjunct Faculty For 2 Education Groups Thermografix Consulting Corporation) D. Robert Hebner, Ph.D. (Director, Center for Electromechanics, University of Texas at Austin) VIII. Consumer & Stakeholder Comments 2 Speakers Roster Project 40190: Public Forum for Community Input on Advanced Meters & Related Topics August 21, 2012 Invited Comments Organization Joel Mickey ERCOT ISO Thelma A. Taormina We the People/912 Commission Brewster McCracken Pecan Street Cindy Carriger Ban Texas Smart Meters TBA Texas is Hot Devvy Kidd Tina Paez City of Houston Sharlyn Wall Citizen Lobbyist Network & Texas 10th Amendment Center Paul Smolen Fox Smollen & Associates John Marler Texans Against Smart Meters Tom "Smitty" Smith Public Citizen Utility Response Panel Organization TBA Oncor Electric Delivery TBA Oncor Electric Delivery TBA Texas New Mexico Power TBA Texas New Mexico Power TBA CenterPoint Energy Houston Electric TBA CenterPoint Energy Houston Electric TBA AEP Texas TBA AEP Texas Expert Panel Organization Brent Bullock Technical Consultant Rob Kavet, ScD Senior Technical Executive, EPRI Curtis Bennett Chief Science Officer, Thermografix Consulting Corporation Robert Hebner, Ph.D. Director, Center for Electromechanics, UT Austin Public Official Testimony Organization Mayor Allen Owen Missouri City Mayor Marcus E. Knight Lancaster Mayor Greg Wortham Sweetwater Public & Stakeholder Comment Organization/Location Beth Biesel Dallas Terry L. Guy Spring April Arfa ECO Development Group LLC Phillip McDonough Montgomery Tracy Stephens Hurst Tracy Eubanks Carrollton Ward Hansen Arlington Brenda Crockett Champion Energy Ned Ross Direct Energy Ginger Russell Texas Patriots Lax Steve Davis ARM Janise Cookston We Texans Thomas A. Bazan Houston 3 Public Forum Important Information and Meeting Procedures Updated Monday, August 20th, 2012 The purpose of this Public Forum is for the Public Utility Commission of Texas (Commission) to receive public comment on issues relating to advanced meters. The goal of the forum is to receive comments from multiple perspectives in order to better inform the Commission’s decision-making process. The Commission will not take a vote at the Public Forum on any proposal presented at the forum. The Public Forum is also not a debate. It is an opportunity for the public to be heard. The Commission encourages public attendance and participation at this Public Forum. Participants are expected to follow the outlined procedures to ensure fairness to all parties and to maintain an orderly and efficient proceeding. Participation Welcomed and Encouraged Participation by members of the public at this Public Forum is welcomed and encouraged. The following procedures for the forum have been designed to produce the most efficient and effective process for allowing the public to provide comments to the Commission. The Commission reserves the right to change these procedures as it deems necessary in order to allow the forum to function as efficiently as possible. What to Expect  The Public Forum will begin promptly at the published start time.  Doors to the meeting room will open approximately 30 minutes before the published start time.  A modified agenda and a Speakers Roster is attached. How to Participate  Each person already on the published Speakers Roster will still need to sign-in on the day of the Forum. - There will be additional, but limited, time for participants who are not on the published Speakers Roster to speak at the Public Forum. Same day sign-up will be available between 9:30 a.m. and 10:00 a.m. at the sign-in table. Invited Comments  Speakers will be taken in the order that they appear on the Roster. Any speaker may yield his time to another speaker on the list in order to give a single speaker a maximum of 20 minutes speaking time. Each speaker has a maximum of 5 minutes.  Invited and Expert comments should not be redundant.  Speakers should present all comments as briefly as possible.  Speakers must remain courteous and respectful at all times. 4 Consumer & Stakeholder Comments  Each speaker will be asked to fill out a speaker card when signing in, prior to the start of the Public Forum.  Speakers will be taken in the order that they appear on the Roster. We have set a time- limit to ensure as many speakers as possible have the opportunity to speak. Each speaker has 3 minutes to speak.  Any speaker may yield his time to another speaker on the list in order to give a single speaker a maximum of 15 minutes speaking time.  Public comments should not be redundant.  Speakers should present all comments as briefly as possible.  Speakers must remain courteous and respectful at all times. Groups  If a group of individuals wishes to address the Commission on the same topic, the group must designate one spokesperson. That spokesperson will be allowed to speak only during the time allotted. Prohibitions  Those in attendance are asked to please refrain from disrupting the meeting by making noise of any kind (this includes shouting, whistling, applauding, and the use of noise- making devices).  Those in attendance are asked to please refrain from bringing signs, banners, or other similar items into the meeting room.  The Commission will not receive public comment at this Forum unless it appears on the posted agenda or the speaker is recognized by the Commission.  Anyone who does not follow these procedures or who disrupts the Public Forum may be asked to leave. 5 APPENDIX B Staff Report on RF & EMF from SmartMeters Donna L. Nelson Rick Perry Chairman Governor Kenneth W. Anderson, Jr. Commissioner Rolando Pablos Commissioner Brian H. Lloyd Executive Director Public Utility Commission of Texas ___________________________________________________________________________________________________________________________________ Date: December 17, 2012 To: Chairman Donna L. Nelson Commissioner Kenneth W. Anderson, Jr. Commissioner Rolando Pablos From: Alan Rivaldo Infrastructure & Reliability Division Subject: Project No. 40190, Project Relating to Advanced Metering Issues Report on Health and Radiofrequency Electromagnetic Fields from Advanced Meters Recently, some citizens of Texas have expressed concern over the potential health effects of exposure to the radiofrequency emissions from the wireless technology of advanced metering. Some of these individuals have appeared before or submitted comments to the Commission (under Project 40190, Project Relating to Advanced Metering Issues) and the Texas Senate Committee on Business and Commerce (at http://www.senate.state.tx.us/75r/senate/commit/c510/c510.htm). Some have relied on social media as a source of information because it disseminates ideas rapidly and widely, but it also can be inaccurate and lack objectivity. Therefore, Staff decided to investigate the health concerns expressed by citizens and other interested parties. The product of this investigation is the attached document intended to objectively address the issue and help inform decision makers. Staff reviewed recent research on the potential health effects of radio frequency electromagnetic field (RF EMF), reported on the findings, and assessed disputes regarding the findings. Staff found many scientific research papers published on the effects of EMF on health over a period of nearly 90 years; they number in the thousands. Despite this extensive body of work, scientific research continues, and dozens of papers are published each year. Staff has determined that the large body of scientific research reveals no definite or proven biological effects from exposure to low-level RF signals. Further, Staff found no credible evidence to suggest that advanced meters emit harmful amounts of EMF. While many different organizations have performed primary research on health and RF EMF, Staff relied heavily on the following sources: 1. The California Council on Science and Technology (CCST), an independent state agency, assessed the available evidence of whether FCC standards provide sufficient protection of public health. Its report also questioned whether additional standards are needed to ensure adequate protection from adverse health effects of wireless communication technology. 2. The Michigan Public Service Commission requested help from Lawrence Berkeley National Laboratory (LBNL) in assessing claims made by some individuals who refuted the findings of the CCST report. The PUCT report summarizes the LBNL work. 3. The measurements and assessments performed by the Electrical Power Research Institute (EPRI), an organization that performs research and provides technical expertise to the electrical utility industry. Staff found the CCST conclusions, LBNL’s work, and the investigations by EPRI to be highly credible and based on sound scientific principles. Other material Staff reviewed, found valuable, and used to inform the report came from:  The federal government (FCC, NIH, and other agencies);  The Canadian government and its provincial health authorities;  Countries in Western Europe;  Several municipalities deploying advanced meters;  Various governmental entities in Australia;  Academia;  The United Nations’ World Health Organization;  Utility industry organizations; and  International standards-settings organizations. Alan Rivaldo is available to answer any questions you may have. 2 Health and RF EMF from Advanced Meters An Overview of Recent Investigations and Analyses Public Utility Commission of Texas Infrastructure & Reliability Division Staff Report Prepared by Alan Rivaldo Project No. 40190 December 2012 This document is work supported by the Department of Energy under award numbers DE-OE0000092 and DE-OE0000180. Any views presented in this paper do not necessarily represent a Commission decision. Health and RF EMF from Advanced Meters ii Public Utility Commission of Texas Table of Contents Executive Summary ................................................................................................................................................. 1 Introduction ............................................................................................................................................................ 5 The Science.............................................................................................................................................................. 6 Background – Radiation, Science ........................................................................................................................ 