BEFORE THE CORPORATION COMMISSION

Transcription

1 1 F S ILE P1O2U13 BEFORE THE CORPORATION COMMISSION OFFICE - OKC COMMISSION OF OKLAHOMA IN THE MATTER OF THE APPLICATION OF ) SHERRY LAMB, COMPLAINANT, ) CAUSE NO AGAINST OKLAHOMA GAS AND ELECTRIC ) COMPANY ) COMPLAINANT'S BRIEF IN RESPONSE TO RESPONDENT'S BRIEF IN SUPPORT OF OKLAHOMA GAS AND ELECTRIC COMPANY'S MOTION TO DISMISS AND RESPONSE TO THE COMPLAINT OF MS. SHERRY LAMB INTRODUCTION Claimant, Ms. Sherry Lamb, (hereinafter, "Ms. Lamb" or "Complainant"), filed a citizen's complaint with the Oklahoma Corporation Commission (hereinafter "0CC") that unexpectedly became a lawsuit against two powerful adversaries, including the Oklahoma Corporation Commission (hereinafter, "0CC"), from which Claimant sought relief. In this Brief, OG&E and 0CC will be referred to jointly as "OCC/OGE." This Brief attempts to hold to the clear language of the Complaint. ARGUMENTS AND AUTHORITIES Claimant incorporates herein the arguments and authorities set forth in her Response of Complainant to Respondent's Motion to Dismiss filed on August 9, Claimant also submits the authorities listed in the Table of Authorities Cited THE 0CC COMPLAINT PROCEDURE The Complaint Form used by Ms. Lamb was provided by the 0CC to an acquaintance of Ms. Lamb who used said form in late 2012 to file a complaint regarding Electro Magnetic Radiation (EMR) by Smart Meters. The 0CC ignored that Complaint. In a citizen's complaint, the citizen will report that she is damaged, but is unlikely to be able to a provide a legal basis for her complaint. Page 1 of 14 - C W] Complainant's Brief

2 LI OCCIOGE Practices The focus of this case is citizen safety and the duty to address citizens' complaints, a duty that is not met by OCCIOGE practices: 1. Both the 0CC and OG&E have failed to disclose to OG&E ratepayers that (a) industry experts and scientific study results differ as to the risks and biological effects that arise from smart meter use; (b) the regulations (such as FCC) are out of date and do not address non-thermal conditions (i.e., biological effects); and (c) Oklahoma citizens are the subjects of a state-wide experiment on the health effects of smart meter radiation. 2. OCC/OGE ignore worldwide health complaints and the actions taken by other Utilities and Regulatory Commissions to protect citizens. 3. At all times, during the planning, regulation process and deployment of the smart meter, OG&E was aware or should have been aware of the dangers and health risks that the smart meter poses to the public. It is unknown whether or not OG&E met its disclosure duty to the 0CC; however, it is clearly evident that OG&E, while not revealing even a hint of the dangers of electromagnetic radiation, is spending exorbitantly to indoctrinate the public with one-sided, non-objective information. THE COMPLAINT The Complainant, Ms. Lamb, is an individual whose health is negatively impacted by the electro magnetic radiation (EMR) of the smart meter grid. She asked OG&E to reinstall an analog meter at her home "until the health effects stemming from these meters can be resolved." Her Complaint also contains a request for the 0CC to hear about the horrors experienced by other Oklahomans who suffer from EMIR. Page 2 of 14 - cs Complainant's Brief

3 Ms. Lamb's Complaint apparently presents an issue of first impression in Oklahoma. According to the Complaint, OG&E employees, "trespassed on [Ms. Lamb's property, without... permission... [to] install a "smart meter." That installation ignored both the use of her property and the damage to her health. She reports that "OG&E has been unwilling to do anything about removing [the smart] meter" and explains that its non-removal will force her to move from her home of eight (8) years. Ms. Lamb also complains that "OG&E has deprived me of my safety, health, privacy and property without compensation or due process of which I am entitled as a U.S. citizen." This is her plea for constitutional rights. Scope of the Complaint Complaints regarding, among other problems, health, privacy, and safety problems produced by the electromagnetic radiation (EM1R), are emerging world-wide. In May 2011 the World Health Organization elevated exposure to wireless radiation, including WiFi, into the Class 2b list of Carcinogens.... In December 2012 the American Academy of Pediatrics - representing 60,000 pediatricians, wrote to Congress requesting it update the safety levels of microwave radiation exposure especially for children and pregnant women. Open Letter to the Superintendents of the School Districts of the United States, American Academy of Environmental Medicine, May 13, Also, see the video presented by the Australia Radiation Protection and Nuclear Safety Agency at /new-youtube-video-from-wif1-in- schools-australial. The effects of electro EMR on human beings, animals, and plants is now widely reported, and like issues of the past, regarding asbestos, tobacco, formaldehyde, and DDT, will not go away. Page 3 of 14 - CS Complainant's Brief

