Minutes - 2004 - City Council - 03/23/2004 - Regular
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OR\G\NAL
EAGLE CITY COUNCIL
Minutes
March 23, 2004
.
THIS MEETING WAS HELD AT THE EAGLE SENIOR CENTER 312 E. STATE ST.
PRE-COUNCIL AGENDA: 6:30 p.m. - 7:30 p.m.
Representatives from Idaho Power will guide a walking tour of the proposed route for the 138kV
sub-transmission line.
Council President Bastian introduces the issue.
Layne Dodson, Idaho Power Company, at this point we can adjourn ~nd go on the tour and we will talk as
we walk. I want to familiarize the Council with some of the equipment that is out there and what some of
the basic information that we are going to present tonight in regards to this alternative that the public
hearing is on tonight. I will give you references as far as anticipated heights, terms that will be discussed
tonight, and what we are proposing under this alternative.
Council President Bastian: We will follow you and we remain in session.
1. CALL TO ORDER: Council President Bastian calls the meeting to order at 7:30 p.m.
2. ROLL CALL: BASTIAN, SEDLACEK, GUERBER, NORDSTROM. All present. A
quorum is present.
3. PLEDGE OF ALLEGIANCE
4. PUBLIC COMMENT: Jason Gibson, 2217 West Bums St., Eagle, Id. Submits a letter to
the Council in regards to Ordinance No. 465.
Lori Swason, PTO President at eagle Hills Elementary, we have raised money at the school for a
reader board sign. The best place for us to place sign is at the entry of the drive way to the
school. It is hard for the general public to find the school because we are situated away from the
road and behind Friendship Park. We have a lot of community functions and if the reader board
was placed on the school property the public wouldn't be able to see the sign. We are proposing
that the sign be placed on City property.
General discussion. This is item is to come back on a future agenda for consideration.
5. CONSENT AGENDA:
. Consent Agenda items are considered to be routine and are acted on with one
motion. There will be no separate discussion on these items unless the Mayor, a
Council member, member of City Staff, or a citizen requests an item to be removed
from the Consent Agenda for discussion. Items removed from the Consent Agenda
will be placed on the Regular Agenda in a sequence determined by the Rules of
Order.
. Any item on the Consent Agenda which contains written Conditions of Approval
from the City of Eagle City Staff, Planning & Zoning Commission, or Design
Review Board shall be adopted as part of the City Council's Consent Agenda
approval motion unless specifically stated otherwise.
A. Claims Against the City.
B. Special meeting minutes of March 16,2004.
C. Minutes of March 16,2004.
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D. Findin2s of Fact and Conclusions of Law for FPUD-I0-03 & FP-13-03-
Final Development Plan and Final Plat for RiversEnd Subdivision No.2 -
Howell-Kiser Development Corp: Howell-Kiser Development Corp. is
requesting final development plan and final plat approval for a 74-lot (68-
buildable, 6-common) residential subdivision. This 49.74-acre phase of
RiversEnd Subdivision PUD is located between the North and South Channels of
the Boise River approximately Y:z -mile east of Eagle Road on East Island Woods
Drive. (WEV)
E. Findin2s of Fact and Conclusions of Law for RZ-9-03 - Rezone From R-4 To
PS - Joint School District No.2: Joint School District No.2, represented by
Doug Russell with The Land Group, is requesting a rezone from R-4 (Residential
- up to four dwelling units per acre) to PS (Public/Semipublic). The site consists
of three parcels totaling .5-acres in area and is located on the west side of North
Eagle Road approximately 800-feet north of State Street at 323, 365 and 395
North Eagle Road. (WEV)
F. Open Container Permit for Bo2us Basin Recreation Association.
Sedlacek modifies the Consent Agenda by adding an Open Container Permit for Bogus
Basin Recreation Association to the Consent Agenda as Item #F.
Nordstrom moves to approve the Consent Agenda as amended. Seconded by Guerber.
Bastian: AYE; Sedlacek: AYE; Guerber: AYE; Nordstrom: AYE: ALL AYES: MOTION
CARRIES.............. ...
Sedlacek moves to amend the Agenda as follows: Item #10A. Mike Mongelli, Building
Official, does not have all the necessary information to present to Council and this item
needs to be continued and the Letter of Intent with ACHD in regards to the Hill Road
Property is added to the Agenda as Item #10A. Seconded by Guerber. ALL A YES:
MOTION CARRIES........................
6. PROCLAMATIONS & RESOLUTIONS:
A. Municipal Clerks Week Proclamation: A proclamation declaring May 2nd through May 8th
as Municipal Clerks Week. (SKM)
Council President Bastian introduces the issue and provides an overview of the Proclamation.
Guerber moves to approve the Municipal Clerks Week Proclamation. Seconded by
Nordstrom. ALL AYES: MOTION CARRIES.....................
B. EI Dia de los Ninos - The Dav of the Child - Proclamation: Proclaiming April 30th to be
the Day of the Child. (NM)
Council President Bastian introduces the issue and provides an overview of the Proclamation.
Sedlacek moves to approve the EI Dia de los Ninor- The Day of the Child-Proclamation.
Seconded by Guerber. ALL AYES: MOTION CARRIES....................
7. FINAL PLATS:
A. FPUD-3-04 & FP-2-04 - Final Development Plan and Final Plat for Countryside Estate
PUD Subdivision No.4 - Countrvside Estates LLC: Countryside Estates LLC, represented by
Steve Arnold with Briggs Engineering, is requesting final development plan and final plat
approval for Countryside Estates Subdivision No.4, an II-lot (9-buildable, 2-common)
residential subdivision. This 9.76-acre phase of Countryside Estates PUD Subdivision is located
near the northwest comer of Ballantyne Road and State Highway 44 (State Street). (WEV)
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Council President Bastian introduces the issue.
Dave Yorgason, Capital Development, representing the applicant, displays overheads of the
overall plat and Phase 4 and provides Council an overview of the application. We agree with
Staff s conditions of approval. General discussion.
Planner Lowe: Staff and the Planning and Zoning Commission have recommended approval and
I stand for questions. General discussion.
Guerber moves to approve the final plat for FPUD-3-04 & FP-2-04. Seconded by
Nordstrom. Discussion. THREE AYES: ONE NAY: MOTION CARRIES.....................
B. FPUD-11-03 & FP-14-03 - Final Development Plan and Final Plat for Two Rivers
Subdivision No.9 - T. R. Companv LLC: T. R. Company LLC, represented by Dan Torfin, is
requesting final development plan and final plat approval for Two Rivers Subdivision No.9, a
41-lot (34-buildable, 7-common) residential subdivision. This 18.64-acre phase of Quarter Circle
Ranch PUD is located on the west side of Eagle Road approximately 1600-feet south of State
Highway 44. (WEV)
Council President Bastian introduces the issue.
Dan Torfin, representing the applicant, displays an overhead of the plat and discusses the same.
Planning and Zoning has approved this and I stand for questions.
Planner Lowe: Provides Council and overview of the project. Staff and the Planning and Zoning
Commission have recommended approval.
Sedlacek moves to approve FPUD-11-03 & FP-14-03 - Final Development Plan and Final
Plat for Two Rivers Subdivision No.9. Seconded by Nordstrom. ALL A YES: MOTION
CARRIES...............
C. FPUD-I-04 & FP-I-04 - Final Development Plan and Final Plat for Two Rivers
Subdivision No. 10 - T. R. Companv LLC: T. R. Company LLC, represented by Dan Torfin, is
requesting final development plan and final plat approval for Two Rivers Subdivision No. 10, a
32-10t (24-buildable, 7-common, I-private road) residential subdivision. This 31.49-acre phase
of Quarter Circle Ranch PUD is located on the west side of Eagle Road approximately 16oo-feet
south of State Highway 44. (WEV)
Council President Bastian introduces the issue.
Dan Torfin, representing the applicant, displays an overhead of the site plan and provides
Council an overview of the project.
Planner Lowe: Staff and the Planning and Zoning Commission have recommended approval.
General discussion.
Sedlacek moves to approve FPUD-I-04 & FP-I-04 - Final Development Plan and Final Plat for
Two Rivers Subdivision No. 10. Seconded by Nordstrom. Discussion. THREE A YES: ONE
NAY: MOTION CARRIES...........................
8. PUBLIC HEARINGS:
A. CU-9-04 - Public Service Facilitv/ Hei2ht Exception Request -138kV Sub- Transmission
line- Idaho Power Companv: Idaho Power, represented by Layne Dodson, is requesting
conditional use approval to construct a 138kV sub-transmission line, and a height exception
request to construct utility poles with heights ranging from approximately 70 to 85-feet, (35 to
50-feet higher then the required maximum of 35-feet).The specific routing of the new sub-
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transmission line will connect with the existing 138kV power line near the intersection of
Edgewood and State Street. The new line will proceed west along State Highway 44 to
Ballantyne Road, where the line will be constructed along the same route as the existing power
lines that parallel the highway, to the new Star, Idaho, substation site. It should be noted that it
has not yet been determined which side of the bypass the line will traverse; this item is left to be
determined from comments received at the public hearings as well as the determination of the
Eagle Planning and Zoning Commission and the Eagle City Council. (WEV)
Council President Bastian introduces the issue.
Council President swears in Layne Dodson.
Layne Dodson, Idaho Power Co., provides Council a history of the project and displays
overheads of the line route. We understand that this is not an easy decision for the City make.
We have been here three years on this issue. This line needs to be constructed, we are out of
time. We are within a year of the service date and we still don't have a line. We have looked at
several different alternates. We realize that there is going to be an impact no matter where this
line goes. To go underground comes at a high price and the rate payers are not going to want to
pay for these costs. We have initiated a process with the PUC. General discussion.
Zoning Administrator Vaughan: I believe Mr. Dodson brought us up to speed on how we have
reached this point. Tonight's Public Hearing is on the routing option of the Downtown Option. I
don't believe discussions on the routes are applicable at this Public Hearing. I will stand for
questions. General discussion.
Council President Bastian opens the Public Hearing.
Bastian: I have had ex parte contact. Last Wednesday residents of Pine Creek, Pine Ranch, and
Ricks River Ridge asked questions about this hearing tonight.
Sedlacek: I to have some potential conflicts. My parents own the property where West State
Street and the Alternate Route come together. My family owns property on West State. I met
with the Mayor and Idaho Power Officials on this particular route on whether we should bring
this matter to the public. I have also had occasion to run into Layne Dobson in the community at
the grocery store and etc.
Nordstrom: I don't know how you could go all these years without some ex parte contact.
Bastian: We have received written testimony from the following persons which will be entered
into the written record: Wayne & Jane Crosby, Mary Frances Agrusa, Rick Collignon, Director
Idaho Department of Parks and Recreation, Michael & Marilyn Margulies and Theresa Steach.
Council President Bastian swears in Jason Gibson.
Jason Gibson, 2217 W. Bums Street, Eagle, I would like Idaho Power for the walk this evening
and the presentation. Discussion the property value of property. Discussion on eminent domain.
Council President Bastian swears in Derek Smith.
Derek Smith, 1102 N. Purple SageWay, I am opposed to this proposition. I am inclined to think
that we should go for the underground options.
Council President Bastian swears in Jeff Kline.
Jeff Kline, 569 N. Cove, reads a letter from Mark Billings into the record. I have been to several
meetings and the public has been opposed to these lines. I would like to see the City Council
demand the cables be buried or find another route.
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Council President Bastian swears in Steve Barber.
Steve Barber, 1366 W. Colville Court, I would like to submit a petition that we have gathered
against this downtown alternative. Reads his written statement into the record.
Council President Bastian swears in Janis Barber.
Janis Barber, 1366 W. Colville Court, I have a letter would like to read from Fred E. Thorson
who is handicapped and unable to appear tonight.
Council President Bastian swears in William Lamb.
William Lamb, 106 S. Taylor Avenue, I have been the electrical business for 42 years and I know
that Idaho Power has to upgrade their system. Is Idaho Power going to remove the old poles
when they install these new poles?
Council President Bastian swears in Mary Shaner.
Mary Shaner, 353 N. Cove Colony Way, much of the discussion has been focused on State Street
and those residents who live around Ballantyne will also be impacted as expansion is going west.
The question is, is there any acceptable route through Eagle. It is time to say to Idaho Power,
join the 21st Century, and bury the lines. Most upscale cities have buried their lines even though
the cost is high. I think it is time to say that we won't allow it.
Council President Bastian swears in Kris Watkins.
Kris Watkins, 1492 W. Powder Court, reads her letter into the record.
Council President Bastian swears in Dan Ward.
Dan Ward, 2683 W. Conifer, Mary said it really well, West of Ballantyne we are residents of
Eagle also. We have lived in other areas and there are buried lines in many of those
communities. The look of Eagle is very nice and you are going to loose that look and Eagle will
be competing with the communities to the West. I'm wondering what is going to happen when
they meet their deadline.
Council President Bastian swears in April Erickson.
April Erickson, 1406 W. Deadwood Court, I was a committee member on the Idaho Power
proposals. The consensus of that committee was that we would like to have the lines buried or in
the alternative have the lines go down the By-Pass. We felt it would be less of an impact to
commercial than residential. General discussion.
Council President Bastian swears in Colleen Horiuchi.
Colleen Horiuchi, 2705 W. Wind Drive, I'm rather new to the area. Our family chose Eagle
because there are no billboard signs. If the City takes such pride in making sure the billboards
are not allowed why would you allow these power poles? My request is to have the lines buried
or find another alternate route. My other question is, is the City of Star bearing any of these
expenses?
Council President Bastian swears in Jerry Hayes.
Jerry Hayes, 655 E. State, I am a five resident of Idaho. They are asking us to be happy with an
85' pole. Discussion on health and safety issues. Discussion on how the poles will obstruct the
views and the impact the poles will have on property values. Where is the environmental impact
statement? A through town route would be acceptable underground. Idaho Power is trying to go
with cheapest alternative. It is my understanding that the City of Star needs this line.
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Council President Bastian swears in Cheryl Bloom.
Cheryl Bloom, 2153 N. Hollybrook Place, I was on Planning and Zoning during the process with
Idaho Power. The P&Z turned down this application because of the height restrictions. I urge
City Council to follow the guidelines of the City Ordinances.
Council President Bastian swears in Dave Yorgason.
Dave Yorgason, 6200 N. Meeker Place, Boise, we do have two residential communities West of
Ballantyne. What is the magic of Ballantyne? There are residents on both sides of Ballantyne in
the City limits. Is the existing right-of-way adequate for Idaho Power? What is the cost to the
residents to bury all of the lines?
Council President Bastian calls a recess at 9:35 p.m.
Council President Bastian reconvenes the meeting at 9:45 p.m.
Council President Bastian swears in Kevin Shaner.
Kevin Shaner, 353 N. Cove Colony Way, we are concerned that there seems to be two groups,
commercial and residential. The committee was given two choices and was not given the choice
of underground.
General discussion on the cost of the lines underground.
Mary Shaner 353 N. Cove Colony Way, I'm wondering why this is Eagle's problem only. This
is power that is going to Star. General discussion.
Council President Bastian swears in Barbara Smith.
Barbara Smith, 37 N. Saygrass Way, Boise, I have been shopping for property in Banbury
Meadows. I'm wondering why there was not a notice in every subdivision. Discussion on the
poles being unsightly. Why is it that Eagle has to take the responsibility to pay for this and why
can't the cost be paid over a long period of time.
Jeff Kline, 569 N. Cove Colony, the reason you didn't see notification in every subdivision is
that you only have to notify within 300 feet and Idaho Power didn't want notification to
everyone. Discussion on the costs. Why does it have to go through the City of Eagle?
Layne Dodson, Idaho Power, I will address some of the comments that came out in public
testimony. Discussion on the impact on property values. Everyone's favorite alternative is
underground. Underground technology is available at a tremendous cost and the question is, is it
a reasonable alternate for the general rate payers to pay the cost of underground? The regulators
at this time are saying that the rate payers have to pay for the cost of underground. We do file an
environmental assessment along the route. Discussion on health concerns. We are up against a
deadline and our process is in place right now to take care of this deadline. We have been three
years in this process. We have an obligation to provide service to everyone. We are going to
remove the wooden poles along State Street. Yes, we understand that this line is going to go
beyond Ballantyne and the poles will be taller all the way to Star. Quotes from the Comp Plan in
regards to electrical facilities. We have adequate right-of-way on the routes that we have
discussed.
General discussion on burying the lines.
Council President Bastian: This would normally be the conclusion of the public hearing but
there are a number of people who are on Spring Break and would like to testify. The Council
needs to decide whether or not to close the Public Hearing or to continue the Public Hearing.
General discussion.
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Nordstrom moves to close the Public Hearing. Seconded by Guerber. ALL A YES:
MOTION CARRIES........................
General Council discussion.
Nordstrom: In the matter of CU-9-04 Public Service Facility/Height Exception Request-
138kV Sub-Transmission line-Idaho Power Company, my motion is to deny the request
based on the fact that the Conditional Use does not fit the Comprehensive Plan and/or the
Ordinances that serve the people and the way of life in the City of Eagle. Seconded by
Sedlacek. Discussion. Bastian proposes to add as reasons for denial the following: The
power lines as proposed will not be harmonious with and in accordance with the general
objectives or with any specific objective of the Comp Plan and/or Title 8 of Eagle City
Code, the Conditional Use Permit requires that they will not be hazardous or disturbing to
existing or future neighborhood uses and I think these will be and therefore in violation of
our City Code, it will be detrimental to persons, property and the general welfare which
means it could cause loss of property values and could cause an impact on health which is
not proven but the questions has been raised. Nordstrom concurs and Second concurs.
ALL AYES: MOTION CARRIES........................
Council President Bastian calls a recess at 10:55 p.m.
Council President Bastian reconvenes at 11:05 p.m.
9. NEW BUSINESS:
A. Steve West will discuss Ada Countv Landfill options. (NM)
Council President Bastian introduces the issue.