6 Radiation ......................................................................................................................................................... 6 Figure 1: Chart of the Electromagnetic Spectrum........................................................................................... 7 Figure 2: Types of Radiation and Their Frequency Ranges ............................................................................. 8 Figure 3: Calculated Average Power Density vs. Distance for a Typical Smart Meter .................................... 9 The Scientific Method, the Value of Meta-analysis, Laymen Difficulties, and other Cautions ..................... 14 Recent Studies and Expert Opinions ..................................................................................................................... 24 California Council on Science and Technology Report and Responses ............................................................. 24 Response to CCST Report: County of Santa Cruz Health Services Agency .................................................... 24 Michigan Public Service Commission: SGTAP Assessment of Santa Cruz Memo.......................................... 25 Michigan Public Service Commission: SGTAP Assessment of AAEM Submittal ............................................ 26 Table 1: SGTAP Assessment Using Hill Criteria ............................................................................................. 28 Electric Power Research Institute ..................................................................................................................... 30 EPRI Technical Report on RF Emissions from Two Models of Smart Meters ................................................ 30 EPRI Comments on the Santa Cruz and AAEM Memoranda ......................................................................... 32 Table 2: EPRI Findings – Radio Frequency Levels from Various Sources ...................................................... 37 EPRI Comments on Sage Report ................................................................................................................... 38 Joint White Paper of EEI, UTC, and AEIC ........................................................................................................... 38 Government and Academia .................................................................................................................................. 40 National Cancer Institute at the National Institutes of Health ......................................................................... 40 FCC Letter: Equipment Authorization, Exposure Limits, and Interference ....................................................... 41 GAO Report: Exposure and Testing Requirements for Mobile Phones Should Be Reassessed .................... 42 Other Governmental Jurisdictions and Agencies .............................................................................................. 43 City of Naperville, Illinois............................................................................................................................... 43 Maine Center for Disease Control & Prevention .......................................................................................... 44 Vermont Department of Health .................................................................................................................... 44 Monterey County, California ......................................................................................................................... 45 Australia: Smart Meter Installations in the State of Victoria ........................................................................ 45 United Kingdom: Health Protection Agency ................................................................................................. 47 Health Canada: Safety Code 6 ....................................................................................................................... 47 Health and RF EMF from Advanced Meters iii Public Utility Commission of Texas British Columbia Provincial Health ................................................................................................................ 48 Ontario Province: Ontario Agency for Health Protection and Promotion .................................................... 48 City of Richmond, British Columbia and Vancouver Coastal Health ............................................................. 49 Norwegian Institute of Public Health ............................................................................................................ 49 Swedish Council for Working Life and Social Research ................................................................................. 50 Health Council of the Netherlands ................................................................................................................ 50 World Health Organization ........................................................................................................................... 50 Comments by Academia on Public Concerns about Wireless Smart Meters ................................................... 52 Montréal Polytechnic and McGill University Open Letter ............................................................................ 52 University of Ottawa: RFcom Review Panel Reports .................................................................................... 52 Other Issues........................................................................................................................................................... 54 Potential for Interference with Medical Devices .............................................................................................. 54 Claims of Electromagnetic Hypersensitivity ...................................................................................................... 55 World Health Organization ........................................................................................................................... 55 King’s College London: Systematic Review of Provocation Studies for EHS ................................................. 56 Recent Court Decision Regarding Claim of EHS ............................................................................................ 57 Use of EMF as a Weapon .................................................................................................................................. 57 Directed Energy Weapons ............................................................................................................................. 57 Cold War Studies on Behavior Modification and Human Vulnerability ........................................................ 58 Other Material................................................................................................................................................... 60 Conclusion ............................................................................................................................................................. 62 Acronyms and Abbreviations ................................................................................................................................ 64 References and Resources .................................................................................................................................... 66 Health and RF EMF from Advanced Meters iv Public Utility Commission of Texas Executive Summary This paper is a survey of existing scientific research and analyses that have been performed to investigate the potential health effects of exposure to low-level radio frequency electromagnetic fields emitted by wireless communication devices including smart meters. No independent empirical research has been performed by Public Utility Commission of Texas (PUCT) staff, but the results of several studies are summarized in this report. Decades of scientific research have not provided any proven or unambiguous biological effects from exposure to low-level radio frequency signals. Further, Staff reviewed all available material and found no credible evidence to suggest that smart meters emit harmful amounts of Electromagnetic Field (EMF) radiation. Radiation comes in two forms: ionizing and non-ionizing. The methods of data transmittal by smart meters most common in Texas (which communicate wirelessly) and other forms of telecommunications (television, radio, cell phones, satellite) utilize non-ionizing EMF radiation in the Radio Frequency (RF) band, commonly known as RF EMF. In contrast, ionizing radiation carries an inherently greater amount of energy; it may come from the decay of fissionable material like uranium or from EMF at significantly higher frequencies, such as X-rays or cosmic rays. Because of its inherent high energy, ionizing radiation is known to cause cellular disruption which may lead to various acute or chronic medical problems, including the induction of cancer. Smart meters do not emit or utilize ionizing radiation. RF EMF can cause the heating of living tissue (thermal effect) when the tissue is exposed to a certain level of intensity, which is the only known risk of exposure to such emissions. The Federal Communications Commission (FCC) has therefore established two tiers of Maximum Permissible Exposure (MPE) - one tier applies if exposure occurs in an occupational or “controlled” situation, and the other tier applies if the general population is exposed or exposure results from an “uncontrolled” situation. The FCC uses a safety factor for the general population tier that sets the MPE at 1/50th of the level of known thermal effects while the occupational MPE is set at 1/10th of the level. Because smart meters are devices deployed among the general population, the more restrictive of the two safety factors is applied; the MPE for the general population is 80% lower than the occupational MPE. Many governmental health agencies from around the world, including those at the state, provincial, county, and city levels, in addition to academic institutions and other researchers have stated that there are no known non-thermal effects from exposure to RF EMF. This lack of non-thermal effect includes the effects which manifest from exposure to ionizing radiation. Nonetheless, substantial medical research on any potential non- thermal effects of non-ionizing radiation has been conducted and is ongoing. It is anticipated that medical researchers will continue to perform investigations of both the potential thermal