4 Scientists are beginning to understand the damage that will increasingly result from the irradiation of biological life and physical structures through wireless technology. In June 2013, the first Public Forum in the U. S. on Children, Fetuses, and Fertility was held in Stonington, CT and produced twenty (20) Safety Recommendations, including the following: Schools should not have WiFi; Keep your cell phone away from your body; Opt-out of new utility meters called 'smart meters'; Never use wireless baby monitors; and EMR free zones are needed for pregnant women and children. http ://electromagnetichealth. org/electromagnetic-health-blog/summaiy-and-audio/. The Damage A close reading of Ms. Lamb's Complaint shows, among other things, that it complains of her assault by EMR from OG&E through its smart meter system, which includes the smart meter, transmitters, receivers, collectors, repeaters, cell towers, etc. According to Ms. Lamb, EMR from that system has damaged her health and quality of life. Ms. Lamb cannot physically tolerate a smart meter on her property because even at the distance of a football field from the smart meter, the power density received may still be biologically significant. Analysis of the Biomiative 2012 Report by Ronald M. Powell, Ph. 11, p. 12. Professional medical personnel have diagnosed Ms. Lamb with "Electro Magnetic Sensitivity." (See Exhibit 1 to Response of Complainant to Respondent's Motion to Dismiss). Ms. Lamb's health and well being are damaged when she is exposed to the frequencies utilized by OCI&E's smart meter system. (The meters replaced by OG&E with the smart meter did not pose this hazard. They had no transmit or receive capability.) Page 4 of 14 - CS Complainant's Brief

5 The Prayer for Relief First, Ms. Lamb requests temporary reinstallation of an analog meter at her home, "until the health effects stemming from these [smart] meters can be resolved." Second, she requests "rate-payer hearings before the [Oklahoma Corporation] Commission to hear all health and privacy and safety problems statewide regarding the smart meter." Third, Ms. Lamb seeks due process from the 0CC. All of these requests are within the duties and power of the 0CC to grant. ARGUMENT No Right to Irradiate OG&E cannot prove that it has a legal right to irradiate the citizens of Oklahoma. That right was granted by neither the 0CC nor by the State Legislature. It does not exist in the FCC Regulations or Federal Law. OG&E has license to deploy the smart meter not to assault Ms. Lamb. OG&E is an expert in its field. It either knew or should have known that a WiFi mesh grid implementation of the smart meter will irradiate people, whether that system is licensed by the FCC or not Evidence suggests that the 0CC blindly accepted information regarding the smart meter deployment in Oklahoma. For example, "10. Upon further questioning, Mr. Langston (Jesse B. Langston, Vice President of Utility Commercial Operations) stated that he was not aware of any accuracy or reliability issues concerning the meters and believed OG&E's project would not encounter any of the problems experienced in Texas or California." Oklahoma Corporation Commission, Final Order, Cause Number PHD , Order number , the Final Order, Page 13. Page 5 of 14 - CS Complainant's Brief

6 This is only one example of the OCC's apparent reliance, without evidence or data, on what is "largely unproven," as described by Commissioner Dana L. Murphy in her Separate Opinion. Id, Page 20. In this example, Mr. Langston's lack of awareness and belief appear to have settled the issue. It indicates the lack of evidence or data required by 0CC and thus, lack of due diligence regarding the smart meter. There is no indication that the 0CC addressed the issue of smart meter safety, which, at the time (2010), had already resulted in bans and delays in deployment of smart meters across the nation. Irrelevant FCC Regulations OG&E and the 0CC have hung their hats on FCC standards. This is the same position that the Maine Public Utilities Commission (PUC) took until the Supreme Court of Maine ruled that the PUC must address smart meter safety issues. Ed Friedman et al. v. Public Utilities Commission et al., 2012 ME 90, P.6, (July 12, 2012). The FCC standards are irrelevant to the issue of purposefully irradiating human beings and damaging their health to the point that they cannot remain in their homes. FCC standards simply specify what the FCC allows to be used in this nation. So, a smart meter that meets FCC standards can be used in this nation. However, the FCC standards do not give permission to irradiate human beings, nor do those standards claim to protect biological life, which, they do not. The FCC standards are old, and the FCC has refused to make new standards until forced to do so by recent court rulings, such as Massachusetts v. EPA, 549 U.S. 497, (2007). On March 29, 2013, the FCC issued an Order, Notice of Proposed Page 6 of 14 - cs i Complainant' Brief