Steve West, Centra Consulting, distributes a copy of the power point presentation, letters and a 5
page letter of my comments to the Council and discusses the same. Displays a map of ground
water resources. This phase of the comment period for Ada County closes tomorrow. Idaho
Waste Systems has hired us to present this information. General discussion.
Vern Brewer, Holladay Engineering, discusses their history with landfills. We feel that Hidden
Hollow is an environmental time bomb. I think you want to give the information presented
tonight your consideration.
General discussion.
Nordstrom moves to bring this back before Council at a later date to be determined by
staff. Seconded by Guerber. ALL AYES: MOTION CARRIES.................
B. Ordinance No. 465: Ordinance Of The City Of Eagle, Ada County Idaho Amending
Eagle City Code Title 8 "Zoning", Chapter 3 "Perfonnance Standards", Section 5
"Unique Land Uses"; Creating A New Subsection (T) For The Prohibition Of The
Operation Of Motorized Watercraft Upon The Ponds, Lakes, Streams, And All Other
Waterways Within The City Of Eagle; Providing A Severability Clause; And Providing
An Effective Date.(WEV)
Council President Bastian introduces the issue.
Sedlacek moves, pursuant to Idaho Code, Section 50-902, that the rule requiring
Ordinances to be read on three different days with one reading to be in full be dispensed
with, and that Ordinance #465 be considered after being read once by title only. Sedlacek
reads Ordinance #465 by title only. Seconded by Bastian. ALL A YES: MOTION
CARRIES. ... . .. . ..... . n.
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Sedlacek moves that Ordinance #465 be adopted. Seconded by Bastian. Bastian: AYE;
Sedlacek: AYE; Guerber: AYE: Nordstrom: AYE: ALL AYE: MOTION CARRIES
..... ......... ...... ......
C. Discussion regarding office policy for playing field reservations. (SKM)
Council President Bastian introduces the issue.
Council discussion on the options presented.
Sedlacek moves to follow the Orofino guidelines as presented tonight with the following
changes: Add "per use" to the end of the first sentence, strike the second sentence "Or they
can pay $150.00 for the entire summer .................." Seconded by Nordstrom. ALL
AYES: MOTION CARRIES.....................
D. Discussion of the letter submitted by Precision Fencing dated March 15,2004
regarding increased costs for hand rails. (SKM)
Council President Bastian introduces the issue.
Elwin Butler, Holladay Engineering, provides Council background information as to the
misunderstanding in regards to the bid as awarded. Discussion on the March 15, 2004 letter to
the City Council from Precision Fencing. This steel has been order.
Guerber moves to accept the revised pricing for the steel tubing presented by Precision
Fencing in the amount $9,257.68 which brings the total bid amount to $29,180.15.
Seconded by Sedlacek. Discussion. Bastian: AYE; Sedlacek: AYE; Guerber: AYE;
Nordstrom: AYE: ALL AYES: MOTION CARRIES...........
E. Review and action to approve the name chan2e of Park Road to Olde Park Place.
Council President Bastian introduces the issue.
General discussion.
Guerber moves to forward the name change from Park Road to Olde Park Place to Ada
County for final approval. Seconded by Bastian. ALL A YES: MOTION
CARRIES..... ...... ......... ......
F. Ordinance No. 469: An ordinance repealing Ordinance No. 467 in its entirety and providing
and effective date. (SEB)
Council President Bastian introduces the issue.
Guerber moves, pursuant to Idaho Code, Section 50-902, that the rule requiring
Ordinances to be read on three different days with one reading to be in full be dispensed
with, and that Ordinance #469 be considered after being read once by title only. Guerber
reads Ordinance #469 by title only. Seconded by Sedlacek. ALL A YES: MOTION
CARRIES........ .........
Guerber moves that Ordinance #469 be adopted. Seconded by Sedlacek. Bastian: AYE;
Sedlacek: AYE; Guerber: AYE: Nordstrom: AYE: ALL AYES MOTION CARRIES......
G. Ordinance No. 470: An ordinance of the City of Eagle, Ada County, Idaho, ordering a
special bond election to be held on the question of incurring an indebtedness and issuing general
obligation bonds of the City in the amount of $2,000,000 to provide funds for the purpose of
financing the costs of constructing and furnishing a new city hall building; establishing the date,
time, and places of the special bond election; approving a form of ballot and a form of notice of
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election; providing for publication of notice of election; providing for registration of voters;
providing for related matters; and providing an effective date. (SEB)
Council President Bastian introduces the issue.
Nordstrom moves, pursuant to Idaho Code, Section SO-902, that the rule requiring
Ordinances to be read on three different days with one reading to be in full be dispensed
with, and that Ordinance #470 be considered after being read once by title only.
Nordstrom reads Ordinance #470 by title only. Seconded by Guerber. ALL A YES:
MOTION CARRIES.................
Nordstrom moves that Ordinance #470 be adopted. Seconded by Guerber. Bastian: AYE;
Sedlacek: AYE; Guerber: AYE: Nordstrom: A YE: ALL A YES: MOTION
CARRIES........ ........ .... ......
10. UNFINISHED BUSINESS:
A. Mike Mon2elli will 2ive an update on the backflow value cover to be installed at Merrill
Park.
By Motion this item has been continued until the Building Official has all of the information
necessary to present to the Council.
A. Letter of Intent between the Citv of Ea2le and Ada Countv Hi2hwav District.
Council President Bastian introduces the issue.
General discussion.
Guerber moves to adopt the Letter of Intent as presented tonight and authorize the Council
President to sign in behalf of the Mayor. Seconded by Nordstrom. Bastian: AYE;
Sedlacek: AYE; Guerber: AYE; Nordstrom: AYE: ALL A YES: MOTION
CARRIES.. .. . .. .. .. .. . ...
11. EXECUTIVE SESSION:
A. Personnel Issues: I.c. §67-2345 a & b
Council President Bastian introduces the issue.
Guerber moves to go into Executive Session for the discussion of personnel issues.
Seconded by Bastian. Bastian: AYE; Sedlacek: AYE; Guerber: A YE; Nordstrom: AYE:
ALL AYES: MOTION CARRIES.....................
Council discusses personnel issues.
Council leaves Executive Session.
General discussion.
Guerber moves to negotiate a contract including salary with Edward Moore for the
position of Facilities Manager. Seconded by Sedlacek. Discussion. ALL A YES: MOTION
CARRIES............
Discussion on a project manager for the City projects.
2. ADJOURNMENT:
Guerber moves to adjourn. Seconded by Bastian. ALL A YES: MOTION CARRIES...
Hearing no further business, the Council meeting adjourned at 1:00 a.m.
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Respectfully submitted:
APPROVED:
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SHARON K. MOORE
CITY CLERK/TREASURER
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Mark & Yvonne Billings
3083 W. Wind Dr., Eagle, ID 83616 USA
Tel: 208-939-7536; Fax: 208-939-7827
E-mail: markaritam.com
19 March 2004
To: Chairman and Commissioners
Of: City of Eagle Planning and Zoning Commission
From: Mark Billings
Re: Proposed High Voltage Power Lines in Eagle
Chairman and Commissioners,
I am sure you can all recall some of the choice adjectives from my list presented
on this subject at the previous public hearing. They still apply. There is an elegant
underground solution, and there is a crass, industrial overhead solution. You have
previously chosen to deny a similar application, and the basic facts have not
drastically changed to warrant revisiting that decision.
However, I would like to bring up two additional points for consideration. Firstly, I
wonder in who's vision of the future are there high-voltage lines on massive 85 foot
towers crisscrossing our urban areas? With a projected increase in population in
the Treasure Valley topping 1 and '/2 million after the year 2050, if we progress
down the path that Idaho Power proposes for us, that is exactly what we would
have: monstrous towers of power on nearly every major street, East to West, North
to South. No neighborhood will be left untouched, unscarred. We must draw the
line and say, "No more." Other metro areas have made this decision, and it's time
for us as well.
In addition, with all the talk and press of late on the "stray voltage" issue, I am
certain there are health concerns we have not even identified or begun to study
regarding high-voltage lines in urban areas. Let's not open Pandora's box. Let's
take the proper stand and urge Idaho Power to learn how to economically bury
these lines and preserve our environment, our property values, and our health.
This will be one of my top items for legislation in the next session of the Idaho
Senate.
Sincerely,
Mark Billings
Vice President, The Colony Neighborhood Association
Candidate for State Senate, District 14
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2217 West Burns St.
Eagle, ID 83616
March 23, 2004
RE: Ordinance No. 465
Eagle City Council
310 E. State St.
Eagle, ID 83616
Dear Eagle City Council:
On March 16, 2004 I attended the Eagle City Council meeting and was appalled by what I witnessed
there. My concerns center around the Public Hearing item ZOA-8-03 (ordinance #465) which seeks
to add a new subsection (T) to section 8-3-5 "Unique Land Uses" which would effectively ban the
use of motorized watercraft within the city limits of Eagle.
During the public hearing on this item, several residence testified under oath that they were in favor
of this ordinance due to concerns over the potential for noise from such craft as well as the potential
for associated `other activities' presumably drinking and loud music. One citizen even stated that
even if it were well below the allowable noise levels (which were of some debate as to the exact
figures but appear to be about 65+ dB) he would still object.
Only two people testified under oath in opposition of this rule, myself and Mark L. Butler. As you
may recall, I objected on the ground of an individuals right to the pursuit of happiness and that I
saw this as an unnecessary encroachment of government on such rights. Mark testified that he
would be willing to demonstrate to the city as well as any concerned residence exactly what the
`truth' of the matter would sound like. The council at one point appeared to consider this idea, but
in the end did not appear to take him up on his offer. Mark also brought up the issue of how 'odd' it
was that the council was attempting to regulate the use of waterways under a section clearly labeled
"Unique Land Use" and which allowed for, among other things, dog kennels..
During what passed as deliberations by council, several members stated that they were having a
difficult time deciding on this issue, and would like to vote against it personally. However, each one
concluded by saying that they would vote in favor. At one point, a council member also stated that it
was not only the noise that concerned them, but `... also the churning of the water and the potential
to disturb the Herons...' it was the activity itself that concerned them. (paraphrase only based on my
notes). The issue of emergency use of watercraft was also raised and it was agreed that language
should be inserted allowing such uses.
My notes and memory are unclear at this point as to exactly what occurred, but there was a motion
to forgo the reading of the ordinance if full pursuant to Idaho Code 50-901A, the motion was
seconded and all voted in favor. Mark then asked council a technical point regarding their ability to
institute the ordinance with out a full statement of it and a proper notice of its number etcetera. One
council member appeared to be confused by this, thinking that they had just voted in the ordinance,
and had to be told that he had only just voted on forgoing the reading of it.
Page 1/2
Several items concern me about what I witnessed that evening:
1) Despite an offer to come hear and sec for themselves what exactly was being proposed, the
council was prepared to proceed with out what I would consider due process and hearing.
2) The council appeared prepared to pass the ordinance with out ever having published the
exact text and allowing public review. During the meeting the concept of proper emergency
use was brought up and only in vague terms defined. I am not an expert on Idaho state law,
but I would imagine that passing an ordinance with out first allowing the public to see the
exact language of said ordinance would likely run afoul of at least one law.
3) The hearings and deliberations I witnessed centered around potentials. When an offer was
made to witness an actual event, it was denied. I would suggest that the mere threat or
possibility of a problem is not sufficient grounds to outlaw an activity, especially with out
first examining the possible benefits to be had. In fact, the council appeared to have made
up their minds with out even considering alternate sides of this issue. What of the potential
negative economic impact to both boat dealers and developers who whish to create water
recreation facilities. What of the negative impact on happiness and enjoyment of the
outdoors of those who enjoy the use of motorized vessels and are not too ashamed to admit
it. What of the negative impact of such rules on those such as myself who value limited
government and personal freedoms.
4) I would also suggest that the City Council review Idaho Code Title 67, Chapter 70 "Idaho
Safe Boating Act" which in part seeks to "...foster the greater development, use and
enjoyment of the waters of this state by watercraft...". While section 67-7031 part 2 allows
local laws to regulate vessels and equipment, it does also state that it can not be in conflict
with the provisions of law. I would submit that by summarily banning the use of watercraft
within Eagle you are certainly not abiding by the spirit of this chapter.
5) I was unable to identify any current issues with regards to the use of motorized watercraft
within the city of Eagle. I do not personally know of many, if any, bodies of water within
Eagle at this time which would allow such use to any large extent. At one point during the
public testimony an individual stated to the effect of we can't tell what the future will bring
so we should ban them now'. The first part of this statement is correct, but I would submit
that the concussion does not necessarily follow.
In summary, I do not believe that the City of Eagle is proceeding on this issue in a fair or legal
manner. I realize that it is quite unlikely that my lone protest will cause the council to re -consider
their stance on this issue. I would however like my formal protest both to the content and intent of
this particular ordinance (which I behove to be unfounded) and to the method in which it was
handled (which I believe to be illegal) to be duly noted.
Respectfully,
Jason Gibson
Page 2/2
e3-a -
fred e. thorson
933 West State Street.
Eagle, Idaho 83616-4807
1-208-938-1409
March 22, 2004
Re: CU -9-02- Sub Transmission Line — Idaho Power
MADAM MAYOR AND CITY COUNCILMEN
C/o CITY OF EAGLE
P. O. BOX 1520
EAGLE, IDAHO 83616
DEAR MADAM MAYOR AND FELLOW COUNCILMEN,
I AM IN RECEIPT OF YOUR LEGAL NOTICE FOR THE APPLICATION OF IDAHO
POWER AS LISTED ABOVE. I AM AN OLDER RESIDENT OF EAGLE. I AM VERY HARD OF
HEARING, AND WHILE I DID NOT GET THIS LETTER MAILED BY THE REQUIRED FIVE DAYS
PRIOR TO THE HEARING, I AM LETTING MY COMMENTS BE READ VIA THESE PLACARDS,
BECAUSE I CAN NOT HEAR WHAT IS BEING SAID IN THE HEARING ROOM.
As former residential real estate appraiser, with 30 years of appraisal experience, I am very
painfully aware of the negative effects that high voltage transmission lines have on a neighborhood and a
community in general. A set percentage of depreciation is not available for all properties, as the amount of
depreciation suffered by a property is varied by the property type. (Vacant land, residential, commercial
etc.) I will say, that depreciation for residential property within close proximity of overhead transmission
lines is substantial. The appearance of transmission lines decreases the desirability of residential property
because of the fear associated with them.
As a resident of State Street, the proposed route of the overhead transmission lines, I do not relish
the thought of, or think the need for this depreciation is necessary.
In my opinion, the City of Eagle has three options
1. Do not allow the transmission line at all, or
2. Allow the transmission lines to be placed in a conduit, below grade for the full length of State
Street. Said conduit must be large enough to handle ample cables for all expected growth of the
neighborhood / community for the next fifty years.
Yes, I am very aware that this is an expensive method, but it is the proper method for a
residential neighborhood. And now is the time, at the onset, to do the proper thing. The
depreciation suffered from apparent overhead lines is forever. Or
3. Reroute the transmission lines from the substation, south, along the Eastside of the shopping
center and West along the Eagle Bypass to its desired destination.
The most desirable of these three options, is Number 3. These lines should not and do not need
to traverse a well-established neighborhood, as overhead transmission lines are the first obvious signs of
blight.
The present proposal is only a temporary fix, as time passes, in three to five years, as the
neighborhood / community grows, the power company will add more and more lines to the then existing
high power poles and a bad situation only becomes more unsightly.
If, in the dreadful event that you as mayor and city councilmen decide to allow the overhead
transmission lines to be placed on State Street, then you should also plan to approve all future applications
for commercial zoning in this section of Eagle.
Please, for the sake of all the folks who reside along West State Street, do the right thing; take the
overhead lines out to the bypass and west to their destination.
ctfully submitted,
�
L�
red E. Thorson
933 West State Street
Eagle, Idaho 83616-4807
CITY OF EAGLE
P. 0. BOX 1520
EAGLE, IDAHO 83616
IF YOU OPPOSBTHI6 NIOROSAm-THEN YOU NEED
TO UIA JI4PPIJJ$PUT
ON RECORO PLEASEGOM!1O1'HiMETINGON MARCH 23RD 11!
SUBJECT/ LOCATION: CU -23-00 — Idaho Power f'ompany.. Idaho Power, represented by
Layne Dodson, is requesting conditional use approval for a height exception request to
reconstruct an existing power line to hold a new 138hv sub -transmission line and placement of
existing distribution lines underground. The new line will replace the existing line travelling
from the Eagle Substation located on thc south side of State Street approximately 350 -feet east of
Second Street and then westerly to the city of Star, Idaho. The proposed line is to be generally
constructed through the alleyway north of State Street to 300 -feet west of Park Road and then
abutting the north side of State Street to State Highway 44, just west of Ballantyne Road. The
placement of the distribution lines will generally occur abutting the sub -transmission line as well
as the alleyway south of State Street, between thc substation and Park Road
A MAP SHOWING THE AREA UNDER CONSIDERATION IS ON FILE WITH THE CITY
CLERK FOR YOUR INSPECTION
THF EAGLE CITY ZONING ORDINANCE PROVIDES THAT ALL OWNERS OF
PROPERTY WITHIN 300' OF THE BOUNDARIES OF THE APPLICANT'S PROPERTY BE.
NOTIFIED OF THE HEARING
YOU ARE INVITED f0 ATTEND THE PUBLIC HEARING AND OFFER YOUR
COMMENTS FOR CONSIDERATION. IF YOU ARE UNABLE TO ATTEND TITE
HEARING, AND YOU HAVE PERTINENT COMMENTS, YOU MAY DELIVER THEM TO
THE CITY CLERK AT LEAST ONE I)AY PRIOR TO T1 -IE HEARING, AND THEY WILL
BE ENTERED IN THE HEARING kN,Y'QU 2, 3E.I-LALF.
'^r EAGLE CITY PLANNING & ZONING COMMISSION HEARING DAT!