and non-thermal health effects of RF for the foreseeable future. It is important to note that one must use caution when relying solely on the results of individual research studies because conflicts or inconsistencies may exist among the results of other individual studies. Laymen often may not recognize poorly executed studies, or they can misinterpret the results of properly conducted scientific research. Either circumstance may lead a casual observer to draw errant conclusions. Furthermore, it is impossible to scientifically prove absolute safety (the null hypothesis). Health and RF EMF from Advanced Meters 1 Public Utility Commission of Texas The Electric Power Research Institute (EPRI) has undertaken several substantial investigations of smart meter RF EMF, and found that smart meters comply with the FCC MPE requirements. Furthermore, it found that in- residence exposure to the emissions from a smart meter is greatly mitigated by several factors:  The intensity of RF EMF is reduced exponentially with greater distance from the emitting device;  The shielding provided by the meter enclosure;  The home’s building materials further weaken the field strength;  The meter antenna orientation inhibits the inward direction of the field pattern; and  RF EMF emissions are only intermittent; a smart meter typically transmits 1 - 5% of the time. Several governmental entities such as the City of Naperville in Illinois, the Vermont Department of Health, the Victorian State Government of Australia, and the City of Richmond in British Columbia, Canada have performed their own tests on RF EMF from smart meters. These tests corroborated the results of EPRI’s investigations. Some smart meter opponents have raised the concern that the meters may interfere with other electronic devices. Smart meters typically communicate using the 902-928 MHz frequency band which is unlicensed spectrum and falls in the vicinity of where some cordless telephones operate. The FCC’s technical rules mitigate the potential for the meters to interfere with other electronic devices by requiring them to be tested and certified as compliant with these rules before they can be marketed. Financial penalties can be assessed if one does not comply with the appropriate FCC equipment authorization procedure. Despite a lack of credible evidence, opponents have challenged the use of common devices that emit RF EMF on the basis of health and environmental concerns. Some of these concerns involved cell phones and towers, some focused on the use of Wi-Fi1 in schools, and a few were specifically related to smart meter deployments. As a result of concerns about the wireless technology employed by smart meters, the California state legislature commissioned the California Council on Science and Technology (CCST) to perform a study. The CCST, an independent, non-profit organization, solicited input from technical experts and reviewed and evaluated available research information about health impacts of RF emitted by electric appliances and smart meters. The CCST report concluded that:  The exposure to RF from smart meters was lower than that from many household devices;  The FCC standard provides adequate protection from known thermal effects;  There were no identified non-thermal health effects from existing common household devices, including smart meters; and  There was no call at this time for devising standards to govern the non-thermal effects of RF exposure. In response to these findings, various parties opposed to smart meters filed comments with the California Public Utilities Commission which questioned or conflicted with the conclusions of the CCST report. As a result, the Michigan Public Service Commission asked Lawrence Berkeley National Laboratory (LBNL) to review the assertions made in those comments. EPRI also provided its opinions on the submitted comments separately. EPRI found that the submitted comments ignored a substantial amount of existing evidence and that the content indicated a general misunderstanding of concepts and basic principles about smart meters. LBNL was far more critical of the meter opponents’ comments in its response and provided greatly detailed assessments of what it viewed as shortcomings of the submittals. 1 Wi-Fi is a popular technology that allows an electronic device to exchange data wirelessly using radio waves over a computer network, including high-speed Internet connections. Wi-Fi products are based on the Institute of Electrical and Electronics Engineers’ (IEEE) 802.11 standards. Health and RF EMF from Advanced Meters 2 Public Utility Commission of Texas Some opponents of smart meters have raised the idea of the existence of Electromagnetic Hypersensitivity (EHS), a condition in which certain people seem to be especially susceptible to EMF, exhibiting a wide range of physical afflictions. The World Health Organization (WHO) has issued documents on the topic, including recitations of a number of studies which had been conducted on individuals claiming to suffer from EHS. The studies typically attempted to elicit symptoms under controlled laboratory conditions. The WHO concluded that the symptoms experienced by those who have been described as being hypersensitive were not correlated with EMF exposure, and therefore there was no scientific basis to link EHS symptoms to EMF exposure. It suggested that symptoms experienced by some EHS individuals might arise from environmental factors unrelated to EMF or that the symptoms may be due to pre-existing psychiatric conditions or stress reactions resulting from worrying about EMF health effects, rather than the EMF exposure itself. Further, scientific studies show that people who are ill are highly receptive to negative suggestion and may demonstrate a “nocebo response” as a result of these suggestions. A few people opposed to the use of wireless technologies have made claims that EMF can be used as a weapon to cause pain, disrupt thought, or alter or control human behavior. Smart meters do not have the capabilities to do these things. Smart meters are designed to measure a customer’s overall electricity usage and deliver that data to the utility. A meter may also offer a limited set of information to an end user if he desires. Smart meters are not intended for, are not designed to, and do not have the capability to harm an individual or direct a person’s thoughts or actions. Health and RF EMF from Advanced Meters 3 Public Utility Commission of Texas This page was intentionally left blank. Health and RF EMF from Advanced Meters 4 Public Utility Commission of Texas Introduction Some members of the public have expressed concerns over the possible health effects from exposure to electromagnetic fields (EMF) emitted by advanced meters that transmit data wirelessly (smart meters). People have stated their concerns in public forums hosted by the Public Utility Commission of Texas (PUCT) or submitted written comments to the agency. The comments are available on the PUC’s website under project 40190.2 Citizens have also appeared before the Texas Senate Committee on Business and Commerce3 to make statements. This report is intended to inform decision makers and other parties interested in the topic. Decades of scientific research have not provided any proven or unambiguous biological effects from exposure to low-level radio frequency signals. In reviewing all available material, Staff found no credible evidence to suggest that smart meters emit harmful amounts of EMF. This paper begins by explaining radiation which is a word that has several meanings. This document explains the distinction between ionizing and non-ionizing radiation. Also discussed are some fundamental characteristics of radio-frequency EMF (RF EMF) which is the non-ionizing form of radiation utilized by almost all wireless forms of telecommunication and by smart meters that send data through the air. Because properly understanding radiation and health depends upon understanding the foundations of science, this paper explains the scientific method and outlines what constitutes valid science. Some people have claimed that they can make scientific arguments against the use of wireless communications technology, or describe what they view as its egregious hazards, or produce evidence of harm. This document provides guidance when considering such assertions. As new technologies continue to pervade our lives, matters of science are addressed more often by our legal system. Public policy must also address technology, and those who craft laws and regulations often rely on external sources to provide subject matter expertise in matters of science, including medicine. This was true for the California Public Utilities Commission (CPUC). CPUC asked the California Council on Science and Technology (CCST) to analyze submittals made by various experts in science and medicine regarding RF EMF. CPUC received comments that were critical of the CCST report. Various parties responded in defense of the conclusions of the CCST report. This paper summarizes the CCST report, some of the reply comments, and responses to those comments. Staff found the CCST conclusions to be based on sound scientific principles. Several entities, such as the Electric Power Research Institute (EPRI), have measured the level of RF EMF exposure one would receive from smart meters. This report summarizes the findings of the EPRI investigations as well as those performed by other organizations. This paper discusses standards for human exposure to EMF and regulations that govern devices which emit EMF. This report provides statements from health agencies of several countries and those made by academia regarding human exposure to RF EMF. This document concludes with a discussion about a purported medical condition called electromagnetic hypersensitivity and the notion of using EMF as a weapon. A chart of acronyms and abbreviations follows, along with an alphabetized list of references and resources. 2 . 