7 Rulemaking (NPRM) and a Notice of Inquiry (NOl) to, for the first time in 17 years, address its thermal-based RFR-exposure safety standards to protect human health. In 2009, the Supreme Court ruled, 6 to 3, in Levine v. Wyeth, 555 U.S. - (2009), 129 S. Ct. 1187, that a state law claim was not preempted by FDA rules by finding that juries may award damages for harm from an improperly administered drug even though the FDA-approved label for that drug did not warn against said improper administration. A logical parallel for smart meters - The lack of government warning of the dangers of Wi-Fi mesh grid smart meters does not remove the liability for harm resulting from such smart meters. In this case, the drug was government-approved. Liability arose because the method of its application caused harm. OCC/OGE rely on the fact that the smart meter is government (FCC)-approved. They ignore the fact that its application via a Wi-Fi grid causes harm. Purposeful use of FCC-licensed devices in a manner that damages people is a misuse of the equipment comparable to that of driving a government-approved vehicle in a manner that damages people, which is illegal. In Massachusetts v. EPA, Id., the Court found that a government agency, whose inaction fails to protect the health and safety of citizens by providing updated safety limits, is "arbitrary and capricious... [and] otherwise not in accordance with law." This finding helped dislodge the FCC from its 17-year refusal to protect. It also applies to the 0CC, whose inaction has failed to protect the health and safety of Oklahomans. Due Process Ms. Lamb seeks protection of her health (life) and her home (property). This protection is assured to her by Article II, Section 7 of the Oklahoma Constitution: Page 7 of 14 - CS I Comp!ainaut Brief

8 No person shall be deprived of life, liberty, or property, without due process of law. Consequently. Ms. Lamb has a right to due process in the instant case. Dismissal of her Complaint violates that right. The basic, and most important, ingredients of due process are the right to be heard and the right to an impartial forum. The 0CC has a duty to provide both. OG&E'S BRIEF SUPPORTING DISMISSAL OF MS. LAMB'S COMPLAINT Response OG&E's Brief in Support of Oklahoma Gas and Electric Company's Motion to Dismiss and Response to the Complaint of Ms. Sherry Lamb (hereinafter, "OG&E's Brief") took some 2400 words to say, in effect, "Despite what Complainant has suffered or claimed, she has no relief available anywhere under the law, unless she wants to go to the FCC. So, her Complaint should be dismissed." 0C1&E's Brief completely ignores Ms. Lamb's health damage and provides no explanation of why OG&E cannot work with her to ameliorate that damage. To OG&E, Ms. Lamb's suffering is not worth mentioning, but keeping her away from the 0CC is a worthwhile endeavor. Additions OG&E's Brief states that Ms. Lamb made no "allegation, or... suggestion of any nature, that OG&E has failed to comply with the National Electric Safety Code." Ms. Lamb has never heard of the National Electric Safety Code. Her Complaint that Page 8 of 14 - ('S CnpIainani Brief

9 "OG&E has deprived me of my safety," is, among other things, a clear allegation that OG&E failed to meet its duty to furnish safe service, a requirement of the National Electric Safety Code (OAC 165: ). For the record, the 0CC, through its Constitutional duty to provide for the welfare of the public must require OG&E to provide safe service. Errors OG&E's Brief incorrectly states that "The Complainant is asking the Commission to ignore the FCC and its determination of maximum permissible exposure limits and make its own finding that smart meters cause "harm." Ms. Lamb does not mention the FCC. Since installation of a smart meter at her home, Ms. Lamb has experienced life-changing maladies that she did not experience prior to the installation. Her request does not involve the FCC, it entreats the 0CC to authorize removal the smart meter so she can remain in her home. OG&E's Brief erroneously attempts to limit the power of the 0CC to matters that are outside "OG&E's internal management." Irregardless of its impact on OG&E's internal management, the 0CC has a duty and the power to supervise, regulate and control its regulated companies "in all matters relating to the performance of the [companies'] public duties..., and of correcting abuses." (Oklahoma Constitution, Section 18). Undoubtedly, such control could impact a company's internal management. The Oklahoma Constitution The 0CC, as a government entity, has a Constitutional duty to protect and Page 9 of 14 CS CompIainontc Brief