SINCERELY,
Jeff T. Lowe
Planner 11
City of Eagle
t1.•+a12
MAPS ENCLOSED
.•;i! fir'.•.i
Typical Appearance and Size 7=
of Overhead Power Line Structures of Varying Voltage
Lina
1
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1 1114 11
I— ObUO,utio„ L4mo --1
My Name is Stephen Barber. I live at 1366 W. Colville Ct. in Eagle in the
Pine Ridge subdivision. I have a statement to read to the City Council.
Idaho Power first came to the Eagle Planning and Zoning Commission three
years ago seeking an conditional use approval to construct power utility poles with
heights ranging to 85 feet (2 and 1/2 times higher than what is now allowed). The
voice of the people of Eagle replied to Idaho Power's request with a resounding
no...and at that time, so did the Eagle Planning and Zoning Commission.
After several Planning and Zoning meetings and months of debate... in
spring and late summer of 2002 the Idaho Power Company held a series of open
houses explaining their needs and they gave several options of routing connecting
Eagle with Star. Thousands of residents of Eagle were invited to these meetings
and following the open houses a Community Advisory Committee was formed
from the Eagle/Star area, including residents, and business owners along the
proposed routes.
Through 2002 and 2003 this group of Eagle and Star citizens volunteered
their time and energy to sort through all the negatives that these utility poles bring
to our community. Finally they made their recommendation. This
recommendation was one that they would have preferred, not to have to
make...because they wanted the lines buried until past Balentine and completely
out of Eagle. But, if the city can't arrange the franchise fees, or another way to
finance such an endeavor to bury the lines, then at least they selected the one route
that would affect the residents the least.
Their selection was the route now preferred by Idaho Power. Edgewood to
the bypass, south side of the bypass once past Zamzows until meeting the existing
power lines west of Eagle. It was a selection that the citizens of Eagle could live
with having the lines away from residential areas and placed along a busy state
hwy where they belong.
Now we hear that the City Council, after receiving testimony from the
Eagle River Developers, want to revisit running these high tension power poles
right through the heart of Eagle's historic, scenic and residential areas. My
neighbors and I would like to remind the City Council that they represent our
interests first and also they should represent the interests of Eagle as a "rurban"
community. A community that's maintaining its rural charm in the otherwise
increasingly urban setting of Southwestern Idaho. The theme is open spaces,
appealing but firm design standards, and a Western architectural theme featuring
old style street lights and tree lined streets all contribute to a city that confers an
attractive allure to visitors, as well as those who are pleased to call Eagle "home."
This ideal of what Eagle is about comes from the City's own web site. High
Tension power lines along residential streets in the heart of Eagle is not attractive
to anyone.
So if these hideous utility poles must be built above ground, please support
the citizens of this community that have already spoken, and place these poles and
lines away from the heart of Eagle and along the south side of the busy by-pass
where they will do the least harm to our community.
I encourage the city to continue to explore creating partnerships for
financing options and franchise fee agreements for the burying of these lines until
west of Balentine. I would suggest that the citizens of Eagle would prefer the City
Council to spend 2 plus million dollars on preventing the visual destruction of their
community and protecting the citizens property values rather than building a new
city hall at this time.
Thank you,
Stephen G Barber
DIRK KEMPTHORNE
governor
Richard J. Collignon
director
Rick Cummins, Administrator
division of management services
Dean Sangrey, Administrator
division of operations
IDAHO PARK AND
RECREATION BOARD
Robert M. Haakenson
region one
Randal F. Rice
region two
Ernest J. Lombard
region three
Latham Williams
region four
Jean S. McDevitt
region five
Douglas A. Hancey
region six
IDAHO DEPARTMENT OF
PARKS AND RECREATION
p.o. box 83720
boise, Idaho 83720-0065
(208) 334-4199
fax (208) 334-3741
tdd 1-800-377-3529
street address
5657 warm springs avenue
www.idahoparks.org
Prc:CEIVED & FILED
CITY OF EAGLE
MAR 1,i 2O04
Fiia . -
Route to
March 16, 2004
Jeff Lowe, Planner
City of Eagle
P.O. Box 1520
Eagle, ID 83616
Re: CU -9-02 — Sub -Transmission Line — Idaho Power
Dear Mr. Lowe -
My staff has reviewed this proposal for relocating a 70 to 90 foot tall
pole height transmission line down State Street in Eagle.
The Tong -term plan for Eagle Island State Park includes changing the
location of the park entrance from off Linder Road, to off State Street.
We have assessed what we feel the visual impacts will be from within
the park, and feel that the poles will be hidden from view by the
cottonwood trees along the Boise River, which are between the park and
the poles. The line might be visible when sighting up the new entrance
and bridge corridor, however that would be from the NE corner of the
park, and is dependent on where the poles are placed, among other
things.
Thank you for the opportunity to comment on this important project. If
you have any questions, please contact Mary Lucachick, Water
Recreatioq Analyst on my staff at 208-334-4180 X 307.
Since
Ric Co ignon, Director
Ida to D partment of Parks and Recreation
1492 West Powder Ct.
Eagle, Idaho 83616
3-23-04
City of Eagle
P.O. Box 1520
Eagle, Idaho 83616
Attention: Eagle City Planning & Zoning Commission
Dear City of Eagle,
Subject: Idaho Power Application for Power Lines
As property owners impacted by this proposal, we would like our comments to go on
record for consideration by the Eagle City Planning & Zoning Commission. It is our
understanding that Idaho Power Company has proposed alternative routes for their power
lines in the past and that those proposals have been defeated. If the Planning & Zoning
Commission carefully reviews the reasons that previous proposals have been defeated,
they will know why we also oppose the construction of high-voltage power lines within a
close proximity to our residential property. Simply stated, we oppose this proposal for
two key reasons:
• The impact of power corridors on rural and residential properties significantly
lowers property values.*
• Ongoing research of the health effects of high voltage transmission lines suggest a
possible a link between the exposure of EMF and the occurrence of leukemia and
brain tumors among residents near high voltage transmission lines.
*Attached is documentation supporting the above reasons to defeat this proposal.
We would also like to go on record stating that we would pay increased power rates when
Idaho Power Company purchases COMMERCIAL property on which to construct their
power lines. An increase in our electrical bill is a small price to pay to help insure our
present quality of living in Eagle.
We want to be heard on this issue. We do not want high voltage power lines constructed
on residential property for the two reasons explained above. Please request Idaho Power
Company to submit an alternative route on the COMMERCIAL property west of the sub
station (the Eagle "bypass") to serve the influx of growth in our community.
Please consider and honor the opinions of two long time residents of Eagle.
Respectfully.
Ron R. & Kris L. wattcins
Monitoring of Ongoing Research on the Health Effects
of High Voltage Transmission Lines
(Twelfth Annual Report)
Khizar Wasti, Ph.D.
Virginia Department of Health
Division of Health Hazards Control
1500 East Main Street
P.O. Box 2448
Richmond, Virginia 23218
In cooperation with
State Corporation Commission
1300 East Main Street
Richmond, Virginia 23219
March 20, 1997
An annual report submitted to the Virginia General Assembly, 1997 Session
pursuant to Senate Joint Resolution No. 126 of the 1985 Session
and Senate Joint Resolution No. 278 of the 1993 Session.
DVIRGINIA
D MRTMENTi
OF HFALTH j
Protecting You and T%orf. "f
Conclusion
The epidemiologic studies published in the scientific literature during 1995-1996 have not
contributed any significant new information to the existing state of knowledge in explicitly
determining the specific nature and magnitude of the potential adverse effects on human health
attributable to EMF exposure from high voltage transmission lines. Since 1979, more than one
hundred epidemiologic reports have appeared in the literature exploring a possible link between
exposure to EMF and injurious human health effects. The most extensively studied health effects
from exposure to EMF have been the occurrence of leukemia and brain tumors among residents near
high voltage transmission lines and among workers occupationally exposed to EMF. While some
epidemiologic studies have reported an association between exposure to EMF and an increased risk
of certain types of cancer, others tend to evert such a relationship. The results of most studies which
imply a link between exposure to EMF and an increased risk of cancer are only suggestive and are far
from elucidating causation. The reported increases in cancer incidence with respect to cancer type
or site are inconsistent and might be expected to occur on the basis of chance alone or as a result of
some other, yet unidentified, causative factor.
Based on the available literature to date, the overall evidence for a causal link between
exposure to power frequency EMF and increased incidence of cancer appears to be frail, contradictory
and inconsistent, and lacks a clear dose -response pattern. The relative risk inferred in some of the
studies is fairly small and is within the range where experimental bias or confounding factors cannot
be completely ruled out. While a causal association between EMF and cancer is not proven, the
possibility of a small risk cannot be dismissed since it is neither possible nor practical scientifically to
prove a null hypothesis nor can any epidemiologic study rule out the possibility of a weak association.
None of the laboratory studies in experimental animals has thus far augmented the epidemiologic
studies in providing any persuasive evidence to establish a firm association between exposure to EMF
and cancer.
19
THE IMPACTS OF POWER CORRIDORS ON RURAL PROPERTIES
The effects of the construction of high voltage power transmission corridors on properties
throughout Rural Ontario vary widely. A hydro line may traverse a farm in an irregular fashion,
creating small, irregular shaped fields. An irrigation system may have to be replaced, and the
orientation of row crops changed following the construction of a hydro corridor across a tobacco
farm. A market gardening operation may experience difficulties in obtaining workers to plant and
harvest crops in the vicinity of high voltage power lines.
In other situations, the scenic view available to a rural property may be impacted by steel towers,
some 160 feet in height, being built in close proximity to a dwelling. A bush along the rear of a
rural property may be removed and replaced with a row of steel towers and cables. Furthermore,
many owners of properties over which high voltage power lines have been constructed are greatly
concerned about potential health problems occurring as a result of living in close proximity to power
lines.
As well as the immediate impacts on properties arising from the construction of a power line, there
is also the prospect of expropriating additional lands adjacent to the existing rights of way in order to
construct additional rows of towers, as the demand for electricity increases. Furthermore according
to an Ontario Hydro Newsletter, it is possible to increase the height of existing towers in order to
increase the power being carried. This will increase the visual impact of the towers, as well as
anxieties of possible future health problems of area residents.
While some problems may be overcome, at least to some extent, by modifying or upgrading an
irrigation system, other problems such as the visual impacts and potential health problems can not be
easily corrected. The injurious affection to the remaining lands arising from such impacts is not
easily measured.
Page 2
Studies concerning potential health problems associated with high voltage power lines have been
carried out in a number of countries including Canada, U.S.A., Russia, Spain and Sweden. While
these are generally inconclusive, they raise the possibilities of adverse effects to both humans and
livestock living in close proximity to such lines.
The effect upon the value of properties arising from the impacts of towers and cables associated with
500 kv power lines has been the subject of much debate. Hydro officials and property owners
encounter great difficulty in determining the impact of the presence of high voltage power lines on
the property values. Various studies addressing this issue have been undertaken.
The Solandt Commission Report, (April 1975) discusses the difficulties associated with placing the
162 foot high towers so that viewing them will not overwhelm travellers on Highway 401. The
report concludes that a comfortable viewing distance for a tall object is three times its height, or in
this case, 486 feet. While this assumption may apply to motorists travelling at high speeds on an
expressway, it is unrealistic when applied to numerous towers and cables viewed from a residence.
A study entitled The Socio-economic Impacts of Electric Transmission Corridors, A
Comparative Analysis, prepared by the Department of Man - Environment Studies, Faculty of
Environmental Studies, University of Waterloo, was published in April of 1978. The introduction to
Chapter 4, which addresses the effects of transmission corridors on real estate transactions, is as
follows: -
An examination of previous reports has shown that although the question of the impact of
hydro transmission lines on real estate values has been raised and studied many times using
various methods, the nature of the impact has not been conclusively established. Generally,
there is lack of scientific data and much of the reasoning in the past reports has been based on
hearsay or small sample sizes. By using a large sample and statistical analysis techniques,
Page 3
some conclusions can be drawn as to the actual effects on agricultural and estate -residential
properties in the study area.
The study compared the price per acre of lands impacted by a transmission corridor, with control
lands, about one mile distant from the hydro corridor.
The study concluded that the value of small properties (under 10 acres) impacted by a 500 Kv power
line was reduced by 29%, the value of medium size properties (10 to 49.9 acres) was reduced by
about 27%, while the value of large properties (over 50 acres) was reduced by approximately 23%.
The value of small properties impacted by a 230 kv power line was reduced by 29%, while the value
of medium size and large properties was reduced by 26.5% and 16.7% respectively.
The report concludes with the following: -
There appear to be four main areas of continuing social impact.
The strongest of the impacts appears to be the effect of the presence of the transmission
corridor on the market value of affected properties. The analysis of real estate transactions
(Chapter 4) indicated that transmission corridors do, in fact, depress the market value of
property by about 15% to 30% depending on the size and type of property.
During the course of our research regarding the impact of hydro transmission lines on the value of
properties, a number of properties which were purchased, and later sold by Ontario Hydro have been
investigated. In these instances, Ontario Hydro expropriated easements over the properties for 500
kv lines. Although offers of compensation were made, Ontario Hydro subsequently purchased the
entire property, and later resold the properties subject to the easements and transmission lines. In
some cases, the properties were already subject to prior Hydro easements and 230 kv transmission
lines.
Page 4
The properties ranged from small holdings to large acreage farms used for agricultural purposes.
These data indicate the price paid for the properties by Ontario Hydro to be greater than the price
obtained by Ontario Hydro in the subsequent sale of the properties, even when the actual value of
the area subject to the easement, based on a pro -rata acreage value of the price paid for the property
is taken into account.
In order to illustrate this point, the following example of a property which was acquired by Ontario
Hydro, and subsequently resold, subject to an easement has been considered.
In July of 1977, Ontario Hydro expropriated a 250 foot wide strip of land near the centre of a 189
acre farm. A 500 kv transmission line was constructed on the expropriated land. Improvements on
the property included a house, large barn and outbuildings. The towers and cables were visible from
the buildings.
The property was purchased by Ontario Hydro during February of 1978 for $158,950. For 188.932
acres, this indicates a rate of $841 per acre. The area subject to the easement comprised 25.779
acres. The value attributed to the easement, based on a rate equal to 75% of the overall acreage rate
of the farm, calculates to $16,260 (25.779 acres @ $841 per ac. x 75%). If this is deducted from the
purchase price of $158,950, it indicates a value for the farm, after allowing for the value attributed to
the easement, of $142,690 ($158,950 - $16,260). The property was subsequently sold by Ontario
Hydro in April of 1979, subject to the easement, for $115,000. This then indicates a reduction in the
value of the property of more than 19%.
Two decisions of the Ontario Land Compensation Board (now amalgamated with the Ontario
Municipal Board) have addressed injurious affection, and are considered pertinent.
In the case of Simpson, et al v. Ontario Hydro, four transmission towers were constructed on a strip
of land which had been expropriated from a 100 acre farm property. One of these 140 foot tall
Page 5
towers was located about 150 feet from the house. The claimants testified that the tower was
unsightly and could be seen from rooms within the house, the sparking and sizzling of the wires and
illumination of the insulators were considered to be a nuisance, and the transmission lines interfered
with television and radio reception. As well the claimants expressed a fear that the tower may fall
on the house.
The Board concluded that the only alternative was to move the house, and the claimants were
awarded the costs of relocating the house to another site on the property.
In the case of Wilson v. Ontario Hydro, an easement was expropriated across the claimants' land.
The property consisted of a total of 300 acres of scenic rolling terrain, part of which was located in
the valley of the Grand River. Five towers supporting cables were constructed on the easement.
The transmission line and towers were visible from various locations around the house. The towers
were considered to impact the enjoyment of views and the aesthetic qualities of the subject lands.
In this case, the Board concluded that there had been a reduction in the market value of the subject
lands, due to the impact of the easement, towers and cables on the remaining land. The Board
concluded that a 5% reduction in the overall market value of the property was reasonable.
It is apparent from the foregoing that the value of rural properties may be affected by the presence of
high voltage power corridors. However the degree to which property values are impacted depends
on a number of factors including the location of the lines on the property, proximity of the lines and
towers to buildings, the activities being carried out on the property, as well as the scenic qualities of
the property. As properties differ with respect to these characteristics, the impact of the
expropriation and subsequent construction of high voltage power lines across rural properties must
be dealt with on an individual basis.
Page 6
In closing, the following question is directed to those who argue that the presence of a high voltage
transmission line does not affect the value of rural properties: -
If you had the opportunity to purchase, for the same price, two properties identical in all
respects, except for the presence of a high voltage power transmission line on one property,
which would you choose?
I.W.K. Bowles
Senior Appraiser & Consultant
Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name
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Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with large concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name
Address
��1�� W• I9ow(1-wr
1LC W. Gf
npqck),)0d�L�
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Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with large concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Address
emaacee,
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Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name
Address
5-7t-&
/a.,,), 4v. c--1-47.`?- (
tko 71-ck Eetjt
97? w• e�ir.4 Zs.��'
is" A9040, sis Pin
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Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Address
aAJUtLial-A--e/ tV. 61GUI-11 AA)
S (,/,4eciele.,
-,� (OcR toatAck
602 k).
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_
Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name
Address
!Phone #
I. /I rA9 13ga. W. CoI i Ie C; -I. 6Q&iP zD. 831011,,938-561
11 _% i �. 134 IL) _ (.oIV►I�� G� �'z.� sem, q37-coay.2.
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Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name Address
YelAT 1•A a 01 n E, '-3 77 kik) c set ,n t''
r
Ste4-1MdA1 v2240
-Qacp 1 t itkv i10,/!
leVe,Whfik
Phone #
Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with large concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
4/ Address
r qz A14 4oNAi 144 c7. E j1 -Z
a g W . &naij/o Cei024.47)
117 S, Cck
57) S.
l-
w f' -
i
J
Phone #
c739-3 0/6
73‘7-3f)/k,
Icaq- eiat;,
`t 3q Cf S L
Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with Targe concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
NO* Address
itilot/171ewa X93?t_c6
Phone #
93f:(5147
9pt-/ oy
cc- 3-21-10'(
Petition
We the undersigned are in opposition of the proposed State St. routing of the Idaho Power Sub -Transmission
Line(consisting of 70' - 90' steel poles with large concrete bases, twice the height of existing wood poles)
through the Eagle Dowtown Historic District and Residential areas. Route identified as CU -9-02.