3 . Health and RF EMF from Advanced Meters 5 Public Utility Commission of Texas The Science Background – Radiation, Science The fear of things that cannot be seen is innate to human beings. Imagine being dropped off alone in a forest in the middle of the night, with no moon to light the way. Are there venomous snakes or scorpions underfoot? Are there other unseen threats nearby? RF EMF is also invisible, so some people may be predisposed to feeling anxious about it. Fear of the unknown is also common, and to some people, the notion of wireless communications technology is new, or something with which they have no experience. To make matters worse, wireless technology is a form of electromagnetic radiation (EMR), and the term “radiation” is rather ambiguous and commonly misunderstood. Exposure to radiation has been traditionally associated with chronic illnesses (specifically cancer) and death. Lastly, microwave ovens use EMR to cook food and boil water; knowing this, some people may imagine themselves being cooked or boiled alive if exposed to EMR. Radiation Radiation can be characterized as energetic particles or waves traveling through matter or space. Radiation can come from natural or man-made sources. For this report, it is important to first know that there are two types of radiation: ionizing and non-ionizing. Making the distinction is crucial because the word “radiation” on its own can evoke images of the victims of the atom bomb or the outcomes of the Chernobyl and Fukushima Daiichi disasters, when in fact the many forms of radiation we encounter in our daily lives are inert. Ionizing Radiation Ionizing radiation can come in one of two forms: particulate (e.g. neutron, alpha, or beta particles) or electromagnetic (e.g. gamma, cosmic, or X- rays). Ionizing radiation has such a high energy level that when it hits an atom, typically an electron is stripped away or dislodged from the shell of the atom. This changes the properties of the atom – leaving it with a net positive charge. Note that the high energy level of ionizing radiation is basic to its nature, and distinct from what its intensity may be in any given instance. Ionizing radiation is generally harmful and potentially lethal because it can alter the molecules in living organisms, such as the genetic material of cells. If the genetic material of a cell is altered, it may lead to death of the cell or to cell mutation. Ionizing radiation can come from outer space or from naturally occurring materials in the terrestrial environment, such as uranium or radon gas. Ionizing radiation can also be introduced into the environment from human activities like nuclear power production, medical and industrial uses, the transportation of radioactive material, mining, and by drilling for oil and gas. Note that smart meters do not produce or use ionizing radiation. Non-Ionizing Radiation In contrast, the waves of non-ionizing radiation inherently do not possess enough energy to displace electrons from the shell of an electron. Non-ionizing radiation may cause excitation of an electron, moving it to a higher energy state, but not stripping it away. Health and RF EMF from Advanced Meters 6 Public Utility Commission of Texas Electromagnetic radiation whose frequency is between that of extremely low frequency radiation and ultraviolet light is considered non-ionizing radiation. The radio emissions from cell phones, smart meters, and other forms of wireless communication lie between these two extremes. Therefore, radio communication from a smart meter is a form of non-ionizing radiation. Electromagnetic Spectrum The various forms of radiation, whether ionizing or non-ionizing, lie on a continuum called the electromagnetic spectrum, as seen in Figure 1. Smart meters that communicate wirelessly use frequencies that are between the frequencies of UHF television channels and those of mobile phones (somewhere between 900 MHz and 2.4 GHz), depending on the wireless technology (or technologies) the meters employ. Figure 2 shows some of the chart’s information in a tabular format. The frequency range in which wireless smart meters transmit data has been emphasized in that figure. Note that the Public Utility Commission of Texas addressed potential health effects of extremely low frequency (60 Hz) electric power at very high voltages and currents, as is conducted in transmission lines. That report, issued in 1992, was entitled “Executive Summary: Health Effects of Exposure to Powerline-Frequency Electric and Magnetic Fields.” The considerations being addressed in this Health and RF EMF from Smart Meters report are substantially different from those contemplated in 1992. Figure 1: Chart of the Electromagnetic Spectrum4 4 Not shown in the chart is the fact that as the frequency (Hz) of radiation increases, the “electron volt” (eV) value increases in a linear fashion. In this context, electron volts serve as a measure of how much energy the radiation carries and therefore the potential it has to excite an electron (or, if it has enough energy, dislodge it from an atom). Health and RF EMF from Advanced Meters 7 Public Utility Commission of Texas Figure 2: Types of Radiation and Their Frequency Ranges Top End of Frequency Designation or Frequency Range Range (in Hz) Abbreviation Primary Use Radio. Non-ionizing radiation. 3 – 30 Hz 30 ELF Submarine communications 30 – 300 Hz 300 SLF Not commonly used; electrical power is in this range 300 – 3000 Hz 3,000 ULF Military communications 3 – 30 kHz 30,000 VLF Submarine communication 30 – 300 kHz 300,000 LF Military, AM radio 300 kHz – 3 MHz 3 million MF AM radio, shortwave radio 3 – 30 MHz 30 million HF Amateur radio, CB radio, aviation radio 30 – 300 MHz 300 million VHF VHF TV, FM radio, amateur radio 300 MHz – 3 GHz 3 billion UHF “microwave” UHF TV, land-based mobile radio, cell phones, smart meters 3 – 30 GHz 30 billion SHF “microwave” WLAN, radars, industrial devices 30 – 300 GHz 300 billion EHF “microwave” Short range data transmission Light. Non-ionizing radiation. 300 GHz – 400 THz 400 trillion Infrared (IR) TV remote controls, heat lamps 400 THz – 770 THz 770 trillion Visible (“light”) Illumination Ionizing radiation. 750 THz – 30 PHz 30 quadrillion Ultraviolet (UV) Tanning beds, medical, industrial applications 30 PHz – 30 EHz 30 quintillion X-Ray Medicine, scientific, and industrial uses more than 15 EHz > 15 quintillion Gamma ray Medicine, scientific, and industrial uses Electromagnetic Fields An electromagnetic field is the result of the mutual interaction of electric and magnetic fields.5 An electric field can be most simply described as being produced by stationary charges. A higher voltage yields a stronger electric field. In contrast, a magnetic field is produced by moving charges (typically electrons, i.e., an electric current). A greater current flow yields a stronger magnetic field. An RF electromagnetic field is an electromagnetic field that is produced by electrical current that is oscillating at a radio frequency, which is defined as a frequency between 3 cycles per second and 300 billion cycles per second. Smart meters typically communicate with one another (or to their data concentrator) in a frequency band that is near 900 MHz. Electromagnetic (EM) field intensity decreases greatly with distance. There are many variables involved in precisely calculating the anticipated intensity of an EM field from a given distance. To simplify the mathematics involved, it can be reasonably stated that the intensity of an EM wave, which is three- 5 . Health and RF EMF from Advanced Meters 8 Public Utility Commission of Texas dimensional, decreases exponentially at a rate of approximately the square of the distance from its source. This is known as the inverse-square law,6 expressed as a mathematical formula by: (where Y is the intensity and X is relative distance). For example, if the EM intensity from a smart meter is measured to be at an initial distance of 1 foot away, then , the field intensity from two feet away, would be ( , or . From a three-foot distance, the intensity will be ( , or . From ten feet away, the field intensity will only be ( ) , or 1/100th of what it was at one foot away. Figure 3 shows how the average power density of EMF from a typical smart meter varies with distance. Upon inspecting the graph, the power density value may appear to become zero, but in actuality it does not; the resolution of the image belies the asymptotic nature of the curve. While the power density may seem to become infinitesimal at the greater distances shown, the radio circuitry of smart meters is sensitive enough to receive and process the signal. Figure 3: Calculated Average Power Density vs. Distance for a Typical Smart Meter7 6 . 7 Notes: The graph shows expected (calculated) values. The power density is average power density, not instantaneous; measured values will vary around a nominal value. This graph does not account for possible ground reflections, but ground reflections would not change the basic shape of the curve. Graph source: EPRI. Health and RF EMF from Advanced Meters 9 Public Utility Commission of Texas EMF and RF EMF in our Environment Almost all household devices powered by electricity emit RF EMF in some amount. The FCC has classified devices in three categories – intentional radiators, unintentional radiators, and incidental radiators.  Intentional radiators deliberately generate and emit RF energy. Typical intentional radiators include cordless telephones, remote control toys, garage door openers, mobile data devices such as iPads, and other low power transmitters.  Unintentional radiators are devices that generate and use RF energy within the device but are not intended to emit RF energy. Typical unintentional radiators include devices such as personal computers, printers, automobile dashboard electronics, and other digital devices that have internal “clocks” or circuitry used for timing within the device. Radio receivers, such as television receivers and AM/FM radios, are also unintentional radiators.  