10 promote the general welfare and happiness of the people affected by its decisions and regulations. It is not a rubber stamp for OG&E or any other company it regulates. When the OCC's decisions result in physical injury to ratepayers or cause ratepayers to leave their homes or live like animals in faraday cages in order to remain in their homes, the 0CC has a Constitutional duty to protect the impacted ratepayers from its own decisions. The Oklahoma Constitution, Article IX, Section 18, states that the 0CC to has the duty of "correcting abuses." Clearly, irradiation of the public and forced installation by 0G&E of irradiation devices are abuses requiring correction. Section 18 further adds, Upon the request of the parties interested, it shall be the duty of the Commission, as far as possible, to effect, by mediation, the adjustment of claims, and the settlement of controversies, between transportation or transmission companiesand their patrons or employees. (Underline added). OCC/OGE AUTHORITY The Oklahoma Constitution vests great power and important duties in the 0CC. Among other things, Article IX, Section 18 requires the 0CC to "keep itself fully informed of the physical condition of all the railroads of the State, as in the manner in which they are operated, with reference to the security (safety) and accommodation of the public[.]" Although this duty concerns railroads, it explains the level of responsibility to which the 0CC is held: The 0CC has a duty to know about the multitude of studies set forth in the 2007 Biolniative Report: A Rationale for a Biologically-based Public Exposure Standardfor Electromatnetic Fields (ELF and RE); and the Biolnitiative 2012: A Rationale for Biologically-based Exposure Standards for Low-Intensity EMR. (See: Complete texts are incorporated herein by reference. Page 10 o114 - CS Compiaina,it' Brief

11 The 0CC has Constitutional authority to hear Ms. Lamb's Complaint and a duty to settle this "controversy" between OG&E and Ms. Lamb. Additionally, the Oklahoma Corporation Commissioners have a duty to know how the smart meter impacts every Oklahoman and should want that information in order to help suffering Oklahomans. FINAL COMMENTS OG&E's callous disregard for Ms. Lamb's suffering produced her Complaint with the 0CC and expanded it to include a request for the 0CC to hear the horror stories of other Oklahomans suffering from EMR exposure. Technology has advanced beyond the law, and suffering citizens cannot wait for the law to catch up. The 0CC has a Constitutional duty to formulate some means of relief now. In particular, The 0CC has a Constitutional requirement to hear the merits of Ms. Lamb's Complaint. Due process will be denied if her Complaint is dismissed simply because OG&E seeks its dismissal. Such denial of this basic right creates an ethical and constitutional violation by the 0CC and establishes the fact that no one hurt by "smart meters" has a venue in the State of Oklahoma for due process in an area clearly regulated and placed under the jurisdiction of the 0CC. Respondent's Motion to Dismiss should be denied, and the 0CC should meet its duty to provide for the health, safety and welfare of Oklahomans, by hearing Ms. Lamb's Complaint. Page 11 of 14 - cs Complainant's Brief

12 Respectfully submitted, Don M. Powers, OBA if Kay Peers-, 1881 F Powers at Law'8OQ 1420 Bond Street Edmond, OK (405) FAX (405) attorneyspowersat1aw.com Attorneys for the Claimant Page 12 of 14 - CS Complainant's Brief

13 Authorities Cited The Oklahoma Constitution, Article II, Section 7 The Oklahoma Constitution, Article IX, Sections 17, 18 National Electric Safety Code (OAC 165: ) CASES Ed Friedman et al. v. Public Utilities Commission et al., 2012 ME 90, P.6, [7-8 (July 12, 2012). Levine v. Wyeth, 555 U.S. _(2009), 129 S. Ct Massachusetts v. EPA, 549 U.S. 497, (2007) Oklahoma Corporation Commission Cause Number PIJD , Order Number , the Final Order states, on Page Biolniative Report: A Rationale for a Biologically-based Public Exposure Standard for Electromatnetic Fields (ELF and RE) Biolnitiafive 2012: A Rationale for Biologically-based Exposure Standards for Low- Intensity Eleciromalnetic Radiation. Analysis of the Bioiniative 2012 Report by Ronald M. Powell, Ph. D., p. 12) 3/08/new-youtube-video-ftom-wifi-in-schools-australia http ://electromagneticbealth.org/electromagnetic-health-blog/summaiy-and-audio/ Open Letter to the Superintendents of the School Districts of the United States, American Academy of Environmental Medicine, May 13, Page 13 of 14 - cs Complainant's Brief

14 0 CERTIFICATE OF MAILING This is to certify that, on September 10, 2013, a true and correct copy of the above and foregoing document was ed to the following: Elizabeth Cates Eric Davis Office of General Counsel Oklahoma Corporation Commission P.O. Box Oklahoma City, OK e.cates@occ .com Kimber L. Shoop Patrick D. Shore Stephanie G. Houle 321 N. Harvey, MCI208 Oklahoma City, OK shoopkl@oge.com shorepd oge.com houlesgoge.com Page 14 of 14 - CS CornpIainan1 Brief