Name
Address
&Or/ 1306' IA/. A41/4..1- Gi-
l/if/1d
il d /771# It/gei ; 61
IL1&7 J,c,,c j-
y ifs rl� .4 k
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WIZ l� . (]i(•o Com'
6511 ve l<<.4 j £ .f 4..
/ 5d () (4.A (1.
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1.',
EAGLE CITY COUNCIL
Public Hearing Sign-up Sheet
Subject: CU -9-04 - Public Service Facility Height Exception Reauest - 138kV Sub -Transmission
Line - Idaho Power Company
March 23, 2004
7:30 p.m.
NAME rr--
�as�''t b(l_h-Ee6K
ADDRESS/
TELEPHONE
17 kt. eufws Sr
9e TD :,?GS 93° 9
jut Skc` 4t
$774/L QillkleM/"6
JA-kbw glafick.
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SUBJECT
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TESTIFY
YES/NO? PRO/CON
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EAGLE CITY COUNCIL
Public Hearing Sign-up Sheet
Subject: CU -9-04 - Public Service Facility Height Exception Reauest - 138kV Sub -Transmission
Line - Idaho Power Company
March 23, 2004
7:30 p.m.
ADDRESS/ TESTIFY
NAME TELEPHONE SUBJECT YES/NO?
4 /(40f0 c-4461�-d l (r' 441-4.
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EAGLE CITY COUNCIL
Public Hearing Sign-up Sheet
Subject: CU -9-04 — Public Service Facility Height Exception Request — 138kV Sub -Transmission
Line — Idaho Power Company
March 23, 2004
7:30 p.m.
NAME
ADDRESS/ TESTIFY
TELEPHONE SUBJECT YES/NO? PRO/CON
Page 1 f43
H:1000NCILIAGENDAICCSIGNUP.WPD
EAGLE CITY COUNCIL
Public Hearing Sign-up Sheet
Subject: CU -9-04 — Public Service Facility Height Exception Request — 138kV Sub -Transmission
Line — Idaho Power Company
March 23, 2004
7:30 p.m.
NAME
ADDRESS/ TESTIFY
TELEPHONE SUBJECT YES/NO? PRO/CON
Page 1 fik
H:I000NCILIAGENDAICCSI NUP.WPD
Mary -Frances Agrusa
2631 West Conifer Drive
Eagle, Idaho 83616
208-938-3306
March 17, 2004
Mayor Nancy C. Merrill
Stan Bastian
Steve Guerber
Scott Nordstrom
Lynne Sedlacek
310 East State Street
Eagle, Idaho 83616
Dear Mayor Merrill and Eagle City Council:
CITY OF ,u
Please accept my apologies for this letter arriving at the last minute. I just found out
about the meeting on the 23`d regarding the transmission lines proposed by Idaho Power.
If at all possible, I am asking that this item be tabled until the next meeting. I have
spoken with at least 25 residents regarding this issue and all of them expressed a desire to
attend this public hearing, but unfortunately most, like myself; will be out of town due to
Spring Break. If postponing this topic cannot be arranged, l would like to state my views
on this proposal to be entered into city record.
After attending the public hearing on November 13, 2002, I became familiar with this
proposal and the conflicts therein. I know that no one wants these power poles installed
above ground, but providing more electricity to this growing community is a necessity. I
think it is paramount that the long term implications are seriously addressed. Eagle is
such a beautiful place with a wonderful small town feel. This city's government has done
an impeccable job in seeing that each development retains that feel. I can't think of a
quicker way to infringe upon that than to let these obtrusive poles be erected.
Studies have been done to determine the most economical and direct route from the Eagle
substation to Star, but I think it would be tragic to mar a narrow street such as Old State
Street with these enormous poles. It would look completely out of scale. Even worse, is
the thought of the river area being tarnished by such an unsightly and overpowering view.
Additionally, it has been brought to my attention that a condition of approval was placed
on the application Idaho Power submitted in 1995 to bring in power poles from the east.
It stipulated that when Idaho Power expanded their system, the Eagle substation would be
moved out of the downtown area. To my knowledge, this has not been brought up or
discussed.
I understand that the idea of installing underground lines is not being embraced by Idaho
Power due to the cost. Perhaps another reason is that it is something they are not familiar
with and thus it is a daunting and an intimidating idea to them. Nine million dollars is the
figure that I've heard it would take to install buried lines. That is an enormous amount of
money, but it seems that in the long run it would be well worth it. If the cost was spread
out over time among rate increases, taxes, levies, private and corporate donations and
fundraisers, it probably wouldn't be a crippling impact to the citizens of Eagle.
This is a complicated issue and I realize that I am not aware of all the facts and hurdles
that are involved in making this decision, however, sometimes the best decisions are not
the easiest ones. I amnot just a c tizen_that is speaking up when there is something to
complain about. I am willing to give my time in any way it could be used to help in this
situation, be it serving on a committee, raising funds, canvassing, petitioning, etc.
Attached are some documents that are particularly interesting. Please take a moment to
review them as they provide some valid arguments to the implementation of such
electrical lines.
In closing, I implore you to do whatever is in your power to prevent this atrocity from
impacting the beauty and property values in Eagle. Thank you for your time.
Sincerely,
Mary -Frances Agrusa
Attachments
Power Lines and Property Values:
The Good, the Bad, and the Ugly
David R. Bolton, MAI
David R. Bolton. Inc.
Austin, Teras
Kent A. Sick
Womack. McClish, Wall & Sick, P.C.
Austin, Texas
§ 1.01. Abstract.
This paper begins with a general review of major scientific and appraisal writings
since 1993 on the subject of EMFs and their effect on real property value. Further, there
is a brief examination of current cases, statutes, and municipal regulations on the st:bject.
Finally, the authors explore the pros and cons of corridor valuation for expansion of
existing utility easements, with an emphasis on the right-of-way marketing efforts of
several major utility companies and using corridor sales data as opposed to traditional "at
the fence" methods.
§ 1.02. Review of Original Conclusions.
In 1993, one of the authors took a long look at the then -current relationship
between electric transmission lines and surrounding real estate values. In the artic1E:,
"Properties Near Power Lines and Valuation Issues: Condemnation or Inverse
Condemnation?," this author presented a broad overview of the subject including the
following:
• An examination of scientific inquiry of the day concerning the existence of
actual adverse effects of electromagnetic field radiation (EMF) from ma; or
transmission lines on human health;
• Public perception of those effects;
• Straw polis of real estate professionals on their views of whether these lines
impact values;
• A survey of 100 residential properties abutting a major power line corridor in
Houston relative to their peer properties not next to the line;
• A brief review of four important condemnation cases dealing with the
potential impact of EMFs on health and property values, as well as the
admissibility of expert appraisal evidence; and
• A developing method for analyzing compensation to landowners for
placement of a new power line which took into account an effective easement
area, in addition to the actual easement required by the condemning entity.
At the time of the original article, scientific findings on the issue of negative health
effects were inconclusive, sending mixed signals to the public. The author found,
however, that general public perception that EMFs were harmful uniformly drove the
values of adjacent property downwards, a finding supported both by his discussions with
other real estate professionals and by his residential property study in Houston.
Emerging case law at the time supported the admissibility of expert testimony based on
"fear in the market place" diminishing the prices of affected properties. In addition, some
municipalities had already enacted subdivision plat requirements and other regula' ions
which seemed to support the author's effective easement theory.
Since I993, there have been significant developments on all fronts. Scientifically, the
debate has reached the lofty halls of the Council of the American Physical Society and
the U.S. Academy of Sciences. Real estate professionals, however, even those
performing studies on behalf of the power line companies themselves, are continuing to
conclude that power lines are bad for property values. On the case law front, in general,
there is continuing support for the admissibility of expert appraisal evidence bases on
"feat in the market place," but there is growing criticism of testimony deemed to Le "junk
science," fueled by the Daubert and Robinson opinions.'
§1.03. Scientific conclusions: still inconclusive.
Scientific investigation of the potential adverse impacts of radiated fields has 'widened
to include not only the low frequency emissions of transmission lines, the subject of this
paper, but also high frequency emanations from cellular phones and microwave towers.
Though the data indicating that higher frequency emissions may be harmful seems much
more settled in the literature than that concerning low frequency emissions, it is probable
that public perception blends the two such that general fear of EMF exists in the public
mind across the board.
111 Good news -
In an attempt to quell some concerns, the Council of the American Physica.
Society, a body of renowned American physicists, issued the following statement in
1995:
The scientific literature and the reports of reviews by other panels show no consi:,tent,
significant Link between cancer and power line fields... . While it is impossible t, prove
that no deleterious health effects occur from exposure to any environmental factor, ...the
conjectures relating cancer to power line fields have not been scientifically
substantiated?
One year later, the U.S. Academy of Sciences joined the physicists in their conclusions:
...Mlle current body of evidence does not show that exposure to these EMFs presents a
human health hazard. Specifically, no conclusive and consistent evidence shows that
exposure to residential electric and magnetic fields produces cancer, adverse
neurobehavioral effects or reproductive and developmental effects.'
These statements were foreshadowed by a British group of epidemiologists known as the
Advisory Group on Non -ionizing Radiation ("AGNIR") in 1994. AGNIR, however,
reserved judgment on the issue with regard to childhood leukemia: "...epidemiological
' Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993); E.I. du font de
Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
' Council of The American Physical Society, Power Line Fields and Public Health, Public Statement
issued April 22, 1995.
NRC. Possible Health Effects of Exposure to Residential Electric and Magnetic Fields. National
Academy Press, Washington DC (1997) (originally issued in 1996).
2
studies [do] not establish that exposure to EMFs is a cause of cancer although taken
together they suggest that the possibility exists in the case of childhood Ieukaemia.""
[2] Bad news.
The most recent official pronouncement on the subject reopens the debate and
muddies the waters more than ever. In June of 1998 an expert panel convened by the
National Institute of Environmental Health Sciences ("NIEHS") at the behest of C ongress
issued an alarming press release. The panel concluded that low frequency EMFs, like
those surrounding transmission lines, should be classified as a Group 2B human
carcinogen under the International Agency for Research on Cancer classification scheme.
A Group 2B classification means that "the agent (mixture) is possibly carcinogeni.: to
humans. The exposure circumstances entail exposures that are possibly carcinoge:iic to
humans."s
[3] Ugly news.
As both the following look at subsequent appraisal literature and common ::ease
make clear, the continuing scientific uncertainty over the adverse health consequerces of
EMFs only serves to perpetuate the debilitating effect of power lines on abutting property
v al ues.
§ 1.04. More Recent Literature and Surveys.
[1 ] Hamilton/Schwann.
In 1995, two academics named Stanley Hamilton and Gregory Schwann published
a highly empirical study of residential home prices in Vancouver, British Columbia. The
study contrasted sales in four separate Vancouver neighborhoods of residences adja:ent
to power lines of 60kV or greater from 1985 to 1991. The sample size was impressive,
containing 12,907 transactions in the four study areas. The percentage decreases in
property values were not as great as those originally measured in the Houston area i a this
author's 1993 study. Hamilton/Schwann nevertheless concluded to an undeniable drop in
value: "We find that properties adjacent to a line lose 6.3 percent of their value due to
proximity and the visual impact.s6 The well -supported findings presented in this article
lead one to conclude that the depressing effect power lines have on property values i s not
merely an American phenomenon.
[2] Cowger/Bottemiller/Cahill.
These three real estate professionals employed by the Bonneville Power
Administration in Portland, Oregon, published another study in Right of Wav maga2ine
NRPB, Electromagnetic Fields and the Risk of Cancer: Supplementary Report by the Advisory Group
on Non -Ionizing Radiation of 12 April 1994, Doc. NRPB, 5, No. 2, 77-81 (1994).
s MEM, Pane/ Evaluates Electric and Magnetic Fields for Health Effects, Press Release PR #1148,
June 24, 1998.
`Stanley Hamilton and Gregory Schwann. "Electric Transmission Lines and Property Value," Land
Economics, Vol. 71, No. 4, p. 436 (1995).
3
in 1996. This study again concluded that overhead transmission lines negatively
influence value: "Overhead transmission lines can reduce the value of residential and
agricultural property. The impact is usually small (0-10%) for single-family residential
properties. The greatest impacts have been measured in intensively managed agricultural
property (irrigators, etc., and in rural, second (vacation) home developments."'
[3] Development Strategies Survey.
In 1995, a group of real estate consultants in Missouri conducted a survey of
residential brokers and salespersons, some 167 professionals, all in the St. Louis area.
The results were published in a study concluding that 54% of those surveyed believed
high voltage overhead electric transmission lines ("HVOETLs") "very negativel.,
affected" residential property values; another 23.8% considered HVOETLs to
"somewhat negatively" affect property values.°
[41 Rikon article.
In January of 1996, a New York attorney named Michael Rikon published an
article in the Appraisal Journal following up on the landmark Criscuola decision, which
had just been handed down at the time of this author's original paper.9 Criscuola vas the
Landmark New York Supreme Court decision allowing appraisal eviders in trans;mission
line cases to be based uposfear ip the market place rather than actual epidemiolo;ical
evidence of adverse health effects from EMFs. Rikon noted that the Criscuola cc urt's
em race of the "fear in the marketplace" theory of damages had spread beyond •
transmission line cases to include actions against a cell phone provider to stop
construction of a tower, against Amtrack to oppose electrification of its tracks in New
York, and in increasing numbers of inverse condemnation cases)° Clearly, the Criscuola
buzz continues to grow.
[51 Gimmy seminar.
In late 1994, Arthur Gimmy, MAI, presented a seminar before the EMF
Regulation and Litigation Institute." In part, the seminar presented a matched -salts
analysis of California residential property that indicated diminutions in lot values from
properties abutting power line easements of 18% to a whopping 53.3%.12 While the
methodology employed in this study does not seem as rigorously empirical as that used
' J.R. Co ager, Steven C. Bottemiller, MAI, and James H. CahLIL "Transmission Line Impact on
Residential Property," Right of Way, September/October 1996.
' Value of Residential Property Proximate to High Voltage Overhead Electric Transmission Lines.
Development Strategies, Inc. (1995).
' Michael Rikon. "Electromagnetic Radiation Field Property Devaluation," The Appraisal Jciurnal,
January 1996, p. 87.
i° Id. at p. 89.
" Arthur Gimmy, MAI. The Potential Impact of EMIF On Property Values. EMF Regulatlor. and
Litigation Institute, New Orleans. (1994).
" Id.
4
by HarniltonlSchwann, it may demonstrate that California landowners are more sensitive
to the EMF property devaluation issue than those in British Columbia.
[61 LCRA. Commissioned Study.
More recently, in late 1997 the Lower Colorado River Authority commissioned a
study to quantify the property value impact of electric transmission lines in and around
Georgetown, Texas.t3 The study was performed by a local MAI who the LCRA had also
hired tc do all of the appraisal work for the concurrent acquisition of numerous easement
parcels for a new 138kV line. Well over 100 real estate transactions were analyzed,
including both sales from eight different residential subdivisions and vacant land sales.
Even it a study prepared for a condemning entity in connection with a number of pending
acquisitions, undeniable value damage was found:
From the data analyzed, it is concluded that from an overall value perspective, an electric
transmission line easement has IAss . % impact nn price,and in most inst es,
less thanitnnact on orice.1'
It is important to note that the appraiser in this study was referring to a 10% overall
impact 3n price, not just on the value of the land immediately affected by or adjacent to
the easement. For those areas, he reached a specific conclusion:
...[1]t is concluded that the area located within an electric transmission line easement has
3 90% diminution in value due to the presence of rhe easement. ... [and) [i]t is concluded
that an area 200 feet wide adjoining the proposed easement has some diminished value.
The extent of the diminished value can be dependcnt on various factors which would
nclude the location of the casement relative to the whole tract, and the physical
:haracteristics of the remainder."
This au hor's original 1993 estimate as to the probable width of an effective easement
was 150' on either side of the actual easement.16 The fact that a study prepared on behalf
of a ma or Texas condemnor reached a similar conclusion demonstrates the validity of the
effectiv : easement theory.
§ 1.05. Municipal Regulations and Statutes: More Bad News.
:11 Set -back requirements.
Since the original article, this author has become aware of building set -back
requirements from HVOETLs imposed by a few Texas municipalities that convert
effectiv.: easements from theory to undeniable reality in some jurisdictions. For instance,
the Tomn of Flower Mound, Texas (just north of Fort Worth) mandates that no building_
be consructed within 100' of the edge of the right-of-way or easement of' any high
'voltage (60kV or higher) electrical transmission line."
" Larry :Corel, DIAL Impact of Electric Transmission Lines on Value. (Study prepared for LCRA).
1997.
" Id. atp.94.
's Id
16 David R. Bolton, MAI. "Properties Near Power Lines and Valuation Xssues: Condemnation or
Inverse Condemnation?" Institute on Planning. Zoning. and Eminent Domain. Southwestern Legal
Foundation. (1994).
" § 3.050)(8), Land Development Code, City of Flower Mound, Texas.
5
Although its requirements are not as concrete as those of Flower Mound, the City
of Red Oak, Texas (south of Dallas) has enacted similar restrictions tied to height. In Red
Oak, buildings in residentially zoned areas adjacent to elevated power lines or towers
must be set back an additional one foot for every foot by which the neighboring
transm ssion line or tower exceeds 15'.18 For instance, if a residential property abuts a
90' high transmission line or tower, an additional 75' building setback would be imposed.
The Ci.:y of Plano has related provisions tied to tower or line height.19 Obviously, all
other things being equal, a purchaser comparing properties affected by these regulation -
imposed effective easements would pay something less for them than for other competing
properties unaffected by such setbacks.
[2] Potential Legal Liability.