Incidental radiators are devices that generate RF energy during the course of their operation but are not intentionally designed to generate or emit that energy. Typical incidental radiators include automobile ignition systems, ceiling fans, vacuum cleaners, electric shavers, and mechanical light switches. RF EMF also comes from natural sources, such as the sun, the Earth, and the outer layer of the Earth’s atmosphere (the ionosphere). The environment in which we live includes numerous other sources of RF EMF sourced from outside the home. These sources are intentionally transmitted and beyond an individual’s control. The transmitting sources emit RF at a much greater intensity than smart meters do, and the signals permeate homes and other buildings. This RF EMF has had a ubiquitous presence both indoors and outdoors since the 1920s when AM radio broadcasts (centered near the 1 MHz frequency) were introduced. In the 1930s, FM radio (around 100 MHz) was introduced, and then in the 1940s and 1950s, the broadcasting of VHF television (50 to 200 MHz) and UHF television (400 to 900 MHz) expanded. Satellite communication started in the 1960s and is now commonplace, including for consumer use. Cellular telephone towers (base stations) have been deployed in increasing numbers since at least the 1990s; they are now considered ubiquitous. Other sources of RF EMF one may encounter in public and private places are wireless routers, cordless telephones, cellular phones, RF remote control devices, and baby monitors. The intensity of EMF emitted by each of these devices is documented to be well below the threshold that requires any type of notification signage.8 The Role of RF EMF in our Country’s Infrastructure The United States of America (U.S.) has had a wireless communications infrastructure in place for nearly a hundred years. For example, radio and television stations have continually broadcasted their programming in all directions for public consumption since the early part of last century. Emergency services like police, fire, and ambulance services have their own dedicated radio spectrum. Municipal governments and the military also transmit data on various frequency bands assigned to them. Citizen’s Band and short wave radio are used by individuals and hobbyists, but one could argue that it is also a part of our nation’s communications infrastructure that benefits all, especially in times of emergency. 8 . Health and RF EMF from Advanced Meters 10 Public Utility Commission of Texas Satellite transmissions blanket our country from above, using various frequencies in the RF band. Downlinks from satellites are used by the television and radio industries for delivery of syndicated programming to local stations. Satellites also provide Internet access to users in remote areas and television programming for those without access to cable television or who seek an alternative. They also provide subscription-based programming for SiriusXM radio, and to fulfill government functions such as transmitting climate and mapping data and Global Positioning System (GPS) locational and timing information (which is used by utilities). The military also uses satellites for communications and surveillance. Cell phones and their associated base stations are also a common source of EMF, having become ubiquitous worldwide; the International Telecommunication Union reported that there were six billion mobile phone subscriptions by the end of 2011, nearly one for every human being on the planet.9 Some people object to the installation of wireless smart meters on the grounds that they fear exposure to RF and because they do not anticipate benefitting from the devices’ advanced capabilities. What they may not realize or acknowledge is that every individual is continuously exposed to RF emitted by a multitude of local television (TV) and radio stations, irrespective of whether one ever chooses to tune into any of them. When a new radio or TV station begins broadcasting in a community, it introduces a new source of RF to a wide area. While the exposure to RF emissions is the primary consideration for the topic of this paper, some opponents of smart meters have called attention to their power output. It is therefore worth noting that the permitted maximum effective radiated power (ERP, which includes antenna gain10) of an FM radio station transmitter in the U.S., depending upon its FCC classification, can be as high as 100,000 watts.11 In contrast, the radio module in a wireless smart meter is only capable of a maximum power output of one watt, and in some implementations, it is even less than that. The ERP of a stationary cell phone base station is limited to either 500 or 1000 watts, depending on its location.12 The maximum peak ERP of a cell phone in the U.S., for example one operating in the GSM-1900 band and at GSM Power Class Number 30, is two watts.13 Despite the fact that radio stations broadcast at power levels that are tens of thousands times higher than those of smart meters, Staff could not find any references to reported health complaints or individuals attributing their health issues to new radio or TV transmissions. Similarly, while a limited number of people may still have some trepidation regarding cellphone towers, their ubiquity and the continued popularity of cell phones and other wireless communication devices seems to have quelled the number of concerns being expressed. Advanced Metering Infrastructure Making prudent investments in RF communications technologies has become essential to maintaining our quality of life, and many aspects of the world’s infrastructure depend upon it. Many industries, including electrical utilities, use radio communication as an essential tool. Until recently, utilities have traditionally limited their use of radio to telemetry, transmitting system data from distant points along the transmission portion of the electric grid. 9 . 10 In this context, this is defined by how well a transmitting antenna converts input power into radio waves headed in a specified direction. 11 . 12 . 13 . Health and RF EMF from Advanced Meters 11 Public Utility Commission of Texas Now many of the electric utilities in the U.S. are enhancing the distribution portion of the electrical infrastructure by modernizing its technology. One of the ways electrical utilities are upgrading distribution grid technology is by replacing existing electric meters with Advanced Metering Infrastructure (AMI). The meters being replaced typically have an analog display14 in the form of a series of dials that indicate accumulated usage and a large spinning aluminum disk that protrudes through the face of the meter. This electromechanical technology is over a century old and has shortcomings. The most important feature of the meters used in AMI (“smart meters”) is that they measure and record usage data in regular intervals15 and allow for two-way communications between the utility and the customer. These smart meters and their associated communication components form an infrastructure that allow utilities to overcome the old technology’s limitations and is now crucial to the utility and to the energy market’s proper functioning. Almost all smart meters used in the U.S. communicate by means of wireless technology. Each utility proposes the technology it will deploy and determines how it is to be configured in order to best suit the needs of its service area. The most common method of communication chosen by Texas utilities has been in the form of a wireless mesh network. A wireless mesh network topology allows “mesh-enabled” meters to securely route data via other nearby meters and relay devices. These meters and relay devices are connected to several other mesh-enabled devices. All these devices function as signal repeaters and relay the data to an access point. The access point device aggregates, encrypts, and conveys the data to and from the utility (this is known as the backhaul portion of the network). The access point typically uses cellular phone technology to transport this data.16 Wireless Technology Standards and Regulation Intentional radiator devices such as cordless telephones, cellular phone handsets, and smart meters operate in unlicensed spectrum. Unlicensed spectrum is simply a band that has pre-defined rules for both the hardware and the deployment methods of the transmitting radio; they are required to be tested and certified as compliant with these rules before they can be marketed. Financial penalties can be assessed if one does not comply with the appropriate Federal Communications Commission (FCC) equipment authorization procedure.17 The mitigation of potential interference within the bands is addressed by the FCC definition of technical rules rather than the agency restricting the bands by issuing an exclusive license to use the spectrum.18,19 Any person or entity that complies with the rules for the equipment (which are pre-certified by the manufacturer) and its use can establish a license-free network at any time for either private or public purposes. This is why a person can set up a wireless network at home and a utility can set up its smart meter mesh network without having to obtain a license from the FCC. The radio(s) in the smart meter is pre-certified, just as a home user’s wireless router is. 14 Note that not all meters being replaced have the same appearance. A few of the old meters may have digital displays and solid state circuitry, but are not considered to be AMI. 15 Due to the limited scope of this paper, the specific market and regulatory aspects of Texas and the ERCOT market and the infrastructure design choices of each of the utilities will not be discussed. 16 There are several possible variations to the mesh design described above. Take what is outlined here as an example. 17 . 18 . 19 U.S. frequency allocations: . Health and RF EMF from Advanced Meters 12 Public Utility Commission of Texas The FCC is required by the National Environmental Policy Act of 1969 to evaluate the effect of emissions from FCC-regulated transmitters on the quality of the human environment. At the present time there is no federally-mandated RF exposure standard. However, several non-government organizations, such as the American National Standards Institute (ANSI), the Institute of Electrical and Electronics Engineers (IEEE), and the National Council on Radiation Protection and Measurements (NCRP) have issued recommendations for human exposure to RF electromagnetic fields.20 The potential hazards associated with RF electromagnetic fields are discussed in the FCC’s Office of Engineering and Technologies (OET) Bulletin No. 56, “Questions and Answers About Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields.”21 On August 1, 1996, the FCC adopted the NCRP’s recommended MPE limits for field strength and power density for the transmitters operating at frequencies of 300 kHz to 100 GHz. In addition, the FCC adopted the Specific Absorption Rate (SAR) limits for devices operating within close proximity to the body as specified within the ANSI/IEEE C95.1-1992 guidelines.22 The FCC’s requirements are detailed in Parts 1 and 2 of the FCC’s Rules and Regulations [47 C.F.R. 1.1307(b), 1.1310, 2.1091, 2.1093].23,24,25,26 Studies by EPRI and others have found that the exposure an individual would receive from a smart meter that is 10 feet away is not much different from the range of exposure levels received from TV and radio broadcasts. The Effects of RF EMF on Living Tissue There are three scientifically established mechanisms where EMF is known to cause health effects:27,28  Induced voltage gradients and/or electric currents in the body;  Thermal effects (dielectric heating); and  Ionizing radiation effects. The relative importance of these mechanisms depends on the EMF frequency and field strength. Decades of research into EMF and health has produced a large body of scientific literature which national and international standards organizations have reviewed to establish their safe exposure limits. For example, the WHO has formally recognized the International Commission on Non-Ionizing Radiation Protection (ICNIRP) to develop its international EMF exposure guidelines. At frequencies in the range of 0-3 kHz, induced voltage gradients and/or electric currents in the body are the only known health effects in the presence of strong electric and magnetic fields. Because the purpose of this report is to address smart meters that communicate using RF, induced voltages and currents will not be discussed. Smart meters do not emit ionizing radiation, so that topic will also not be covered in this document. If one would like to know more about the health effects of induced voltages or ionizing radiation, credible resources are freely available elsewhere. 