The Examiners’ Report and the Legal Arguments

On March 26, 2014, three (3) hearing examiners for the state of Maine Public Utilities Commission (PUC) released a report (and Appendix) concluding that the “installation and operation of … smart meters and related devices and systems are consistent with [the utility’s] statutory obligation to furnish … safe, reasonable, and adequate service.”  The report was issued in the form a draft Commission order.  Affected parties had until April 11 to file comments or exceptions to the report.

On April 11, 2014, Complainants filed comments and exceptions in opposition to the Maine PUC Examiners’ Report on smart meter safety.  The comments highlight the fact that the Maine Supreme Court in July 2012 ruled that:

“[N]owhere … did the Commission conclude that smart meter technology is not a credible threat to the health and safety of [Central Maine Power’s] CMP’s customers.” [emphasis added]

In addition, the Law Court in 2012 ruled that:

“The Commission’s previous decisions demonstrate that it may have considered, to a limited extent, the health and safety issues Friedman raised, but it did not resolve those issues.  Because the Commission explicitly declined to make determinations on the merits of the health and safety concerns raised by the complainants in the Opt-Out Investigation, the Commission’s decision in this proceeding to treat those issues as ‘resolved’ by that prior investigation was in error. …  We therefore vacate the portion of the Commission’s dismissal of Friedman’s complaint that was directed at CMP and addressed health and safety concerns.”

Based upon the above Law Court ruling, the Maine PUC is obligated to resolve whether or not smart meter technology is a credible threat to the health and safety of utility customers.  As yet, and based upon a review of the PUC Examiners’ report, the health and safety issues have not been resolved.  Why not?  

As indicated in comments filed by the lead Complainant:

“ … the Report fails to decide the discrete issue the Maine Law Court directed the Commission to resolve, whether CMP’s smart meters pose a credible risk of harm.  The Report thereby fails to satisfy the Commission’s statutory mandate to ensure safety.  Instead of responding to the Law Court’s directive, the Report offers the Examiners’ determination of whether the technology is ‘safe, reasonable and adequate.’  By reformulating the question, the Examiners have introduced irrelevant factors into the analysis, relying on information that is not in the record.  The Examiners treat the statutory mandate to ensure all utility facilities be ‘safe, reasonable and adequate’ as one requirement instead of three, allowing the three requirements to be balanced or traded off in a collective determination of compliance, thereby avoiding a determination about safety as a separate and independent requirement.  The Report also applies the wrong standard of proof and does so in a manner that effectively shifts the burden of proof to Complainants.  To the extent the Report evaluates record evidence on the question of safety, it discusses primarily whether Complainants have produced sufficient evidence to prove causation of harm, as opposed to whether CMP has produced sufficient evidence to prove there is no credible threat of harm.” [emphasis added]

“[The examiners’] first finding about the scientific evidence is that it is ‘inconclusive.’  … Suggesting that a finding of inconclusive evidence supports a determination of safety inappropriately assigns the burden of resolving uncertainties to Complainants.  This finding supports the conclusion that CMP has failed to sufficiently resolve the uncertainties to reliably conclude there is no credible risk of harm.  Put another way, the Examiners cannot meet the legislative mandate to ‘ensure safety’ based on ‘inconclusive’ evidence.” [emphasis added]

Diametrically Opposed Perspectives and Interests

According to a technical article published in 2009, “When scientists maintain their beliefs in the face of contrary data, two diametrically opposed situations may result.  On the one hand, data are seen as either right or wrong and there is no discussion to resolve disparities.  On the other hand, … scientists who hold theoretically opposed positions may engage in fruitful debate to enhance understanding of underlying principles and advance science in general.  While the latter certainly is preferable, there are external factors involving economics and politics that keep this from happening.” [emphasis added] [Reference: “Electromagnetic Fields and DNA Damage,” Phillips, et.al., Pathophysiology, 16 (2009) 79–88.]

The debate among the Maine PUC, CMP, and the Complainants exemplifies the type of dispute that occurs when parties have diametrically opposed perspectives and interests that appear to be irreconcilable.  These are the same diametrically opposed viewpoints being expressed in other states across this nation and in other countries around the world regarding the possible health effects caused by radiofrequency (RF) radiation emissions.  Here is the crux of the matter:

1. The wireless and smart grid industries invested in promoting smart meters and other wireless devices rigidly adhere to a thermal paradigm where RF radiation induced biological effects can only be caused through thermal mechanisms such as shock and burn.  To consider any changes to the current thermally based RF exposure guidelines or to take any actions to protect the public, the industry demands “conclusive evidence” or “proof” of any health effects due to chronic or low level RF exposures.

2. Realizing the potentially catastrophic results to the population and the environment of waiting for “conclusive evidence,” of adverse health effects, many concerned members of the public, independent scientists, and health professionals advocate a precautionary approach where limited evidence of harm would result in prudent measures being taken to protect the public.

The Degree of Certainty for Adverse Health Effects

In an attempt to better illustrate the above situation, refer to the figure below showing a “ladder” with various degrees of possible certainty for demonstrated adverse health effects from RF exposure.  Those individuals from the thermal paradigm group are stuck at the bottom of the ladder stating that talk of low-level health effects from RF emissions is nothing more than “speculation.”  These same people further state that in order to take any action to protect the public you must find a way to jump to the top of the ladder showing absolute proof of harm including the mechanism causing the harm.

Those individuals advocating caution acknowledge that limited levels of evidence exist demonstrating that adverse health effects are caused by RF emissions or at least acknowledge a credible threat for harm.  Some scientists and independent experts believe we are further up the ladder than others.