In addition, the Texas Health and Safety Code contains at least one provision
related to high voltage power lines (anything over 600 volts) that the authors suspect
could lave a chilling effect on the values of the underlying servient estate beneath an
electric line easement. Chapter 752 of the Code sets out a host of prohibited activities in
and arc and power lines, such as restrictions on operation of certain types of machinery or
structwes near the line without posting a statutorily -required warning.2° Curiously, the
Texas Legislature even saw fit to declare violation of this chapter a criminal offense
punishable by jail time, fines, or both.I' Perhaps the most damaging provision, however,
is the cne that establishes civil liability to the power line company for any contacts with
the line: caused by violations of the statute:
If a violation of this chapter results in physical or electrical contact with a high voltage
overhead line, the person, firm, corporation, or association that committed the violation
is liable to the owner or operator of the line for all damages to the facilities audfarsa—
liabilizy that tt gnv ter or operator incurs as a result of the contact . --2 added.)
While it first blush an underlying landowner's liability to a power line company for a
downed transmission line or tower seems obvious, the effective global indemnity of the
Iine operator contained in the last clause could definitely negatively impact underlying
property values.
Consider this hypothetical example. Developer John, whose 300 acre tract is
bisected by a 138kV power line easement, is preparing the surface of his newly
subdiv :ded tract for roadways with a bulldozer. Inadvertently, the operator of the
bulldo;:er bumps one of the towers supporting the line. The tower, having been
incorrectly engineered and installed by the power company, immediately falls over on the
operator, instantly killing him and knocking out power to all users serviced by the line.
One of the users, a major semiconductor manufacturer, sues the power line company for
consequential damages flowing from the manufacturer's closure of two full shifts while
the line: was being repaired and re -energized. Can Developer John possibly be held
liable?
" 1989 'Unified Development Code, City of Red Oak. Texas.
39 § 3.8(1, Zoning Ordinance, City of Plano, Texas.
39 TEx.:3E.<H & SAFETY CODE ANN. § 752.004 (Vernon 1992).
z' TEx.:3EAL.TH & SAFETY CODE ANN. § 752.007 (Vernon 1992).
:2 TEx.:3EALTH & SAFETY CODE ANN. § 752.008 (Vernon 1992).
6
In 1984, a Federal Court sitting in Texas concluded that the "all liability incurred"
language of the statute provided full indemnity to an electric utility for any claims arising
out of any violation, including liability for the electric utility's own negligence.3
Subsequently, in 1991 a Texas appeals court held the language extended even to the
"violator" being responsible for the power line operator's attorney's fees, costs, and
interest .24 There are few -- if any — other types of "improvements" to real estate that
require an underlying landowner to be responsible for someone else's negligence.
§1.06. A Quick Case Review.
[1] Old cases.
The author's first look at power lines and diminished property values in 1993
contained synopses of three cases from literally across the country standing for the
propos-.tion that fear in the minds of potential purchasers of real estate was an admissible
element of damages in a statutory condemnation proceeding." These cases — Criscuola2'
from New York, Ryan'" from Kansas, and Daley`s from California — have all survived the
appellate process and continue to be controlling law in their respective jurisdictions.
One important distinction has been drawn from this principle of law, however, at
least in California. In San Diego Gas & Electric Co. v. Cot=alt 9, a landowner tried to
make cut a claim for inverse condemnation caused by a pre-existing power line based in
part on a diminution in value of his property due to fear in the marketplace of EMFs. The
court declined to accept that Daley controlled. The court held rather that while fear in the
market?lace was an acceptable element of damages in a conventional condemnation, such
fear co .tld not create a new cause of action for inverse condemnation when the power line
in question already exists 3°
[Z] Coker.
One relatively recent Federal case merits discussion, though it does not directly
involve; power lines. In U.S. v.14.38 acres of Land (Coker)31, the Fifth Circuit Court of
Appears embraced the fear in the marketplace theory of damages. Coker involved a
condemnation for a new levee which the landowner's appraiser testified would create
"fear" • hat land on the river side of the levee would be significantly more likely to flood,
thus decreasing its market value. The court upheld the admissibility of this testimony in
this co:ltext, relying on a prior power line case:
Causes of diminution of market value, [such as] the construction of a powerline carrying
high voltage electricity across a tract of land .which create in the general public fears
" Moor= v. Southwestern Elec. Power Co., 737 F.2d 496 (5th Cir.1984), cert. denied 105 S.Ct. 1181.
u Olson v. Central Power and Light Co., 803 S.W.2d 808 (Tex. App..—Corpus Christi 1991, writ
denied).
u See fn.16.
:s Criscuola v. Power Authority of New fork State, 621 N.E.2d 1195, 81 N.Y.2d 649 (1993).
=' Rvan v. Kansas Power & Light Co., 815 P.2d 528 (Kan. 1991).
z' San Liege Gas & Electric Co. v. Aalev. (1988) 205 Cat. App.3d 1334, 253 CaI. Rptr. 144.
" 55 Cat. Rptr.2d 724 (CaL 1996).
'4 Id. at 754.
aa 80 F.: d 1074 (5t° Cir. 1996).
7
which make the propertyless.desirable and thus diminish the market value of the
property are proper to be considered, though as a separate item oUd mage might baoo
speculative and conjectural to be submitted to the Court.31
Interestingly, the lower court in Coker had excluded entirely the testimony of Coker's
appraii al expert, finding essentially that his opinions were "junk science" under the
Supreme Court's now famous 1993 opinion in Dauber% v. Merrel Dow Pharmaceuticals,
Inc.33 ::n holding that Coker's expert should have been allowed to testify, the court
observ'd:
The value of property taken by the Government...is largely a matter of opinion. Since
there are no infallible means of determining with absolute conviction what a willing
buyer would have paid a willing seller for the condemnee's property at the time of
raking, eminent domain proceedings commonly pit the Government's valuation experts
against those of the landowner...Recognizing the critical role of expert witnesses in
these cases and the strong interest on both sides that compensation be just, trial courts
should procccd cautiously before removing from the jury's consideration expert
assessments of value which may prove helpful.
The Coker court thus acknowledged the obvious: "how much" in any given
condemnation case, particularly ones involving the establishment or expansion 0114.0_,
voltage- power lines, will always be a matter of opinion for competing appraisal experts to
set fo and for a fact finder to ultimately decide.
§1.07. Newer Issues: Utility Corridors Can Be Extremely Valuable.
Within the past few years a new industry has emerged requiring the use of right-
of-way corridors for communication lines and fiber optic cables. These communication
lines ale responsible for transmitting data involving national security, banking, world
wide v`eb, tele -conferencing, and most types of data transmission. What better avenues
to insult the hardware necessary for this product than existing utility corridors, which
already offer the physical, economic, and legal attributes for this kind of use.
[1) ATF or True Market Value? A Question of Highest and Best Use.
Acquiring rights for Communication lines by condemning entities has been fairly
rare until recently, primarily because there was no need. As the need for communication
lines ircreased, the utility companies have begun to acquire these property rights.
Natura ly, the valuation issue is now becoming a factor. The position taken by most
companies with the power of eminent domain is to value the property rights as simply the
pro rata share of the easement value as determined by the "at the fence" (ATF) prices.
From a pure appraisal perspective, this method is inappropriate and does not
conform with generally accepted appraisal practices set forth in the Uniform Standards of
Profess ional Appraisal Practices (USPAP). "In developing a real property appraisal, an
appraiser must be aware of, understand, and correctly employ those recognized methods
and techniques that are necessary to produce a credible appraisal.s3S The foundation of
33 Id. at 1079.
" 113 S.Ct 2786 (1993).
la Coker, 80 F.3d at 1077.
" Standard 1, Uniform Standards of Professional Appraisal Practice. Appraisal Standards Board of
the Appraisal Foundation (1998).
8
proper appraisal methodology is an analysis of a property's value based on its highest and
best us e, defined as "[t]he reasonably probable and legal use of vacant land or an
improved property, which is physically possible, appropriately supported, financially
feasible and that results in the highest value."36 The basis for appraising property rights
of this -:ype is plainly set out in the Appraisal Institute's text book, which is universally
accepu d as the best authority: "Analysis of the highest and best use of the property as
though vacant and of the property as improved is essential in the valuation process.i37
In the evaluation of a taking of additional property rights within an existing right
of way corridor, very rarely can the highest and best use be anything other than for those
kind of uses that are already found within the corridor. That being the case, those
property rights being acquired must be appraised based on that highest and best use. ATP
prices iarely have anything to do with the market value of property rights within the
establi: hed corridor.
[2) Corridor Property Availability.
The proper method for appraising properties within a corridor is to use market
data occurring within a corridor. There is a vast amount of existing corridor space
currently available, literally hundreds of thousands of miles. If buyers and sellers for a
particu .ar type of property exist in the market place, then market data will be available to
the appraiser. Consider the following examples of corridor property availability.
• Union Pacific advertisedonthe rear cover of Right of Way from at least 1993
through 1996.38 With a neap showing the approximate locations of their
corridors, the ad states:
"20,000 Mile Right of Way Corridor and Sites
Available Throughout the West
Transmission Lines Signboard Sites
Electrical Industrial Sites
Pipelines Water Rights
• One major Texas power line company advertises the sale or lease of rights of
way corridor properties located throughout southeast Texas for various uses,
including mineral leasing, commercial leasing, drainage easements, roadways,
pipeline easements (private), commercial large -demand pipelines, and for
communication uses.
• Another national pipeline company advertises their right of way corridors for
lease only, with lease rates being based on an annual amount per mile.
• The Lower Colorado River Authority has made leases for communication
lines basedon a rate for each fiber, per mile, per month. Indeed, the LCRA
openly solicits fiber optic easement customers over the Internet:
LCRA has 18 dark strands from Austin to Lake Buchanan, 30 dark fiber
strands from Austin to LaGrange and 24 dark fiber from Austin to San
Antonio available for license. The terms of the license, price, and fiber
Appraisal Institute, The Diuionarp of Real Estate Appraisal, Third Edition. (1993).
"Appraisal Institute, "The Valuation Process," p. 87. The Appraisal of Real Estate, Eleventh Edition.
(1996).
31 Right of Way, various issues, 1993 through 1996.
9
count are negotiable. Typically, the primary terrn of the license will be
15 years with an option to renew for 10 years_..
In order to expand the fiber routes beyond the core river system,
the LCRA seeks proposals from Carriers. Depending upon the amount
of fiber requested in a proposal, LCRA will install the fiber cable and
license dark fiber reserve capacity to a third party. The LCRA is
positioned to leverage its transmission ROW and towers, which includes
approximately 2300 miles of transmission lines and over 200 electric
substations.39
These advertisements have all the earmarks of typical market forces at work. Without
doubt, these examples are indicative of market data for rights of way throughout Texas
and the: United States for established easement corridors.
[3] What Happened to The Landowner's Rights?
Usually forgotten are the underlying rights of ownership of the landowner. When
a utility company has obtained the right of way and created a corridor, but has not
obtained a specific property right (i.e. a fiber optic cable), then the value to the property
owner :should be assessed or appraised based on its highest and best use. This conclusion
necessitates that market data (sale and lease) within utility corridors be used for
comparison purposes. It is inappropriate to use ATF prices when evaluating the rights of
owners:rip within the corridor for a condemning authority and ignore the data and
evaluation methods used when the same rights are sold or leased to users of corridor
propert :es.
jai Expanding au Existing Easement: The Condemnor's Valuation.
Consider this scenario. A major utility company owns a prior easement
which grants the rights for three electric transmission lines across an approximate 110
acre tra:t of land in central Texas. A petition is filed to obtain additional property rights
within the easement for the "right to construct, place, operate, maintain, reconstruct,
replace, rebuild, upgrade, remove, inspect, patrol and repair communication lines and
facilities and all necessary and desirable appurtenances on, across, and within the
property..." The proposed easement is within the existing 75 -foot easement and the
length i.; approximately 1849 lineal feet or about 113 rods.
Citing sales data averaging about 150 acres in size and prices averaging about
51000.00 per acre, the utility company's appraiser concludes to a market value for the
communication easement with the following:
3.24 acres (area of the existing easement) x 5 1000.00 per acre
Value of the property rights within the existing easement
Value of the Communication Easement
[b] The Landowner's Valuation.
79 httpattiww_lcra.org/telecomifiber.html
10
= 53,224
95% or 53,078
5%or$162
Assume for purposes of this hypothetical that the condemnor utility
company had recently leased a fiber optic line to a communication company on the basis
of 521 312/year, equating to a value of S266,400 (based on a capitalization rate of .08) or
S832 per rod. Utilizing this and other actual market data of sales and lease information
from c )mparable corridor uses averaging between 5300/rod and 5880/rod, the
landowner's appraiser, considering the property's true highest and best use, could
conclude to a significantly higher value:
113 Rods x S500 per rod = 556,000
Given - he foregoing example, it seems manifestly unreasonable for a utility company to
consider only the ATF value when it is purchasing an easement and then turn around and
sell or : ease the same easement, based on its true highest and best use, for an exponential
profit.
§ 1.08. Arguments Against Corridor Valuation Theory.
[1) Corridor Transactions Are Inadmissible Data.
The traditional rule in Texas has long been that market data involving entities
with the power of eminent domain are legally inadmissible to determine just
compel sation, because such transactions are not arms -length as a matter of law.' There
are obv: ous inequities raised when a utility company is allowed to take using one
valuaticn method and sell based on another. This fact, considered along with the
rationale behind the prohibition against sales involving condemnors, leads the authors to
believe that a good faith argument exists for the extension of the existing law.
jaj Does The Existing Rule Make Sense Here?
The Texas prohibition against using transactions involving condemning entities
really arose in the context of appraisers using sales to condemning entities as opposed to
from them. As one court stated:
Me reason for excluding proof of such sales is that they do not meet the willing seller -
willing buyer concept; they are made under a direct or an implied threat of condemnation
2nd, theoretically at least, are not free and voluntary.;'
Applied in that context, the rule makes perfect sense. But what about when a condemnor
is advenising to sell right-of-way, or the right to use right-of-way? Potential purchasers
are not compelled to buy at that condetnnor's price; they can condemn their own right-of-
way elsewhere or purchase from some other supplier. It seems logical that a meeting of
the minks has occurred when a purchaser acquires rights for an advertised price, and that
such sales (or leases) constitute competent market evidence, regardless of whether one or
both paries to the transaction possess the power of eminent domain.
[b] Bauer v. Lavaca-Navidad River Authority
At least one Texas case indicates that if a landowner demonstrates that the
highest and best use of desired property is for an easement corridor, then corridor sales
la Gomez Leon v. State, 426 S.W.2d 562 (Tex. 1968).
" rd. at565.
11
are apf ropriate data to consider in the appraisal problem.42 In Bauer, the River Authority
sought to condemn a 50' wide water line easement across Bauer's property. The location
of the desired easement was in the midst of an established, 432' wide "easement corridor"
contair.ing eight other easements previously granted to various oil companies and electric
utilitie:;. The court held that Bauer should have been permitted at trial to prove that the
highest and best use of his property was for an easement corridor. Further, the coup
found that sales of easement rights-of-way within such corridors were relevant and
admissible, provided the sales did not involve entities with the power of eminent domain.
In the (pinion, the court set out a guideline to determine when such evidence was proper.
...[A}ppellant Bauer offered testimony that the highest and best use of
the land in question was the sale of pipeline easements in his "pipeline
corridor." He showed that the corridor was well-defined, and he offered
testimony regarding the value of the condemned land by showing what
he and his neighbor received for the sale of other pipeline easements to
prior companies. ... Bauer's right to have the fact finder consider the
land's highest and best use in determining its market value was thus
denied."
The undisturbed holding of Bauer leaves open the right of Texas landowners to
claim aa easement comdor as highest and best use, and hints that sales}roni condemning
entities of corridor rights-of-way may become fair game for an appraiser to consider
when d:termining value for this property.
[c] Other Support for Using Sales From Condemnors
Other support, although limited, for the valid use of comparable market
data involving public or quasi -public entities include various environmental groups and
some right of way professionals. Their position calls "for the inclusion of a highest and
best use for environmental preservation in a real estate appraisal based on comparable
market data evidence. Some of the environmental value proponents argue for use of
public *.gency comparable sales data, some for private sales data and some for both.""
In the state of California, where most of the debate over this issue originates, there
is, in addition to prevailing case law, a provision in their evidence code which: (i) allows
for a miner of the appraisal highest and best use of a property and the use for which a
public entity is acquiring it; and (ii) allows use of prices paid by public agencies for open
space as comparables for valuation purposes where such purchases were voluntary and
not and.tr the threat of condernnation.45
Zertainly, the current argument against using market data involving a party
having 'he power of eminent domain currently predominates. The inherent inequity of
'a Bauer v. Lavaca Navidad River Authority, 704 S.W.2d 107 (Tex. App.—Corpus Christi 1985, writ
rcf'd.
'Bauer. 704 S.W.2d at 113.
" Wayne C. Lusvardi, "The Flawed Logic of Sales Substitution in the Appraisal of Land Suitable for
Habitat Preservation or Mitigation," Right of Way, blay/June,1997.
j %Vayne C. Lusvardi, "A Critique of the Position Papers on theValuation of Land Suitable for
Habitat Preservation or Mitigation," Right of Wad, November/December, 1996.
12
this rule in the context of corridor valuation, however, calls for modification of existing '
Texas law. Regardless, appraisers ought to acknowledge market reality.
[2] The Condemnor Created the Value.
Another argument commonly urged by condemnor utility companies is that they
createc. the corridors through the original acquisition such that any future benefit would
accrue to their rights of ownership.
Consider the following example, though, that exposes the flaw in this logic. The
State Eighway Department builds a new freeway along the.property line of Mr. Jones'
farm near the edge of town, creating valuable commercial frontage. A couple of years
after completion, Wal-Mart comes along and wants to purchase Jones' farm which now
has fro.atage along a new freeway. Mr. Jones contributed no land nor any monies for the
construction of the roadway. Should the value of his property be based on who
assembled the right of way or who built the roadway? Obviously, once the road is built,
future .ppraisals of Jones' property would be based on its new highest and best use,
without regard to who built the road. Likewise, when appraising property rights within a
corrido -, no consideration should be given to the creator of the corridor.