20 . 21 . 22 . 23 . 24 . 25 . 26 . 27 . 28 . Health and RF EMF from Advanced Meters 13 Public Utility Commission of Texas Thermal effects are the primary health impact when living tissue absorbs enough EMF power to cause heating. This effect is the primary concern in the RF frequency range of 30 MHz to 300 GHz. In theory, the total EMF power absorbed by tissue is determined by the photon energy multiplied by the number of photons per second being absorbed. The practical method used to measure this energy is based on the SAR. For portable devices, the FCC specifies that SAR safety limits are to be used.29 These safety limits are specified in units of watts per kilogram (W/kg) of body tissue. Note that the energy from devices that are not intended for use within 20 centimeters of a user, such as smart meters, is measured using a different methodology. The FCC safety limits for these devices, known as Maximum Permissible Exposure (MPE), are specified in units of microwatts per square centimeter (μW/cm2). Existing regulations from the FCC set the SAR and MPE safety limits in the U.S. Other countries such as the United Kingdom (UK), Canada, and Australia have similar standards. International standards regarding safety for commercial products also exist from entities such as the WHO and the ICNIRP and are also similar to the U.S. standards. The Scientific Method, the Value of Meta-analysis, Laymen Difficulties, and other Cautions The investigation of RF EMF and its potential effects on health requires an understanding of several fields of science. While the intent of this report is not to impart a deep understanding of all the relevant scientific fields of study, it is still important to have a basic grasp on the concepts and what science itself entails. The latter is referred to as the scientific method. Meta-analysis is an important tool in science because in some areas of study there are a large number of studies which are similar, and researchers want to have a method of combining them to help facilitate drawing satisfactory conclusions. People generally have an interest in maintaining their health, so any given research study that shows a positive correlation between a disease and an environmental factor will naturally have the tendency to pique the interest of the public more than one that does not show any correlation. While journalists and news editors have codes of ethics and guidelines for professional conduct,30,31,32,33 there is a risk that the mass media may sensationalize an individual study which shows such a correlation and be less inclined to report research studies that refute the findings, because documenting something which may be interpreted by an audience as uneventful is not as captivating or lucrative. Studies have revealed that the publishing of misconceptions about alleged effects of exposure to electric or magnetic fields in the popular press is not uncommon.34,35,36,37 Some less reputable media outlets may be motivated by viewership ratings, subscription renewals, or webpage hits, rather than reporting the news properly. Integrity in the media plays a role in maintaining the integrity of scientific research. 29 The FCC defines portable devices as transmitters whose radiating structures are designed to be used within 20 centimeters (approximately eight inches) of the body of the user. 30 . 31 . 32 . 33 . 34 . 35 . 36 . 37 . Health and RF EMF from Advanced Meters 14 Public Utility Commission of Texas Understanding the concepts behind science is important because opponents of wireless data transmission technologies have attempted to use science (typically by quoting research studies) as support for their arguments. At the same time, one must remain mindful of the relationships among science, modern media, and the public. Scientific Method The modern use of the word “science” is defined both as a reliable body of knowledge that can be logically and rationally explained and also by the method of pursuing that knowledge, namely, the scientific method. Scientific method requires inquiry to be based on evidence that is empirical and measurable and is subject to specific principles of reasoning. More specifically, the scientific method consists of systematic observation, measurement, and experiment, as well as the formulation, testing, and modification of hypotheses.38 The following process steps39 are considered the basic elements of scientific method:  Formulate a question - to summon an explanation of a specific observation, or it can be open-ended;  Hypothesis - a conjecture that may explain the observed behavior;  Prediction - made by determining the logical consequences of the hypothesis;  Test - investigate (via experiment) whether the real world behaves as predicted by the hypothesis; and  Analysis - determine what the experimental results demonstrate and decide the next actions to take. Other components are necessary to the scientific process, even when all the iterations of the steps above have been completed:  Replication - if an experiment is repeated and does not produce the same results, this implies that the original results were in error. As a result, it is common for a single experiment to be performed multiple times, especially when there are uncontrolled variables or other indications of experimental error. Surprising or significant results may motivate other scientists to also investigate, especially if the results would be important to their own work.  External review - experts perform a peer review, which is an evaluation of the experiment. These experts give their opinions anonymously to foster unbiased criticism. The peer review does not certify correctness of the results, only that the experiments themselves were sound. Note that the evaluation of the experiment depends on its description being supplied by the experimenter. If the work passes peer review (which may require new experiments requested by the reviewers), it will be published in a peer-reviewed scientific journal. The journal that publishes the results indicates the perceived quality of the work.  Data recording and sharing - scientists must record all data very precisely to reduce their own bias and aid in replication by others. This data must be supplied to other scientists who wish to replicate any results. Experimental samples that may be difficult to obtain must also be shared. Scientific studies are intended to be as objective as possible to reduce any bias in how the results are interpreted. All data and the methodologies employed are to be documented, archived, and shared so that they are available for close scrutiny by other researchers. This gives scientists the opportunity to verify results by attempting to reproduce them and establish statistical measures of the reliability of the experimental data. 38 . 39 . Health and RF EMF from Advanced Meters 15 Public Utility Commission of Texas Meta-analysis The study of EMF has been going on for decades resulting in a multitude of research studies, many of which possess similar elements. The existence of such large bodies of work makes researchers want to integrate similar studies and attempt to synthesize more definitive conclusions. The traditional method of integration calls for a reviewer to provide a narrative, namely a chronological discourse on previous findings.40 Gene V. Glass, the statistician and researcher who coined the term meta-analysis, considered the traditional method to be flawed and inexact because reviewers:  Are unable to deal with the large number of studies on a topic and focus on a small subset of studies, often without describing how the subset was selected;  Often cite the conclusions of previous reviews without examining those reviews critically; and  Are usually active and prominent in the field under review. Therefore, they might not be inclined to give full weight to evidence that is contrary to their own positions. In a meta-analysis, research studies are collected, coded, and interpreted using statistical methods similar to those used in primary data analysis. The result is an integrated review of findings that is more objective and exact than a narrative review. Inherent Problems and Laymen Difficulties with Scientific Research; Non-traditional Medicine Science is by no means a discipline of perfection; it depends upon human thought and activity, and is thereby subject to human failings, including the introduction of bias into the process steps outlined above. Most failures can be attributed to inadvertent errors, while some failures can be pinned on researchers that have taken shortcuts through the scientific process. Only rarely have researchers who had been generally considered to be legitimate been found attempting to subvert science for personal benefit, to perhaps gain notoriety, or to secure future research grants.41 Findings of scientific misconduct occasionally come to light. In the course of gathering material for this paper, Staff discovered several studies of RF EMF and health that were found to be fraudulent. For example, the U.S. Department of Health and Human Services’ (HHS) Office of Research Integrity found that Robert P. Liburdy, Ph.D. engaged in scientific misconduct in biomedical research by intentionally falsifying and fabricating data and claims about the purported cellular effects of EMF that were reported in two of his scientific papers. 