Between speculation and hypothesis toward the bottom of the ladder and absolute proof at the top of the ladder is a range where precautionary measures may be warranted based upon an objective review of the available scientific evidence and its possible negative impact on society if nothing is done to avoid harm.  Supporters of the smart meters and wireless industry typically ignore this range of possible levels of evidence and actions, pretending that it doesn’t exist.

In Maine we appear to have a situation where the Law Court appropriately expects the PUC to resolve whether a credible threat of harm does not exist in order to demonstrate that smart meters are safe.  But so far, the Maine PUC has bungled this analysis in at least two separate ways.  First, the Maine PUC in its examiners’ report has not evaluated the safety issue in isolation but rather combined and conflated it with the separate issues of what is reasonable and what is adequate.  Second, the PUC has yet to resolve whether a credible threat of harm exists but rather focuses predominantly on whether the Complainants have proven adverse effects (at the top of the ladder).

On what step or rung are we located on the “ladder of certainty” figure as used above for illustration purposes?  From this Author’s perspective, current evidence for RF exposure effects puts us somewhere about half way up the ladder with reason to suspect that mounting evidence will lead us still higher.  It seems absolutely clear that we are beyond speculation and hypothesis and based upon the evidence of record for the Maine proceedings, it is apparent that smart meters pose at least a credible threat to the health and safety of utility customers.  Certainly, the Maine PUC has not yet “resolved” the issue.

A Perspective on Demonstrating the Mechanism Causing Harm

As a short aside, the wireless industry places great emphasis on proving the causation for adverse biological effects to the extent of confirming the mechanism causing harm.  For example, in an article published in 2013, Foster and Tell indicate that “While there have been calls for technology-specific safety studies for Wi-Fi, Smart Meters, or other technologies, the design of bioeffects studies is hindered by the lack of a hypothesis for a damage mechanism, …” [emphasis added] [Reference: “Radiofrequency Energy Exposure from the Trilliant Smart Meter,” Foster, and Tell, Health Physics, 2013 Aug;105(2):177-86.]

First of all, there are many independent scientists who do have hypotheses for a damage mechanism for RF induced effects, but in any case, the logic and criteria used by wireless industry supporters go well beyond the “Bradford Hill criteria” that are widely accepted as a logical structure for investigating and defining causality in epidemiological study.  Professor Sir Austin Bradford Hill developed a list of nine factors for determining when there is sufficient evidence to infer or deduce, but not necessarily prove to a scientific certainty, a causal association between an agent and an adverse health condition.  “Before deducing ‘causation’ and taking action we shall not invariably have to sit around awaiting the results” of decisive research.  He refers to nine “aspects of that association” to be especially considered “before deciding that the most likely interpretation of it is causation.”  Specifically, a mechanism between cause and effect is helpful, but Hill noted that knowledge of the mechanism is limited by the current level of scientific knowledge.  In short, as a matter of implementing appropriate public policy, we should make decisions and take action based upon what we do know rather than what we don’t.

Doubt Is Their Product

Part of the problem in objectively assessing where we are located on the “ladder of certainty” for RF induced health effects is that the wireless industry and others adhering to the thermal paradigm are desperately trying to keep anyone else from climbing up the “ladder.”  For example, Central Maine Power in the Maine proceedings has primarily been represented by Exponent, a product defense firm.  In the book, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health, written by David Michaels, Ph.D., M.P.H., the current Assistant Secretary of Labor for OSHA under the Obama administration, it is written that:

“Exponent’s scientists are prolific writers of scientific reports and papers.  While some may exist, I have yet to see an Exponent study that does not support the conclusion needed by the corporation or trade association that is paying the bill.”

Examples are given in the Michaels book, including:

“Exponent specializes in literature reviews that draw negative conclusions.  The company’s scientists have produced several reviews of the asbestos literature for use in litigation, all of which conclude that certain types of asbestos and certain types of asbestos exposure are far less dangerous than previously believed.” [emphasis added]

“After numerous studies that linked pesticide exposure and Parkinson’s disease appeared in prestigious scientific journals, Exponent’s scientists produced a literature review for CropLife America, the trade association of pesticide producers, whose conclusion maintained that ‘the animal and epidemiologic data reviewed do not provide sufficient evidence to support a causal association between pesticide exposure and Parkinson’s disease.’”

“When a study by consulting epidemiologists discovered a high rate of prostate cancer cases at a Syngenta plant that produced the pesticide atrazine, Exponent’s scientists produced a study that found no relationship between the chemical and the disease.”

Do the above excerpts sound familiar in comparison to what has been happening regarding literature produced on possible adverse health effects from RF radiation exposure?   Thus, there may be reason to exercise caution (and a precautionary approach) not only based upon the available science showing adverse health effects but also because of the ongoing efforts from companies like Exponent to pollute the science we have.

Conclusions

It is clear that the Maine PUC examiners’ report is basic industry propaganda where the “examiners” performing the review had a predetermined vision of what they wanted to write in the end.  The report represents a deeply flawed and biased analysis of the health and safety issues for smart meters.

As summarized in the final paragraph of the lead complainant’s comments:

1. “CMP has failed to prove there is no credible threat of harm from its ‘smart’ meter technology; and

2. Safety cannot be ensured without remedial measures, the scope of which may need to be determined in a separate proceeding.”

It is vitally important that people everywhere take steps necessary to have individuals appointed to public utility commissions that look after the interests of the people and not simply parrot utility industry propaganda.  In addition, the people must hold utility company executives and public officials accountable (and liable as individuals, if need be) for their actions in violation of the public interest and individual rights, in this instance with regard to the forced deployment of ‘smart’ meters and the fees that may be charged for those people who do not consent to ‘smart’ meter installations.

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Note:  This website posting is a follow-up to a blog article posted on March 27, 2014, entitled, “Maine Releases Seriously Flawed and Biased Report on Smart Meter Health and Safety Issues.”