[3] It's Not a Corridor, It's a Closet.
The third emerging argument against corridor valuation is that usually the
underlying property owner possesses only a small portion of the corridor and that value is
only crcated when the whole corridor is assembled. Again, the value should be
determined by analyzing market data such as the following (actual) transactions by a
southeast Texas utility company:
• June 1993 to June 1998, 2-5 year options; 7.87 rods leased to a
restaurant.
• May 18, 1996 to May 19, 1998 (one day); 167 rods leased for parking.
• September 1; 1990 to August 31, 1990, lease extended; 29 rods leased to a
public University on the basis of S1,476.00 per rod.
• January 1, 1996 to December 31, 2001, 2-5 year options; 9 rods leased for
parking.
• Easement granted for 113 rods for a telecommunication cable to another
utility company.
Given these actual transactions, it is plain that any one segment of the corridor, regardless
of length, is much more valuable than traditional ATF valuations.
For now, it is true that current law (in Texas anyway) discourages using sales
between condemning entities as market data. The LA.L,,ik.ely active marketing efforts of •
power li:ie and pipeline companies, however, coupled with increasing amounts of actual
sales data point to corridor valuation for expansion of existing easements as the only
logical way of conforming with the Unifonn Standards of Appraisal Practice. Perhaps
our Native American forebears had it right all along:
Back in the days when agents representing a newly formed railroad were
buying land for right of way they encountered some shrewd bargainers among
the Indians. One Chief was asked whether he would sell a small eroded piece of
land.
"Sure, me sell for 550,000," said the Chief.
13
"S50,000! Why that land is no good for planting or pasture. It is just no
good for anything!" the agent exclaimed.
The Chief grunted, "It beep good for railroad.
`6 The Annraisal Journal. October, 1978. pp. 514-515 (Quoted from the April I963 Newsletter of the
rnerican Right of Way association).
14
The Idaho Statesman • ldahoStatesman.com
Idaho Power's
ne u'gence made
cows ill, jury says
The Associated Press
TWIN FALLS — A dairy that
sued Idaho- Power cl«i...:..e its--
cows
tscows were harmed by stray elec-
trical currents has been_awarded__
nearly $175 million by a 5th Dis-
trict Court jury.
After a 10 -week trial, the 12 -
member jury Tuesday found that
aadquated.Idaho PowerCo.equip-
went caused cows at the dairy
owned by Mike and Susan Vier-
stra to become sick and reduce
milk production over a period of
several years.
The jury calculated compen-
satory damages at $7.49 million
and set punitive damages at $10
million. The dairy had sought $8
milli .1 ii. 4aa ikrL{.)(YIVL j ILU U 6:..)
and up to $40 million in punitive
damages, said_ Ken Peterson, a_
Kansas attorney who represented
the Vierstras in the trial
Idaho Power was found to be 85
percent at fault for damages to the
dair3rrwhile the jur placed 15 per-
cent of the responsibility on the
dairy.
Idaho Power indicated that it in-
tends
ntends to appeal the verdict.
"We're cert disappointed -
by the decision in the Vierstra case
and surprised by the jury's ver-
dict," company spokeswoman
Anne Alenskis said. "We're sur-
prised because along with sever-
al independent electricians, we in-
vestigated
nvestigated the company's farilitie
that were in issue ... and through
those investigations found the
company's facilities to be within
normal operating standards."
Peterson_said,."This_is.an im
portant national issue, because the
utilities have not taken care of the
rural lines hie they should There
antiquated, they're outdated, they
have unbalanced -loads on- them --
and they present a tremendous
threat to the agricultural commu-
nity. The havoc they raise on all
kindsof livestock is just unbe-
lievable a,�lom.Many-farmers-L..
broke, and they don't know that's
the reason why."
Some studies have found that
cows are particularly sensitive to
L uf,�r�,�t.�ly.
The Vierstras alleged that Ida-
ho Power's transmission lines were
outdated, and led to poor ground-
ing of currents that streamed un-
noticed onto their dairy southwest
of Twin Falls.
The Vierstras opened their dairy
in the early 1990s. In September
2000, Idaho Power changed an
aged transformer near the 1,000 -
cow dairy, and afterward the
health of the herd was immedi-
ately affected, the Vierstras said.
They said in spite of Idaho Pow-
er's
ower's policy dictating the company
release information of potential
stray voltage problems, the issues
were not addressed.
The Vierstras accused Idaho
Power of deliberately concealing
its policies on stray voltage, and
Peterson credited the court victo-
ry in part to "internal documents
wediscovered within Idaho Pow-
er that were concealed."
Alenskis said Idaho Power .did
not conceal internal policies from
the Vierstras.
174 company at one time had a
policy that called for dairy opera-
tors to be informed of potential
stray voltage problems when cur-
rents were measured over a cer-
tain- threshold. However, in the
mid -'90s the company decided to
follow guidelines from the US. De-
partment of Agriculture that she •
said were more up to date.
Idaho Power attorneys argued
the Vierstras based their charges
on_outdated theories of the 1980s.
Recent studies show that stray
voltage at levels found on the Vier-
stra dairy is not as dangerous. as
scientists had thought earlier, they
said. They. also tried to show that
the Vierstras' herd problems
stemmed from poor management
District Judge Monte Carlson
presided over the trial that began
in-eariy December. The Vierstras'
attorneys presented their case over
eight weeks, and called about 15
witnesses. Idaho Power attorneys
took two weeks to present their
case;-Reterson said.
Testimony included expert
qpinion on veterinary medicine,
nutritional science,_dairy opera-
tions, principles of physics and
electricity and electrical distribu-
tion and grounding systems.
March 11, 2004
Eagle City Council:
RECEIVED & FILED
CITY 4F EAGLE
MAR 2 3 2004
0 -auk-
This is a response to the high, ugly power poles and lines that Idaho Power
wants to erect. This would, to quite an extent, negate years of careful
planning by many to make a beautiful city.
There surely has to be another way to transport power than disfiguring the
aesthetics of the community. We have no quick answers or solutions, of
course. We're told that underground lines, for expense reasons, are out of the
question. We assume this is probably the case.
Has Idaho Power considered moving the high power poles further north, out
of view of the city in a rural setting? They would not be seen in the city or
along major highways. Surely Idaho Power has the dollars to explore this
idea as an alternative?
Can we be absolutely sure that this new line is necessary? The present poles
4nnd lints are really high in the air. It's a shame to have to ruin the looks of
our community and a major highway.
Signed,
Wayne and Jane Crosby
165 Idaho Street
Eagle, Idaho 83616
3
.g -2-6 -0 Y
cc: Idaho Power
/611_74 A-ti‘L
Michael & Marilyn Margulies
741 West Aikens Court
Eagle, ID 83616
208.938.1653
March 23, 2004
Subject: CU -9 -02 -Sub Transmission Line -Idaho Power
Eagle City Council Hearing
Eagle, Idaho
To: City Council Members
Cc-- -5-2 3-6y
ED e FILED
CITY OF EAGLE
MAR 1? 2004
Route to. i7V) 1
Your wise and prudent decisions in the past in regard to zoning, building
development, signage and the general appearance and structure of the City
of Eagle is to be commended. You have all done a wonderful job.
We who live in Eagle are very appreciative of the City's goal to "protect
important views, vistas, and panoramas of the community's natural setting
and environment".
And, we who live in the communities near State Street (State Highway 44),
specifically "River Ridge" feel the construction of transmission poles
ranging in height from approximately 70 to 90 -feet along the State Street
corridor would do exactly the opposite of what our City of Eagle desires. If
increased electric usage is the concern, underground construction of the sub -
transmission line is a more desirable solution for the citizens of Eagle and
the City's goal.
Respectfully,
lyn Margulies
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Cc 3 -_23-o y
IDAHO WASTE SYSTEMS INC.
Presentation to the City of Eagle
Steve West, CENTRA Consulting
March 23, 2004
0
Washington Group
International
LDAMO WASTE SYSTEMS INC.
Presentation to the City of Eagle
.Sieve West. ( 'ANTRA Consulting
March 19,440,. 7004
Idaho Waste Systems Site
Washington Grow
krbarataional
Solid Waste Landfill Environmental
and Public Policy
Liability
Control
Environmental Risk
Public Health Risk
Cost
Solid Waste Landfill Environmental
and Public Policy (continued)
Quality of Life Impacts
Operational Assurances
Long Term Viability
Regionalization of Solid Waste
Disposal
Provides the County, municipalities and
neighborhoods with long term disposal solution
Better Environmental Landfill Site
Landfill Costs are Distributed
Fewer Landfill Sites
Legal Issues
Transfer of Liability
Indemnification
Control
2
Groundwater Protection
......• .. e..a .......'• 11111 I 1 I •
Guiding Premise
"The primary goal of the 40 CFR §258
Subtitle D regulations is to provide
protection of groundwater resources by
preventing the migration into the
environment of hazardous constituents
from a municipal solid waste landfill
facility" (CH2M, 1994)
Groundwater Protection Components
1. Engineered Barrier System
2. Favorable Hydrogeologic Setting
Regulations favor redundant protection
3
DRASTIC Groundwater Vulnerability
Index/Acronym
Depth to Water
Net Recharge
Aquifer Media
Soil Media
Topography
Impact of Vadose Zone Media
Hydraulic Conductivity of Aquifer
Depth to Water (5)
Hidden Hollow
• "The regional water table in the shallow borings was
encountered between 15 and 125 feet bgs" (CH2M,
1995)
• Springs nearby where water table is at land surface
IWS ✓
• Minimum depth to water table > 450 ft
• Average depth to water table = 477 ft-bgs (Telesto,
2002)
Net Recharge (4)
Hidden Hollow
• Average annual precip = 12+ in.
• "Recharge to the uppermost aquifer is by direct
infiltration of precipitation' (CH2M, 1994)
• "...immediate recharge to the shallow groundwater
system is occurring.' (Brown, 2003)
IWS ✓
• Average annual precip = 7 -10 in.
• Recharge negligible in model of western Snake
River Plain Aquifer where average annual precip < 9
in. (Newton, 1991)
4
Soil Media (2)
Hidden Hollow
• Predominant Quincy soil:
- 'fine gravelly loamy coarse sand"
- 'excessively drained"
- 'rapid permeability'
- 'high" hazard of erosion
• 'Daily cover consists of sandy soil from on site
borrow areas' (CH2M, 2002)
!WS ✓
• Chilcott-Elijah sift foams:
- 'wet/drained'
- 'sloW' to 'moderately slow permeability
- 'moderate hazard of erosion
Topography (1)
Hidden Hollow ✓
• Steep topography decreases infiltration but also
increases erosion potential and increases the driving
force for groundwater flow
MIS
• Relatively flat with engineered slopes for
management of runon/runoff
Impact of Vadose Zone (5)
Hidden Hollow
• `There are no distinctively continuous day layers...
beneath the landfill' (CH2M, 1995)
• 'Because of the primary existence of ...sands beneath
the landfill, the preferential flow path for leachate
migration would be vertical until the regional water
table is reached' (CH2M, 1995)
• 'The investigation did not identify a viable source of
clay soil at the site (CH2M, 2002)
WS ✓
• Average clay thickness = 67 ft (IDWR well Togs)
5
IMPACT Risk Index/Acronym
Inclination of Water Table (Gradient/Flow Velocity)
Measured Horizontal Distance to Point of
Exposure
Population Exposed
Application Rate
Concentration of Pollutant
Toxicity
Site -Specific Exposure Factors
Hidden Hollow
(1) high gradient /higher GW
velocity (70 —1,200 ft/yr)
(M) >20 PWS wells w/in 3 -mile
radius
(P) Boise, Eagle, and Hidden
Springs nearby
IWS
(1) low gradient/ower GW
velocity (4 — 33 ft/yr) 1
(M) no PWS wells wlin 3 -mile
radius 1
(P) no nearby population
centers 1
Liability Control Factors
Factor
Depth to Water (5)
Net Recharge (4)
Air (3)
Soil Media (2)
Iopoaphy (1)
Impact of Vadose Zone (5)
conductivity (3)
Inclination of Water Table
Measured Distance
Copulation Exposed
Hidden
Hollow
Iws
1
1
1
1
1
6
1DEQ Sensitivity Analysis
Part of Source Water
Assessment
Includes Modified DRASTIC
Analysis
• Depth to Water
• Soil Media
- Impact of Vadose Zone (2x)
Hydrologic sensitivity/
vulnerability ranges from 0
(best) to 6 (worst)
7
Liability Control
• • •zT*"LiZT2Tt-Z-T
Control of environmental liability is exerted
through the site selection process since both
the hydrogeologic setting and the potential for
human exposure depend on the location of the
selected site
Summary Comparison
Hidden Hollow Expansion
- poor hydrogeologic setting
- lined but 6 more years
liability accrual w/ unlined
facility
- contamination is liability
- numerous potential receptors
in several directions
- area of rapid growth means
additional potential receptors
- need for regulatory approval
is a risk
iws
- good hydrogeologic setting
- RCRA compliant/lined
design provides for
redundant protection
- no contamination
- few, if any, potential
receptors
- area of limited growth
- permitted, licensed, and
operating
Air Quality/Safety/Traffic
Quality of life issues
. Traffic (Gary Lane, Hill Road, etc.)
. Tail -pipe emissions
• Road dust
• Blowing trash
• Operation visible from valley
• Odor
. Groundwater
8
Air Quality/Safety/Traffic
Air Quality/Safety/Traffic
Air Quality/Safety/Traffic
AP -42: Compilation of Air Pollutant Emission
Factors, Volume II, Mobile Sources, 5th edition
EPA, November 24, 2000
Primary variable is Vehicle -trip -miles
9
Air Quality/Safety/Traffic
Reduction in air pollution
Collection
• 6 6 TPY PM -2 5
26 TPY PM -10
12 TPY Hydrocarbon horn exhaust
• 5 7 WY Carbon Monoxide from exhaust
3 6 TPY Nitrogen Oxides hom exhaust
Enussrons horn fud supply and use activates
. Disposal
025 TPY PM -10 daily cover
0 06 TPY PM -2 5 daily cover
- 27 TPY NMOC of-gassng. 1 TPY NMOC growth per year
13.500 TPY Methane off -gassing. 500 TPY methane growth per year
Wind blown dust
Proposed BFI Site
rr__... rrrrr r lar x CI x re. I. u.
The Risk Continuum
e,,.rc x r.1.7=1_�
Control
Liability
Cost
Hidden Hollow Landfill
Idaho Waste Systems
10
Costs
Summary
Not based on detailed bid information
Does not take into account existing Transfer
Station initiatives
Does not include land valuation
Wide variability in tipping fee estimates
No effort to negotiate costs in alternative
proposals
IWS Proposal $13.30/Ton
!WS Proposal to The City of Eagle
Build Transfer Station
Operate Transfer Station
Provide Long Haul Trucks and Operators
Disposal at Simco Facility
All Services for the Current Rate
Advantages to City of Eagle
LI
Close / More Convenient
Enclosed Facility / Unload in All Weather
Always on Hard Surface / Cleaner
Recycle Bins at Transfer Station
Household Hazardous Waste Collection
Wood Waste Recycling
Possible Cost Savings in Collection
Open to Accommodate Public Needs
11
Advantages to City of Eagle (con't)
Collection Trucks
15:►►
City of Eagle
Transfer Station
In Closing,
........ ............
Other Issues
Faults -
Questions
Summary
Self Haulers
(35:1)
53 ft Transfer Trailer
to IWS
Do you want your landfill here?
Or do you want you landfill there?
I do not want a landfill anywhere!
But still we must dispose of trash,
And without spending lots of cash.
We must protect our Valley air,
And all the water under there.
We must form a grand alliance.
Common sense and based on science.
12
�STOEL
RIVES
LLP
ATTORNEYS AT LAW
AdoiliN
February 20, 2004
Fred Perez
Idaho Waste Systems, Inc.
Simco Road Regional Landfill
P.O. Box 1386
Mountain Home, ID 83647
KEVIN J. BEATON
Direct (208) 387-4214
kjbeaton@stoel.com
1015. Capitol Boulevard, Suite 1900
Boise. Idaho 83702
main 208.389.9000
fax 208.389.9040
www.stocl.com
Re: Idaho Waste Systems, Inc. ("IWS") February 5, 2004 Proposal to Ada County
Dear Fred:
IWS requested a legal opinion from Stoel Rives regarding a number of issues surrounding IWS'
February 5, 2004 proposal to Ada County ("IWS Proposal"). The IWS Proposal suggests a
number of options to address future solid waste management issues in Ada County. All options
would result in the County discontinuing disposal of municipal solid waste at the County's
Hidden Hollow Landfill in Ada County and disposing all such wastes at IWS' fully permitted
commercial Landfill in Elmore County.1 Ada County, as well as other local governments that
currently rely upon Ada County's current solid waste disposal system have raised a number of
questions regarding liability and indemnification issues should the County pursue Option "C" or
Option "D". In Option "C" and Option "D" IWS proposes to indemnify Ada County for solid
waste disposal. This letter responds to those questions.
1. Can IWS lawfully indemnify Ada County and other local governments for any
environmental contamination that may be caused by disposal of municipal solid waste at IWS'
Elmore County Landfill?
Short Answer: Yes, IWS can indemnify Ada County and other local governments that dispose
their municipal solid waste at IWS's Elmore County Landfill. An example of such an
Indemnification Agreement is attached hereto as Exhibit A.
1 Two of the Options "A" and "B" would involve the County purchasing property from IWS in Elmore
County with Ada County then owning and operating a landfill on the purchased property. The other two Options
"C" and "D" would involve IWS accepting all of Ada County's municipal waste for disposal at IWS' landfill with
IWS continuing to own and operate the landfill. Oregon
Washington
California
Utah
Boise -167793.1 0099999-00006 Idaho
Fred Perez
February 19, 2004
Page 2
The scope of potential "environmental liability" that may arise as a result of owning and
operating a municipal solid waste landfill is potentially significant. A variety of state and federal
laws and regulations (as well as state common law claims) may impose liability on owners and
operators of landfills.