42 Another example of misconduct was exposed through an investigation performed by an independent review body at the Medical University of Vienna. The investigation revealed that data was fabricated in two papers authored by lab chief Hugo Rüdiger and his colleagues in 2005 and 2008 which reported DNA breakage in cells exposed to electromagnetic fields. The papers were part of a European Union-funded project called REFLEX.43 Some people have made assertions that research studies that had depended upon funding or other support from industry should be considered as unreliable and having tainted results. What is far more important than the sources of funding for research is strict adherence to the scientific process. Rigorous peer reviews, combined with attempts by others to replicate results, tend to remove from consideration studies whose results rely on questionable research practices. Opponents of wireless technology may not understand this, and have expressed dismay when content from studies they favor does not appear in other documents such as 40 . 41 . 42 . 43 . Health and RF EMF from Advanced Meters 16 Public Utility Commission of Texas the report by the California Council on Science and Technology.44 There is a risk that opponents may attribute the exclusion of favored material to attempts by government agencies or industry to suppress the truth rather than accepting the idea that the opponents’ favored studies were errant or lacked scientific rigor. Nonetheless, some research studies can receive undeserved notoriety despite shortcomings such as:  Experiments that are poorly designed or lack sufficient controls;  Studies that are inadequately peer-reviewed;  Public revelation of findings that are only preliminary;  Reports that are unpublished but appear in the popular press;  Reports published in scientific journals of lesser esteem;  Conclusions that are drawn to satisfy a political agenda rather than advance human knowledge; and  Cited primary research studies are old and out of date. The “BioInitiative Report”45 is an example of a report that received notoriety despite being viewed negatively by the research community. Its contributors are described as a group of 14 scientists, researchers, and public health policy professionals. The stated purpose of the report was to document “bioeffects, adverse health effects and public health conclusions about impacts of non-ionizing radiation.” The document was edited by Cindy Sage, an environmental consultant, and Dr. David O. Carpenter, director of the Institute for Health and the Environment at the State University at Albany (New York). The report is often cited by opponents of wireless technology, but it was widely criticized by government research agencies and subject matter experts in Australia,46 Belgium,47 the European Commission (EC),48 France,49 Germany,50 and the Netherlands.51 It was also criticized by EPRI52 and the IEEE.53 The overall opinion of these institutions was that the report had many shortcomings. Some of the stated criticisms were that the report:  Provided views that were not consistent with the consensus of science;  Recommended safety limits that were not supported by the weight of scientific evidence;  Included selection bias in several research areas;  Lacked objectivity and balance; and  Suffered from uneven editing quality. Some researchers have developed a level of notoriety for their assertions regarding the purported dangers of EMF exposure. Opponents of wireless technology have naturally called upon these people to testify as expert witnesses and this tends to raise their profiles to an even greater degree. These efforts have not always been successful. For example, Carpenter attempted to rely on his work on the BioInitiative Report as one of the qualifications to testify as an expert for intervenors opposed to plans by Hydro Québec, a utility in Canada, to 44 . 45 . 46 . 47 . 48 . 49 . 50 . 51 . 52 . 53 . Health and RF EMF from Advanced Meters 17 Public Utility Commission of Texas install wireless smart meters on homes and businesses. The regulatory authority for the province, The Québec Energy Board (The Board), stated (translated from French):54 “The Board has refused to grant the requested expert status on the grounds that David Carpenter is not a doctor, never had clinical experience with patients and has never personally done any research on the effects of RF health.55 The Board does not, however, reject his testimony in the case because of his knowledge on the research done by others in this field. It therefore accepted this testimony, subject to establishing the probative value to be accorded.” The Board also did not view Carpenter as independent and unbiased, as required by its rules governing the expectations of expert witnesses. The Board stated (translated from French):56 “Clearly, the witness Carpenter, expert or not, does not meet the criteria of objectivity which the Board is entitled to expect.” Another individual who has been described as an expert by opponents of wireless technology is Magda Havas, a professor at Trent University, a liberal arts institution located in Peterborough, Ontario, Canada. Havas is not a medical doctor; she has a B.S. degree in biology and a Ph.D. in botany (the study of plant life).57 While not naming Havas directly, in response to her assertions against the proposed installation of Wi-Fi in several schools in Canada and the U.S., her colleagues at Trent University published a brief statement58 in the Peterborough Examiner newspaper: On the issue of health effects of radio frequency waves, a large body of evidence now exists, and the international consensus is described in the references listed at www.trentu.ca/physics/emfrefs.pdf. Based on these considerations, we do not believe that electromagnetic waves associated with Wi-Fi in schools pose a health risk to children or teachers. Profs Bill Atkinson, Peter Dawson, David Patton, Ralph Shiell, Alan Slavin and Rachel Wortis Members of the Department of Physics, Trent University Havas’ critics are not limited to her colleagues at Trent. There are a few websites whose stated goals are to enhance the public’s familiarity with sound scientific concepts. These sites state that their contributors seek to promote a better understanding of science and to help others distinguish between evidence-based science and poor science. Some contributors have responded to Havas’ activities by creating pages that are dedicated to exposing and explaining what they claim to be significant flaws in her studies, contradictory statements she has made, comments which were not consistent with established facts, and instances where they claim she had misled the public.59,60,61,62,63,64,65 54 . 55 David O. Carpenter holds a medical degree (M.D.) from Harvard but is not accredited to practice medicine. 56 . 57 . 58 . 59 . 60 . 61 . 62 . 63 . 64 . Health and RF EMF from Advanced Meters 18 Public Utility Commission of Texas Note that some of the work that Havas performs involves the study of Electromagnetic Hypersensitivity (EHS), which has not been recognized by the medical or scientific communities as a valid diagnosis. Some scientists and medical practitioners may be valued as experts by a small segment of the population because their ideas have been proclaimed as novel or superior because they do not conform to the prevailing conclusions of the scientific or medical communities. These researchers and medical professionals may be characterized as fighting the medical or scientific establishments for the benefit of their supporters. The problem is if these maverick researchers become imbued with noble stature because of these impressions, it may put the integrity of true science and medicine at risk. Scientists prefer to maintain cordial relationships with one another and therefore avoid using the terms “junk science” and “pseudoscience” when referring to research or unconventional medical treatments they find questionable, because these terms are considered pejorative. While skepticism of research is central to ensuring its quality, it is important to avoid being drawn to the allure of ideas that conflict with the body of scientific evidence. Without an appreciation for the meaning and value of scientific consensus, one risks being distracted by notions that have been discounted by numerous studies conducted in adherence to the scientific method. Scientific consensus can be described as the collective judgment, position, and opinion of the community of scientists in a particular field of study.66 In the context of scientific research, consensus is general agreement and not unanimity, which has a stricter meaning. This collective judgment of scientists cannot be used as a valid scientific argument on its own, and that it is not part of the scientific method; it is more the result of it. A consensus can be developed by scientists through replication of experimental results, peer review, and publication of results – key components of the scientific method. When this process is followed iteratively and agreement exists, those within the discipline recognize they have reached a consensus. As scientific research continues and new data is produced by experiment, models are refined. This change may bring about shifts in scientific consensus. How consensus within the scientific community develops over time is a study in its own right.67 The challenge for researchers becomes communicating to outsiders (especially laymen) that scientific consensus has been reached. This is because to the uninitiated, the debates through which science progresses may seem to be contestation. Laypeople and others outside the particular field of study who misinterpret these scientific debates as adversarial may reach erroneous conclusions about the science. When scientific debate is misinterpreted in this manner, effective government also may be subject to risk. The risk is that members of the public that have misconceptions about the existence of scientific consensus may exert pressure on their elected leaders to devise public policy that is based on faulty assumptions. In medicine, one result of misinterpreting scientific debate can be a mistaken belief in a medical diagnosis that the scientific community does not recognize as valid, such as EHS. If the true cause of an affliction is not diagnosed, it can lead to negative consequences for an individual. Medical professionals and others may offer treatments that are not efficacious or have not been properly vetted for safety. The pursuit of these treatments can delay receiving effective medical care. 65 . 