Examples of federal and state laws that may impose or govern environmental liabilities at a
commercial solid waste landfill include the Resource Conservation and Recovery Act
("RCRA"), 42 USC § 6901, et seq., and implementing rules, the Idaho Hazardous Waste
Management Act ("HWMA"), Idaho Code § 39-4401 et seq., and implementing rules, the Idaho
Environmental Protection and Health Act ("EPHA"), Idaho Code § 39-101 et seq., and
implementing rules. These statutes and implementing rules generally impose liability upon
owners and operators of landfills for contamination to the environment due to the management
and disposal of waste at a landfill.
However, perhaps the broadest environmental liability scheme is set forth in the federal
Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42
USC § 9601, et seq. CERCLA authorizes the United States, through the United States
Environmental Protection Agency ("EPA") to require the investigation and cleanup of
contaminated sites where hazardous substances have been released to the environment. The type
of persons potentially liable under CERCLA is broad and includes (1) present "owners and
operators" of a contaminated site, past; (2) "owners and operators" of a site, if ownership or
operation occurred at the time of disposal; (3) any person by contract that arranged for disposal
of waste at a contaminated site ("arranger"); and (4) certain entities that transport waste to a
contaminated site. 42 USC § 9607(a). Local governments can also be held liable under
CERCLA as an "owner," "operator" or "arranger" under appropriate circumstances.
It is well settled based on decisions by the federal courts that CERCLA imposes strict liability
(no fault) on potentially responsible parties for the costs associated with investigation and
cleanup of contaminated sites. U.S. v. Colorado and Eastern Railroad Company, 50 F.3d 1530
(10th Cir. 1995). It is also well settled that CERCLA imposes joint and several liability on
responsible parties regardless of fault.2
2 A responsible party can attempt to prove the contamination at a site is devisable from other sources
thereby avoiding the harsh results of joint and several liability, but typically this is a very difficult burden to meet.
See O'Neil v. Picillo, 883 F.2d 176, 178-179 (1u Cir. 1989) (Recognizing that potentially responsible parties rarely
�\ escape joint and several liability imposed under CERCLA).
Boise -167793.1 0099999-00006
'41"'Nrsi
Fred Perez
February 19, 2004
Page 3
The effect of the joint and several liability scheme under CERLCA is that the United States can
require any one of the designated potentially responsible parties under CERCLA (owner,
operator, arranger or transporter) to be responsible for the cleanup of an entire site. It is not
unusual for CERCLA cleanups to cost millions of dollars.
In order to mitigate the potentially inequitable consequences of CERCLA's joint and several
liability scheme, Congress specifically authorized responsible parties to seek contribution from
other responsible parties in a contribution action. See 42 USC § 9613(0. Moreover, under
CERCLA, 42 USC § 9607(e) agreements to insure, indemnify or hold harmless are enforceable
between private parties but not the government. Although these private indemnification and hold
harmless agreements cannot nullify a party's underlying CERCLA liability to the government,
they are a judicially sanctioned and effective means to shift the ultimate financial burden of
cleaning up a contaminated site between private parties. Mardan Corporation, 804 F.2d 1454
(9th Cir. 1986) (Court finds Agreement effectively released a party from any CERCLA liability
in a CERCLA contribution action); Beazer East, Inc., v. Mead Corporation, 34 F.3d 206 (3rd Cir.
1994) (Recognizing validity of indemnity agreements between private parties to release
CERCLA claims.)
As noted, a local government such as a county or municipality can be a "person" subject to
liability under CERCLA, 42 USC § 9607(a). Whether Ada County or other local governments
could ultimately be found liable under CERCLA for disposing of municipal solid waste at IWS's
facility is beyond the scope of this opinion. Nevertheless, it is noteworthy that a number of
judicial cases have discussed the factors under which a local government could be found liable
under CERCLA. See e.g. Transportation Leasing Co. v. California, 861 F.Supp. 931 (C.D. Cal.
1993); see also West Farm Associates v. Washington Suburban Sanitary Commission, 66 F.3d
669 (4th Cir. 1995); B.F. Goodrich Company v. Martha, 958 F.2d 1192 (2nd Cir. 1992).
Thus, whatever potential liability Ada County or other local government may be subject to under
CERCLA or other environmental laws for disposing of their waste at IWS's facility, IWS can
lawfully agree to indemnify these local governments. These agreements will be enforceable in
any subsequent action between the parties. A typical broad Indemnity Agreement between IWS
and a local government is attached as Exhibit A.3
3 This indemnity provision would be included in a much broader agreement and would likely need to be
modified to be consistent with the broader agreement between IWS and Ada County.
Boise -167793.1 0099999-00006
Fred Perez
February 19, 2004
Page 4
2. Can Ada County lawfully indemnify cities and other entitles that dispose of waste at the
Hidden Hollow Landfill for environmental contamination?
Short Answer: Idaho Constitution Article 8, Section 3 places certain limits on when a County or
municipality may incur indebtedness or liabilities. These limits include requiring 2/3 of qualified
voter approval as well as an annual tax to pay off the indebtedness or liability. If Ada County
were to agree to indemnify users of its landfill for environmental liabilities without seeking voter
approval, there is a risk that a Court would determine that such an agreement is void under
Article 8, Section 3.
Under Idaho Constitution, Article 8, Section 3, a County is prohibited from incurring an
"indebtedness" or "liability" in any year which exceeds the income and revenue provided for it
for such year unless 2/3 of the voters approve such a measure. Liabilities and debts incurred by a
County in violation of Article 8, Section 3 are void.
The Idaho Supreme Court has determined that contractual obligations by a county or city may
constitute a "liability" or "indebtedness" under Article 8, Section 3. Contractual liabilities
assumed by a county or municipality that incurred "indebtedness" or "liability" contrary to
Article 8, Section 3 are unenforceable and void. See Village of Heyburn v. Security Savings &
Trust Co., 55 Idaho 732 (1935); Asson v. City of Burley, 104 Idaho 432 (1983) (City's long term
contractual obligation to power company that did not receive 2/3 votes approval was void).
Certain "liabilities" and "indebtedness" are exempt from the 2/3 voter approval requirements of
Article 8, Section 3 if such expenses are "ordinary and necessary expenses authorized by the
general laws of the state." Whether a broad indemnification agreement signed by a County to
release another entity from all environmental liability would be considered an "ordinary and
necessary" expense has not been addressed by any Idaho Court and this letter expresses no
opinion whether such an indenuufication agreement would constitute an "ordinary and
necessary" expense under Article 8, Section 3.
Although there is no Idaho case directly on point, it would appear if the County were to agree to
indemnify and hold harmless any entity that disposes of waste at the County's landfill for all
environmental liabilities and if such entity would otherwise be liable for such environmental
liabilities, then the County would be incurring a "liability" or "indebtedness" within the meaning
of Article 8, Section 3 of the Idaho Constitution.
Whether a particular contractual obligation such as an Indemnity Agreement would be
interpreted by a court as subject to 2/3 approval of qualified voter under Article 8, Section 3,
would be very fact specific and would be dependent upon the scope of the indemnification, the
Boise -1 67793.1 0099999-00006
‘00., Fred Perez
February 19, 2004
Page 5
amount of any liability or indebtedness incurred in such agreement and whether it was
considered an ordinary and necessary expense. For instance in Coeur d 'Alene Lakeshore v.
Kootenai County, 104 Idaho 590 (1983), the Court found that a general indemnification clause
included in a contract for a private appraiser hired by the County did not violate Article 8,
Section 3. Critical to the Court's findings in Kootenai County, supra, was the fact that hiring the
appraiser was an ordinary and necessary expense within the meaning of Article 8, Section 3. The
Court also refused to speculate as to the scope of the indemnification clause or whether such
contract ultimately required the County to incur a liability or indebtedness.
In light of the potentially significant amount of costs associated with environmental
contamination and cleanup if the County were to agree to indemnify entities that would
otherwise be liable to share in the cost of cleanup, there is a significant risk that a Court would
find that such Indemnification Agreement created a liability subject to the 2/3 voter approval
under Article 8, Section 3 of the Idaho Constitution. Thus, it would appear under Idaho law that
it is much easier for a private party that operates a landfill to indemnify users of the landfill than
it would be for a county or municipality to provide similar indemnification protection.
If you have any questions about this opinion please do not hesitate to contact me.
Very truly yours,
j ") ,2-4, --i-
Kevin Y. Beaton
KJB:ww
Enclosure
Boise -167793.1 0099999-00006
EXHIBIT A
I. 9.3 Indemnification Environmental Matters. Idaho Waste Systems
("IWS") will indemnify and hold harmless [local government] from and against any Damages
asserted against [local government] by any third party (including without limitation
governmental agencies) to the extent arising out of Contamination (as defined below) at, on or
under Idaho Waste Systems Landfill in Elmore County ("Facility"). IWS shall have the right to
control all investigation, removal, remedial or other response action with respect to such
Contamination, but shall cause such response action to be performed in compliance with
Environmental Law as defined below. "Contamination" means the presence of a Hazardous
Material in the soil or water (including surface water and groundwater) at the facility if such
presence of a Hazardous Material constitutes a violation of applicable Environmental Law or if
investigation, removal, remedial or other response action is required by applicable
Environmental Law with respect to such presence of a Hazardous Material.
"Environmental Law" means any federal, state or local statute, regulation, code, rule,
ordinance, order, judgment, decree, injunction or common law pertaining in any way to the
protection of human health or the environment, including without limitation, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation
and Liability Act, the Toxic Substances Control Act, the Clean Air Act, the Federal Water
Pollution Control Act and any similar or comparable state or local law.
Boise -167798.1 0099999-00006
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
January 19, 2004
The Honorable Debbie S. Field
Idaho House of Representatives
HAND DELIVERED
Re: Solid Waste Legal Analysis
Dear Representative Field:
This is a response to your request for a legal analysis regarding liability under federal and state
law regarding solid waste. Solid waste includes both hazardous and non -hazardous waste.
Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. § 6903; 40 C.F.R. § 260 et
seq.; Idaho Rules and Standards for Hazardous Waste IDAPA 58.01.05 (incorporate the
federal definitions and identification of solid and hazardous waste). Hazardous waste is
regulated under Subtitle C of RCRA and the Idaho Hazardous Waste Management Act, Idaho
'Code §§ 39-4401 to 4432. Non -hazardous solid waste, on the other hand, is regulated under
Subtitle D of RCRA and various state laws and rules. The questions set forth in your letter are
prefaced by a discussion of Subtitle D of RCRA and the Idaho Solid Waste Facilities Act, both
of which address non -hazardous solid waste. Therefore, the answers to your questions will
address liability with respect to non -hazardous solid waste.
I. Question 1: What are the specific provisions in federal and state law that impose civil
liability for environmental or other damages that may result from the failure to generate,
collect, transport and dispose of solid waste?
Short Answer: The regulation of non -hazardous solid waste is largely left to state and
local authorities. Subtitle D of RCRA requires that the federal Environmental Protection
Agency (EPA) develop certain minimum standards and directs states to develop plans and
programs to implement the minimum standards. RCRA, however, provides for both citizen and
federal enforcement to remedy pollution resulting from solid waste handling or disposal under
certain circumstances even though States have the primary responsibility for regulation of non-
hazardous solid wastes. The Federal Comprehensive Environmental Response
Compensation and Liability Act of 1980 (CERCLA) also imposes liability on a broad range of
persons and entities and may be applicable to persons who deal with solid waste. Idaho has
adopted laws and rules that regulate facilities and activities that deal with municipal and non -
municipal solid waste. Persons violating these state laws may le civilly liable for penalties and
intergovernmental & Fiscal Law Division
P.O. Box 83720. Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 334-3446
Located at 700 W. Jefferson Street, Suite 210
The Honorable Debbie S. Field
January 19, 2004
Page 2
the costs of coming into compliance. These federal and state authorities are discussed in
detail below.
Discussion:
A. Federal Law
1. RCRA solid waste provisions. The federal role in regulating solid waste under
Subtitle D of RCRA is to establish overall regulatory direction by providing minimum nationwide
standards for protection of human health and the environment, and by providing technical
assistance to states. 56 Fed. Reg. 50,978, 50,979 (Wed. Oct 9, 1991). RCRA, 42 U.S.C. §
6944, requires EPA to promulgate regulations containing criteria for determining which facilities
receiving solid waste shall be classified as sanitary landfills and which shall be classified as
open dumps. Open dumps and the act of open dumping are prohibited under 42 U.S.C. §
6945. Under 42 U.S.C. § 6949a(c), EPA is also required to specifically provide criteria for
facilities that may receive hazardous household wastes or wastes from small quantity
generators. Facilities failing to meet such criteria are open dumps. EPA has promulgated the
criteria required under § 6944(a) and 6949a(c) at 40 C.F.R. §§ 257 and 258.
40 C.F.R. § 257 applies to solid waste disposal facilities, including specifically those facilities
that receive conditionally exempt small quantity generator waste, with certain exceptions.
Section 257 of Title 40 of the Code of Federal Regulations does not apply to municipal solid
waste landfills.
Section 258 of Title 40 of the Code of Federal Regulations applies to municipal solid waste
landfills (those facilities that receive household wastes).
2. Federal Enforcement of RCRA solid waste provisions. Federal authority to
enforce the sections 257 and 258 requirements pursuant to RCRA § 6945 is limited to those
situations when the state has not adopted an adequate program for household wastes or
conditionally exempt small quantitygenerator waste based on the federal criteria. Since -Idaho
has adopted, through the Idaho Solid Waste Facilities Act, an approved program for household
wastes, EPA can not enforce the section 258 criteria in Idaho. Idaho has also adopted rules
that govern facilities receiving conditionally exempt small quantity generator waste. No
determination, however, has been made as to whether this program' meets EPA's minimum
requirements.
Even in states with approved programs, EPA retains the enforcement authority under section
6973 of RCRA to protect against imminent and substantial endangerment to health and the
environment. Under 42 U.S.C. § 6973, EPA may seek injunctive relief against any person who
has contributed or who is contributing to the handling, storage, treatment, transportation or
disposal of solid waste that may present an imminent and substantial endangerment to health
and the environment.
The Honorable Debbie S. Field
January 19, 2004
Page 3
The prohibition against open dumps in RCRA may also be enforced by citizens through
RCRA's citizen suit provisions. 42 U.S.C. § 6945(a); 42 U.S.C. § 6972.
In sum, the federal EPA has limited authority in Idaho to enforce requirements relating to non-
hazardous solid waste handling or disposal. EPA retains the authority to pursue any person
whose past or present handling, storage, treatment, transportation or disposal of solid waste
presents an imminent and substantial endangerment to health or the environment. 42 U.S.C.
§ 6973. Citizens also have a right under federal law to sue persons who engage in the act of
open dumping or whose solid waste practices present an imminent and substantial
endangerment to health or the environment. 42 U.S.C. § 6972.
3. Liability under Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"). CERCLA provides broad federal authority to remedy or
prevent releases or threatened releases of hazardous substances into the environment.
"Hazardous substances" is very broadly defined by reference to a range of substances
regulated by other environmental statues. CERCLA imposes liability on a very broad range of
responsible parties, including owners or operators of sites where the hazardous substance
release occurred, persons who arrange for the treatment or disposal of the hazardous
substance and persons who accept or accepted hazardous substances for transport.
CERCLA liability may be triggered by a release of hazardous .substances from a facility that
handles, treats or disposes of solid waste under Subtitle D. 56 Fed. Reg. 51,092 (Wed, Oct. 9,
1991) When it enacted standards for facilities receiving household waste, EPA explained that
the application of minimum subtitle D requirements to municipal landfills does not preclude
CERCLA liability); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2"d Cir. 1992).
B. State Law
1. The Idaho Solid Waste Facilities Act. States are required under section 6945 of
RCRA to adopt. and implement a permit program or other system of prior approval- and
conditions to assure that each solid waste management facility within the state which may
receive hazardous household waste or hazardous waste from conditionally exempt small
quantity generators complies with criteria adopted by EPA. As discussed above, Idaho has
met this requirement with respect to household wastes by enacting the Idaho Solid Waste
Facilities Act, Idaho Code § 39-7401 et seq. This Act regulates municipal solid waste landfills,
which are defined as those facilities that receive household wastes. Idaho Code § 30-
7403(31). The Act regulates the sitting, design, operation, closure and post -closure care of
municipal solid waste landfills. Liability under the Act rests with owners and operators of
municipal solid waste landfills. Enforcement authority is provided to the Department of
Environmental Quality (DEQ), counties and health districts. Idaho Code § 39-7420. DEQ may
use any of the enforcement authorities available under the Environmental Protection and
Health Act (EPHA) to enforce the Act (see discussion of the EPHA below).
The Honorable Debbie S. Field
January 19, 2004
Page 4
2. The Environmental Protection and Health Act (EPHA).
a. Idaho Code § 39-105(2) authorizes the DEQ to formulate and recommend to the
Board rules as may be necessary to deal with problems related to, among other things, solid
waste disposal and licensure and certification requirements pertinent thereto.
b. Section 39-105(3)(m) of the EPHA also authorizes the DEQ to regulate municipal
solid waste.
c. Idaho Code § 39-118 of the EPHA authorizes the DEQ to review and approve
plans and specifications for the construction of new waste treatment or disposal facilities or for
modification or expansion to existing waste treatment or disposal facilities. Plan and
specification review provisions do not apply to dairy systems that are regulated under section
37-401 of the Idaho Code.
d. The EPHA provides authority to DEQ to file civil and criminal actions seeking civil
penalties and injunctive relief against any person who violates state environmental laws, rules
or orders. Idaho Code § 39-108.
3. Idaho Solid Waste Rules. As authorized by the EPHA, DEQ .has adopted the Solid
Waste Management Rules, IDAPA 58.01.06. These rules generally regulate non -municipal
solid waste management facilities in Idaho. Solid waste management facilities are classified in
three different tiers depending upon the type and volume of waste handled. The level of
regulation is dependent upon which tier the facility is in. Persons violating these rules are
subject to penalties and injunctive relief as authorized in the EPHA.
4. Other State Authorities. There are various other state authorities that deal with
specific types of solid waste, including mill yard or wood debris, waste tires, and lead acid
batteries.
II. Question 2: What do these provisions affect? As an example, would a city that has
responsibility for solid waste collection, but not disposal, have any liability for
environmental contamination resulting from solid waste collected by the city but
disposed of in a landfill owned and operated by another entity, such as a county or
private entity?
Short Answer: Federal and state authorities impose liability for environmental
contamination resulting from solid waste management activities on a very broad range of
persons and entities. The scope and extent of liability under the applicable statutes depends
upon an analysis of the specific factual situation involved; therefore, it is not possible to
describe the full range of potential liability. Cities that generate and collect wastes and arrange
for the disposal of wastes at a landfill, as well as the entity that owns or operates the landfill
The Honorable Debbie S. Field
January 19, 2004
Page 5
that receives such wastes, however, may be held liable for environmental contamination
resulting from the release of wastes from the landfill into the environment.
Discussion:
Liability under Subtitle D of RCRA extends to those involved in open dumping, which is
prohibited by section 6945 of RCRA. Open dumping occurs when solid wastes are disposed
of at a location or facility that does not meet the minimum federal and state requirements.
RCRA also impose liability for those who contribute to the handling, transporting or disposing
of solid waste that presents an imminent and substantial endangerment to health or the
environment. 42 U.S.C. §§ 6972 and 6973. These provisions apply to those entities or
individuals that own or operate a landfill that constitutes an open dump or that presents an
imminent hazard. Liability, however, has also been extended under certain circumstances to
municipalities or other govemmental entities that collect solid waste and deliver those wastes
to a landfill owned or operated by another entity. Blue Leas v. U.S. Bureau of Indian Affairs,
867 F.2d 1094 (8th Cir. 1989) (Federal agencies that generated, collected and transported solid
wastes to an open dump found liable under 42 U.S.C. § 6945); Cox v. Citv of Dallas, 256 F.3d
281 (5th Cir. 2001) (City that generated, collected and transported solid waste to dump liable
under 42 U.S.C. § 6972). The mere regulation or permitting of solid waste activities or
facilities, however, normally will not invoke liability under RCRA. Delaney v. Town of Carmel,
58 F. Supp. 2d 237 (S.D.NY 1999).
Liability under CERCLA may also extend to both owners/operators of landfills and to
municipalities that "arrange" for the disposal of waste at a landfill from which hazardous
substances have been released. B.F. Goodrich v. Murtha, 958 F. 2d 1192 (2d Cir. 1992);
Philip H. Gitlen, Alan J. Goldberg, and Andrew J. Dalton, Application of EPA's Municipal
Settlement Policy In The Wake of The Allied Signa! Decision, 30 ELR 10049 (Jan. 2000).
There are limits on liability in CERCLA that may be applicable to persons who handle solid
waste. Of particular importance are the de micromis exemption and the municipal solid waste
exemption.
The de micromis exemption exempts persons from liability as generators and transporters if
the person can demonstrate the total amount of material containing hazardous substances he
contributed was less than 110 gallons of liquid materials or 200 ponds of solid materials, and
all or a part of the disposal, treatment or transport occurred before April 1, 2001. 42 U.S.C. §
9607(o).
The municipal solid waste exemption exempts persons from liability as generators for disposal
of municipal solid waste if the person is an owner, operator or lessee of residential property, or
a business that employed on average not more than 100 individuals in the three years prior to
notification of potential liability and is a "small business concern" as defined in the Small
Business Act, or a nonprofit organization that employed not more than 100 individuals during
The Honorable Debbie S. Field
January 19, 2004
Page 6
the preceding year at the location from which the municipal solid waste was generated. 42
U.S.C. § 9607(p).
Liability under state solid waste law is generally imposed on those that own or operate solid
waste landfills or other solid waste management facilities. Idaho Code § 39-7401 and IDAPA
58.01.06. There is no legal determination of whether these provisions may apply to entities
that do nothing more than collect and transport solid waste for disposal.
III. Question 3: Are all persons and entities who are in the so-called "chain of title" of solid
waste liablility for the actions of others in the chain? As an example, would the owner and
operator of a landfill have any- legal liability for environmental or other damages resulting
from the generator or collection of solid waste disposed in the landfill?
Short Answer: Yes, there is the potential for joint and several liability that may result in
one entity being responsible for the acts of another.
Discussion:
Liability under RCRA and CERCLA is "joint and several". U.S. v. Chem-Dvne Com., 572 F.
Supp. 802 (S.D. Ohio 1983); Waste Inc. Cost Recovery Group v. Allis Chalmers Corp., 51 F.
Supp. 936 (N.D.Ind. 1999); Aurora Nat'l Bank v. Tri Star Mkta.. Inc, 990.F. Supp. 1020 (N.D. IL
1998); Cox v. City of Dallas, 256 F.3d 281 (5th Cir. 2001). This means any person found liable
for environmental damages under these statutes is potentially liable for the entire
environmental harm even if others contributed to the harm. Thus, in your example, the owner
or operator of a landfill may be liable for costs of cleaning up pollution caused by solid wastes
generated or collected by others.
Liability under state law may also be joint and several. As discussed above, liability under the
Solid Waste Facilities Act and DEQ's Solid Waste Rules generally imposes liability for
compliance on the owner and operator of the landfill or other solid waste disposal facility.
These laws impose an obligation for the owner/operator to respond to a release of pollutants
from the landfills or other facilities regardless of the source of the waste released. See e.g.,
Idaho Code §§ 39-7412 and 7414. Thus, the owner/operator is liable for releases caused by
solid waste generated, collected or transported to the landfill or other facility by others.
IV. Question 4: Are there ways to eliminate or reduce the risk of legal liability between and
among the various persons and entities in the chain of title?
Short Answer: The best method of limiting liability is to comply with state and federal
laws regulating the handling, treatment and disposal of solid wastes. Parties involved in the
handling of solid waste may also limit their liability by entering into indemnification agreements
in which liability is allocated and/or one party agrees to indemnify the other for damages in the
event of a lawsuit or other claim involving solid waste. Such an agreement will not, however,
The Honorable Debbie S. Field
January 19, 2004
Page 7
prevent an action by the state or federal government.
Discussion:
Contracts shifting or allocating liability have been found valid and effective between the
contracting persons or entities, but will not be effective against state or federal enforcement.
42 U.S.C. § 9607; Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir.
1994); Marden Corp v. C.G.C. Music Ltd., 804 F.2d 1454 (9th Cir 1986); Jones Hamilton Co. v.
Beazer Materials & Services, Inc., 973 F.2d 688 (9t" Cir. 1992).. Therefore, a city and a county
could, for example, enter into a contract allocating liability in the event of environmental
damages resulting from the operation of a landfill. While such a. contract will not prevent an
enforcement action by federal or state authorities, it may be effective in allocating
responsibilities between the city and the county.
Very truly yours,
-10
William A. von Tagen
Division Chief
Intergovernmental & Fiscal
WAT/ss
CENTRA
c o n s u I t l n g Inc
March 23, 2004
CENTRA Consulting, Inc.
300 South Appaloosa St.
Boise, Idaho 83709
Telephone: (208) 377-9855 CeII: (208) 484-6751
Fax: (208) 377-0358
central (cr�,earthlink.net
Ada County Board of Commissioners
200 W. Front Street
Boise, Idaho 83702
RE: Comments on the Ada County Landfill alternatives
Dear Commissioners:
Thank you for the opportunity to provide comments on the future Ada County
solid waste disposal options currently being considered. I have attempted to offer
information germane to the landfill discussion and have tried to raise some
important questions to which you may not be getting full and accurate answers.
As you are aware, the Ada County Board of Commissioners has decided that
expanding the existing landfill is the preferred option because it provides the
least amount of environmental/public health risk, least amount of liability, most
control and lowest cost. These criteria including the County's approach to risk
assessment are discussed below.
ENVIRONMENTAL RISK
Using both the EPA DRASTIC Groundwater Index and the IDEQ Sensitivity
Analysis, the Hidden Hollow Landfill expansion proposal rates as the worst option
from an environmental (groundwater) perspective. The Idaho Waste Systems
facility rates as the best option. This conclusion is the result of a relative
comparison between the hydrogeologic conditions at the two sites. The gap
between these two alternatives is not even close. This assessment was
conducted by Washington Group International's Sean Vincent, Professional
Geologist (P.G.) and Certified Groundwater Professional who also has raised a
number of concerns regarding the County's assertions pertaining to the Hidden
Hollow facility.
It has been suggested in County presentations that siting a landfill close to
groundwater is desirable because you find out right away if you have a problem
and can begin remediation efforts. This logic seems strange to me. In my view,
finding out that 'you have a problem' is another way of saying that you have
violated Idaho's State Groundwater Rule and Regulations. It also means that
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you are now faced with expensive remediation costs for cleaning up the
groundwater and potential fines for groundwater contamination which both could
have been avoided had a site with better hydrogeologic conditions been selected
in the first place. All of my experience as well as that of many others in the
environmental arena suggests that close proximity and/or easy access to ground
water is a bad thing when siting landfills or other waste repositories. Depth to
groundwater is included as a variable for most if not all standardized risk
assessment analyses. A shallow water table is considered less protective of
human health and the environment than a deeper water table in every risk
assessment guidance document and associated risk assessment computer
program that I am aware of.
The County has concluded that the existing groundwater contamination problem
at Hidden Hollow Landfill is due to vapor transport from the landfill and not due to
leachate contaminants. The County has also asserted that the installation of a
vapor extraction system will clean up the problem in a few years. While the
possibility of a vapor halo impacting groundwater may exist, the fact is that there
are no studies or reports on record with the Idaho Department of Environmental
Quality that support such conclusions and considerable doubt exists among
qualified groundwater professionals with respect to the County's assertions.
The existing groundwater contamination at Hidden Hollow Landfill may be due to
vapor transport, it may be the result of leachate or it may be a combination of the
two. Unfortunately, the County may well be several hundred thousand dollars
worth of studies away from being able to support such a claim, if at all. Further, it
is hard to conclude (impossible really) that a vapor extraction system would be
able to remove all of the volatile organic compounds currently impacting the
groundwater at the site within any reasonable timeframe. I cannot understand
how these assertions can be made absent the necessary scientific rigor to
support them. I urge you to insist on a comprehensive, professional assessment
of this risk assumption if you plan to continue using it in your decision-making
model.
Another concern is the presence of geologic faults at the Hidden Hollow facility.
In a report entitled "Well Construction and Hydrogeological Characterization
of the Groundwater Remediation Site — Ada County Hidden Hollow Landfill"
(CH2M HILL, March 1998), it is noted that "Faults have been mapped in the
Idaho Group sediments by Othberg and Stanford (1992) and Beck (1989). A
fault investigation was performed by CH2M HILL in September 1995 (CH2M
HILLa) * During that investigation, north -south trending, dip -slip faults were
mapped in exposures at the landfilr. This is an undesirable characteristic which
adds to risk because faults complicate the hydrostratigraphy and these faults are
conceivably still active. Thus, in addition to close proximity to groundwater and
rapid aquifer recharge due to high permeability among other detriments, one
must also contend with the potential of "structurally (fault) controlled groundwater
flow paths" (CH2M HILL, 2003) at the Hidden Hollow site.
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Steve Cory, Professional Engineer (P.E.) of Washington Group International
evaluated the air quality impacts comparing expansion vs. moving future
solid waste and landfilling operations to the IWS facility. His calculations indicate
annual reductions in air pollution (roughly 26 tons of PM10, 6.6 tons of PM 2.5,
5.7 tons of carbon monoxide, 27 tons of non -methane organic carbon, 13,500
tons of methane and other pollutants) would be achieved by taking the waste to
IWS. This would be pollution removed from the former non -attainment area and
seems to be generally a good thing for air quality. His approach was reviewed
and supported by air quality staff at IDEQ in both the State and Regional offices
who are intimately familiar with the Treasure Valley Airshed. The County has
dismissed his work as incorrect with no technical justification provided for that
decision. How is the County able to dismiss these calculations without proper
scientific review?
Given the air quality estimates and ground water concerns, I really cannot
understand how the County is able to conclude that the Hidden Hollow expansion
is the option posing the lowest environmental and public health risk for Ada
County and its citizenry. It seems the bulk of scientific evidence to the contrary is
more than sufficient to allow one to conclude the IWS facility presents the lowest
risk in the environmental and public health domains.
LIABILITY
The Idaho Attorney General's office wrote an opinion stating that liability for
environmental clean up costs could be reduced if the County or a municipality
entered into an indemnification agreement with a private company as part of a
contract for solid waste disposal. That opinion was supported by
attorney(s) Kevin Beaton, (Stoel Rives, LLP) and Ken McClure, (Givens Pursley,
LLP) and presented to the Ada County Board. In fact, in a March 5, 2003
meeting with the Board, Mr. McClure went on to say that it would be hard for him
to imagine why the County would not pursue such an agreement to reduce the
liability to Ada County residents if had the opportunity to do so.
Given this, I cannot understand how the County is able to conclude that the
Hidden Hollow expansion presents the best option for reducing environmental
liability and subsequent clean up costs?
CONTROL
I acknowledge that control is a legitimate concern. However, that is an issue that
can be addressed through contract law. It may be possible to exert even more
control through a contract than could be exercised at a County or City -owned
facility. This approach has worked very well at hundreds, if not thousands, of
solid waste facilities throughout the country. I understand that the County
believes they will have more control through ownership of the facility and thereby
reduce the risk of future clean up costs. However, the existing control through
ownership scenario hasn't avoided ongoing clean up costs of the Hidden Hollow
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Landfill ground water contamination problem. Further, case law is full of
examples of County and City owned landfills that have incurred enormous
expense for clean up of facilities under their "control". Thus, I cannot understand
the rationale for concluding that control ownership is preferable and that control
issues cannot be resolved through a contract for solid waste disposal with
a private company.
RISK ASSESSMENTIANALYSIS
The County has conducted a risk analysis and developed a 'risk continuum' that
suggested expansion of the existing landfill presented the lowest risk of the
available options. In developing the 'risk continuum', the County considered
factors such as liability, control and cost. The issues of liability and control have
been discussed previously and I confess to the same confusion. I believe the
assumptions utilized with respect to these criteria are speculative at best and
they fail to adequately assess the likelihood of human exposure based on the
close proximity of potential human receptors down gradient of the site.
Conversely, the lack of potential human receptors is a major advantage of the
IWS site from a human health perspective.
Further and as a student of public health and environmental risk assessment, I
am shocked to find that cost is a County consideration in developing the 'risk
continuum'. First of all, cost, lower or higher, has nothing to do with risk
assessment in the environmental or public health arena. It is a factor in risk
management. To equate lower cost with less risk (as was done in this exercise),
has the effect of misleading the public with respect to actual risk and may well
result in increased risk as a result or erroneously selecting a more risky (albeit
Tess costly) altemative. I cannot understand how the County is able to conclude
that expanding the Hidden Hollow site presents the least risk to Ada County
citizens and must strongly challenge the underlying assumptions in the County's
landfill site risk assessment model.
COSTS
I cannot understand how the County arrived at cost estimates for the various
options and have serious concerns about their accuracy. That view is shared by
numerous P.E.s, PhDs and other professionals who have reviewed the County's
proposal. In my opinion, failure to consider ongoing private efforts to site and
build transfer stations, discrepancies in tipping fees and failure to include such
things as land costs, inflation, etc., are obvious omissions in the analyses.
Having not yet provided a thorough assessment of the problem, I cannot
understand how the County is able to conclude that the expansion is the lowest
cost alternative.
As a solution, I urge you to consider negotiating with IWS for a long term solid
waste disposal agreement using Ada County's existing costs for disposal as the
basis for discussions. This would seem to resolve the ongoing cost debate with
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respect to the IWS alternative as well as resolve the environmental and public
health concerns faced by the Hidden Hollow Landfill expansion scenario.
Another issue is raised by the County's desire to explore siting and building
another large landfill with BFI near Black's Creek Reservoir in eastem Ada
County. The proposed site is still within the former Northern Ada County non -
attainment area and thus will not yield the desired air quality improvements to the
airshed. Further, not much is known about the site's hydrogeology and its close
proximity to surface water bodies (Black's Creek, Black's Creek Reservoir, and
Indian Creek) will pose significant regulatory challenges to overcome. Most
importantly, at least from a public and environmental policy perspective, it is
difficult to justify building a new, `mega' landfill within a stone's throw of an
existing mega landfill that would easily meet the County's needs. Support for
building a new landfill when other viable options are available runs counter to
contemporary thought and policies pertaining to solid waste disposal. With a
permitted capacity of 210 million tons, IWS is able to accommodate Ada County's
solid waste disposal requirements for the next 100 years and beyond. Using the
IWS facility would allow the proposed BFI site(s) to remain available for
recreation and development potential rather than increasing public health and
environmental risk through siting another landfill in the area.
In closing, it is obvious there are serious gaps and questionable analyses that
remain unaddressed in this important matter. I encourage you to keep the matter
open until you receive answers and are satisfied with responses to these issues.
I appreciate your willingness to consider these concerns and we look forward to
assisting in resolving Ada County's solid waste disposal challenge.
Sin
tepn E. West, President
CENTRA Consulting, Inc.
• CH2M HILL, Inc. 1995a. Fault Investigation, Ada County Hidden
Hollow Landfill, September 1995.
• CH2M Hill, Inc. July, 2003. Ada County Hidden Hollow Landfill
Groundwater Remediation Update.
Cc: Boise City Council
Eagle City Council
Garden City Council
Kuna City Council
Meridian City Council
Star City Council
Idaho Waste Systems, Inc.
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