66 . 67 . Health and RF EMF from Advanced Meters 19 Public Utility Commission of Texas The Internet offers amulets made of crystal or stone, typically worn as a pendant around the neck, that are purported to help an individual overcome EHS or to mitigate the claimed negative health effects of exposure to EMF. No valid scientific explanations are offered to explain the mechanisms by which these items may operate. Dietary supplements are promoted with claims they provide a “strong protective effect” against EMF but have not been assessed by the U.S. Food and Drug Administration (FDA) for safety or effectiveness. Some physicians offer treatments for EHS and other purported “environmental sensitivities.” One such doctor is Dr. William J. Rea of Dallas, Texas. An example treatment by Rea is that he will administer injections of a highly diluted solution of automobile exhaust to provide an “electromagnetic imprint” of the environmental pollutant. Rea claims that a patient’s immune system will interact with the injections and desensitize the patient to the substance. Staff has not been able to locate any other references to the term “electromagnetic imprint” in a medical context. Rea’s treatments had met with controversy, leading the Texas Medical Board to file a complaint against him68,69,70 that resulted in a Mediated Agreed Order issued in 2010, requiring his consent form to state:  The injections given are not FDA-approved;  The patient will be receiving non-traditional medicine (must be in bold and oversized print);  The effectiveness of the injections is disputed;  There has been no testing of the contents of the injection or any proven medical effectiveness;  The therapeutic value of the injections is not established or proven;  There is no active agent in the therapy being provided; and  The injections are not endorsed, sanctioned, or approved by the Texas Medical Board. Rea’s controversial treatments were also featured on a segment of ABC News’ Nightline television program in 2008.71,72 Rea appeared before the Texas Senate Committee on Business and Commerce on October 9, 2012 to speak as a medical expert in opposition to wireless smart meters. Cautions about Anecdotes, Attempts at “Do-it-Yourself” Science, and Reliance on Social Media and Blogs Opponents of smart meters have provided accounts of ill health or have cited anecdotal reports of health problems that have been attributed by laypeople to the installation of smart meters. Caution must be used when considering anecdotal reports, because they:  Are prone to human cognitive biases such as confirmation bias;73  Use nonprobability sampling and therefore suffer from self-selection bias;74 68 . 69 . 70 . 71 . 72 . 73 In psychology and cognitive science, confirmation bias is a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors. Source: . Health and RF EMF from Advanced Meters 20 Public Utility Commission of Texas  Do not supply a sufficiently large sample size;  Prevent a rigorous statistical analysis of subject sample data;  Do not account for a myriad of variables present in the environment (lack of controls); and  Do not provide evidence that other aspects of the scientific method were followed. In summary, conclusions drawn primarily from anecdotal reports do not possess scientific merit. A common tendency for laypeople is to “cherry pick” scientific literature. Cherry picking is the act of pointing to data or individual cases that seem to confirm a particular position, while ignoring a significant portion of data or cases that may contradict the position. Selectively referencing only the studies that support a view is a common example of confirmation bias. Cherry picking may be committed unintentionally. Scientists are not immune to the behavior. When raising concerns about wireless technology, some opponents have acquired RF EMF measurement equipment and posted online videos75 showing readings being taken from smart meter installations. These videos have been presented as evidence that the smart meters were emitting RF EMF at levels higher than those claimed by utilities or meter manufacturers. More discerning viewers may question the validity of these videos for the following reasons:  The videos tend to be brief, relying on fleeting numbers displayed on a readout;  The data do not appear to be recorded for later study or shared with others;  No evidence is provided that the operator is certified to use the measuring equipment;  It is not noted whether the operator received any formal training to avoid, for example, using improper techniques when setting up or handling the equipment;  Little explanation is offered to help the viewer determine if the appropriate settings were used (such as unit scaling) or whether instantaneous peak or average values were being measured;  No evidence is given that the equipment was properly calibrated; and  There may be other tools available which are better suited to the intended use. One video76 on YouTube that provides an example of an EMF measurement device being used purports to show the deleterious effects of a smart meter on a shrub situated directly in front of the meter in Stratford, Ontario, Canada. On the afflicted plant, the leaves have curled up and are losing color. There are two shrubs of identical breed on either side of it which do not seem to be as adversely affected. While a shrub is clearly not a human being, some smart meter opponents refer to the video as evidence of its apparent danger to all living things. The person who recorded the video enabled the “audio analysis” mode on the measurement device, which creates a shrill sound reminiscent of a police siren but with varying pitch. The sound is intended to represent a characteristic signal pattern of the EMF being detected, which helps the device’s user to identify the source of emissions. To an individual who has not experienced the operation of this device, the sound it makes in the presence of EMF may seem disturbing and evoke an unpleasant emotional response in the uninitiated. 74 Self-selection bias is a specific form of selection bias. Selection bias leads to distortions, because certain characteristics are over-represented in a sample. Self-selection bias introduces other errors. For example, sample populations that are the result of self-selection suffer from a correlation with willingness to be included. There may be a purposeful intent on the part of respondents. 75 Go to YouTube: and search for “smart meter emissions” or other similar phrases. 76 . Health and RF EMF from Advanced Meters 21 Public Utility Commission of Texas An interesting observation about this video which some viewers may not notice is that as the camera focuses closely on the vegetation, it is readily apparent that the shrub is infested by what appears to be a large number whiteflies or aphids. These kinds of insects suck juices from the leaves of host plants, and can lead to serious injury, causing wilting, yellowing, leaf drop, and possibly death. As the video camera pans back and forth, one can see that the insects are also on the leaves of the adjacent shrubs, but are not yet as prevalent. The ability for viewers to provide comment is disabled for this particular video, so no one can call attention to the insect infestation or challenge the claims made by the person who posted the video. The Texas A&M Forest Service estimated that 301 million trees had died across Texas forestlands as a result of the 2011 drought,77 but to date there have been no known credible reports of dying vegetation attributed to smart meters or other wireless equipment despite the fact that millions of the devices have been deployed in the state. Many smart meter opponents who have made assertions about the purported detrimental health effects of wireless technology have cited material obtained from blogs,78 Internet videos, and other forms of social media as sources of information. Blogs may contain items that are topical but they are not to be confused with news sites; contributors to blogs are not held to standards for journalistic integrity. Most of the cited blogs are run by self-described activists who overtly state their opposition to smart meters and for various reasons. While blogs and social media sites have democratized the Internet, enabling almost anyone to widely publish his points of view, caution must be used when considering material obtained from such sources. These sites have many shortcomings, including the following:  Site content is not vetted for objectivity or a diversity of opinions;  Inaccurate reporting is common, and errors are rarely corrected;  Many comments are written in an authoritative manner, promoting speculative statements as factual;  Provocative language and hyperbole are often used to elicit emotional responses;  Individuals promoted as experts tend to lack substantial academic credentials or possess credentials that are not associated with the field of study under consideration; and  There is no assurance that authors resist the influence of advertisers or special interests. The people who run blogs typically are not scientists and do not realize that an individual study is not to be considered definitive. Much of the research that Staff found cited on blogs was old and may have been out of date, or had been considered unreliable by the scientific community. Case Law and Matters of Science The Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals,79 General Electric Co. v. Joiner,80 and Kumho Tire Co. v. Carmichael81 articulated what is known as the “Daubert standard.” The standard addressed Rule 702 of the Federal Rules of Evidence,82,83 and clearly defined a judge’s role in playing “gatekeeper,” determining whether expert testimony is based on sound scientific reasoning and methodology. 77 . 78 A blog is a website that typically contains an online personal journal and that sometimes allows users to post their own opinions and commentary or other information. 79 509 U.S. 579 (1993). 80 522 U.S. 136 (1997). 81 526 U.S. 137 (1999). 82 Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011. 83 . Health and RF EMF from Advanced Meters 22 Public Utility Commission of Texas According to Rule 702, Testimony by Expert Witnesses, a witness who is qu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4050258. Public record. Not legal advice.